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As filed with the Securities and Exchange Commission on January 31, 1996
Securities Act File No. 33-65293
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 1 to
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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XTRA CORPORATION XTRA MISSOURI, INC. XTRA, INC.
(Exact Names of Registrants as Specified in Their Charters)
DELAWARE DELAWARE MAINE
(States or Other Jurisdictions of Incorporation or Organization)
06-0954158 43-1689298 01-0346274
(I.R.S. Employer Identification Nos.)
For XTRA, Inc. and XTRA Corporation: c/o X-L-CO., INC., 60 State Street,
Boston, Massachusetts 02109 (617) 367-5000; For XTRA MISSOURI, INC.,
3 Oaks Plaza Building, 8 Victory Lane, Liberty, Missouri 64068 (816) 792-8500
(Address, including zip code and telephone number, including area code, of
registrants' principal executive offices)
--------------
MICHAEL K. FOX
JAMES R. LAJOIE, ESQ. PRESIDENT
VICE PRESIDENT AND GENERAL COUNSEL XTRA MISSOURI, INC.
C/O X-L-CO., INC. 3 OAKS PLAZA BUILDING
60 STATE STREET, 8 VICTORY LANE
BOSTON, MASSACHUSETTS 02109 LIBERTY, MISSOURI 64068
(617) 951-7000 (816) 792-8500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
DAVID A. FINE, ESQ. ROBERT W. REEDER, ESQ.
Ropes & Gray Sullivan & Cromwell
One International Place 250 Park Avenue
Boston, MA 02110 New York, NY 10177
(617) 951-7000 (212) 558-4000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effectiveness of this Registration Statement.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
<PAGE> 2
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included herein also relates to a total of $97,000,000 of Debt Securities of
XTRA, Inc., guaranteed by XTRA Corporation and XTRA Missouri, Inc., that are
registered under Registration Statement No. 33-54747, which was declared
effective on August 3, 1994 and was amended by a Post Effective Amendment No. 1
thereto on February 21, 1995.
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The Registrants hereby amend this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrants shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to
Section 8(a), may determine.
-2-
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION,
DATED JANUARY 31, 1996.
$752,000,000
XTRA CORPORATION
PREFERRED STOCK AND COMMON STOCK
XTRA, INC.
DEBT SECURITIES
GUARANTEED AS TO PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST BY
XTRA CORPORATION
AND
XTRA MISSOURI, INC.
------------------------
XTRA Corporation may offer and sell from time to time, together or
separately, (i) shares of its Preferred Stock, no par value (the "Preferred
Stock"), in one or more series, and/or (ii) shares of its Common Stock, par
value $0.50 per share (the "Common Stock"), and XTRA, Inc., a wholly-owned
subsidiary of XTRA Corporation, may offer and sell from time to time its debt
securities (the "Debt Securities"), which may be either senior debt securities
("Senior Securities") or subordinated debt securities ("Subordinated
Securities"), consisting of unsecured debentures, notes and/or other evidences
of its indebtedness in one or more series at prices and on terms to be
determined at the time or times of sale. XTRA Corporation and XTRA Missouri,
Inc. (the "Guarantors") will unconditionally guarantee on a senior or
subordinated basis, as the case may be, the payment of principal of, premium,
if any, and interest on the Debt Securities (the "Guarantees"). The Debt
Securities, Preferred Stock, Common Stock and Guarantees are referred to herein
collectively as the "Securities." The aggregate initial offering price of the
Securities will not exceed $752,000,000 (or its equivalent (based on the
applicable exchange rate at the time of sale) in one or more foreign
currencies, currency units or composite currencies as shall be designated by
XTRA Corporation or XTRA, Inc., as the case may be).
For each offering of Securities for which this Prospectus is being
delivered, there will be an accompanying Prospectus Supplement (each a
"Prospectus Supplement") that sets forth (i) the specific designation, aggregate
principal amount, denominations, currency of payment, maturity, premium, if any,
interest rate, if any (which may be fixed or variable) or method of calculation
thereof, time of payment of any interest, terms for any redemption at the option
of XTRA, Inc. or the holder, terms for any sinking fund payments, subordination
provisions, if any, any listing on a national securities exchange, the form of
the Debt Securities (which may be in registered or permanent global form), the
initial public offering price and certain other terms of and in connection with
the offering and sale of the Debt Securities in respect of which this Prospectus
is being delivered; (ii) the terms of the Guarantees in respect of which this
Prospectus is being delivered; (iii) the specific series designation, number of
shares, the stated value and liquidation preference per share, initial public
offering price, dividend rate (or method of calculation), dates on which
dividends will be payable and dates from which dividends will accrue, optional
or mandatory redemption or sinking fund provisions, any conversion or exchange
rights, any listing of the Preferred Stock on a national securities exchange,
any voting rights and any other terms in connection with the offer and sale of
the Preferred Stock, if any, in respect of which this Prospectus is being
delivered; and (iv) the number of shares and initial public offering price of
the Common Stock in respect of which this Prospectus is being delivered. The
Prospectus Supplement will also contain information, as applicable, about
material United States Federal income tax considerations relating to the
Securities in respect of which this Prospectus is being delivered. See
"Description of Debt Securities of XTRA, Inc.," "Description of Preferred Stock
of XTRA Corporation" and "Description of Common Stock of XTRA Corporation."
The Senior Securities of XTRA, Inc. will rank equally with all other
unsubordinated and unsecured indebtedness of XTRA, Inc. The Subordinated
Securities will be subordinated to all existing and future Senior Indebtedness
(as defined) of XTRA, Inc. and the Guarantees of the Subordinated Securities
will be subordinated to all existing and future Senior Guarantor Indebtedness
(as defined) of XTRA Corporation and XTRA Missouri, Inc.
XTRA Corporation's Common Stock is listed on the New York Stock Exchange
under the symbol "XTR." Any Common Stock offered will be listed, subject to
notice of issuance, on such exchange.
The Securities may be sold to or through underwriters, and also may be sold
directly by XTRA Corporation or XTRA, Inc. to other purchasers or through
agents. See "Plan of Distribution." The names of and the principal amounts to be
purchased by any underwriters or sold through any agents and the compensation of
such underwriters or agents will be set forth in an accompanying Prospectus
Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
------------------------
The date of this Prospectus is ________ __, 1996.
<PAGE> 4
AVAILABLE INFORMATION
XTRA Corporation ("XTRA" or the "Company") is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information filed by the Company can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
Commission's regional offices at 7 World Trade Center, 13th Floor, New York, New
York 10048, and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661, and copies of such material can be obtained by mail from the
Public Reference Section of the Commission, 450 Fifth Street, N.W., Washington,
D.C. 20549, at prescribed rates. In addition, such material may also be
inspected at the offices of the New York Stock Exchange, Inc. (the "NYSE"), 20
Broad Street, New York, New York 10005, upon which exchange the Company's Common
Stock is listed.
XTRA, Inc., XTRA Missouri, Inc. and the Company have filed with the
Commission a joint registration statement on Form S-3 (herein, together with all
amendments and exhibits, referred to as the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"). This Prospectus does
not contain all of the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules and regulations
of the Commission. For further information reference is hereby made to the
Registration Statement.
------------------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission (File No. 1-7654)
pursuant to the Exchange Act are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1995;
2. The Company's Current Report on Form 8-K dated June 20, 1995.
3. The Company's Current Report on Form 8-K dated January 29, 1996.
4. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 10 dated July 1, 1964, including
any amendments or reports filed for the purpose of updating such
description; and
5. All other documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering of the
Securities offered hereby.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the request of any such person, a copy of any or
all of the documents that are incorporated herein by reference other than the
exhibits to such documents (unless such exhibits are specifically incorporated
by reference into such documents). Requests for such copies should be directed
to the Company c/o its management subsidiary, X-L-CO., INC., at 60 State Street,
Boston, Massachusetts 02109, Attention: Investor Relations, telephone (617)
367-7810.
THE COMPANY
The Company is engaged in freight transportation equipment leasing and
conducts its operations through its indirect subsidiary, XTRA, Inc. The
Company's leasing equipment is offered in North America, predominantly in the
United States, to private fleet owners, contract and common carriers and
railroads, and to worldwide steamship lines to cover cyclical, seasonal or
geographic shortages and as a substitute for purchasing equipment. The Company's
operating subsidiaries lease, primarily on an operating basis, over-the-road
trailers (as well as older trailers for mobile storage use), intermodal
trailers, chassis and domestic containers and marine containers.
The Company was organized in 1957 as a Massachusetts corporation. In
1976 it transferred substantially all of its operating assets to XTRA, Inc., a
newly organized Maine corporation, and the Company was organized as a holding
company under the laws of the State of Delaware. XTRA Missouri, Inc., an
intermediate subsidiary between the Company and XTRA, Inc., is a holding company
for the stock of XTRA, Inc. and also holds and manages the Company's office
space for certain subsidiaries. XTRA, Inc. conducts its operations through its
subsidiaries pursuant to fleet management agreements. Under these management
agreements, which are terminable upon 30 days notice by either party, the
operating subsidiaries pay fees to XTRA, Inc. for the use of equipment owned by
XTRA, Inc. Accordingly, XTRA, Inc.'s primary source of revenues are payments
under the fleet management agreements, leasing revenues from transportation
equipment leased directly by it, as well as dividends and advances from its
subsidiaries. At September 30, 1995, 14% of XTRA, Inc.'s consolidated assets
were accounted for by its subsidiaries. For fiscal 1995, approximately 93% of
XTRA, Inc.'s consolidated revenues were accounted for by its subsidiaries.
The Company's management subsidiary, X-L-CO., INC., is located at 60
State Street, Boston, Massachusetts 02109, and its telephone number is (617)
367-5000.
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USE OF PROCEEDS
Except as otherwise described in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Securities being
offered hereby for general corporate purposes. Such purposes may include, among
others, financing capital expenditures, repayment of outstanding short-term
borrowings and long-term debt, repurchasing shares of its Common Stock through
open-market purchases or otherwise and financing acquisitions in transportation
equipment or other equipment leasing product lines. Pending such use, the net
proceeds of any offering of the Securities offered hereby may be invested
temporarily in short-term marketable securities.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND
CONSOLIDATED RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following tables set forth the historical ratios of earnings to fixed
charges of the Company and its consolidated subsidiaries, of XTRA Missouri, Inc.
and its consolidated subsidiaries, and of XTRA, Inc. and its consolidated
subsidiaries and the historical ratio of earnings to combined fixed charges and
preferred stock dividends of the Company and its consolidated subsidiaries for
the years indicated. For purposes of computing the consolidated ratios of
earnings to fixed charges and consolidated ratio of earnings to combined fixed
charges and preferred stock dividends, "earnings" represent income (loss) from
continuing operations before taxes and extraordinary items plus fixed charges.
"Fixed charges" for continuing operations consist of interest on indebtedness
(including capitalized interest) and the portion of rental expense that
represents interest.
