<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 7, 1997
SECURITIES ACT FILE NO. 33-65293
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------
<TABLE>
<S> <C>
XTRA CORPORATION XTRA, INC.
(Exact Names of Registrants as Specified in Their Charters
DELAWARE MAINE
(States or Other Jurisdictions of Incorporation or Organization)
06-0954158 01-0346274
(I.R.S. Employer Identification Nos.)
</TABLE>
THE ADDRESS AND TELEPHONE NUMBER FOR BOTH XTRA, INC. AND XTRA CORPORATION:
C/O X-L-CO., INC., 60 STATE STREET, BOSTON, MASSACHUSETTS 02109 (617) 367-5000.
(Address, including zip code and telephone number, including area code
of registrants' principal executive offices)
------------------------
JAMES R. LAJOIE, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
C/O X-L-CO., INC.
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
(617) 367-5000
------------------------
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
<TABLE>
<S> <C>
DAVID A. FINE, ESQ. ROBERT W. REEDER, ESQ.
Ropes & Gray Sullivan & Cromwell
One International Place 125 Broad Street
Boston, MA 02110 New York, NY 10004
(617) 951-7000 (212) 558-4000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF
PROPOSED SALE TO THE PUBLIC:
From time to time after the effectiveness of this Registration Statement.
------------------------
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. / /
------------------------
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.
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<PAGE>
$604,000,000
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
------------------
XTRA Corporation (the "Company" or the "Guarantor") 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 the Company, 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. The Company 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 $604,000,000 (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 the Company 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 the Company.
The Company'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 the Company 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.
------------------------
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 May 7, 1997.
<PAGE>
AVAILABLE INFORMATION
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, and at the Commission's web site at http:// www.sec.gov. 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. 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.
------------------------
2
<PAGE>
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, 1996;
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1996;
3. The Company's Current Report on Form 8-K dated May 5, 1997.
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.
3
<PAGE>
THE COMPANY
The Company is engaged in freight transportation equipment leasing and
conducts its operations through its 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 re-organized as a holding
company under the laws of the State of Delaware. 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 December 31, 1996, 22% of XTRA, Inc.'s
consolidated assets were accounted for by its subsidiaries. For fiscal 1996,
approximately 95% 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.
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, 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.
4
<PAGE>
XTRA CORPORATION
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
SEPTEMBER 30,
---------------------------------
1992 1993 1994 1995 1996
----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges........ 2.7X 2.6X 3.7X 3.3X 2.0X
Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends... 2.1X 2.2X --* --* --*
<CAPTION>
THREE MONTHS
ENDED
DECEMBER 31, 1996
-------------------------
<S> <C>
Ratio of Earnings to Fixed Charges........ 2.4X
Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends... --*
</TABLE>
- ------------------------
* No shares of the Company's Preferred Stock are currently outstanding or were
outstanding during the indicated period.
XTRA, INC.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
SEPTEMBER 30,
---------------------------------
1992 1993 1994 1995 1996
----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges........ 2.7X 2.6X 3.7X 3.3X 2.0X
<CAPTION>
THREE MONTHS
ENDED
DECEMBER 31, 1996
-------------------------
<S> <C>
Ratio of Earnings to Fixed Charges........ 2.4X
</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
(the "First Supplemental Indenture") and as supplemented by The Second
Supplemental Indenture among XTRA, Inc., the Company and State Street Bank and
Trust Company, as Trustee (the "Second Supplemental Indenture", and, together
with the First Supplemental Indenture and 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").
Effective September 30, 1996, XTRA Missouri, Inc., an intermediary holding
company of which XTRA, Inc. was a wholly-owned subsidiary and which, in turn,
was a wholly-owned subsidiary of the Company, was merged with and into the
Company, thereby transferring all of its assets and liabilities to the Company.
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 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
5
<PAGE>
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.
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 31, 1996, XTRA, Inc. had a total of
$550,500,000 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 Guarantor 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
6
<PAGE>
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 Guarantor" 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 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 Discharge;" 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)
7
<PAGE>
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
Guarantor," 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 Guarantor.
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, including by way of redemption, purchase, or in any
other manner, if the Subordinated Trustee shall have received notice from XTRA,
Inc., the Guarantor 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
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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. or the Company, respectively. XTRA, Inc. and the Company expect from
time to time to incur additional indebtedness constituting Senior Indebtedness
and Senior Guarantor Indebtedness. As of December 31, 1996, the amount of Senior
Indebtedness was approximately $822,000,000 and the amount of Senior Guarantor
Indebtedness was approximately $822,000,000.
GUARANTEES
The Company 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 under
guarantees of Senior Indebtedness of XTRA, Inc. No payment will be made by the
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)
Upon any distribution of assets of the Company upon any liquidation,
dissolution or other winding up of the Company, 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,
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
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, 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.
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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 GUARANTOR
LIMITATION ON LIENS OF THE COMPANY
The Company will not 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;
(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.
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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 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
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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
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 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 or XTRA, Inc. and/or one or more Subsidiaries of the Company or
XTRA, Inc.
"Transportation Equipment" is defined to mean domestic and marine
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
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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. 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 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 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 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 Guarantor 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 AND DISCHARGE
If so indicated in the applicable Prospectus Supplement with respect to the
Debt Securities of a series, the Guarantor 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
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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 Guarantor" 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 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 Guarantor 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 Guarantor would remain liable for such payments.
MODIFICATION AND WAIVER
Modifications and amendments of the respective Indentures may be made by the
Guarantor, 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 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)
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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 Guarantor 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. 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. or the Company, provided that (i) the Person (if
other than XTRA, Inc. or the Company) formed by such consolidation or into which
XTRA, Inc. or the Company is merged or which acquires or leases the assets of
XTRA, Inc. or the Company substantially as an entirety is a corporation,
partnership or trust organized and validly existing under the laws of any United
States jurisdiction and assumes XTRA, 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)
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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 Guarantor, the Trustees and any agent of XTRA, Inc., the
Guarantor 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 Guarantor, 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 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
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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.
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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.
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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.
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,
Boston EquiServe LLP 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
15,246,099 shares have been issued and were outstanding as of December 31, 1996.
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 Boston
EquiServe LLP, Mail Stop 45-02-64, P.O. Box 644, Boston, Massachusetts
02102-0644. 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, Inc. Several of the Company's loan
agreements contain
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restrictions on the payment of cash dividends by the Company, 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
the Company from its subsidiary, XTRA, Inc.
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 the Company is a holding company, the right of the Company 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 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 22% of XTRA, Inc.'s consolidated assets at
December 31, 1996 and for 95% of its consolidated revenues for fiscal 1996. 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.
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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 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. 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 reports with
respect thereto, and are incorporated by reference herein in reliance upon the
authority of said firm as experts in giving said reports.
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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 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.
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TABLE OF CONTENTS
PROSPECTUS
<TABLE>
<S> <C>
Available Information..................................................... 2
Incorporation of Certain Documents by Reference........................... 3
The Company............................................................... 4
Use of Proceeds........................................................... 4
Consolidated Ratios of Earnings to Fixed Charges and Consolidated Ratio of
Earnings to Combined Fixed Charges and Preferred Stock Dividends........ 4
Description of Debt Securities of XTRA, Inc............................... 5
Description of Preferred Stock of XTRA Corporation........................ 6
Description of Common Stock of XTRA Corporation........................... 9
Plan of Distribution...................................................... 20
Validity of Securities.................................................... 21
Experts................................................................... 21
</TABLE>
$604,000,000
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
---------------------
PROSPECTUS
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
<TABLE>
<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
</TABLE>
* All amounts except the SEC Registration fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The General Corporation Law of the State of Delaware, in which XTRA
Corporation is 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 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
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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 provision:
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.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<C> <S>
1 Form of Distribution Agreement among XTRA, Inc., the Company, Goldman, Sachs &
Co., Smith Barney Inc., Donaldson, Lufkin & Jenrette Securities Corporation and
Morgan Stanley & 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).
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<C> <S>
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 Amended and Restated 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 December 31, 1995, 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).
4.7.2 Form of Second Supplemental Indenture to the Indenture referred to in Exhibit
4.7, among XTRA, Inc., XTRA Corporation and State Street Bank and Trust
Company.
4.8* Form of Subordinated Indenture.
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.
23.1 Consent of Arthur Andersen L.L.P.
23.3 Consent of Ropes & Gray (included in Exhibit 5).
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>
- ------------------------
* These exhibits have been previously filed.
Any underwriting agreement or additional form of distribution agreement in
respect of the Securities and any 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.
II-3
<PAGE>
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 purpose 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-4
<PAGE>
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 Post-Effective
Amendment No. 1 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on the 6th day
of May 1997.
XTRA CORPORATION
BY: /S/ LEWIS RUBIN
-----------------------------------------
Lewis Rubin
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 has been signed below by the following persons in
the capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
* Chairman of the Board and
- ------------------------------ Director May 6, 1997
Robert B. Goergen
* Vice Chairman of the Board
- ------------------------------ and Director May 6, 1997
Robert M. Gintel
President, Chief Executive
* Officer and Director
- ------------------------------ (Principal Executive May 6, 1997
Lewis Rubin Officer)
Vice President and Chief
* Financial Officer
- ------------------------------ (Principal Financial May 6, 1997
Michael J. Soja Officer)
* Vice President and
- ------------------------------ Controller May 6, 1997
Robert B. Blakeley
Director
- ------------------------------ May 6, 1997
H. William Brown
* Director
- ------------------------------ May 6, 1997
Herbert C. Knortz
* Director
- ------------------------------ May 6, 1997
Martin L. Solomon
* Director
- ------------------------------ May 6, 1997
Francis J. Palamara
*By: /s/ JAMES R. LAJOIE
------------------------
James R. Lajoie
ATTORNEY-IN-FACT
II-5
<PAGE>
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 Post-Effective
Amendment No. 1 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on the 6th day
of May, 1997.
XTRA, INC.
BY: /S/ LEWIS RUBIN
-----------------------------------------
Lewis Rubin,
PRESIDENT
to the requirements of the Securities Act of 1933, this Post-Effective
Amendment No. 1 has been signed below by the following persons in the capacities
and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
* President and Director
- ------------------------------ (Chief Executive May 6, 1997
Lewis Rubin Officer)
Vice President, Chief
* Financial Officer
- ------------------------------ and Director (Principal May 6, 1997
Michael J. Soja Financial Officer)
/s/ JAMES R. LAJOIE
- ------------------------------ Vice President, General May 6, 1997
James R. Lajoie Counsel and Director
* Vice President and
- ------------------------------ Controller (Principal May 6, 1997
Robert B. Blakeley Accounting Officer)
*By: /s/ JAMES R. LAJOIE
-------------------------
James R. Lajoie
ATTORNEY-IN-FACT
II-6
<PAGE>
Exhibit 1
XTRA, Inc.