<TABLE>
XTRA CORPORATION
<CAPTION>
FISCAL YEAR ENDED SEPTEMBER 30,
-------------------------------------------
1991 1992 1993 1994 1995
------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges......................... 1.8X 2.7X 2.6X 3.7X 3.3X
Ratio of Earnings to Combined
Fixed Charges and Preferred
Stock Dividends................. 1.5X 2.1X 2.2X --* --*
<FN>
- ---------------
* No shares of the Company's Preferred Stock are currently outstanding or were outstanding during the indicated period.
</TABLE>
3
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<TABLE>
<CAPTION>
XTRA, INC.
FISCAL YEAR ENDED SEPTEMBER 30,
-------------------------------------------
1991 1992 1993 1994 1995
------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges......................... 1.8X 2.7X 2.6X 3.7X 3.3X
</TABLE>
<TABLE>
<CAPTION>
XTRA MISSOURI INC.
FISCAL YEAR ENDED SEPTEMBER 30,
-------------------------------------------
1991 1992 1993 1994 1995
------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges......................... -- -- -- 3.7X 3.3X
</TABLE>
DESCRIPTION OF DEBT SECURITIES OF XTRA, INC.
The following description sets forth certain general terms and provisions
of the Debt Securities of XTRA, Inc. to which any Prospectus Supplement may
relate. The particular terms of the Debt Securities offered by any Prospectus
Supplement and the extent, if any, to which such general provisions may apply to
the Debt Securities so offered will be described in the Prospectus Supplement
relating to such Debt Securities.
The Debt Securities constitute either Senior Securities or Subordinated
Securities. The Senior Securities and related Guarantees are to be issued under
an Indenture dated as of August 15, 1994 (the "Original Senior Indenture"),
among XTRA, Inc., the Company, as Guarantor, and The First National Bank of
Boston, as Trustee (the "Bank of Boston"), as supplemented by the First
Supplemental Indenture dated as of September 30, 1994 among XTRA, Inc., the
Company, as Guarantor, XTRA Missouri, Inc., as Guarantor, and the Bank of
Boston (together with the Original Senior Indenture, the "Senior Indenture"),
which Senior Indenture is incorporated by reference as an exhibit to this
Registration Statement. On October 2, 1995, State Street Bank and Trust
Company succeeded to all or substantially all of the corporate trust business
of the Bank of Boston, thereby becoming the successor Trustee pursuant to the
terms of the Senior Indenture (hereinafter the "Senior Trustee"). The
Subordinated Securities and related Guarantees will be issued under an
Indenture (the "Subordinated Indenture") to be entered into among XTRA, Inc.,
the Company, as Guarantor, XTRA Missouri, Inc., as Guarantor and a trustee to
be designated prior to the issuance of any such Subordinated Securities, the
form of which Subordinated Indenture is also filed as an exhibit to the
Registration Statement. Information regarding the trustee (the "Subordinated
Trustee") under the Subordinated Indenture will be included in any Prospectus
Supplement relating to such Subordinated Securities. The Senior Indenture and
the Subordinated Indenture are sometimes collectively referred to herein as the
"Indentures;" the Senior Trustee and the Subordinated Trustee are sometimes
collectively referred to herein as the "Trustees" and individually as a
"Trustee." The following summary of certain provisions of the Indentures does
not purport to be complete and is subject to, and qualified in its entirety by
reference to, all the provisions of the Indentures, including the definitions
therein of certain terms. Wherever particular provisions of defined terms of
the Indentures are referred to, such provisions or defined terms are
incorporated herein by reference. Certain defined terms in the Indentures are
capitalized herein. References in parentheses are to the Indentures.
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GENERAL
The Indentures provide that unsecured Debt Securities of XTRA, Inc., not
limited in aggregate principal amount, may be issued in one or more series
thereunder. (Section 3.1) As of December 21, 1995, XTRA, Inc. had a total of
$355,000,000 principal amount of Debt Securities outstanding under the Senior
Indenture, consisting solely of its Series C Medium-Term Notes. The Senior
Securities will be unsecured obligations of XTRA, Inc. and will rank on a
parity with all other unsecured and unsubordinated indebtedness of XTRA, Inc.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Subordinated Securities will be unsecured and subordinated in right of payment
to all existing and future Senior Indebtedness of XTRA, Inc., in the manner and
to the extent described below under "Subordination of Subordinated Securities."
XTRA, Inc.'s sources of payment of the Debt Securities are payments under fleet
management agreements with certain of its subsidiaries, leasing revenues from
transportation equipment leased directly by it and advances and dividends from
its subsidiaries. In any liquidation, foreclosure or other similar proceeding,
creditors of the subsidiaries of XTRA, Inc. will be entitled to payment of
obligations owed to them before any assets are distributed to XTRA, Inc. See
"The Company."
The Debt Securities will be unconditionally guaranteed by the Guarantors as
to payment of principal, premium, if any, and interest, except that the
Subordinated Securities will be guaranteed on a subordinated basis. (Section
2.2) See "Guarantees."
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities offered thereby for the following terms thereof, among
others: (1) the title of such Debt Securities; (2) any limit upon the aggregate
principal amount of such Debt Securities; (3) the person to whom any interest on
such Debt Securities shall be payable if other than the registered holder; (4)
the date or dates on which such Debt Securities will mature; (5) the rate or
rates at which such Debt Securities shall bear interest, if any, or the method
by which such rate or rates shall be determined; (6) the date or dates from
which any such interest shall accrue, and the Interest Payment Dates on which
payment of any such interest will be payable and the Regular Record Dates for
such Interest Payment Dates (or method for establishing any such date or dates);
(7) the place or places where the principal of, premium, if any, and any
interest on such Debt Securities shall be payable; (8) the period or periods
within which, the price or prices at which, and the terms and conditions upon
which such Debt Securities may be redeemed, in whole or in part, at the option
of XTRA, Inc.; (9) the obligation, if any, of XTRA, Inc. to redeem, repay or
purchase such Debt Securities pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods within
which, the price or prices at which, and the terms and conditions upon which
such Debt Securities shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation; (10) the denominations in which any debt
securities will be issuable, if other than denominations of $1,000 and any
integral multiple thereof; (11) if other than U.S. dollars, the currency,
currencies or currency unit or units in which principal of, premium, if any, and
interest on such Debt Securities shall be payable and the manner of determining
the equivalent thereof in the currency of the United States for any purpose;
(12) if the principal of or any premium or interest on such Debt Securities is
to be payable, at the election of XTRA, Inc. or a Holder thereof, in one or more
currencies or currency units other than that or those in which such Debt
Securities are stated to be payable, the currency, currencies or currency units
in which payment of the principal of and any premium and interest on Debt
Securities of such series as to which such election is made shall be payable,
and the period or periods within which and the terms and conditions upon which
such election is to be made; (13) the index or formulas, if any, with reference
to which the amount of any payment of principal of, premium, if any, or interest
on the Debt Securities will be determined; (14) the portion of the principal
amount of such Debt Securities which will be payable upon declaration of
acceleration of the Maturity thereof, if other than the stated principal amount
thereof; (15) if the principal amount payable at the Stated Maturity of any of
the Debt Securities will not be determinable as of any one or more dates prior
to the Stated Maturity, the amount which will be deemed to be such principal
amount as of any such date for any purpose, including the principal amount
thereof which will be due and payable upon any Maturity other than the Stated
Maturity or which will be deemed to be Outstanding as of any such date (or, in
any such case, the manner in which such deemed principal amount is to be
determined); (16) the applicability of any provisions described under "Certain
Covenants of XTRA, Inc. and the Guarantors" and any additional restrictive
covenants included for the benefit of Holders of such Debt Securities; (17) any
additional Events of Default with respect to such Debt Securities; (18) whether
such Debt Securities shall be issued, in whole or in part, in permanent global
form (each a "Global Security") and, in such case, the Depositary for such
Global Security
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or Securities; (19) in the case of an issue of Subordinated Securities, the
subordination provisions, if different from those described under "Subordination
of Subordinated Securities" and "Guarantees" below; (20) the applicability of
any provisions described below under "--Defeasance," and (21) any other terms of
such Debt Securities not inconsistent with the provisions of the Indentures.
(Sections 3.1 and 9.1)
Principal, premium, if any, and interest will be payable, and such Debt
Securities will be transferable, in the manner described in the Prospectus
Supplement relating to such Debt Securities. The maturities and interest rates
of certain Debt Securities sold through underwriters or agents may be fixed by
XTRA, Inc. from time to time, in which case no specific maturities or rates, but
rather permissible ranges of such maturities and rates will be set forth in the
Prospectus Supplement relating thereto.
Unless otherwise indicated in the Prospectus Supplement relating
thereto, the Debt Securities will be exchangeable and transfers thereof will be
registrable at the offices or agencies of XTRA, Inc. maintained for such
purpose, initially in the case of the Senior Securities at the Corporate Trust
Office of the Senior Trustee in Boston, Massachusetts. In New York City, Senior
Securities may be presented for transfer or exchange at the office of the
Senior Trustee located at 61 Broad Street, Concourse Level, Corporate Trust
Window, New York, New York 10006. Principal of and premium, if any, and
interest on the Senior Securities will be payable at the office or agency in
Boston, Massachusetts of State Street Bank and Trust Company, as Paying Agent,
provided that, at the option of XTRA, Inc., payment of interest may be made by
check mailed to the address of the Person entitled thereto as it appears in the
Security Register. (Sections 3.1, 3.5 and 10.2) The offices or agencies of
XTRA, Inc. at which exchanges and transfers of Subordinated Securities will be
registrable and the office or agency of any Paying Agent with respect to the
Subordinated Securities will be identified in the Prospectus Supplement
relating thereto.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Debt Securities will be issued only in registered form, without coupons, in
denominations of $1,000 or any integral multiple thereof. (Section 3.2) No
service charge will be made for any transfer or exchange of the Debt Securities,
but XTRA, Inc. may require payment of a sum sufficient to cover any tax or other
governmental charge in connection therewith. (Section 3.5) The Indentures also
provide that the Debt Securities of any series, if so specified with respect to
a particular series, may be issued in permanent global form. See "Global
Securities."
Debt Securities may be issued at a discount from their stated principal
amount. United States Federal income tax considerations and other special
considerations applicable to any such Original Issue Discount Securities will be
described in the applicable Prospectus Supplement. "Original Issue Discount
Security" means any security which provides for an amount less than the stated
principal amount thereof to be due and payable upon the declaration of
acceleration of the maturity thereof upon the occurrence and continuance of an
Event of Default. (Section 1.1)
If the purchase price of any of the Debt Securities is denominated in a
foreign currency or currencies or a foreign currency unit or units or if the
principal of and any premium and interest on any series of Debt Securities is
payable in a foreign currency or currencies or a foreign currency unit or units,
the restrictions, elections, general tax considerations, specific terms and
other information with respect to such issue of Debt Securities and such foreign
currency or currencies or foreign currency unit or units will be set forth in
the applicable Prospectus Supplement. If any index is used to determine the
amount of payments of principal of, premium, if any, or interest on any series
of Debt Securities, special Federal income tax, accounting and other
considerations applicable thereto will be described in the applicable Prospectus
Supplement.
Other than as set forth under "Certain Covenants of XTRA, Inc. and the
Guarantors," and only to the extent applicable to the Debt Securities of a
particular series, as indicated in the applicable Prospectus Supplement, there
are no provisions of the Indentures that afford Holders of the Debt Securities
protection in the event of a highly leveraged transaction involving XTRA, Inc.
or the Guarantors.
SUBORDINATION OF SUBORDINATED SECURITIES
The indebtedness evidenced by the Subordinated Securities will be
subordinated and junior in right of payment to the extent set forth in the
Subordinated Indenture to the prior payment in full of amounts then due on all
Senior Indebtedness (as defined below). No payment shall be made on the
Subordinated Securities,
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including by way of redemption, purchase, or in any other manner, if the
Subordinated Trustee shall have received notice from XTRA, Inc., the Guarantors
or any Senior Lender (as defined below), that (i) there exists a default which
shall be continuing in the payment of principal of, or premium, if any, or
interest on any Senior Indebtedness, beyond any applicable grace period with
respect thereto, or (ii) there exists a default (other than a default specified
in clause (i) above) with respect to any Senior Indebtedness which shall be
continuing; provided, however, that no notice given with respect to one or more
defaults of the type specified in clause (ii) shall suspend for longer than 180
days from the date of such notice any payment on Subordinated Securities that
has become due, and only one such notice may be given during any 360-day period.
Upon any distribution of assets of XTRA, Inc. upon any liquidation,
dissolution or other winding-up of XTRA, Inc. whether voluntary or involuntary,
or in bankruptcy or insolvency, all principal of, premium, if any, and interest
due upon all Senior Indebtedness must be paid in full before the Holders of the
Subordinated Securities or the Subordinated Trustee are entitled to receive or
retain any assets so distributed in respect of the Subordinated Securities. By
reason of this provision, in the event of insolvency, Holders of the
Subordinated Securities may recover less, ratably, than other creditors of XTRA,
Inc., including holders of Senior Indebtedness.
Subject to payment in full of all Senior Indebtedness of XTRA, Inc., the
rights of Holders of the Subordinated Securities will be subrogated to the
rights of holders of Senior Indebtedness to receive payments or distributions of
cash, property or securities of XTRA, Inc. applicable to Senior Indebtedness.
"Senior Indebtedness" means the principal of, premium, if any, and interest
on (a) all indebtedness of XTRA, Inc. (including indebtedness of others
guaranteed by XTRA, Inc.), other than the Subordinated Securities, which is (i)
for money borrowed or (ii) evidenced by a note or similar instrument given in
connection with the acquisition of any business, properties or assets of any
kind or in connection with the obtaining of financing, and (b) amendments,
renewals, extensions, modifications and refundings of any such indebtedness or
obligation, in any such case whether outstanding on the date of the Subordinated
Indenture or thereafter created, incurred or assumed, unless in any case in the
instrument creating or evidencing any such indebtedness or obligation or
pursuant to which the same is outstanding it is provided that such indebtedness
or obligation is not superior in right of payment to the Subordinated Securities
or it is provided that such indebtedness or obligation is subordinated to Senior
Indebtedness to substantially the same extent as the Subordinated Securities are
subordinated to Senior Indebtedness. The term "Senior Lender" shall mean any
holder of Senior Indebtedness or Senior Guarantor Indebtedness (as defined below
under "Guarantees").
The Subordinated Indenture places no limitation on the amount of additional
Senior Indebtedness or Senior Guarantor Indebtedness that may be incurred by
XTRA, Inc., XTRA Missouri, Inc. or the Company. XTRA, Inc., XTRA Missouri, Inc.
and the Company expect from time to time to incur additional indebtedness
constituting Senior Indebtedness and Senior Guarantor Indebtedness. As of
December 31, 1995, the amount of Senior Indebtedness was approximately
$829,000,000 and the amount of Senior Guarantor Indebtedness was
approximately $829,000,000.
GUARANTEES
Each of the Company and XTRA Missouri, Inc. will unconditionally guarantee
the due and punctual payment of principal of, premium, if any, and interest on
the Debt Securities, when and as the same shall become due and payable, whether
at the maturity date, by declaration of acceleration, call for redemption or
otherwise, except that payments under the Guarantees of the Subordinated
Securities will be subordinated to Senior Guarantor Indebtedness to the extent
described below. The term "Senior Guarantor Indebtedness" means all obligations
of the Company or XTRA Missouri, Inc. under guarantees of Senior Indebtedness of
XTRA, Inc. No payment will be made by either Guarantor under the Guarantees in
respect of the Subordinated Securities during any period that payments by XTRA,
Inc. on the Subordinated Securities are suspended by the subordination
provisions of the Subordinated Indenture as described above under "Subordination
of Subordinated Securities." The Guarantees will remain in effect until the
entire principal of, premium, if any, and interest on the Debt Securities shall
have been paid in full or otherwise discharged in accordance with the provisions
of the Indentures. (Section 2.2)
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Upon any distribution of assets of the Company or XTRA Missouri, Inc. upon
any liquidation, dissolution or other winding up of the Company or XTRA
Missouri, Inc., whether voluntary or involuntary, or in bankruptcy or
insolvency, all amounts due in respect of all Senior Guarantor Indebtedness must
be paid in full before the Holders of the Guarantees of the Subordinated
Securities, or the Subordinated Trustee, are entitled to receive or retain any
assets so distributed in respect of the Guarantees of the Subordinated
Securities. By reason of this provision, in the event of insolvency, Holders of
the Subordinated Securities and the related Guarantees may recover less,
ratably, than other creditors of the Company or XTRA Missouri, Inc., including
holders of Senior Guarantor Indebtedness.
Subject to payment in full of all Senior Guarantor Indebtedness, the rights
of the Holders of the Subordinated Securities under the related Guarantees will
be subrogated to the rights of Holders of Senior Guarantor Indebtedness to
receive payments or distributions of cash, property or securities of the Company
or XTRA Missouri, Inc. applicable to Senior Guarantor Indebtedness.
The Company's sources of funds for payment of its obligations, including
its obligations under the Guarantees of the Debt Securities, are advances and
dividends from its subsidiary, XTRA Missouri, Inc. XTRA Missouri, Inc.'s sources
of funds for payment of its obligations, including its obligations under the
Guarantee of the Debt Securities, are advances and dividends from its
subsidiary, XTRA, Inc. See "Description of Common Stock of XTRA Corporation --
Holding Company Status."
GLOBAL SECURITIES
Some or all of the Debt Securities of any series may be represented, in
whole or in part, by one or more Global Securities which will have an aggregate
principal amount equal to that of the Debt Securities represented thereby. Each
Global Security will be registered in the name of a Depositary or a nominee
thereof identified in the applicable Prospectus Supplement, will be deposited
with such Depositary or nominee or a custodian therefor and will bear a legend
regarding the restrictions on exchanges and registration of transfer thereof
referred to below and any such other matters as may be provided for pursuant to
the Indenture.
No Global Security may be exchanged in whole or in part for Debt Securities
registered, and no transfer of a Global Security in whole or in part may be
registered, in the names of Persons other than the Depositary for such Global
Security or its nominee unless (i) such Depositary notifies XTRA, Inc. that it
is unwilling or unable to continue as Depositary for such Global Security or if
at any time such Depositary ceases to be a clearing agency registered under the
Exchange Act, (ii) there shall have occurred and be continuing an Event of
Default with respect to the Debt Securities, (iii) XTRA, Inc. executes and
delivers to the Trustee an order to the effect that the Global Securities shall
be transferable and exchangeable, or (iv) there shall exist such circumstances
in addition to, or in lieu of, the foregoing as may be described in the
applicable Prospectus Supplement. (Sections 3.1. and 3.5) Principal of, premium,
if any, and interest on a Global Security will be payable in the manner
described in the Prospectus Supplement relating thereto. The specific terms of
the depositary arrangements with respect to any portion of a series of Debt
Securities to be represented by a Global Security will be described in the
applicable Prospectus Supplement.
CERTAIN COVENANTS OF XTRA, INC. AND THE GUARANTORS
LIMITATION ON LIENS OF THE COMPANY AND XTRA MISSOURI, INC.
Neither the Company nor XTRA Missouri, Inc. will create or permit to exist
any mortgage, pledge, deed of trust or security interest on any of the capital
stock, or Indebtedness convertible into capital stock, of any of its
Subsidiaries. (Section 10.7)
LIMITATION ON LIENS OF XTRA, INC.
XTRA, Inc. will not create or permit to exist any mortgage, pledge, deed of
trust, financing lease or security interest ("Liens") on any of its property
whether now owned or hereafter acquired other than:
(i) Liens on Transportation Equipment securing Acquired Equipment
Indebtedness;
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(ii) Liens on Transportation Equipment securing Purchase Money
Equipment Indebtedness, but only on the Transportation Equipment in respect
to the purchase of which such Purchase Money Equipment Indebtedness shall
have been incurred;
(iii) Liens on real property;
(iv) Liens incurred or deposits made in the ordinary course of
business (1) in connection with workers' compensation, unemployment
insurance, social security and other like laws, or (2) to secure the
performance of letters of credit, bids, tenders, sales contracts, leases,
statutory obligations, surety, appeal and performance bonds and other
similar obligations not incurred in connection with Indebtedness or (3) in
connection with the opening of commercial letters of credit naming XTRA,
Inc. as an account party;
(v) Liens on Transportation Equipment securing Lease Obligations;
provided, however, that no such Lease Obligations shall arise out of the
Sale and Leaseback of Transportation Equipment unless the Sale and
Leaseback in question is entered into prior to, at the time of or within
180 days of the acquisition of the Transportation Equipment being sold and
leased back; and provided, further, that the leasing of Transportation
Equipment which has been remanufactured so that it is the substantial
equivalent of new equipment shall be considered the leasing of new
equipment and not of the used equipment which was remanufactured and
subsequently sold and leased back; and
(vi) Liens to secure Indebtedness and other obligations (excluding
Subordinated Indebtedness) which are not referred to as permitted Liens in
paragraphs (i), (ii), (iii), (iv) and (v) above; provided, however, that
the aggregate principal amount of Indebtedness and other obligations
secured thereby at any one time outstanding shall not exceed 10% of the
Consolidated Net Worth of XTRA, Inc.;
unless prior to or simultaneously with the inception of any such Lien which is
not referred to as a permitted Lien in paragraph (i), (ii), (iii), (iv), (v) or
(vi) above, XTRA, Inc. shall have executed and delivered to a Security Trustee
(as hereinafter defined), a security agreement or security agreements and such
other documents as the Security Trustee may reasonably request, each in form and
substance satisfactory to the applicable Trustee, granting to the Security
Trustee a security interest in such property subject to such Lien, such security
interest to be for the equal and ratable benefit of the Holders and such other
holder or holders of Indebtedness with which XTRA, Inc. has agreed to permit
such holders to share in such Lien. Such security agreement or security
agreements may provide, at the option of XTRA, Inc., that the security interest
granted to the Security Trustee thereby shall terminate upon the termination of
all other Liens for the benefit of such other holder or holders of Indebtedness.