$604,000,000
Series C Medium-Term Notes
Guaranteed as to Payment of Principal,
Premium (if any) and Interest by
XTRA Corporation
Distribution Agreement
, 1997
-------- ---
Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Smith Barney Inc.,
390 Greenwich Street,
New York, New York 10013.
Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, New York 10172
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
XTRA, Inc., a Maine corporation (the "Company"), proposes to issue
and sell from time to time its Series C Medium-Term Notes, each of which
shall have the benefit of an unconditional guarantee (the "Guarantee") of
payment of principal, premium, if any, and interest from XTRA Corporation, a
Delaware corporation ("XTRA" or the "Guarantor") (the Guarantee, together
with the Series C Medium-Term Notes, the "Securities"), in an aggregate
principal amount up to $604,000,000 and agrees with each of you (individually
an "Agent" and collectively the "Agents") as set forth in this Agreement.
<PAGE>
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell Securities directly on its
own behalf as provided in Section 2(a) hereof, the Company and XTRA hereby
(i) appoint each Agent as an agent of the Company and XTRA for the purpose of
soliciting and receiving offers to purchase Securities from the Company and
XTRA pursuant to Section 2(a) hereof and (ii) agree that, except as otherwise
contemplated herein, whenever they determine to sell Securities directly to
any Agent as principal, they will enter into a separate agreement (each a
"Terms Agreement"), substantially in the form of Annex I hereto, relating to
such sale in accordance with Section 2(b) hereof.
The Securities will be issued under an indenture, dated as of
August 15, 1994 (the "Original Indenture"), between the Company, XTRA and The
First National Bank of Boston, as Trustee (the "Bank of Boston"), as amended
and supplemented by (i) the First Supplemental Indenture, dated as of
September 30, 1994 (the "First Supplemental Indenture"), between the Company,
XTRA, XTRA Missouri, Inc., a Delaware corporation ("XTRA Missouri"), and the
Bank of Boston, as Trustee, and (ii) the Second Supplemental Indenture, dated
as of ______ __, 1997 (the "Second Supplemental Indenture" and together with
the Original Indenture and the First Supplemental Indenture, the
"Indenture"), between the Company, XTRA and State Street Bank and Trust
Company, as Trustee. On October 2, 1995, State Street Bank and Trust Company
(the "Trustee") 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 Indenture. The Securities shall have the
maturity ranges, annual interest rates, if any, redemption provisions and
other terms set forth in the Prospectus referred to below as it may be
amended or supplemented from time to time. The Securities will be issued, and
the terms and rights thereof established, from time to time by the Company
and the XTRA in accordance with the Indenture and the Administrative
Procedure attached hereto as Annex II as it may be amended from time to time
by written agreement between the Agents and the Company and XTRA (the
"Procedure") and, if applicable, will be specified in a related Terms
Agreement.
1. The Company and XTRA represent and warrant to, and agree with,
each Agent that:
(a) A registration statement on Form S-3 (Registration No.
33-65293) has been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective amendments
thereto, each in the form heretofore delivered or to be delivered to such
Agent, excluding exhibits to such registration statement but including all
documents incorporated by reference in the prospectus included in such
registration statement, have been declared effective by the Commission in
such form; no other document with respect to such registration statement or
document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than the prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the Commission under
the Securities Act of 1933, as amended (the "Act"), each in the form
heretofore delivered to the Agents); and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included such registration statement
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act, being
-2-
<PAGE>
hereinafter called a "Preliminary Prospectus"; the various parts of such
registration statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in such registration
statement at the time such part of such registration statement became
effective but excluding Form T-1 and, if applicable, including the
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act, each as amended at the time
such part of such registration statement became effective, being hereinafter
collectively called the "Registration Statement"; the prospectus (including,
if applicable, any prospectus supplement) relating to the Securities, in the
form in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus, including any supplement to the Prospectus that
sets forth only the terms of a particular issue of the Securities (a "Pricing
Supplement"), shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or Prospectus,
as the case may be, under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and incorporated therein by reference; any reference to
any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement;
and any reference to the Prospectus as amended or supplemented shall be
deemed to refer to and include the Prospectus as amended or supplemented
(including by the applicable Pricing Supplement filed in accordance with
Section 4(a) hereof) in relation to Securities sold pursuant to this
Agreement, in the form in which it is filed with the Commission pursuant to
Rule 424(b) under the Act and in accordance with Section 4(a) hereof,
including any documents incorporated by reference therein as of the date of
such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus
when such documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished
in writing
-3-
<PAGE>
to XTRA and the Company by any Agent expressly for use in the Prospectus as
amended or supplemented to relate to a particular issuance of Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the
Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing date as
to the Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to XTRA and the Company by any Agent
expressly for use in the Prospectus as amended or supplemented to relate to a
particular issuance of Securities;
(d) None of XTRA, the Company, or any of their subsidiaries has
sustained since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus, except
as otherwise disclosed therein there has not been any change in the capital
stock (other than issuances of capital stock pursuant to the provisions of
employee or director benefit or stock option plans or agreements of XTRA) or
any increase in excess of $50 million in the consolidated long-term debt of
XTRA or the Company or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of XTRA or the Company and their respective subsidiaries,
otherwise than as set forth or contemplated in the Prospectus;
(e) XTRA and the Company and their respective subsidiaries have
good and marketable title to all personal property owned by any of them, in
each case free and clear of all liens, encumbrances and defects except such
as are described or referred to in the Prospectus or such as do not
materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Company or XTRA and
their respective subsidiaries; and any real property and buildings held under
lease by XTRA or the Company and their respective subsidiaries are held by
them under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed to be
made of such property by XTRA, the Company and their respective subsidiaries;
(f) XTRA has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware and the
Company has been duly
-4-
<PAGE>
incorporated and is validly existing as a corporation in good standing under
the laws of the State of Maine, in each case, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus, and none of them is required to be qualified as
a foreign corporation for the transaction of business under the laws of any
jurisdictions in which the consequences of a failure to qualify, individually
or in the aggregate, would have a material adverse effect on the business of
XTRA, the Company and their respective subsidiaries (taken as a whole); and
each subsidiary of XTRA and the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification and in which the
consequences of a failure to so qualify would have a material adverse effect
on the business of XTRA, the Company and their respective subsidiaries (taken
as a whole);
(g) XTRA and the Company each has an authorized capitalization as
set forth for it in the Prospectus, and all of the issued and outstanding
shares of capital stock of XTRA have been duly and validly authorized and
issued and are fully paid and non-assessable; all of the issued shares of
capital stock of the Company and of each other direct and indirect subsidiary
of XTRA have been duly and validly authorized and issued, are fully paid and
nonassessable and (except for directors' qualifying shares and except as set
forth in the Prospectus) are owned directly by XTRA or indirectly through one
or more of its subsidiaries, free and clear of all liens, encumbrances,
equities or claims;
(h) The Securities have been duly authorized, and, when issued and
delivered pursuant to the Indenture and this Agreement and any Terms
Agreement, will have been duly executed, authenticated, issued and delivered
and will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture enforceable in accordance
with their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; the Indenture
has been duly authorized and duly qualified under the Trust Indenture Act and
constitutes a valid and legally binding instrument, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture (including the form of the Guarantee) conforms and the Securities
of any particular issuance of Securities will conform to the descriptions
thereof contained in the Prospectus as amended or supplemented to relate to
such issuance of Securities;
(i) The issue and sale of the Securities, the compliance by XTRA
and the Company with, as applicable, all of the provisions of the Securities,
the Indenture, the Guarantee, this Agreement and any Terms Agreement, and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in (x) a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which XTRA or
any of its
-5-
<PAGE>
subsidiaries, including the Company, is a party or by which XTRA or any of
its subsidiaries, including the Company, is bound, nor (y) will such action
result in any breach or violation of the terms or provisions of XTRA's
Certificate of Incorporation, as amended, the Company's Articles of
Incorporation, as amended, XTRA's or the Company's By-Laws or any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over XTRA or any of its subsidiaries, including the
Company, or any of their properties, in each case in provision (x) above the
consequences of which would in any way affect the issuance and sale of the
Securities, the performance of the Guarantee, the performance of this
Agreement or the transactions contemplated hereby or the performance of the
provisions of the Indenture, or otherwise have, individually or in the
aggregate, a material adverse effect on the business of XTRA and its
subsidiaries, including the Company (taken as a whole); and no consent,
approval, authorization, order, registration or qualification of or with any
court or governmental agency or body is required for the solicitation of
offers to purchase Securities and the issue and sale of the Securities, the
consummation by XTRA or the Company of the other transactions contemplated by
this Agreement, any Terms Agreement, the Indenture or the Guarantee, except
such as have been, or will have been prior to the Commencement Date (as
defined in Section 3 hereof), obtained under the Act or the Trust Indenture
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the solicitation by the Agents of offers to purchase
Securities from the Company and XTRA and with purchases of Securities by the
Agents as principal, as the case may be, in each case in the manner
contemplated hereby;
(j) There are no legal or governmental proceedings pending to
which XTRA or any of its subsidiaries, including the Company, is a party or
to which any property of XTRA or any of its subsidiaries, including the
Company, is subject (other than as set forth or contemplated in the
Prospectus and other than litigation incident to the kind of business
conducted by XTRA and its subsidiaries, including the Company), which, if
determined adversely to XTRA or its subsidiaries, including the Company,
would individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or annual results of
operations of XTRA and its subsidiaries, including the Company (taken as a
whole); and, to the best of XTRA's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(k) The accountants who have certified the financial statements of
XTRA and its subsidiaries, including the Company, included in the
Registration Statement are independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder; and
(l) Immediately after the settlement of any sale of Securities by
the Company and XTRA resulting from solicitation by the Agents hereunder and
immediately after any Time of Delivery, as defined in Section 2(b), relating
to a sale under a Terms Agreement, the aggregate amount of Securities which
shall have been issued
-6-
<PAGE>
and sold by the Company and XTRA hereunder or under any Terms Agreement and
of any debt securities of the Company or guarantees of XTRA (other than such
Securities) that shall have been issued and sold pursuant to the Registration
Statement will not exceed the amount of debt securities or guarantees, as the
case may be, registered under the Registration Statement.
2. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, each of
the Agents hereby severally and not jointly agrees, as agent of the Company
and XTRA, to use its reasonable efforts when requested by the Company and
XTRA to solicit and receive offers to purchase the Securities from the
Company upon the terms and conditions set forth in the Prospectus as amended
or supplemented from time to time. So long as this Agreement shall remain in
effect, neither the Company nor XTRA shall, without the consent of the
Agents, solicit or accept offers to purchase, or sell or guarantee, any debt
securities with a maturity at the time of original issuance greater than or
equal to 9 months and less than or equal to 30 years, except as contemplated
hereby or in any Terms Agreement. XTRA and the Company may, subject to
Section 1(d), enter into any revolving credit and/or term loan agreements
with commercial banking institutions and loans from insurance companies
(provided that such loans shall not consist of Securities). The Company
reserves the right to sell, and may solicit and accept offers to purchase,
Securities directly on its own behalf; provided, however, that if at the time
of any such sales the Agents are posting terms and conditions for the
purchase and sale of the Securities, such sales shall be on substantially the
same terms and conditions as then posted by the Agents; provided further,
that in the case of any such sales not resulting from a solicitation made by
any Agent, no commission shall be payable with respect to such sales. Each
Agent also acknowledges and agrees that the Company may accept (but not
solicit) offers to purchase Securities through additional agents, and may
appoint another agent, or agents, to solicit offers to purchase the Notes,
provided that such additional agent or agents shall be engaged on terms
substantially similar to the applicable terms of this Agreement (except that
commissions payable to such agent or agents shall be identical to those set
forth in the commission schedule in this Section 2(a)).
The Company and XTRA reserve the right, in their sole discretion,
to instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Securities. As soon
as practicable, but in any event not later than one business day in New York
City after receipt of notice from the Company and XTRA, the Agents will
suspend solicitation of offers to purchase Securities from the Company and
XTRA until such time as the Company and XTRA have advised the Agents that
such solicitation may be resumed.
The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Company and XTRA as a result of a
solicitation made by such Agent, in an amount equal to the following
applicable percentage of the principal amount of such Security sold:
-7-
<PAGE>
<TABLE>
<CAPTION>
Commission (percentage of
aggregate principal amount
of Securities sold)
Range of Maturities Split Rated Investment Grade
<S> <C> <C>
From 9 months to less than 1 year .150% .125%
From 1 year to less than 18 months .200% .150%
From 18 months to less than 2 years .250% .200%
From 2 years to less than 3 years .350% .250%
From 3 years to less than 4 years .450% .350%
From 4 years to less than 5 years .550% .450%
From 5 years to less than 6 years .600% .500%
From 6 years to less than 7 years .600% .550%
From 7 years to less than 10 years .700% .600%
From 10 years to less than 15 years .800% .625%
From 15 years to less than 20 years .875% .675%
From 20 years to 30 years 1.000% .750%
</TABLE>
For purposes of the foregoing, the "Investment Grade" commission schedule
applies if the Notes are rated BBB- or better by Standard & Poor's
Corporation and Baa3 or better by Moody's Investors Corporation; the "Split
Rated" commission schedule applies if the Notes are so rated by one, but not
both, of such rating agencies.
Each of the Agents is authorized to solicit offers to purchase the
Securities only in denominations of $100,000 or any amount in excess thereof
that is an integral multiple of $1,000 at a purchase price equal to 100% of
their principal amount. Each Agent shall communicate to the Company, orally
or in writing, each reasonable offer to purchase Securities received by it as
Agent other than those rejected by such Agent. The Company shall have the
sole right to accept offers to purchase Securities and may reject any
proposed purchase of Securities as a whole or in part. Each Agent shall have
the right, in its discretion reasonably exercised, to reject any offer
received by it to purchase Securities, as a whole or in part, and any such
rejection by it shall not be deemed a breach of its agreements contained
herein.
(b) Each sale of Securities to any Agent as principal shall be
made in accordance with the terms of this Agreement and (unless the Company
and such Agent shall otherwise agree) a Terms Agreement which will provide
for the sale of such Securities to, and the purchase thereof by, such Agent.
A Terms Agreement may also specify certain provisions relating to the
reoffering of such Securities by such Agent. The commitment of any Agent to
purchase
-8-
<PAGE>
Securities pursuant to any Terms Agreement shall be deemed to have been made
on the basis of the representations and warranties of the Company and XTRA
herein contained and shall be subject to the terms and conditions herein set
forth. Each Terms Agreement shall specify the principal amount of Securities
to be purchased by any Agent pursuant thereto, the price to be paid to the
Company for such Securities, any provisions relating to rights of, and
default by, underwriters acting together with such Agent in the reoffering of
the Securities and the time and date and place of delivery of and payment for
such Securities. Such Terms Agreement shall also specify any requirements for
opinions of counsel, accountants' letters and officers' certificates pursuant
to Section 4 hereof.
For each sale of Securities to an Agent as principal that is not
made pursuant to a Terms Agreement, the Company agrees to pay such Agent a
commission (or grant an equivalent discount) as provided in Section 2(a)
hereof and in accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities to be
purchased by an Agent as principal, whether set forth in a Terms Agreement or
in accordance with the Procedure, is referred to herein as a "Time of
Delivery".
(c) Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase Securities and the payment
in each case therefor shall be as set forth in the Procedure. The provisions
of the Procedure shall apply to all transactions contemplated hereunder other
than those made pursuant to a Terms Agreement. Each Agent, XTRA and the
Company agree to perform the respective duties and obligations specifically
provided to be performed by each of them in the Procedure. The Company and
XTRA will furnish to the Trustee a copy of the Procedure as from time to time
in effect.
3. The documents required to be delivered pursuant to Section 6
hereof on the Commencement Date (as defined below) shall be delivered to the
Agents at the offices of Sullivan & Cromwell, 125 Broad Street, New York, New
York 10004, at 2:00 p.m., New York City time, on the date of this Agreement,
which date and time of such delivery may be postponed by agreement between
the Agents and the Company and XTRA but in no event shall be later than the
day prior to the date on which solicitation of offers to purchase Securities
is commenced or on which any Terms Agreement is executed (such time and date
being referred to herein as the "Commencement Date").
4. The Company and XTRA covenant and agree with each Agent:
(a) (i) To prepare the Prospectus, as amended and supplemented, in
a form approved by such Agent and (A) to file such Prospectus pursuant to
Rule 424(b) under the Act not later than the Commission's close of business
on the second business day following the acceptance of an offer to purchase a
Security (as described in the Procedure pursuant to Section 2(c) of this
Agreement) or (B) to file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission's close of business on the second business
day following the execution and delivery of the Terms Agreement relating to
the Purchased Securities (as defined therein); (ii) to make no amendment or
supplement to the Registration Statement or the Prospectus (A)
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prior to the Commencement Date which shall be disapproved by any Agent
promptly after reasonable notice thereof or (B) after the date of any Terms
Agreement or other agreement by an Agent to purchase Securities as principal
and prior to the related Time of Delivery which shall be disapproved by any
Agent party to such Terms Agreement or so purchasing as principal promptly
after reasonable notice thereof, in each case such approval not to be
unreasonably withheld or delayed; (iii) to make no such amendment or
supplement, other than a Pricing Supplement, at any other time prior to
having afforded each Agent a reasonable opportunity to review and comment
thereon; (iv) to file promptly all reports and any definitive proxy or
information statements required to be filed by XTRA or the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
for so long as the delivery of a prospectus is required in connection with
the offering or sale of the Securities, and during such same period to advise
such Agent, promptly after XTRA or the Company receives notice thereof, of
the time when any amendment to the Registration Statement has been filed or
has become effective or any supplement to the Prospectus or any amended
Prospectus (other than any Pricing Supplement that relates to Securities not
purchased through or by such Agent) has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amendment or supplement
of the Registration Statement or Prospectus or for additional information;
and (v) in the event of the issuance of any such stop order or of any such
order preventing or suspending the use of any such prospectus or suspending
any such qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as such Agent
may reasonably request to qualify the Securities for offering and sale under
the securities laws of such jurisdictions as such Agent may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein for as long as may be necessary to complete the distribution or sale
of the Securities; provided, however, that in connection therewith neither
the Company nor XTRA shall be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
(c) To furnish each Agent with copies of the Registration
Statement and each amendment thereto, and with copies of the Prospectus as
each time amended or supplemented, other than any Pricing Supplement (except
as provided in the Procedure), in the form in which it is filed with the
Commission pursuant to Rule 424 under the Act, both in such quantities as
such Agent may reasonably request from time to time; and, if the delivery of
a prospectus is required at any time in connection with the offering or sale
of the Securities (including Securities purchased from the Company and XTRA
by such Agent as principal) and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust
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Indenture Act, to notify such Agent and request such Agent, in its capacity
as agent of the Company and XTRA, to suspend solicitation of offers to
purchase Securities from the Company and XTRA and, if so notified, such Agent
shall cease such solicitations as soon as practicable, but in any event not
later than one business day later; and if the Company or XTRA shall decide to
amend or supplement the Registration Statement or the Prospectus as then
amended or supplemented, to so advise such Agent promptly by telephone (with
confirmation in writing) and to prepare and cause to be filed promptly with
the Commission an amendment or supplement to the Registration Statement or
the Prospectus as then amended or supplemented that will correct such
statement or omission or effect such compliance; provided, however, that if
during such same period such Agent continues to own Securities purchased from
the Company and XTRA by such Agent as principal, the Company and XTRA shall
promptly prepare and file with the Commission such an amendment or supplement;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of XTRA and its subsidiaries, including the
Company (which need not be audited), complying with Section 11(a) of the Act
and the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) So long as any Securities are outstanding, to furnish to such
Agent copies of all reports or other communications (financial or other)
furnished to stockholders, and deliver to such Agent (i) as soon as they are
available, copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange on which any
class of securities of XTRA or the Company is listed; and (ii) such
additional information concerning the business and financial condition of
XTRA and the Company as such Agent may from time to time reasonably request
(such financial statements to be on a consolidated basis to the extent the
accounts of XTRA and its subsidiaries, including the Company, are
consolidated in reports furnished to their stockholders generally or to the
Commission but including such detail concerning the business and financial
condition of the Company and its subsidiaries as the Agents may reasonably
request);
(f) That, from the date of any Terms Agreement and continuing to
and including the earlier of (i) the termination of the trading restrictions
for the Securities purchased thereunder, as notified to the Company or XTRA
by the Agents and (ii) the related Time of Delivery, neither the Company nor
XTRA will, without the prior written consent of such Agent, offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
or XTRA which mature more than nine months after such Time of Delivery and
which are substantially similar to the Securities;
(g) That each acceptance by the Company and XTRA of an offer to
purchase Securities hereunder, and each execution and delivery by the Company
and XTRA of a Terms Agreement with such Agent, shall be deemed to be an
affirmation to such Agent that the representations and warranties of the
Company and XTRA contained in or made pursuant to this Agreement are true and
correct as of the date of such acceptance or of such Terms
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Agreement, as the case may be, as though made at and as of such date, and an
undertaking that such representations and warranties will be true and correct
as of the settlement date for the Securities relating to such acceptance or
as of the Time of Delivery relating to such sale, as the case may be, as