The Security Trustee shall be such Person as may be selected by XTRA, Inc. or
any holder of Indebtedness to whom XTRA, Inc. has specifically granted the right
to select such Security Trustee and who shall be entitled to act without
qualification or who, if required, shall qualify to act as such under the Trust
Indenture Act of 1939. (Section 10.8)
CERTAIN DEFINITIONS USED IN THE INDENTURES
"Acquired Equipment Indebtedness" of a Person is defined to mean all
Indebtedness (including all Lease Obligations) of the Person in question if such
Indebtedness (a) is Secured Equipment Indebtedness and (b) was incurred by
another Person prior to the time the Person in question acquired the
Transportation Equipment or Transportation Equipment leases securing such
Secured Equipment Indebtedness from such other Person or prior to the time the
Person in question acquired such other Person and shall include all extensions,
renewals and refinancings of such Indebtedness not in excess of the principal
amount thereof outstanding immediately prior to such extension, renewal or
refinancing.
"Consolidated Net Worth" of a Person is defined to mean, at any date as of
which the amount thereof shall be determined, the sum of the following amounts
which would be set forth on a Consolidated balance sheet of the Person in
question and its Subsidiaries at such date, determined in each case on a
Consolidated basis in accordance with generally accepted accounting principles:
(a) the par value (or values stated on the books of such Person) of the capital
stock of all classes of such Person other than capital stock held in the
treasury of such Person, plus (b) the amount of the Consolidated surplus,
whether capital or earned, of such Person and its Subsidiaries, plus (c)
Subordinated Indebtedness of such Person, plus (d) 50% of the deferred
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income tax liability of such Person and its Subsidiaries, less (e) the amount
which would be carried in the asset side of such balance sheet of such Person
and its Subsidiaries in respect of goodwill, trade names, trademarks, patents,
unamortized debt issuance expenses and other intangibles, less (f) any increase
in the value of a fixed asset arising from a revaluation thereof after September
30, 1994.
"Indebtedness" is defined to mean (a) the principal of all indebtedness (i)
for borrowed money or (ii) for the deferred purchase price of property unless
the price thereof was payable in full within 12 months from the date on which
the obligation was created or (iii) evidenced by notes, bonds or other
instruments, (b) all Lease Obligations and (c) all guarantees and other
contingent obligations in respect of the principal of Indebtedness of others;
provided, however, that Indebtedness shall not include Subordinated
Indebtedness.
"Lease Obligation" of a Person is defined to mean all rental obligations
under leases of property (other than electronic data processing and computer
equipment and leases of office space by such Person or its Subsidiaries) either
(a) which are Capitalized Leases, or (b) if not Capitalized Leases, which are
leases of equipment which had an initial term of more than three years
(including any renewal terms at the option of the lessor). The amount of Lease
Obligations shall be equal to the aggregate value of rentals payable (other than
rentals consisting of taxes, indemnities, maintenance items, replacements and
other similar charges which are in addition to the basic financial rent for the
use of the property) by the lessee thereof during the remaining term thereof,
including periods of renewal at the option of the lessor, discounted to present
value using the lessee's "incremental borrowing rate at the inception of the
lease" in accordance with Financial Accounting Standard No. 13 of the Financial
Accounting Standards Board from time to time in effect.
"Purchase Money Equipment Indebtedness" of a Person is defined to mean all
Indebtedness (excluding all Lease Obligations) of such Person which is Secured
Equipment Indebtedness incurred to finance the purchase of Transportation
Equipment if such Indebtedness (a) shall have been incurred within 180 days of
the acquisition of such Transportation Equipment by the Person whose Purchase
Money Equipment Indebtedness is being determined and (b) does not exceed in
principal amount the initial cost of such Transportation Equipment and shall
include all extensions, renewals and refinancings of such Indebtedness not in
excess of the principal amount thereof outstanding immediately prior to such
extension, renewal or refinancing. The initial cost of Transportation Equipment
may include, in addition to the purchase price thereof and the purchase price of
all accessories and equipment installed thereon, all freight, delivery and
handling charges, excise, sales and use taxes and all other amounts which may be
capitalized and included in the cost of the equipment under generally accepted
accounting principles.
"Sale and Leaseback", with respect to a Person, means any transaction with
a bank, company, lender or investor providing for the leasing by such Person of
any property which has been or is to be sold or transferred by such Person to
such bank, company, lender or investor, or to any Person to whom funds have been
or are to be advanced by such bank, company, lender or investor on the security
of such property. (Section 10.7)
"Secured Equipment Indebtedness" is defined to mean with respect to a
Person all Indebtedness which is secured by any security interest, mortgage,
charge, pledge, deed of trust, or other similar lien on Transportation Equipment
or on leases of any such Transportation Equipment by the owner thereof and
includes all Lease Obligations. Transportation Equipment which is subject to a
lease or contract which is included as a Lease Obligation is deemed to secure
the Indebtedness evidenced thereby.
"Subordinated Indebtedness" is defined to mean Indebtedness of the Company,
XTRA Missouri, Inc. or XTRA, Inc. which is expressly subordinated and subject in
right of payment to the prior payment, in bankruptcy or in the event of a
payment default on the Debt Securities or the Guarantees, in full in money or
money's worth in accordance with their terms, of all principal of, premium, if
any, and interest on the Debt Securities or the Guarantees, as applicable. The
Subordinated Securities will constitute Subordinated Indebtedness.
"Subsidiary" of the Company, XTRA Missouri, Inc. or XTRA, Inc. is defined
to mean a corporation more than 50% of the Voting Stock of which is owned,
directly or indirectly, by the Company, XTRA Missouri, Inc., XTRA, Inc. and/or
one or more Subsidiaries of the Company, XTRA Missouri, Inc. or XTRA, Inc.
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"Transportation Equipment" is defined to mean containers, trucks, tractors,
trailers, chassis, cranes, portable ramps, lifting equipment, railroad
locomotives, railroad rolling stock, modular office units, mobile office and
storage trailers and all other transportation equipment, and includes all
accessories and attachments thereto. (Section 1.1)
EVENTS OF DEFAULT
The following are Events of Default under the Indentures with respect to
Debt Securities of any series: (a) failure to pay any interest on any Debt
Security of that series when due, continued for 30 days, in the case of the
Subordinated Securities, whether or not such payment is prohibited by the
subordination provisions of the Subordinated Indenture; (b) failure to pay
principal of any Debt Security of that series when due, in the case of the
Subordinated Securities, whether or not such payment is prohibited by the
subordination provisions of the Subordinated Indenture; (c) default in the
deposit of any sinking fund payment, when due by the terms of the Debt
Securities of that series, in the case of the Subordinated Securities, whether
or not such payment is prohibited by the subordination provisions of the
Subordinated Indenture; (d) failure to perform any other covenant or breach of a
warranty of XTRA, Inc., XTRA Missouri, Inc. or the Company in the applicable
Indenture (other than a covenant expressly included in such Indenture solely for
the benefit of a series of Debt Securities other than that series), continued
for 60 days after written notice as provided in the respective Indentures; (e)
default by the Company, XTRA Missouri, Inc. or XTRA, Inc. with respect to
payment of other Indebtedness at its stated maturity or such as would permit the
holder thereof to accelerate the stated maturity of such Indebtedness, in each
case, in a principal amount of $10,000,000 or more if such Indebtedness is not
discharged or such acceleration is not rescinded or annulled within 10 days
after written notice as provided in the Indentures; (f) certain events in
bankruptcy, insolvency or reorganization of the Company, XTRA Missouri, Inc. or
XTRA, Inc.; and (g) any other Event of Default provided with respect to Debt
Securities of that series. (Section 5.1) If an Event of Default with respect to
Debt Securities of any series at the time outstanding shall occur and be
continuing, either the applicable Trustee or the Holders of at least 25% in
principal amount of the Debt Securities of that series may declare the principal
amount of all Debt Securities of that series (or if any Debt Securities of such
series are Original Issue Discount Securities, such portion of the principal
amount of such Debt Securities as may be specified by the terms thereof) to be
due and payable immediately. However, at any time after a declaration of
acceleration with respect to Debt Securities of any series has been made, but
before a judgment or decree based on such acceleration has been obtained, the
Holders of a majority in principal amount of the Debt Securities of that series
may, under certain circumstances, rescind and annul such acceleration. (Section
5.2) For information as to waiver of default, see "Modification and Waiver."
The Indentures provide that, subject to the duty of the respective Trustees
thereunder during default to act with the required standard of care, such
Trustee will be under no obligation to exercise any of its rights or powers
under the respective Indentures at the request or direction of any of the
Holders of the Debt Securities unless they shall have offered to such Trustee
reasonable indemnity. (Section 6.3) Subject to such provisions for
indemnification of the Trustees, the Holders of a majority in principal amount
of the Debt Securities of any series affected will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the applicable Trustee, or exercising any trust or power conferred on such
Trustee, with respect to the Debt Securities of such series. (Section 5.12)
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the applicable Indenture, or for the appointment
of a receiver or a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given to the applicable Trustee written notice of a
continuing Event of Default with respect to the Debt Securities of that series,
(ii) the Holders of at least 25% in aggregate principal amount of the
Outstanding Debt Securities of that series have made written request, and such
Holder or Holders have offered reasonable indemnity, to such Trustee to
institute such proceeding as trustee, and (iii) such Trustee has failed to
institute such proceeding, and has not received from the Holders of a majority
in aggregate principal amount of the Outstanding Debt Securities of that series
a direction inconsistent with such request, within 60 days after such notice,
request and offer. (Section 5.7) However, such limitations do not apply to a
suit instituted by a Holder of a Debt Security for the enforcement of
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payment of the principal of or any premium or interest on such Debt Security on
or after the applicable due date specified in such Debt Security. (Section 5.8)
The Guarantors and XTRA, Inc. will each be required to furnish to the
Trustees annually a statement as to whether there is a default in the
performance or observance of certain covenants. (Section 10.9)
DEFEASANCE
Defeasance and Discharge. If so indicated in the applicable Prospectus
Supplement with respect to the Debt Securities of a series, the Guarantors and
XTRA, Inc., at their option, (i) will be discharged from any and all
obligations in respect of the Debt Securities (and Guarantees) of such series
(except for certain obligations to register the transfer or exchange of Debt
Securities of such series, to replace stolen, lost or mutilated Debt Securities
of such series, to maintain paying agencies and to hold monies for payment in
trust), or (ii) will be released from their obligations to comply with the
covenants that are specified under "Certain Covenants of XTRA, Inc., and the
Guarantors" above and other covenants and obligations specified in Section 13.3
of the applicable Indenture with respect to the Debt Securities of such series,
and the occurrence of an event described in clause (d) under "Events of
Default" above with respect to any defeased covenant and clauses (e) and (g) of
the "Events of Default" above shall no longer be an Event of Default if, in
either case, the Company, XTRA Missouri, Inc. and/or XTRA, Inc. deposits with
the applicable Trustee, in trust, money and/or U.S. Government Obligations
that, through the payment of interest and principal in respect thereof in
accordance with their terms will provide money in an amount sufficient to pay
the principal of and each instalment of interest on the Debt Securities of such
series, on the stated maturity of such payments in accordance with the terms of
the applicable Indenture and the Debt Securities of such series. Money and/or
U.S. Government Obligations so held in trust will not be subject to the
subordination provisions described under "Subordination of Subordinated
Securities." (Sections 13.2 and 13.3) Such a trust may be established only if,
among other things, (i) no Event of Default or event which with the giving of
notice of lapse of time, or both, would become an Event of Default under the
applicable Indenture shall have occurred and be continuing on the date of such
deposit, (ii) no Event of Default described under clause (f) under "Events of
Default" above or event which with the giving of notice or lapse of time, or
both, would become an Event of Default described under such clause (f) shall
have occurred and be continuing at any time during the period ending on or
prior to the 90th day following such date of deposit, and (iii) XTRA, Inc.
delivers to the applicable Trustee an opinion of counsel to the effect that the
Holders of the Debt Securities of such series will not recognize gain or loss
for federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amount and in
the same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred. (Section 13.4)
In the event the Guarantors and XTRA, Inc. exercise their options to omit
compliance with certain covenants and Events of Default of the applicable
Indenture with respect to the Debt Securities of a series as described under
clause (ii) above and the Debt Securities of such series are declared due and
payable because of the occurrence of any undefeased Event of Default, the amount
of money and U.S. Government Obligations on deposit with the applicable Trustee
may not be sufficient to pay amounts due on the Debt Securities of such series
at the time of the acceleration resulting from such Event of Default. In such a
case, XTRA, Inc. and the Guarantors would remain liable for such payments.
MODIFICATION AND WAIVER
Modifications and amendments of the respective Indentures may be made by
the Guarantors, XTRA, Inc. and the Trustee with the consent of the Holders of a
majority in principal amount of the Outstanding Debt Securities of each series
which are affected thereby and 66 2/3% in aggregate principal amount of the
Outstanding Debt Securities of all series affected thereby; provided, however,
that no such modification or amendment may, without the consent of each Holder
of such Debt Security affected thereby: (a) change the stated maturity of the
principal of, or any instalment of principal of or interest on, any such Debt
Security; (b) reduce the principal amount of or interest on any such Debt
Securities; (c) change the place or currency of payment of principal of or
interest on any such Debt Security; (d) impair the right to institute suit for
the
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enforcement of any payment on or with respect to any such Debt Security; (e)
reduce the amount payable upon acceleration of the Maturity of a Debt Security;
(f) in the case of the Subordinated Securities, modify the subordination
provisions in a manner adverse to the Holders of the Subordinated Securities and
the related Guarantees; (g) reduce the above stated percentage of Holders of
Debt Securities which is required for modification or amendment of the
applicable Indenture or for waiver of compliance with certain provisions of the
applicable Indenture or for waiver of certain defaults; or (h) change in any
adverse way the terms of the Guarantees with respect to the payment of the
principal of, premium, if any, and interest on the Debt Securities. (Section
9.2)
The Holders of a majority in principal amount of the Outstanding Debt
Securities of each series and 66 2/3% in aggregate principal amount of the
Outstanding Debt Securities of all series affected thereby may on behalf of the
Holders of all Debt Securities of the series waive, insofar as the Debt
Securities of that series are concerned, compliance by the Guarantors and XTRA,
Inc. with certain restrictive provisions of the applicable Indenture. (Section
10.9) The Holders of a majority in principal amount of the Outstanding Debt
Securities of a series may on behalf of the Holders of all Debt Securities of
that series waive any past default under the applicable Indenture with respect
to that series of Debt Securities, except a default in the payment of the
principal of, premium, if any, or interest on any Debt Security of the series or
in respect of any provision which under the applicable Indenture cannot be
modified or amended without the consent of the Holder of each Debt Security of
that series affected. (Section 5.13)
The Indentures provide that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given or
taken any direction, notice, consent, waiver or other action under the
applicable Indenture as of any date, (i) the principal amount of an Original
Issue Discount Security that will be deemed to be Outstanding will be the amount
of the principal thereof that would be due and payable as of such date upon
acceleration of the Maturity thereof to such date, (ii) if, as of such date, the
principal amount payable at the Stated Maturity of a Debt Security is not
determinable (for example, because it is based on an index), the principal
amount of such Debt Security deemed to be Outstanding as of such date will be an
amount determined in the manner prescribed for such Debt Security, and (iii) the
principal amount of a Debt Security denominated in one or more foreign
currencies or currency units that will be deemed to be Outstanding will be the
U.S. dollar equivalent, determined as of such date in the manner prescribed for
such Debt Security (or, in the case of a Debt Security described in clause (i)
or (ii) above, of the amount described in such clause). Certain Debt Securities,
including those for whose payment or redemption money has been deposited or set
aside in trust for the Holders and those that have been fully defeased pursuant
to Section 13.2, will not be deemed to be Outstanding. (Section 1.1)
Except in certain limited circumstances, XTRA, Inc. will be entitled to set
any day as a record date for the purpose of determining the Holders of
Outstanding Debt Securities of any series entitled to give or take any
direction, notice, consent, waiver or other action under the applicable
Indenture, in the manner and subject to the limitations provided in the
applicable Indenture. In certain limited circumstances, the Trustee will be
entitled to set a record date for action by the Holders. If a record date is set
for any action to be taken by Holders of a particular series, such action may be
taken only by persons who are Holders of Outstanding Debt Securities of that
series on the record date. To be effective, such action must be taken by Holders
of the requisite principal amount of such Debt Securities within a specified
period following the record date. For any particular record date, this period
will be 180 days or such shorter period as may be specified by XTRA, Inc. (or
the Trustee, if it set the record date), and may be shortened or lengthened (but
not beyond 180 days) from time to time. (Section 1.4)
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each of XTRA, Inc., XTRA Missouri, Inc. and the Company, without the
consent of any Holders of Debt Securities, may consolidate or merge with or
into, or transfer or lease its assets substantially as an entirety to, any
Person, and any other Person may consolidate or merge with or into, or transfer
or lease its assets substantially as an entirety to, XTRA, Inc., XTRA Missouri,
Inc. or the Company, provided that (i) the Person (if other than XTRA, Inc.,
XTRA Missouri, Inc. or the Company) formed by such consolidation or into which
XTRA, Inc., XTRA Missouri, Inc. or the Company is merged or which acquires or
leases the assets of XTRA, Inc., XTRA Missouri, Inc. or the Company
substantially as an entirety is a corporation, partnership or trust organized
and
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validly existing under the laws of any United States jurisdiction and assumes
XTRA, Inc.'s, XTRA Missouri, Inc.'s or the Company's obligations on the Debt
Securities or the Guarantees, as the case may be, and under the Indentures, (ii)
after giving effect to such transaction no Event of Default, and no event which,
after notice or lapse of time or both, would become an Event of Default, shall
have happened and be continuing, and (iii) certain other conditions are met.
(Article Eight)
NOTICES
Notices to Holders of Debt Securities will be given by mail to the
addresses of such Holders as they may appear in the Security Register. (Sections
1.1 and 1.6)
TITLE
XTRA, Inc., the Guarantors, the Trustees and any agent of XTRA, Inc., the
Guarantors or the Trustees may treat the Person in whose name a Debt Security is
registered as the absolute owner thereof (whether or not such Debt Security may
be overdue) for the purpose of making payment and for all other purposes.
(Section 3.8)
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed
in accordance with, the law of the State of New York. (Section 1.12)
CONCERNING THE TRUSTEES
The Indentures contain certain limitations on the right of the
Trustees, should they become a creditor of XTRA, Inc. or the Guarantors, to
obtain payment of claims in certain cases, or to realize for their own account
on certain property received in respect of any such claim as security or
otherwise. (Section 6.13) The Trustees will be permitted to engage in certain
other transactions; however, if they acquire any conflicting interest and there
is a default under the Debt Securities, they must eliminate such conflict or
resign. (Section 6.8)
DESCRIPTION OF PREFERRED STOCK OF XTRA CORPORATION
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Stock offered by any Prospectus Supplement will be described in such
Prospectus Supplement. The description of certain provisions of the Preferred
Stock set forth below and in any Prospectus Supplement does not purport to be
complete and is subject to and qualified in its entirety by reference to the
Company's Restated Certificate of Incorporation and By-laws, including the
definitions therein of certain terms, and the certificate of designations (each
a "Certificate of Designations") relating to each series of the Preferred Stock
that will be filed with the Commission and incorporated by reference as an
exhibit to the Registration Statement of which this Prospectus is a part at or
prior to the time of the issuance of such series of the Preferred Stock. Copies
of the Restated Certificate of Incorporation and the By-laws are incorporated by
reference as exhibits to the Registration Statement of which this Prospectus is
part.
GENERAL
Under the Company's Restated Certificate of Incorporation, the Company is
authorized to issue up to 3,000,000 shares of Preferred Stock, in one or more
series, with such designations, voting powers, preferences and relative
participating, optional or other special rights, and with such qualifications,
limitations or restrictions thereon, as may be stated or expressed in
resolutions providing for the creation and issuance thereof adopted by the Board
of Directors of the Company. Thus, without stockholder approval, the Board of
Directors could authorize the issuance of Preferred Stock with voting,
conversion and other rights that could
14
<PAGE> 17
dilute the voting power and other rights of the holders of Common Stock. No
Preferred Stock is currently outstanding.
The Preferred Stock shall have the dividend, liquidation, redemption and
voting rights set forth below, unless otherwise provided in a Prospectus
Supplement relating to a particular series of the Preferred Stock. Reference is
made to the Prospectus Supplement relating to the particular series of the
Preferred Stock offered hereby for specific terms, including: (i) the
designation and stated value per share of such Preferred Stock and the number of
shares offered; (ii) the amount of liquidation preference per share; (iii) the
initial public offering price at which such Preferred Stock will be issued; (iv)
the dividend rate (or method of calculation), the dates on which dividends shall
be payable and the dates from which dividends shall commence to cumulate, if
any; (v) any redemption or sinking fund provisions; (vi) any conversion rights;
and (vii) any additional voting, dividend, liquidation, redemption, sinking fund
and other rights, preferences, privileges, limitations and restrictions.