though made at and as of such date (except that such representations and
warranties shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented relating to such Securities);
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented (other than by a
Pricing Supplement) and each time a document filed under the Act or the
Exchange Act is incorporated by reference into the Prospectus, and each time
the Company and XTRA sell Securities to such Agent as principal pursuant to a
Terms Agreement and such Terms Agreement specifies the delivery of an opinion
or opinions by Sullivan & Cromwell, counsel to the Agents, as a condition to
the purchase of Securities pursuant to such Terms Agreement, the Company and
XTRA shall furnish to such counsel such papers and information as they may
reasonably request to enable them to furnish to such Agent the opinion or
opinions referred to in Section 6(b) hereof;
(i) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement), each
time a document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus, and each time the Company and XTRA sell
Securities to such Agent as principal pursuant to a Terms Agreement and such
Terms Agreement specifies the delivery of an opinion under this Section 4(i)
as a condition to the purchase of Securities pursuant to such Terms
Agreement, the Company and XTRA shall furnish or cause to be furnished
forthwith to such Agent a written opinion of Ropes & Gray, counsel for the
Company and XTRA, or other counsel for the Company and XTRA satisfactory to
such Agent, and of James R. Lajoie, general counsel for the Company and XTRA,
respectively, dated the date of such amendment, supplement, incorporation or
Time of Delivery relating to such sale, as the case may be, in form
satisfactory to such Agent, in each case to the effect that such Agent may
rely on the opinion of such counsel referred to in Section 6(c) and Section
6(d), respectively, hereof which was last furnished to the Agents to the same
extent as though it were dated the date of such letter authorizing reliance
(except that the statements in such last opinion shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented to
such date) or, in lieu of such opinion, an opinion of the same tenor as the
opinion referred to in Section 6(c) and Section 6(d), respectively, hereof
but modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date;
(j) That each time the Registration Statement or the Prospectus
shall be amended or supplemented and each time that a document filed under
the Act or the Exchange Act is incorporated by reference into the Prospectus,
in either case to set forth financial information included in or derived from
XTRA's consolidated financial statements or one of XTRA's or the Company's
accounting records, and each time the Company and XTRA sell Securities to an
Agent as principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of a letter under this Section 4(j) as a condition to
the purchase of Securities pursuant to such Terms Agreement, the Company and
XTRA shall cause the independent certified public accountants who have
certified the financial statements of XTRA and its direct and indirect
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subsidiaries, including the Company, included or incorporated by reference in
the Registration Statement forthwith to furnish such Agent a letter, dated
the date of such amendment, supplement, incorporation or Time of Delivery
relating to such sale, as the case may be, in form satisfactory to such
Agent, of the same tenor as the letter referred to in Section 6(e)(i) hereof
but modified to relate to the Registration Statement and the Prospectus as
amended or supplemented to the date of such letter, with such changes as may
be necessary to reflect changes in the financial statements and other
information derived from the accounting records of XTRA and the Company, to
the extent such financial statements and other information are available as
of a date not more than five business days prior to the date of such letter;
provided, however, that, with respect to any financial information or other
matter, such letter may reconfirm as true and correct at such date as though
made at and as of such date, rather than repeat, statements with respect to
such financial information or other matter made in the letter referred to in
Section 6(e)(i) hereof which was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement), each
time a document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus and each time the Company and XTRA sell
Securities to such Agent as principal pursuant to a Terms Agreement and such
Terms Agreement specifies the delivery of a certificate under this Section
4(k) as a condition to the purchase of Securities pursuant to such Terms
Agreement, the Company and XTRA shall furnish or cause to be furnished
forthwith to such Agent a certificate or certificates, dated the date of such
supplement, amendment, incorporation or Time of Delivery relating to such
sale, as the case may be, in such form and executed by such officers of the
Company and XTRA as shall be satisfactory to such Agent, to the effect that
the statements contained in the certificate or certificates referred to in
Section 6(h) hereof which was last furnished to such Agent are true and
correct at such date as though made at and as of such date (except that such
statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in lieu of such
certificate, certificates of the same tenor as the certificates referred to
in said Section 6(h) but modified to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date; and
(l) To offer to any person who has agreed to purchase Securities
as the result of an offer to purchase solicited by the Agents the right to
refuse to purchase and pay for such Securities if, on the related settlement
date fixed pursuant to the Procedure, any condition set forth in any of
Section 6(a)(i), 6(f)(x) and (z) or 6(g) hereof shall not have been satisfied
(it being understood that the judgment of such person with respect to the
impracticability or inadvisability of such purchase of Securities shall be
substituted, for purposes of this Section 4(l), for the respective judgments
referred to therein of such Agent with respect to certain matters referred to
in such Sections 6(a)(i), 6(f)(x) and (z) and 6(g), and that such Agent shall
have no duty or obligation whatsoever to exercise the judgment permitted
under such Sections 6(a)(i), 6(f)(x) and (z) and 6(g) on behalf of any such
person).
5. The Company and XTRA covenant and agree with each Agent that
the Company and XTRA will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Company's and XTRA's counsel and
accountants in connection with the registration of
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the Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus, the Prospectus and any Pricing Supplements and all
other amendments and supplements thereto and the mailing and delivering of
copies thereof to such Agent; (ii) the fees and expenses of counsel for the
Agents in connection with the establishment of the program contemplated
hereby and the transactions contemplated hereunder; (iii) the out-of- pocket
expenses of the Agents; (iv) the cost of printing, producing or reproducing
this Agreement, any Terms Agreement, any Indenture (including any supplement
thereto), any Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the
Securities; (v) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 4(b) hereof, including the fees and disbursements of counsel for the
Agents in connection with such qualification and in connection with the Blue
Sky and legal investment surveys; (vi) any fees charged by securities rating
services for rating the Securities; (vii) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities; (viii) the cost of preparing the
Securities; (ix) the fees and expenses of any Trustee and any agent of any
Trustee and any transfer or paying agent of the Company and the fees and
disbursements of counsel for any Trustee or such agent in connection with any
Indenture and the Securities; (x) any advertising expenses connected with the
solicitation of offers to purchase and the sale of Securities so long as such
advertising expenses have been approved by the Company or XTRA; and (xi) all
other costs and expenses incident to the performance of the Company's or
XTRA's obligations hereunder which are not otherwise specifically provided
for in this Section. It is understood, however, that except as provided in
this Section and Sections 7 and 8 hereof, each Agent will pay all other costs
and expenses it incurs.
6. The obligation of any Agent, as agent of the Company and XTRA,
at any time ("Solicitation Time") to solicit offers to purchase the
Securities and the obligation of such Agent to purchase Securities as
principal pursuant to any Terms Agreement shall in each case be subject, in
such Agent's discretion, (i) to the condition that all representations and
warranties and other statements of the Company and XTRA herein (and, in the
case of an obligation of an Agent under a Terms Agreement, in or incorporated
by reference in such Terms Agreement) are true and correct (a) at and as of
the Commencement Date and (b) any applicable date referred to in Section 4(k)
hereof that is after such Commencement Date and prior to such Solicitation
Time or Time of Delivery, as the case may be, and (c) at and as of such
Solicitation Time or Time of Delivery, as the case may be, and (ii) the
condition that at or prior to such Solicitation Time or Time of Delivery, as
the case may be, the Company and XTRA shall have performed all of their
obligations hereunder theretofore to be performed and the following
additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the Prospectus as
amended or supplemented (including the Pricing Supplement) with respect to
such Securities shall have been filed with the Commission pursuant to Rule
424(b) under the Act within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with
Section 4(a) hereof; (ii) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the
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Commission; and (iii) all requests for additional information on the part of
the Commission shall have been complied with to the reasonable satisfaction
of such Agent;
(b) Sullivan & Cromwell, counsel to the Agents, shall have
furnished to such Agent (i) such opinion or opinions, dated the Commencement
Date, with respect to the incorporation of the Company and XTRA, the validity
of the Indenture, the Securities, the Registration Statement, the Prospectus
as amended or supplemented and other related matters as such Agent may
reasonably request, and (ii) if and to the extent requested by such Agent,
with respect to each applicable date referred to in Section 4(h) hereof that
is on or prior to such Solicitation Time or Time of Delivery, as the case may
be, an opinion or opinions, dated such applicable date, to the effect that
such Agent may rely on the opinion or opinions which were last furnished to
such Agent pursuant to this Section 6(b) to the same extent as though it or
they were dated the date of such letter authorizing reliance (except that the
statements in such last opinion or opinions shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date) or, in any case, in lieu of such an opinion or opinions, an opinion or
opinions of the same tenor as the opinion or opinions referred to in clause
(i) but modified to relate to the Registration Statement and the Prospectus
as amended and supplemented to such date; and in each case such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters (including an opinion of Pierce Atwood
or other counsel satisfactory to the Agents in respect of matters of Maine
law);
(c) Ropes & Gray, counsel for the Company and XTRA, or other
counsel for the Company and XTRA satisfactory to such Agent, shall have
furnished to such Agent their written opinions, dated the Commencement Date
and each applicable date referred to in Section 4(i) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may be, in
form and substance satisfactory to such Agent to the effect that:
(i) XTRA has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware and
the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maine, in
each case, with corporate power to own its properties and conduct its
business as described in the Prospectus (such counsel being entitled to
rely upon an opinion of Pierce Atwood or other counsel satisfactory to
the Agents in respect of matters of Maine law, provided such counsel
shall state that he believes both the Agents and such counsel are
justified in relying upon such opinion);
(ii) XTRA has an authorized capitalization as set forth for it in
the Prospectus as amended or supplemented and all of the issued and
outstanding shares of capital stock of XTRA have been duly authorized and
validly issued and are fully paid and non-assessable;
(iii) This Agreement and any applicable Terms Agreement have been
duly authorized, executed and delivered by the Company;
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(iv) The Securities have been duly authorized and, when duly
executed, authenticated, and issued in accordance with the
Indenture and delivered by the Company and paid for in accordance with
the terms hereof, will constitute valid and legally binding
obligations of the Company and XTRA, enforceable in
accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles, entitled to the benefits
provided by the Indenture and the Guarantee;
(v) The Original Indenture and the Second Supplemental Indenture
have been duly authorized, executed and delivered by the Company and
XTRA and the First Supplemental Indenture has been duly
authorized, executed and delivered by the Company, XTRA and
XTRA Missouri, and the Indenture constitutes a valid and
legally binding instrument of the Company and XTRA,
enforceable against each of them in accordance with its
terms, subject to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the
Indenture has been duly qualified under the Trust Indenture
Act;
(vi) Each Guarantee, when executed and delivered pursuant to the
Indenture, will have been duly authorized, executed and
delivered by the Guarantor and will constitute a valid and
legally binding instrument of the Guarantor, enforceable in
accordance with its terms, subject to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles;
(vii) The Indenture, the Securities and the form of the Guarantee
conform to the descriptions thereof in the Prospectus as amended or
supplemented;
(viii) The issue and sale of the Securities, the compliance by the
Company and XTRA with, as applicable, all of the provisions of the
Securities, the Indenture, the Guarantee, this Agreement and
any applicable Terms Agreement, and the consummation of the
transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of
the terms or provisions of any statutes, the Company's
Articles of Incorporation, as amended, XTRA's Certificate of
Incorporation, as amended, or the By-Laws or any order, rule
or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the
Company or XTRA or any of their properties (it being
understood that counsel's opinion need only cover federal,
Massachusetts and the Delaware business corporation law);
(ix) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body is required for the solicitation of offers to purchase
Securities and the issue and sale of the Securities, the
consummation by the Company or XTRA of the other
transactions contemplated by this Agreement, any applicable
Terms Agreement, or the Indenture or the Guarantee, except
such as have been obtained under the Act and the Trust
Indenture Act and such as may be required under state
securities or Blue Sky laws in connection with the
solicitation by the Agents of offers to purchase Securities
from the Company and XTRA and with purchases of Securities
by the Agents as principal, as the case may be, in each case
in the manner
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contemplated hereby (it being understood that
counsel's opinion need only cover federal, Massachusetts and
the Delaware business corporation law);
(x) The Registration Statement and the Prospectus and any amendments
and supplements thereto made by XTRA or the Company prior to the
date of such opinion (other than the financial statements
including the notes and schedules thereto, any financial
data set forth or referred to in the Registration Statement
or the Prospectus or any statements or omissions made by
XTRA and the Company in reliance upon information furnished
in writing to XTRA and the Company by the Agents in
connection with the Registration Statement or Prospectus, as
to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the
Act and the Trust Indenture Act and the rules and
regulations thereunder; such counsel do not know of any
legal or governmental proceedings to which XTRA or any of
its subsidiaries, including the Company, is a party or of
which any of their property is the subject required to be
described in the Prospectus which are not described as
required therein; such counsel have no reason to believe
that, as of the effective date of the Registration
Statement, either the Registration Statement or the
Prospectus (or, as of its date, any amendment or supplement
thereto made by XTRA or the Company prior to the date of
such opinion) (other than the financial statements including
the notes and schedules thereto, any financial data set
forth or referred to in the Registration Statement or the
Prospectus or any statements or omissions made by XTRA and
the Company in reliance upon information furnished in
writing to XTRA and the Company by the Agents in connection
with the Registration Statement or Prospectus, as to which
such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of the date of
such opinion, either the Registration Statement or the
Prospectus (or any such amendment or supplement thereto)
contained as of its date or contains an untrue statement of
a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading (in the case of any such opinion as
of such date, in light of the circumstances under which they
were made, and in each case excluding any statement in any
such document which does not constitute part of the
Registration Statement or the Prospectus pursuant to Rule
412 of Regulation C under the Act), or that as of the date
of such opinion it is necessary to amend or supplement the
Registration Statement or Prospectus, except to file Pricing
Supplements pursuant to Rule 424(b) under the Act; and they
do not know of any contracts or other documents of a
character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or
required to be described in the Registration Statement or
the Prospectus as amended or supplemented which are not
filed or incorporated by reference or described as required;
(d) James R. Lajoie, general counsel for XTRA and the Company,
shall have furnished to the Agents his written opinions, dated the
Commencement Date and each applicable date referred to in Section 4(i) that
is on or prior to such Solicitation Time or Time of Delivery, as the case may
be, in form and substance satisfactory to the Agents, to the effect set forth
in subsection (x) of Section 6(c) above and, additionally, as follows:
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(i) Neither XTRA nor the Company is required to be qualified as a
foreign corporation under the laws of any jurisdictions in which the
consequences of a failure to so qualify, individually or in
the aggregate, would have a material adverse effect on the
business of XTRA or the Company and their respective
subsidiaries (in each case taken as a whole);
(ii) Each of X-L-Co., Inc., Distribution International Corporation,
Strick Canada Limited, XTRA Intermodal, Inc., XTRA
International Ltd., XLI, Inc. and XTRA Lease, Inc. has been
duly incorporated and is validly existing as a corporation
in good standing under the laws of its jurisdiction of
incorporation and has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so
as to require such qualification and in which the
consequences of a failure to so qualify would have a
material adverse effect on the business of XTRA or the
Company and their respective subsidiaries (in each case
taken as a whole); and all of the issued shares of capital
stock of the Company and of each of its subsidiaries have
been duly and validly authorized and issued, are fully paid
and non-assessable, and (except for directors' qualifying
shares and except as otherwise set forth in the Prospectus)
are owned directly by XTRA (in the case of the Company) or
the Company or indirectly through one or more subsidiaries,
free and clear, to the best of such counsel's knowledge, of
all liens, encumbrances, equities or claims (such counsel
being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of XTRA or its
direct or indirect subsidiaries, including the Company,
provided that such counsel shall state that he believes that
both you and he are justified in relying upon such opinions
and certificates);
(iii) To the best of such counsel's knowledge there are no legal or
governmental proceedings pending to which XTRA or any of its
subsidiaries, including the Company, is a party or of which
any property of XTRA or any of its subsidiaries, including
the Company, is the subject, other than as set forth in the
Prospectus and other than litigation incident to the kind of
business conducted by XTRA and its subsidiaries, including
the Company, which individually and in the aggregate is not
material to XTRA and its subsidiaries, including the
Company; and to the best of such counsel's knowledge no such
proceedings are threatened by governmental authorities or
others;
(iv) The issue and sale of the Securities, the compliance by XTRA
and the Company with, as applicable, all of the provisions of the
Securities, the Indenture, the Guarantee, this Agreement and
any applicable Terms Agreement, and consummation of the
transactions herein and therein contemplated will not result
in (x) a breach or violation of any of the terms or
provisions of any statute, XTRA's Certificate of
Incorporation, the Company's Articles of Incorporation, the
Company's or XTRA's By-laws, or any order, rule or
regulation known to such counsel of any court or
governmental agency or body having jurisdiction over XTRA or
the Company or any of their respective subsidiaries or any
of their properties or (y) a breach or violation of any of
the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which
XTRA or any of its
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<PAGE>
subsidiaries, including the Company, is a
party or by which XTRA or any of its subsidiaries, including
the Company, is bound, in each case in this provision (y)
the consequences of which would in any way affect the
issuance and sale of the Securities (including the
Guarantee), the performance of this Agreement or the
transactions contemplated hereby or the Guarantee, or
otherwise, individually or in the aggregate, have a material
adverse effect on the business of XTRA or the Company and
their respective subsidiaries (in each case taken as a
whole);
(v) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body is required for the solicitation of offers to purchase
Securities, the issue and sale of the Securities, the
compliance by XTRA or the Company with all the provisions of
the Securities, the consummation by XTRA or the Company of
the transactions contemplated by this Agreement, any
applicable Terms Agreement or the Indenture or the
Guarantee, except such as have been obtained under the Act
and such as may be required under state securities or Blue
Sky laws in connection with the solicitation by the Agents
of offers to purchase securities from the Company and with
purchases of Securities by the Agents as principal, as the
case may be, in each case in the manner contemplated hereby;
(vi) The documents incorporated by reference in the Prospectus
(other than the financial statements, including the notes and schedules
thereto, or any financial data set forth or referred to
therein, as to which such counsel need express no opinion),
when they became effective or were filed with the
Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or
Exchange Act, as applicable, and the published rules and
regulations of the Commission thereunder; and such counsel
has no reason to believe that any of such documents (other
than the financial statements, including the notes thereto
or any financial data set forth or referred to therein, as
to which such counsel need express no opinion), when they
became effective or were so filed, contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to
make the statements therein, in the light of the
circumstances under which they were made when such documents
were so filed, not misleading;
(e) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section 4(j)
hereof that is on or prior to such Solicitation Time or Time of Delivery, as
the case may be, the independent certified public accountants who have
certified the financial statements of XTRA and its direct and indirect
subsidiaries, including the Company, included or incorporated by reference in
the Registration Statement shall have furnished to such Agent a letter, dated
the Commencement Date or such applicable date, as the case may be, in form
and substance satisfactory to such Agent, to the effect set forth in Annex
III hereto;
(f) (i) Neither XTRA nor any of its subsidiaries, including the
Company, shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as amended
or supplemented any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
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<PAGE>
or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented and (ii) since the respective dates as of which such information
is given in the Prospectus as amended or supplemented there shall not have
been (x) any change in the capital stock (other than issuances of capital
stock pursuant to the provisions of employee or director benefit or stock
option plans or agreements of XTRA) or (y) any increase in excess of $50
million in the long-term debt of XTRA or any of its subsidiaries, including
the Company, or (z) any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of XTRA and its subsidiaries,
including the Company, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Agents so material
and adverse as to make it impracticable or inadvisable to proceed with the
solicitation by the Agents of offers to purchase Securities from XTRA and the
Company or the purchase by the Agents of Securities from XTRA and the Company
as principal, as the case may be;
(g) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the
New York Stock Exchange; (ii) a general moratorium on commercial banking
activities in New York declared by either federal or New York State
authorities; (iii) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency
or war if the effect of any such event specified in this clause (iii) in the
judgment of the Agents makes it impracticable or inadvisable to proceed with
the solicitation of offers to purchase Securities or the purchase of
Securities from XTRA and the Company as principal pursuant to the applicable
Terms Agreement, as the case may be; or (iv) any downgrading in the rating
accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Act; or (v) any such "nationally
recognized statistical rating organization" shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities; and
(h) XTRA and the Company shall have furnished or caused to be
furnished to such Agent certificates of officers of XTRA and the Company
dated the Commencement Date and each applicable date referred to in Section
4(k) that is on or prior to such Solicitation Time or Time of Delivery, as
the case may be, in such form and executed by such officers of XTRA and the
Company as shall be satisfactory to such Agent, as to the accuracy of the
representations and warranties of XTRA and the Company herein at and as of
the Commencement Date or such applicable date, as the case may be, as to the
performance by XTRA and the Company of all of its obligations hereunder to be
performed at or prior to the Commencement Date or such applicable date, as
the case may be, as to the matters set forth in subsections (a) and (f) of
this Section 6, and as to such other matters as such Agent may reasonably
request.
7. (a) XTRA and the Company will, jointly and severally,
indemnify and hold harmless each Agent against any losses, claims, damages or
liabilities, joint or several, to which such Agent may become subject, under
the Act or otherwise, insofar as such losses,
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<PAGE>
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented or any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse such Agent
for any legal or other expenses reasonably incurred by it in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that XTRA and Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the Securities, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to XTRA and Company by any such Agent expressly for use
in the Prospectus as amended or supplemented.