The Preferred Stock will, when issued, be fully paid and nonassessable and
will have no preemptive rights. Unless otherwise provided in the applicable
Prospectus Supplement, each series of the Preferred Stock will rank on a parity
as to the payment of dividends and amounts upon dissolution, liquidation or
winding up of the Company. The rights of the holders of each series of the
Preferred Stock will be subordinate to those of the Company's general creditors.
DIVIDEND RIGHTS
Holders of the Preferred Stock of each series will be entitled to receive,
when, as and if declared by the Board of Directors of the Company, out of funds
of the Company legally available therefor, cash dividends on such dates and at
such rates as are set forth in, or as are determined by the method described in,
the Prospectus Supplement relating to such series of the Preferred Stock. Such
rate may be fixed or variable or both. Each such dividend will be payable to the
holders of record as they appear on the stock books of the Company on such
record dates, fixed by the Board of Directors of the Company, as specified in
the Prospectus Supplement relating to such series of Preferred Stock.
Such dividends may be cumulative or noncumulative, as provided in the
Prospectus Supplement relating to such series of Preferred Stock. If the Board
of Directors of the Company fails to declare a dividend payable on a dividend
payment date on any series of Preferred Stock for which dividends are
noncumulative, then the right to receive a dividend in respect of the dividend
period ending on such dividend payment date will be lost, and the Company will
have no obligation to pay the dividend accrued for such period, whether or not
dividends on such series are declared payable on any future dividend payment
dates. Dividends on the shares of each series of Preferred Stock for which
dividends are cumulative will accrue from the date on which the Company
initially issues shares of such series or such other dates as may be set forth
in the applicable Prospectus Supplement.
Unless otherwise specified in the applicable Prospectus Supplement, so long
as the shares of any series of the Preferred Stock are outstanding, unless (i)
full dividends (including, if such Preferred Stock is cumulative, dividends for
prior dividend periods) have been paid or declared and set apart for payment on
all outstanding shares of the Preferred Stock of such series (other than Junior
Stock, as defined below) and (ii) the Company is not in default or in arrears
with respect to the mandatory or optional redemption or mandatory repurchase or
other mandatory retirement of, or with respect to any sinking or other analogous
fund for, any shares of Preferred Stock of such series (other than Junior
Stock), the Company may not declare any dividends on any shares of Common Stock
of the Company or any other stock of the Company ranking as to the payment of
dividends or amounts upon dissolution, liquidation or winding up of the Company
junior to such series of Preferred Stock (the Common Stock and any such other
stock being herein referred to as "Junior Stock"), or make any payment on
account of, or set apart money for, the purchase, redemption or other retirement
of, or for a sinking or other analogous fund for, any shares of Junior Stock or
make any distribution in respect thereof, whether in cash or property or in
obligations or stock of the Company, other than Junior Stock that is neither
convertible into, nor exchangeable or exercisable for, any securities of the
Company other than Junior Stock and other than as a result of the
reclassification of Junior Stock.
15
<PAGE> 18
LIQUIDATION PREFERENCES
Unless otherwise specified in the applicable Prospectus Supplement, in the
event of any liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, the holders of a series of Preferred Stock will be
entitled to receive out of the assets of the Company available for distribution
to stockholders, before any distribution of assets is made to the holders of
Junior Stock, the amount set forth in the Prospectus Supplement relating to such
series of the Preferred Stock. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the amounts payable with
respect to the Preferred Stock of any series and any other shares of preferred
stock of the Company (including any other series of the Preferred Stock) ranking
as to the payment of amounts upon the dissolution, liquidation or winding up of
the Company on a parity with such series of the Preferred Stock are not paid in
full, the holders of the Preferred Stock of such series and of such other shares
of preferred stock of the Company will share ratably in any such distribution of
assets of the Company in proportion to the full respective preferential amounts
to which they are entitled. After payment to the holders of the Preferred Stock
of each series of the full preferential amounts of the liquidating distribution
to which they are entitled, the holders of each such series of the Preferred
Stock will be entitled to no further participation in any distribution of assets
by the Company.
REDEMPTION
A series of the Preferred Stock may be redeemable, in whole or from time to
time in part, at the option of the Company, and may be subject to mandatory
redemption pursuant to a sinking fund or otherwise, in each case upon terms, at
the times and at the redemption prices set forth in the Prospectus Supplement
relating to such series. Shares of the Preferred Stock redeemed by the Company
will be restored to the status of authorized but unissued shares of preferred
stock of the Company.
In the event that fewer than all of the outstanding shares of a series of
the Preferred Stock are to be redeemed, whether by mandatory or optional
redemption, the number of shares to be redeemed will be determined by lot or pro
rata (subject to rounding to avoid fractional shares) as may be determined by
the Company or by any other method as may be determined by the Company in its
sole discretion to be equitable. From and after the redemption date (unless
default is made by the Company in providing for the payment of the redemption
price plus accumulated and unpaid dividends, if any) dividends will cease to
accumulate on the shares of the Preferred Stock called for redemption and all
rights of the holders thereof (except the right to receive the redemption price
plus accumulated and unpaid dividends, if any) will cease.
Unless otherwise specified in the applicable Prospectus Supplement, so long
as any dividends on shares of any series of the Preferred Stock or any other
series of preferred stock of the Company ranking on a parity as to payment of
dividends and amounts upon the liquidation, dissolution or winding up of the
Company with such series of the Preferred Stock are in arrears, no shares of any
such series of the Preferred Stock or such other series of preferred stock of
the Company will be redeemed (whether by mandatory or optional redemption)
unless all such shares are simultaneously redeemed, and the Company will not
purchase or otherwise acquire any such shares; provided, however, that the
foregoing will not prevent the purchase or acquisition of such shares pursuant
to a purchase or exchange offer made on the same terms to holders of all such
shares outstanding.
CONVERSION RIGHTS
The terms, if any, on which shares of Preferred Stock of any series may be
exchanged for or converted (mandatorily or otherwise) into shares of Common
Stock or another series of Preferred Stock will be set forth in the Prospectus
Supplement relating thereto.
VOTING RIGHTS
Except as indicated in a Prospectus Supplement relating to a particular
series of the Preferred Stock, or except as required by applicable Delaware law
or in the Company's Restated Certificate of Incorporation or as described below,
the holders of the Preferred Stock will not be entitled to vote for any purpose.
16
<PAGE> 19
Unless otherwise specified in the related Prospectus Supplement, if
cumulative accrued dividends on any Preferred Stock have not been paid in an
aggregate amount equal to or greater than six quarterly dividends on such
shares, the Board of Directors shall increase by two the number of directors
(and if necessary amend the By-laws therefor) and the holders of the Preferred
Stock, voting as a single class, will be entitled to elect such additional two
directors to the Board of Directors until all such dividends in default have
been paid in full.
TRANSFER AGENT AND REGISTRAR
Unless otherwise indicated in a Prospectus Supplement relating thereto, The
First National Bank of Boston will be the transfer agent, dividend and
redemption price disbursement agent and registrar for shares of each series of
the Preferred Stock. See "Description of Common Stock of XTRA Corporation --
General."
DESCRIPTION OF COMMON STOCK OF XTRA CORPORATION
The following description of the terms of the Common Stock sets forth
certain general terms and provisions of the Common Stock to which any Prospectus
Supplement may relate. The description of certain provisions of the Common Stock
set forth below and in any Prospectus Supplement does not purport to be complete
and is subject to and qualified in its entirety by reference to the Company's
Restated Certificate of Incorporation and By-laws, including the definitions
therein of certain terms. Copies of the Restated Certificate of Incorporation
and the By-laws are incorporated by reference as exhibits to the Registration
Statement of which this Prospectus is part.
GENERAL
The Company's Restated Certificate of Incorporation authorizes the
issuance of up to 30,000,000 shares of Common Stock, par value $.50 per share,
of which 16,324,701 shares have been issued and were outstanding as of
December 21, 1995. The Common Stock of the Company is listed on the New
York Stock Exchange and the additional shares of Common Stock that may be
offered hereby will be listed, subject to notice of issuance, on such exchange.
The Transfer Agent and Registrar for the Company's Common Stock is The
First National Bank of Boston, 100 Federal Street, Boston, Massachusetts 02110.
In New York City, the Common Stock may be presented for transfer at the office
of BancBoston Trust Company of New York, One Exchange Plaza, 3rd Floor, 55
Broadway, New York, New York 10006.
Each holder of Common Stock is entitled to one vote for each share held.
Holders of Common Stock do not have preemptive rights and are not entitled to
cumulative voting in the election of Directors. All outstanding shares of Common
Stock are, and the shares of Common Stock that may be offered hereby when issued
will be, fully paid and non-assessable. The Board of Directors is authorized to
issue from time to time all of the authorized but unissued shares of Common
Stock.
In case of any liquidation, dissolution or winding up of the Company, the
holders of Common Stock are entitled to share pro rata in the distribution of
all assets of the Company remaining after the holders of any series of Preferred
Stock have been paid the preference designated for such shares.
Subject to the senior rights of any Preferred Stock, the holders of Common
Stock are entitled to receive dividends when and as declared by the Board of
Directors and paid by the Company from funds legally available therefor. The
Company's source of funds for the payment of cash dividends is advances and
dividends from its subsidiary, XTRA Missouri, Inc. XTRA Missouri's source of
funds for the payment of cash dividends is advances and dividends from its
subsidiary, XTRA, Inc. Several of the Company's loan agreements contain
restrictions on the payment of cash dividends by the Company and XTRA Missouri,
Inc., including limitations restricting dividends to a fixed amount plus
consolidated net income of the Company earned since a date specified in the
relevant agreement. In addition, such loan agreements restrict the payment of
advances and dividends to XTRA Missouri, Inc. from its subsidiary, XTRA, Inc.
17
<PAGE> 20
CERTAIN OTHER PROVISIONS OF THE RESTATED CERTIFICATE OF INCORPORATION
Delaware law permits a corporation to eliminate the personal liability of
its directors to the corporation or to any of its stockholders for monetary
damages for a breach of fiduciary duty as a director, except (i) for breach of
the director's duty of loyalty, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
certain unlawful dividends and stock repurchases or (iv) for any transaction
from which the director derived an improper personal benefit. The Company's
Restated Certificate of Incorporation provides that no director of the Company
will be personally liable to the Company or its stockholders for monetary
damages for any breach of his fiduciary duty as a director, except as provided
by Delaware law.
As permitted by Delaware law, the Company's Restated Certificate of
Incorporation does not permit stockholder action by written consent. The
affirmative vote of the holders of at least 80% of the Company's then
outstanding Common Stock is required to amend, alter or repeal this provision.