(b) Each Agent will indemnify and hold harmless XTRA and the
Company against any losses, claims, damages or liabilities to which XTRA and
the Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented or any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the Prospectus as
amended or supplemented or any other prospectus relating to the Securities,
or any such amendment or supplement, in reliance upon and in conformity with
written information furnished to XTRA and the Company by such Agent expressly
for use therein; and will reimburse XTRA and the Company for any legal or
other expenses reasonably incurred by XTRA and the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from
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<PAGE>
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by XTRA and the Company on the one
hand and each Agent on the other from the offering of the Securities to which
such loss, claim, damage or liability (or action in respect thereof) relates.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each indemnifying party
shall contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of XTRA and the Company on the one hand and each
Agent on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by XTRA and the Company on the one hand and each
Agent on the other shall be deemed to be in the same proportion as the total
net proceeds from the sale of Securities (before deducting expenses) received
by the Company bear to the total commissions or discounts received by such
Agent in respect thereof. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading relates to information supplied by XTRA or the Company
on the one hand or by any Agent on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. XTRA and the Company and each Agent
agrees that it would not be just and equitable if contribution pursuant to
this subsection (d) were determined by per capita allocation (even if the
Agents were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above in this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), an
Agent shall not be required to contribute any amount in excess of the amount
by which the total public offering price of the Securities purchased by or
through it exceeds the amount of any damages which such Agent has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of each of the Agents under
this subsection (d) to
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<PAGE>
contribute are several in proportion to the respective purchases made by or
through it to which such loss, claim, damage or liability (or action in
respect thereof) relates and are not joint.
(e) The obligations of XTRA and the Company under this Section 7
shall be in addition to any liability which XTRA and the Company may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Agent within the meaning of the Act; and the
obligations of each Agent under this Section 7 shall be in addition to any
liability which such Agent may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of XTRA and the Company
and to each person, if any, who controls XTRA or the Company within the
meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from
the Company and XTRA and in performing the other obligations of such Agent
hereunder (other than in respect of any Terms Agreement), is acting solely as
agent for the Company and XTRA and not as principal. Each Agent will make
reasonable efforts to assist the Company and XTRA in obtaining performance by
each purchaser whose offer to purchase Securities from the Company and XTRA
was solicited by such Agent and has been accepted by the Company and XTRA,
but such Agent shall not have any liability to the Company and XTRA in the
event such purchase is not consummated for any reason. If the Company or XTRA
shall default on its obligation to deliver Securities to a purchaser whose
offer it has accepted, the Company and XTRA shall (i) hold each Agent
harmless against any loss, claim or damage arising from or as a result of
such default by the Company and XTRA and (ii) notwithstanding such default,
pay to the Agent that solicited such offer any commission to which it would
be entitled in connection with such sale. The Company and XTRA shall not be
required to pay any Agent a commission in connection with any purchase of a
Security which is not consummated other than as a result of a default by the
Company or XTRA of its obligations hereunder, including their obligation to
deliver Securities to a purchaser whose offer has been accepted.
9. The respective indemnities, agreements, representations,
warranties and other statements by any Agent and XTRA and the Company set
forth in or made pursuant to this Agreement shall remain in full force and
effect regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Agent or any controlling person of any
Agent or either of XTRA or the Company, or any officer or director or any
controlling person of either of XTRA or the Company, and shall survive each
delivery of and payment for any of the Securities.
10. The provisions of this Agreement relating to the solicitation
of offers to purchase Securities from the Company and XTRA may be suspended
or terminated at any time by the Company and XTRA as to any Agent or by any
Agent as to such Agent upon the giving of written notice of such suspension
or termination to such Agent or the Company or XTRA, as the case may be. In
the event of such suspension or termination with respect to any Agent, (x)
this Agreement shall remain in full force and effect with respect to any
Agent as to which such suspension or termination has not occurred, (y) this
Agreement shall remain in full force and effect with respect to the rights
and obligations of any party which have previously accrued or which relate to
Securities which are already issued, agreed to be issued or the subject of a
pending offer at the time of such suspension or termination and (z) in any
event,
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<PAGE>
this Agreement shall remain in full force and effect insofar as the third
paragraph of Section 2(a) (with respect to solicitations made prior to such
suspension or termination), Section 4(d), Section 4(e), Section 5 (with
respect to solicitations made prior to such suspension or termination),
Section 7, Section 8 and Section 9 are concerned.
11. Except as otherwise specifically provided herein or in the
Procedure, all statements, requests, notices and advices hereunder shall be
in writing, or by telephone if promptly confirmed in writing, and if to
Goldman, Sachs & Co. shall be sufficient in all respects when delivered or
sent by facsimile transmission or registered mail to 85 Broad Street, New
York, New York 10004, Facsimile Transmission No. (212) 902-3000, Attention:
Registration Department, if to Smith Barney Inc. shall be sufficient in all
respects when delivered or sent by telex, facsimile transmission or
registered mail to 390 Greenwich Street, New York, New York 10013, Facsimile
Transmission No. (212) 723-8853, Attention: MTN Product Manager, except that
any Pricing Supplements should also be delivered or sent by facsimile
transmission or registered mail to Brooklyn Army Terminal, 140 58th Street,
8th Floor, Brooklyn, New York 11220, Facsimile Transmission No. (718)
921-8472, Attention: Andrea Springer, if to Donaldson, Lufkin & Jenrette
Securities Corporation shall be sufficient in all respects when delivered or
sent by telex, facsimile transmission or registered mail to 277 Park Avenue,
New York, New York 10172, Facsimile Transmission No. (212) 892-4298,
Attention: Edward LaScala, if to Morgan Stanley & Co. Incorporated shall be
sufficient in all respects when delivered or sent by telex, facsimile
transmission or registered mail to 1585 Broadway, 2nd Floor, New York, New
York 10036, Facsimile Transmission No. (212) 761-0780, Attention: Manager
- --Continuously Offered Products, with a copy to 1585 Broadway, 34th Floor,
New York, NY 10036, Facsimile Transmission No. (212) 761-0260, Attention:
Peter Cooper, Investment Banking Information Center, except that any Pricing
Supplements should also be delivered or sent by facsimile transmission or
registered mail to 1585 Broadway, 2nd Floor, New York, NY 10036, Facsimile
Transmission No. (212) 761-8846, Attention: Medium-Term Note Trading Desk,
Carlos Cabrera, if to the Company or XTRA shall be sufficient in all respects
when delivered or sent by facsimile transmission or registered mail to XTRA
Corporation or XTRA, Inc., c/o X-L-Co., Inc., 60 State Street, Boston,
Massachusetts 02109, Facsimile Transmission No. (617) 227-2190, Attention:
General Counsel.
12. This Agreement and any Terms Agreement shall be binding upon,
and inure solely to the benefit of, each Agent and the Company and XTRA, and
to the extent provided in Section 7, Section 8 and Section 9 hereof, the
officers and directors of the Company and XTRA and any person who controls
any Agent or the Company or XTRA, and their respective personal
representatives, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any Terms Agreement.
No purchaser of any of the Securities through or from any Agent hereunder
shall be deemed a successor or assign by reason merely of such purchase.
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
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<PAGE>
14. This Agreement and any Terms Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
15. This Agreement and any Terms Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be an original, but all of such respective counterparts
shall together constitute one and the same instrument.
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<PAGE>
If the foregoing is in accordance with your understanding, please
sign and return to us eight counterparts hereof, whereupon this letter and
the acceptance by each of you thereof shall constitute a binding agreement
between the Company and you in accordance with its terms.
Very truly yours,
XTRA, INC.
By:_____________________
Name: Michael J. Soja
Title:Vice President
and Chief Financial Officer
XTRA CORPORATION
By:_____________________
Name: Michael J. Soja
Title:Vice President
and Chief Financial Officer
Accepted in New York, New York,
as of the date hereof:
___________________________
(GOLDMAN, SACHS & CO.)
SMITH BARNEY INC.
By:________________________
Name:
Title:
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<PAGE>
Donaldson, Lufkin & Jenrette Securities Corporation
By:________________________
Name:
Title:
Morgan Stanley & Co. Incorporated
By:________________________
Name:
Title:
-27-
<PAGE>
ANNEX I
XTRA, Inc.
Series C Medium-Term Notes
Guaranteed as to Payment of Principal,
Premium (if any) and Interest by
XTRA Corporation
TERMS AGREEMENT
___________, 19__
[Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004]
[Smith Barney Inc.
390 Greenwich Street
New York, New York 10013]
[Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, New York 10172]
[Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036]
Dear Sirs:
XTRA, Inc. (the "Company") and XTRA Corporation
("XTRA") propose, subject to the terms and conditions stated
herein and in the Distribution Agreement, dated February 9, 1996
(the "Distribution Agreement"), between the Company and XTRA on
the one hand and Goldman, Sachs & Co., Smith Barney Inc. ("Smith
Barney"), Donaldson, Lufkin & Jenrette Securities Corporation
("Donaldson, Lufkin & Jenrette") and Morgan Stanley & Co.
Incorporated ("Morgan Stanley") on the other, to issue and sell
to [Goldman, Sachs & Co.], [Smith Barney], [Donaldson, Lufkin &
Jenrette] and [Morgan Stanley] the securities specified in the
Schedule hereto (the "Purchased Securities"). Each of the
provisions of the Distribution Agreement not specifically related
to the solicitation by the Agents, as agents of the Company and
XTRA, of offers to purchase Securities is incorporated herein by
reference in its entirety, and shall be deemed to be part of this
Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Nothing contained herein or in the
Distribution Agreement shall make any
I-1
<PAGE>
party hereto an agent of the Company or XTRA or make such party subject to
the provisions therein relating to the solicitation of offers to purchase
securities from the Company and XTRA, solely by virtue of its execution of
this Terms Agreement. Each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Terms
Agreement, except that each representation and warranty in Section 1 of the
Distribution Agreement which makes reference to the Prospectus shall be
deemed to be a representation and warranty as of the date of the Distribution
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Terms Agreement in
relation to the Prospectus as amended and supplemented to relate to the
Purchased Securities.
An amendment to the Registration Statement, or a
supplement to the Prospectus, as the case may be, relating to the
Purchased Securities, in the form heretofore delivered to you is
now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein
and in the Distribution Agreement incorporated herein by
reference, the Company and XTRA agree to issue and sell to
[Goldman, Sachs & Co.] [Smith Barney] [Donaldson, Lufkin &
Jenrette] and [Morgan Stanley] and [Goldman, Sachs & Co.] [Smith
Barney] [Donaldson, Lufkin & Jenrette] and [Morgan Stanley]
agree[s] to purchase from the Company the Purchased Securities,
at the time and place, in the principal amount and at the
purchase price set forth in the Schedule hereto.
If the foregoing is in accordance with your
understanding, please sign and return to us _______ counterparts
hereof, and upon acceptance hereof by you this letter and such
acceptance hereof, including those provisions of the Distribution
Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company and XTRA.
XTRA, INC.
By:_____________________
Name:
Title:
XTRA CORPORATION
By:_____________________
Name:
Title:
Accepted:
I-2
<PAGE>
___________________________
[(GOLDMAN, SACHS & CO.)]
[SMITH BARNEY INC.]
By:________________________
Name:
Title:
[Donaldson, Lufkin & Jenrette Securities Corporation]
By:________________________
Name:
Title:
[Morgan Stanley & Co. Incorporated]
By:________________________
Name:
Title:
I-3
<PAGE>
Schedule to Annex I
Title of Purchased Securities:
Series C Medium-Term Notes ("Purchased Securities")
Aggregate Principal Amount:
$
[Price to Public:]
Purchase Price by [Goldman, Sachs & Co.] [Smith Barney]
[Donaldson, Lufkin & Jenrette] and [Morgan Stanley]:
% of the principal amount of the Purchased
Securities, plus accrued interest from to
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to
the order of the Company, in [[New York] Clearing House]
[immediately available] funds]
[By wire transfer to a bank account specified by the Company
in [next day] [immediately available] funds]
Indenture:
Indenture, dated as of August 15, 1994, between the Company,
XTRA and State Street Bank and Trust Company, as Trustee, as
amended and supplemented.
Time of Delivery:
Closing Location:
Maturity:
Interest Rate:
[ %]
I-4
<PAGE>
Interest Payment Dates:
[months and dates]
Documents to be Delivered:
The following documents referred to in the Distribution
Agreement shall be delivered as a condition to the Closing:
[(1) The opinion or opinions of counsel to the Agents
referred to in Section 4(h).]
[(2) The opinion or opinions of counsel to the Company
referred to in Section 4(i).]
[(3) The accountants' letter referred to in Section
4(j).]
[(4) The officers' certificate referred to in Section
4(k).]
Other Provisions (including Syndicate Provisions, if applicable):
[Set forth any provisions relating to underwriters' default
and step-up of amounts to be purchased by underwriters acting
with [Goldman, Sachs & Co.] [Smith Barney] [Donaldson, Lufkin &
Jenrette] and [Morgan Stanley]
I-5
<PAGE>
ANNEX II
XTRA, Inc.
Issuer
XTRA Corporation
Guarantor
ADMINISTRATIVE PROCEDURE
MEDIUM-TERM NOTES
SERIES C
Medium-term notes, each of which has the benefit of an
unconditional guarantee (the "Guarantee") of payment of
principal, premium (if any) and interest from XTRA Corporation
(the medium-term notes, together with the Guarantee being
referred to herein as the "Securities") in the aggregate
principal amount of up to $604,000,000 are to be offered from
time to time by XTRA, Inc. (the "Company") and XTRA Corporation
("XTRA"), through Goldman, Sachs & Co., Smith Barney Inc.,
Donaldson, Lufkin & Jenrette Securities Corporation and Morgan
Stanley & Co. Incorporated as agents of the Company and XTRA (in
such capacity, individually an "Agent" and collectively the
"Agents"). Each Agent has agreed to use its reasonable efforts to
solicit offers to purchase Securities directly from the Company
and XTRA, and each such Agent may also purchase Securities from
the Company and XTRA as principal. The Securities are being sold
pursuant to a Distribution Agreement, dated February 9, 1996 (the
"Distribution Agreement").
The Securities will be issued pursuant to an indenture,
dated as of August 15, 1994 (the "Original Indenture"), between
the Company, XTRA and The First National Bank of Boston, as
Trustee (the "Bank of Boston"), as amended and supplemented by
(i) the First Supplemental Indenture, dated as of September 30,
1994 (the "First Supplemental Indenture"), between the Company,
XTRA, XTRA Missouri, Inc., a Delaware corporation, and the Bank
of Boston, as Trustee, and (ii) the Second Supplemental
Indenture, dated as of ______ __, 1997 (the "Second Supplemental
Indenture" and together with the Original Indenture and the First
Supplemental Indenture, the "Indenture"), between the Company,
XTRA and State Street Bank and Trust Company, as successor
Trustee. The Securities will have been registered with the
Securities and Exchange Commission (the "Commission").
In the case of purchases of Securities by any Agent as
principal, the relevant terms and settlement details related
thereto, including the Time of Delivery referred to in
Section 2(b), will be set forth in a Terms Agreement entered into
between such Agent and the Company and XTRA pursuant to the
Distribution Agreement, unless the Company and such Agent
otherwise agree as provided in Section 2(b) of the Distribution
Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below.
The procedures to be followed during, and the specific
terms of, the solicitation of offers by the Agents and the sale
as a result thereof by the Company are explained below. The
following summaries of certain provisions of the Distribution
Agreement and the Indenture do not purport to be complete and are
subject, and are qualified in their entirety by reference, to all
of the respective provisions of the Distribution Agreement and
the Indenture.
II-1
<PAGE>
Administrative and record-keeping responsibilities will
be handled for the Company by its Treasurers Department. The
Company will advise the Agents in writing of those persons
handling administrative responsibilities ("Designated Persons")
with whom the Agents are to communicate regarding offers to
purchase Securities and the details of their delivery.
Maturities: Each Security will mature on a date,
selected by the purchaser and
agreed to by the Company, which
will be at least nine months but
not more than thirty years from the
date of issuance.
Guarantee: Each Security will have the benefit of
the Guarantee.
Price to Public: Each Security will be issued at 100% of
its principal amount.
Denominations: The denominations will be $100,000 and any
integral multiple of $1,000 in excess
thereof. Global Securities (as defined
below) will be denominated in principal
amounts not in excess of $200,000,000.
If one or more Book-Entry Notes having
an aggregate principal amount in excess
of $200,000,000 would, but for the
preceding sentence, be represented by a
single Global Security, then one Global
Security will be authenticated and
issued to represent each $200,000,000
principal amount of such Book-Entry Note
or Notes and an additional Global
Security will be authenticated and
issued to represent any remaining
principal amount of such Book-Entry Note
or Notes. In such a case, each of the
Global Securities representing such
Book-Entry Note or Notes shall be
assigned the same CUSIP number.
Registration: Each Security will be issued only in
fully registered form and will be
represented by either a global
security (a "Global Security")
delivered to the Trustee, as agent
for The Depository Trust Company
(the "Depository") and recorded in
the book-entry system maintained by
the Depository (a "Book-Entry
Security") or a certificate issued
in definitive form (a "Certificated
Security") delivered to a person
designated by an Agent, as set
forth in the applicable Pricing
Supplement. An owner of a
Book-Entry Security will not be
entitled to receive a certificate
representing such a Security,
except as provided in the
Indenture.
Each Global Security will be registered in
the name of CEDE & Co., as nominee for
DTC, on the Security Register. The
beneficial owner of a Book-Entry Note
(or one or more indirect participants in
DTC designated by such owner) will
designate one or
II-2
<PAGE>
more direct
participants in DTC (with respect to
such Note, the "Participants") to act as
agent or agents for such owner in
connection with the book-entry system
maintained by DTC, and DTC will record
in book-entry form, in accordance with
instructions provided by such
Participants, a credit balance with
respect to such beneficial owner in such
Note in the account of such
Participants. The ownership interest of
such beneficial owner in such Note will
be recorded through the records of such
Participants or through the separate
records of such Participants and one or
more indirect participants in DTC.
Identification The Company has arranged with the CUSIP
Service Bureau of
Numbers: Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the
reservation of a series of CUSIP
numbers (including tranche numbers)
for the Registered Notes. Such
series consists of approximately
900 CUSIP numbers and relates to
Global Securities representing
Book-Entry Notes and book- entry
medium-term notes issued by the
Company with other series
designations. The Company has
obtained from the CUSIP Service
Bureau written lists of such
reserved CUSIP numbers, and caused
such lists to be delivered to the
DTC Agent and to DTC. The Company
will assign CUSIP numbers to Global
Securities as described below under
Settlement Procedure "A". DTC will
notify the CUSIP Service Bureau
periodically of the CUSIP numbers
that the Company has assigned to
Global securities. The DTC Agent
will notify the Company at any time
when fewer than 100 of the reserved
CUSIP numbers remain unassigned to
Global Securities, and, if it deems
necessary, the Company will reserve
additional CUSIP numbers for
assignment to Global Securities.
Upon obtaining such additional
CUSIP numbers, the Company shall
deliver a list of such additional
CUSIP numbers to the DTC Agent and
to DTC.
Interest Payments: Interest payments will be made, with
respect to fixed-rate Securities,
unless otherwise stated in the
applicable Pricing Supplement, on
each January 15 and July 15 in each
year and, with respect to
floating-rate Securities, on the
dates specified therein (in each
case, the "Interest Payment
Dates"), commencing on the first
Interest Payment Date after the
Settlement Date (as defined below
under "Settlement"), and at
maturity. Interest payments will be
made on the Interest Payment Dates
to the registered owners of
fixed-rate Securities, at the close
of business on the immediately
preceding January 1 and July 1,
respectively; interest payments
will be made on the Interest
Payment Dates to the registered
owners of floating-rate Securities
on the record dates occurring 15
days prior to each Interest Payment
Date. Interest will begin
II-3
<PAGE>
to accrue
on the Settlement Date, as
hereafter defined, and not from the
immediately previous Interest
Payment Date. Interest payable at
maturity (other than on a date
which is an Interest Payment Date)
will be paid to the same person to
whom the principal is payable.
Interest (including payments for
partial periods) will be calculated
on the basis of a 360-day year of
twelve 30-day months. Unless
special arrangements have been
made, all interest payments (other
than interest due at maturity) will
be made by check, drawn on The
First National Bank of Boston.
On the fifth business day immediately
preceding each Interest Payment Date,
the Trustee will advise the Company of
the aggregate amount of interest to be
paid on the Securities on such Interest
Payment Date. The Trustee will provide
monthly to XTRA's and the Company's
Treasurer or Assistant Treasurer a list
of the principal and interest to be paid
on Securities maturing in the next
succeeding month. The Trustee will
assume responsibility for withholding
taxes on interest paid as required by
law.
Acceptance of The Agents will promptly advise the Company
Offers: by telephone or
other appropriate means of all
reasonable offers to purchase
securities, other than those rejected by
the Agents. The Company shall inform
XTRA of any such offers. The Agents may,
in their discretion reasonably
exercised, reject any offer received by
them in whole or in part. The Company
and XTRA will have the sole right to
accept offers to purchase Securities and
may reject any such offer in whole or in
part.