The Company's By-laws provide that stockholder nominations of candidates
for election as directors and other stockholder proposals generally must be
received by the Secretary of the Company not less than 60 nor more than 90 days
prior to the applicable stockholders' meeting.
The Company is subject to the provisions of Section 203 of the General
Corporation Law of Delaware. In general, this statute prohibits a publicly-held
Delaware corporation from engaging in a "business combination" with an
"interested stockholder" for a period of three years after the date of the
transaction in which the person became an interested stockholder, unless the
business combination is approved in a prescribed manner. An "interested
stockholder" is a person who, together with affiliates and associates, owns (or
within the prior three years did own) 15% or more of the corporation's voting
stock.
HOLDING COMPANY STATUS
Because each of the Company and XTRA Missouri is a holding company, the
right of the Company or XTRA Missouri to participate in any distribution of
assets of any subsidiary upon its liquidation or reorganization (and thus the
ability of the Company's stockholders to benefit indirectly from such
distribution) would be subject to the prior claims of creditors of that
subsidiary, except to the extent that the Company or XTRA Missouri itself may be
a creditor of that subsidiary with recognized claims. In addition, XTRA, Inc.
conducts its leasing business primarily through fleet management agreements
with its subsidiaries, which accounted for 14% of XTRA, Inc.'s consolidated
assets at September 30, 1995 and for 93% of its consolidated revenues for
fiscal 1995. The right of XTRA, Inc. to participate in any distribution of
assets of any subsidiary upon its liquidation or reorganization (and thus the
ability of the Company's stockholders to benefit indirectly from such
distribution) would be subject to the prior claims of creditors of that
subsidiary, except to the extent that XTRA, Inc. itself may be a creditor of
that subsidiary with recognized claims. See, "The Company" for the right of
XTRA, Inc. to terminate the fleet management agreements.
PLAN OF DISTRIBUTION
The Company and/or XTRA, Inc. may sell Securities to or through
underwriters or to dealers acting as principals for their own account and also
may sell Securities directly to other purchasers or through agents. The Company
and XTRA, Inc. reserve the right to sell Securities directly to investors on
their own behalf in those jurisdictions where they are authorized to do so.
Underwriters may offer and sell the Securities at a fixed price or prices
that may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. The Company or
XTRA, Inc. also may, from time to time, authorize dealers, acting as the
Company's or XTRA, Inc.'s agents, as the case may be, to offer and sell the
Securities upon such terms and conditions as set forth in the related Prospectus
Supplement. In connection with the sale of the Securities, underwriters may
receive compensation from the Company or XTRA, Inc. in the form of underwriting
discounts or commissions and may also receive commissions from purchasers of the
Securities for whom they may act as agent. Underwriters may sell the Securities
to or through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agents.
Any underwriting compensation paid by the Company or XTRA, Inc. to
underwriters or agents in connection with the offering of the Securities, and
any discounts, concessions or commissions allowed by underwriters to
participating dealers, will be set forth in the related Prospectus Supplement.
Dealers and agents participating in the distribution of the Securities may be
deemed to be underwriters, and any discounts and commissions received by them
and any profit realized by them on resale of the Securities may be deemed
18
<PAGE> 21
to be underwriting discounts and commissions. Underwriters, dealers and agents
may be entitled, under agreements entered into with the Company and/or XTRA,
Inc., to indemnification against and contribution towards certain civil
liabilities.
If so indicated in a Prospectus Supplement, the Company and/or XTRA, Inc.
will authorize underwriters or other persons acting as the Company's and/or
XTRA, Inc.'s agents to solicit offers by certain institutions to purchase
Securities from the Company and/or XTRA, Inc. pursuant to contracts providing
for payment and delivery on a future date. Institutions with which such
contracts may be made include commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable institutions and
others, but in all cases such institutions must be approved by the Company
and/or XTRA, Inc. The obligations of any purchaser under any such contract will
be subject to the condition that the purchase of the Securities shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which such
purchaser is subject. The underwriters and such other agents will not have any
responsibility in respect of the validity or performance of such contracts.
Any Securities issued hereunder (other than Common Stock) will be new
issues of securities with no established trading market. Neither the Company nor
XTRA, Inc. currently intends to apply for the listing of any Securities (other
than the Common Stock) on any national securities exchange. No assurance can be
given as to the liquidity of the trading market for any such Securities.
Certain of the underwriters or agents and their associates may be customers
of, engage in transactions with and perform services for XTRA, Inc. or the
Company in the ordinary course of business.
VALIDITY OF SECURITIES
The validity of the Securities offered hereby will be passed upon for XTRA,
Inc., XTRA Missouri, Inc. and the Company by Ropes & Gray, One International
Place, Boston, Massachusetts 02110, and for any underwriter or agent by Sullivan
& Cromwell, 125 Broad Street, New York, New York 10004.
EXPERTS
The audited consolidated financial statements and schedules of the Company
incorporated by reference in this Prospectus have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their report with
respect thereto, and are incorporated by reference herein in reliance upon the
authority of said firm as experts in giving said report.
The audited consolidated financial statements of Matson Leasing Company,
Inc. for the years ended December 31, 1994 and 1993 incorporated in this
Prospectus by reference from the Company's Current Report on Form 8-K dated
June 20, 1995 have been audited by Deloitte & Touche LLP, independent auditors,
as indicated in their report dated January 27, 1995 (except for Note 12, as to
which the date is June 15, 1995) with respect thereto, which is incorporated
herein by reference. Such consolidated financial statements of Matson Leasing
Company, Inc. have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
19
<PAGE> 22
===============================================================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES
OTHER THAN THE SECURITIES DESCRIBED IN THIS PROSPECTUS OR AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCE IN WHICH
SUCH OFFER OR SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS
NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY, XTRA
MISSOURI, INC. OR XTRA, INC. SINCE THE DATE HEREOF OR THEREOF OR THAT THE
INFORMATION CONTAINED OR INCORPORATED BY REFERENCE HEREIN IS CORRECT AS OF ANY
TIME SUBSEQUENT TO THE DATE OF SUCH INFORMATION.
------------------------
TABLE OF CONTENTS
PROSPECTUS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 2
The Company........................... 2
Use of Proceeds....................... 3
Consolidated Ratios of Earnings to
Fixed Charges and Consolidated Ratio
of Earnings to Combined Fixed
Charges and Preferred Stock
Dividends........................... 3
Description of Debt Securities of
XTRA, Inc........................... 4
Description of Preferred Stock of XTRA
Corporation......................... 14
Description of Common Stock of XTRA
Corporation......................... 17
Plan of Distribution.................. 18
Validity of Securities................ 19
Experts............................... 19
</TABLE>
===============================================================================
===============================================================================
$752,000,000
XTRA CORPORATION
PREFERRED STOCK
COMMON STOCK
XTRA, INC.
DEBT SECURITIES
GUARANTEED AS TO THE PAYMENT
OF PRINCIPAL, PREMIUM, IF ANY,
AND INTEREST BY XTRA CORPORATION
AND XTRA MISSOURI, INC.
-----------------
PROSPECTUS
-----------------
===============================================================================
<PAGE> 23
<TABLE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
<S> <C>
SEC Registration fee ................................................ $225,863
Printing and engraving expenses ..................................... 50,000
Fees and expenses of Trustee, Transfer Agent and Registrar........... 15,000
Accounting fees and expenses ........................................ 20,000
Legal fees and expenses ............................................. 150,000
Blue sky fees and expenses (including fees of counsel) .............. 35,000
Rating Agency fees .................................................. 50,000
Miscellaneous ....................................................... 38,137
Total .......................................................... --------
$584,000
<FN> ========
* All amounts except the SEC Registration fee are estimated.
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The General Corporation Law of the State of Delaware, in which XTRA
Corporation and XTRA Missouri are incorporated, gives a corporation power to
indemnify any of its officers or directors against certain expenses,
judgments, fines and amounts paid in settlement in connection with certain
actions, suits or proceedings, provided generally, that such person acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
In addition, the statutes of Delaware contain provisions to the general
effect that any director shall in the performance of his duties be fully
protected in relying in good faith upon the books of account or records of the
corporation or statements prepared by any official of the corporation.
The Restated Certificate of Incorporation of XTRA Corporation includes
the following provision:
This corporation shall, to the maximum extent permitted from time to
time under the law of the State of Delaware, indemnify and upon request
shall advance expenses to any person who is or was a party or is
threatened to be made a party to any threatened, pending or completed
action, suit, proceeding or claim, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was
or has agreed to be a director or officer of this corporation or while a
director or officer is or was serving at the request of this corporation
as a director, officer, partner, trustee, employee or agent of any
corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, against
expenses (including attorney's fees and expenses), judgments, fines,
penalties and amounts paid in settlement incurred in connection with the
investigation, preparation to defend or defense of such action, suit,
proceeding, or claim; provided, however, that the foregoing shall not
require this corporation to indemnify or advance expenses to any person
in connection with any action, suit, proceeding, claim or counterclaim
initiated by or on behalf of such person. Such indemnification shall not
be exclusive of other indemnification rights arising under any by-law,
agreement, vote of directors or stockholders or otherwise and shall inure
to the benefit of the heirs and legal representatives of such person.
Any repeal or modification of the foregoing provisions of this Article 9
shall not adversely affect any right or protection of a director or
officer of this corporation existing at the time of such repeal or
modification.
The Certificate of Incorporation of XTRA Missouri includes the
following provision:
This corporation shall, to the maximum extent permitted from time to
time under the law of the State of Delaware, indemnify and upon request
shall advance expenses to any person who is or was a party or is
threatened to be made a party to any threatened, pending or completed
action, suit, proceeding or claim, whether civil, criminal,
administrative or investigative, by reason of the fact that such person
is or was or has agreed to be a director or officer of this corporation
or while a director or officer is or was serving at the request of this
corporation as a director, officer, partner, trustee, employee or agent
of any corporation, partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans,
against expenses (including attorney's fees and expenses), judgements,
fines, penalties and amounts paid in settlement incurred in connection
with the investigation, preparation to defend or defense of such action,
suit, proceeding or claim; PROVIDED, HOWEVER, that the foregoing shall
not require this corporation to indemnify or advance expenses to any
person in connection with any action, suit, proceeding, claim or
counterclaim initiated by or on behalf of such person. Such
indemnification shall not be exclusive of other indemnification rights
arising under any by-law, agreement, vote of directors or stockholders or
otherwise and shall inure to the benefit of the heirs and legal
representatives of such person. Any person seeking indemnification under
this paragraph 10 shall be deemed to have met the standard of conduct
required for such indemnification unless the contrary shall be
established. Any repeal or modification of the foregoing provisions of
this paragraph 10 shall not adversely affect any right or protection of a
director or officer of this corporation with respect to any acts or
omissions of such director or officer occurring prior to such repeal or
modification.
The Business Corporation Act of the State of Maine, in which XTRA, Inc.
is incorporated, gives a corporation power to indemnify any of its officers or
directors against certain expenses, judgements, fines, and amounts paid in
settlement in connection with certain actions, suits or proceedings, provided
generally, that such person acted in good faith and in the reasonable belief
that his action was in the best interests of the corporation, and with respect
to any criminal action or proceeding, had no reasonable cause to believe that
his conduct was unlawful. In addition, the statute provides that if a director
or officer is successful in the merits or otherwise in defense of certain
actions, suits or proceedings against him, while serving as a director or
officer of the corporation, the corporation shall indemnify him against
expenses reasonably incurred in defense of such claim, including attorney's
fees.
The By-laws of XTRA, Inc. include the following provisions:
II-1
<PAGE> 24
The corporation shall indemnify any person who is or was a director,
officer, employee or agent of the corporation, or who is or was serving in
another capacity at the request of the corporation, to the extent authorized
by the Maine Business Corporation Act and may purchase and maintain insurance
to protect itself against liability for such indemnification.
In addition, XTRA Corporation maintains a directors' and officers'
liability insurance policy.
XTRA Corporation has entered into Indemnification Agreements, the form of
which was approved by the stockholders of XTRA Corporation, with certain
officers of XTRA Corporation and its subsidiaries, including XTRA, Inc. The
Indemnification Agreements provide a number of procedures, presumptions and
remedies used in the determination of the right of the officer to
indemnification. These procedures, presumptions and remedies substantially
broaden the indemnity rights of officers beyond that provided by XTRA
Corporation's Restated Certificate of Incorporation described above. If an
action against an indemnified party is dismissed with or without prejudice,
the defense is deemed to have been successful and the indemnification is
required to be made. The Indemnification Agreements provide that expenses
must be paid within twenty days of any request and that a determination of
entitlement must be made within sixty days of the indemnification request
(otherwise a determination in favor of the indemnified party is deemed to have
been made). If there is a change in control of XTRA Corporation (as defined
in the Indemnification Agreement), the indemnified party is presumed to be
entitled to indemnification (although XTRA Corporation may overcome this
presumption), the indemnified party may require that independent counsel make
the determination of entitlement and may choose such counsel, subject to
objection by the Company on limited grounds. If a determination of
entitlement is made, XTRA Corporation is bound, but if the indemnified party
has previously been denied indemnification pursuant to the terms of the
Indemnification Agreement he or she is entitled to seek a de novo
determination from a court. XTRA Corporation is precluded from challenging
the validity of the procedures and presumptions contained in the
Indemnification Agreement in any court proceeding. The Indemnification
Agreement covers proceedings brought on or after the date of the execution of
the particular Indemnification Agreement, including proceedings based on acts
prior to the date of the particular agreement.
<TABLE>
ITEM 16. EXHIBITS.
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C> <C>
1 - Form of Distribution Agreement among XTRA, Inc., the Company, XTRA Missouri, Inc., Goldman,
Sachs & Co., Smith Barney Inc. and Schroeder Wertheim & Co. Incorporated relating to Series C
Medium Term Notes.
4.1 - Restated Certificate of Incorporation of the Company. (Filed with the Securities and
Exchange Commission as Exhibit 3.1 to Company's Annual Report on Form 10-K for
the year ended September 30, 1989, incorporated herein by reference).
4.2 - Certificate of Elimination of Designation, Preference and Rights of Series A Participating
Preferred Stock. (Filed with the Securities and Exchange Commission as Exhibit 3.1 to
the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1991,
incorporated herein by reference).
4.3 - Certificate of Amendment of Restated Certificate of Incorporation. (Filed March 5, 1993
with the Securities and Exchange Commission as Exhibit 4.4 to the Company's
Registration Statement on Form S-3, File No. 33-59132, incorporated herein by
reference).
4.4 - Certificate of Elimination of Designation, Preference and Rights of $1.9375 Series B
Cumulative Convertible Preferred Stock. (Filed March 5, 1993 with the Securities and
Exchange Commission as Exhibit 4.5 to the Company's Registration Statement on
Form S-3, File No. 33-59132, incorporated herein by reference).
4.5 - Certificate of Elimination of Designation, Preference and Rights of Series C Cumulative
Redeemable Exchangeable Preferred Stock of the Company. (Filed July 26, 1994 with the Securities and
Exchange Commission as Exhibit 4.5 to the Company's Registration Statement on Form S-3, File No
33-54747, incorporated herein by reference).
4.6 - By-laws of the Company. (Filed with the Securities and Exchange Commission as
Exhibit 3(b) to the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1990, incorporated herein by reference).
4.7 - Indenture by and among XTRA, Inc., XTRA Corporation and The First National Bank of Boston dated as of August
15, 1994. (Filed with the Securities and Exchange Commission as Exhibit 4.1 to the Company's Current Report
on Form 8-K dated August 15, 1994, incorporated herein by reference).
4.7.1 - First Supplemental Indenture, dated as of September 30, 1994, to the Indenture referred to in Exhibit 4.7,
among XTRA, Inc., XTRA Missouri, Inc. XTRA Corporation and The First National Bank of Boston. (Filed with the
Securities and Exchange Commission as Exhibit 4.2.1 to the Company's Annual Report on Form 10-K for the year
ended September 30, 1994, incorporated herein by reference).
4.8 - Form of Subordinated Indenture.
4.9 - Form of fixed rate Medium Term Note.
4.10 - Form of floating rate Medium Term Note.
5 - Opinion of Ropes & Gray.
12.1 - Statement regarding computation of ratio of earnings to fixed charges of XTRA Corporation.
12.2 - Statement regarding computation of ratio of earnings to combined fixed charges and preferred stock dividends
of XTRA Corporation.
12.3 - Statement regarding computation of ratio of earnings to fixed charges of XTRA, Inc.
12.4 - Statement regarding computation of ratio of earnings to fixed charges of XTRA Missouri, Inc.
23.1 - Consent of Arthur Andersen L.L.P.
23.2 - Consent of Deloitte & Touche LLP.
23.3 - Consent of Ropes & Gray (included in Exhibit 5).
</TABLE>
II-2
<PAGE> 25
<TABLE>
<S> <C> <C>
24 - Power of Attorney (included under Signatures and Power of Attorney).
25 - Form T-1 Statement of eligibility and qualification under the Trust Indenture Act of
1939, as amended, of State Street Bank and Trust Company, as Senior Trustee.
</TABLE>
_______________
All exhibits have been previously filed.
Any underwriting agreement or additional form of distribution agreement in
respect of the Securities and any additional form or forms of securities with
respect to each offering of Securities registered hereunder will be filed as
an exhibit to a Current Report on Form 8-K of XTRA Corporation and will be
incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in this registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrants pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference
in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for the purposes of determining any liability under the
Securities Act of 1933, each filing of the registrants' annual report
pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(5) To file an application for the purposes of determining the
eligibility of the Subordinated Trustee to act under Subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the
Trust Indenture Act.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrants pursuant to the provisions described in Item 15 above, or
otherwise, the Registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrants of expenses incurred or paid by a director, officer,
or controlling person of the Registrants in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrants will, unless in the opinion of their counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by them is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 26
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements to file on Form S-3 and has duly caused this Amendment to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Boston, Commonwealth of Massachusetts, on the 30th day of January, 1996.
XTRA CORPORATION
By: /s/ LEWIS RUBIN
-------------------------------------
LEWIS RUBIN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this Amendment
has been signed below by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ ROBERT B. GOERGEN* Chairman of the Board and January 30, 1996
- ------------------------------- Director
ROBERT B. GOERGEN
/s/ ROBERT M. GINTEL* Vice Chairman of the Board January 30, 1996
- ------------------------------- and Director
ROBERT M. GINTEL
/s/ LEWIS RUBIN* President, Chief Executive January 30, 1996
- ------------------------------- Officer (Principal Executive
LEWIS RUBIN Officer) and Director
/s/ MICHAEL J. SOJA* Vice President and January 30, 1996
- ------------------------------- Chief Financial Officer
MICHAEL J. SOJA (Principal Financial Officer)
/s/ ROBERT B. BLAKELEY* Controller (Principal January 30, 1996
- ------------------------------- Accounting Officer)
ROBERT B. BLAKELEY
/s/ GILBERT BUTLER* Director January 30, 1996
- -------------------------------
GILBERT BUTLER
/s/ J. RUSSELL DUNCAN* Director January 30, 1996
- -------------------------------
J. RUSSELL DUNCAN
/s/ HERBERT C. KNORTZ* Director January 30, 1996
- -------------------------------
HERBERT C. KNORTZ
Director January 30, 1996
- -------------------------------
JOHN J. LEE
/s/ FRANCIS J. PALAMARA* Director January 30, 1996
- -------------------------------
FRANCIS J. PALAMARA
/s/ MARTIN L. SOLOMON* Director January 30, 1996
- -------------------------------
MARTIN L. SOLOMON
*By: /s/ JAMES R. LAJOIE
--------------------------
JAMES R. LAJOIE
Attorney-in-Fact
</TABLE>
<PAGE> 27
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements to file on Form S-3 and has duly caused this Amendment to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Boston, Commonwealth of Massachusetts, on the 30th day of January, 1996.
XTRA, INC.
By: /s/ LEWIS RUBIN
----------------------
Lewis Rubin, President
Pursuant to the requirements of the Securities Act of 1933, this Amendment
has been signed below by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ LEWIS RUBIN* President (Principal January 30, 1996
- -------------------------------- Executive Officer), and
LEWIS RUBIN Director
/s/ MICHAEL J. SOJA* Vice President and January 30, 1996
- -------------------------------- Chief Financial Officer
MICHAEL J. SOJA (Principal Financial Officer)
and Director
/s/ JAMES R. LAJOIE Vice President, General January 30, 1996
- -------------------------------- Counsel and Director
JAMES R. LAJOIE
/s/ ROBERT B. BLAKELEY* Controller (Principal January 30, 1996
- -------------------------------- Accounting Officer)
ROBERT B. BLAKELEY
*By: JAMES R. LAJOIE
--------------------------
JAMES R. LAJOIE
Attorney-in-Fact
</TABLE>
<PAGE> 28
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements to file on Form S-3 and has duly caused this Amendment to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Liberty, State of Missouri, on the 30th day of January, 1996.
XTRA MISSOURI, INC.
By: /s/ Michael K. Fox
__________________________________
Michael K. Fox
President and Chief
Executive Officer
<TABLE>
Pursuant to the requirements of the Securities Act of 1933, this Amendment has been signed below by the following person in the
capacities and on the dates indicated.
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Michael K. Fox* President and Director January 30, 1996
- ------------------------------------- (Principal Executive Officer)
Michael K. Fox
/s/ James A. Jacques Director, Vice President January 30, 1996
- ------------------------------------- and Secretary (Principal Financial
James A. Jacques and Accounting Officer)
James A. Jacques
*By: --------------------------------
James A. Jacques
Attorney-in-Fact
</TABLE>