If the Company and XTRA accept an offer to
purchase Securities, they will confirm
such acceptance in writing to the Agents
and the Trustee or its agent. If the
Company and XTRA reject an offer, they
will promptly notify the Agents.
If the Company and XTRA accept an offer to
purchase a Security (as described below
under "Procedure for Posting"), but the
Company has not "posted" rates, the
Company will prepare a pricing sticker
reflecting the terms of such Security
and will arrange to have ten stickered
Prospectus Supplements filed with the
Commission not later than the
Commission's close of business on the
second business day following such
acceptance of an offer to purchase a
Security and will supply at least ten
stickered Prospectus Supplements to the
Agents. The Agents will cause a
Prospectus Supplement with such pricing
sticker to be delivered to the purchaser
of the Security.
II-4
<PAGE>
If the Company and XTRA accept an offer to
purchase a Security and the Company has
"posted" rates, the Agents will cause a
Prospectus Supplement with a "posted"
rates sticker to be delivered to the
purchaser of such Security.
Delivery of With respect to each Security sold
Prospectus: pursuant to the Distribution
Agreement, the Agents shall send a
copy of the Prospectus Supplement
(together with either a specially
prepared pricing sticker relating
to such Security or a "posted"
rates sticker), to the customer or
its agent prior to or together with
the earlier of delivery of (a) the
written confirmation of sale sent
to such customer or agent or
(b) the Security or due bill to
such customer or agent.
Confirmation: The Agents will issue a written confirmation
to each purchaser containing the Sale
Information (as defined below), plus
delivery and payment instructions.
Settlement: Unless special arrangements have been
made, all offers solicited by the
Agents and accepted by the Company
will be settled on the third
business day after the date of
acceptance. At the request of the
purchaser, the Company may in its
discretion allow for settlement on
any business day subsequent to the
date of acceptance. The day of
settlement is referred to herein as
the "Settlement Date".
Details for Unless special arrangements have been
Settlement: made, prior to 3:00 p.m.,
New York City time, on the day
prior to the Settlement Date, the
Company will instruct the Trustee
or its agent by facsimile
transmission or other acceptable
written means to authenticate and
deliver the Securities no later
than 11:00 a.m., New York City
time, on the Settlement Date.
Details for The Agents must communicate the
Settlement: following information (the
"Sale Information"), in each case
if applicable, from the purchaser
to a Designated Person by facsimile
transmission or other acceptable
written means:
(1) Name of the registered owner,
(2) Address of the registered owner,
(3) Taxpayer identification number of
the registered owner,
(4) Principal amount of the purchase,
(5) Date of Security,
(6) Interest rate or method for
determining and resetting interest
rate, as the case may be,
(7) Spread,
(8) Spread multiplier,
(9) Redemption,
II-5
<PAGE>
(10) Redemption price,
(11) Prepayment date,
(12) Original Issue Discount,
(13) Settlement Date,
(14) Maturity date,
(15) Denominations of certificate(s),
(16) Agents' commission (to be paid as a
discount from gross proceeds of sale),
(17) Net proceeds to the Company, and
(18) Book-Entry Security or Certificated
Security.
After receiving the Sale Information from the
Agents, and, after recording the Sale
Information and any necessary
calculations, the Company will
communicate such Sale Information by
telephone (confirmed in writing),
facsimile transmission or other
acceptable written means, to the Trustee
or its agent. Prior to preparing the
Securities for delivery, the Trustee or
its agent will promptly confirm the Sale
Information by telephone with the
Agents. The Trustee or its agent will
assign to and enter on each Security a
transaction number.
Delivery of The Trustee or its agent will prepare
each Security and four
Certificated receipts that will serve as the
documentary control of the
Securities: transaction. One receipt will be
distributed to the Agents and one
to the Company's and XTRA's
Controllers Department. The Trustee
or its agent will retain the other
two receipts for record-keeping
purposes and to implement payment
of interest.
In the case of a sale of a Security to a
purchaser solicited by the Agents, the
Trustee will, by 2:15 p.m., New York
City time, on the Settlement Date,
deliver the Security to the Agents for
the benefit of the purchaser of such
Security against delivery by the Agents
of a receipt therefor. On the Settlement
Date the Agents will deliver payment for
such Security in immediately available
funds to the Company in an amount equal
to the issue price of the Security less
the Agents' commission; provided that
the Agents reserve the right to withhold
payment for which they have not received
funds from the purchaser. The Company
shall not use any proceeds advanced by
the Agents to acquire securities. The
Agents will obtain a written
acknowledgment from the purchaser of the
receipt of such security.
In the case of a sale of a Security to the
Agents acting as principal, the Trustee
will, by 2:15 p.m., New York City time,
on the Settlement Date, deliver the
Security to the Agents against delivery
II-6
<PAGE>
of payment for such Security in
immediately available funds to the
Company in an amount equal to the issue
price of the Security less the Agents'
discount.
Failures in In the event that a purchaser (other
Respect of than the Agents acting as
Certificated principal) shall fail to accept
Securities: delivery of and make payment for
any Security, the Agents will
forthwith notify the Company's
Treasurer by telephone (confirmed
in writing) or by facsimile
transmission. If the Security has
been delivered to the Agents on
behalf of the purchaser, the Agents
will immediately return the
Security to the Company or its
agent. If funds have been advanced
by the Trustee or the Agents, as
the case may be, for the purchase
of such Security, the Trustee or
its agent will immediately upon
receipt of the Security debit the
account of the Company in an amount
equal to the amount previously
credited thereto in respect of the
Security and will either credit the
account of or return such funds to
the Agents, or the Company will
return to the Agents directly an
amount equal to the amount
previously paid by the Agents to
the company in respect of such
Security. Such debits and credits
or returns will be made on the
Settlement Date if possible and, in
any event, not later than the
business day following the
Settlement Date. If such failure
shall have occurred for any reason
other than default by the Agents in
the performance of its obligations
under the Distribution Agreement,
the Company will reimburse the
Agents on an equitable basis for
its loss of the use of the funds
during the period when they were
credited to the account of the
Company.
Immediately upon receipt of the certificate
representing the Security in respect of
which the failure occurred, the Trustee
or its agent will cancel the Security,
make appropriate entries in its records
and, unless otherwise instructed by the
Company, destroy the certificate.
Procedures Applicable
only to Book-Entry
securities
Delivery of A. The Company will assign a
Global CUSIP number to the
previously delivered Security from a list of CUSIP numbers
Book-Entry
to the Trustee by the Company
representing such Book-Entry
Securities: Security and then advise the
Company and the Selling Agent or
Purchasing Agent, as the case may
be, of such CUSIP number.
B. The Trustee will enter a
pending deposit message through the
Depository's Participant Terminal
System, providing the following
settlement information to the
Depository, and the
II-7
<PAGE>
Depository shall
forward such information to such Agent
and Standard & Poor's Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security
representing such Book-Entry
Security;
(3) Whether such Global Security will
represent any other Book-Entry
Security (to the extent known at
such time);
(4) Number of the Participant account
maintained by the Depository on
behalf of the Selling Agent or
Purchasing Agent, as the case may
be;
(5) The interest payment period;
(6) Initial Interest Payment Date for
such Book-Entry Security, number of
days by which such date succeeds
the record date for the
Depository's purposes (which, in
the case of Floating Rate
Securities which reset weekly shall
be the date five calendar days
immediately preceding the
applicable Interest Payment Date
and in the case of all other
Book-Entry Securities shall be the
Regular Record Date, as defined in
the Security) and, if calculable at
that time, the amount of interest
payable on such Interest Payment
Date.
C. The Trustee will complete and
authenticate the Global Security
previously delivered by the Company
representing such Book-Entry Security.
D. The Depository will credit such
Book-Entry Security to the Trustee's
participant account at the Depository.
E. The Trustee will enter an SDFS
deliver order through the Depository's
Participant Terminal System instructing
the Depository to (i) debit such
Book-Entry Security to the Trustee's
participant account and credit such
Book-Entry Security to such Agent's
participant account and (ii) debit such
Agent's settlement account and credit
the Trustee's settlement account for an
amount equal to the price of such
Book-Entry Security less such Agent's
commission. The entry of such a deliver
order shall constitute a representation
and warranty by the Trustee to the
Depository that (a) the Global Security
representing such Book-Entry Security
has been issued and authenticated and
(b) the Trustee is holding such Global
Security pursuant to the Certificate
Agreement.
Each such communication by the Company
shall constitute a representation and
warranty by the Company to the DTC
Agent, the Trustee and such Agent that
(i) such Note is then, and at the time
of issuance and sale thereof will be,
duly authorized for issuance and sale by
the Company, (ii) such
II-8
<PAGE>
Note, and the
Global Security representing such Note,
will conform with the terms of the
Indenture and (iii) upon authentication
and delivery of such Global Security,
the aggregate initial public offering
price or purchase price of all Notes
issued under the Indenture will not
exceed $1,115,000,000 (except for
Book-Entry Notes represented by Global
Securities authenticated and delivered
in exchange for or in lieu of Global
securities pursuant to the Indenture and
except for Certificated Notes
authenticated and delivered upon
registration or transfer of, in exchange
for, or in lieu of Certificated Notes
pursuant to the Indenture).
F. Such Agent will enter an SDFS
deliver order through the Depository's
Participant Terminal System instructing
the Depository (i) to debit such
Book-Entry Security to such Agent's
participant account and credit such
Book-Entry Security to the participant
accounts of the Participants with
respect to such Book-Entry Security and
(ii) to debit the settlement accounts of
such Participants and credit the
settlement account of such Agent for an
amount equal to the price of such
Book-Entry Security.
G. Transfers of funds in
accordance with SDFS deliver orders
described in Settlement Procedures "E"
and "F" will be settled in accordance
with SDFS operating procedures in effect
on the settlement date.
H. Upon confirmation of receipt of
funds, the Trustee will transfer to the
account of the Company maintained at
State Street Bank and Trust Company, or
such other account as the Company may
have previously specified to the
Trustee, in funds available for
immediate use in the amount transferred
to the Trustee in accordance with
Settlement Procedure "E".
I. Upon request, the Trustee will
send to the Company a statement setting
forth the principal amount of Book-Entry
Securities outstanding as of that date
under the Indenture.
J. Such Agent will confirm the
purchase of such Book-Entry Security to
the purchaser either by transmitting to
the Participants with respect to such
Book-Entry Security a confirmation order
or orders through the Depository's
institutional delivery system or by
mailing a written confirmation to such
purchaser.
K. The Depository will at any
time, upon request of the Company or the
Trustee, promptly furnish to the Company
or
II-9
<PAGE>
the Trustee a list of the names and
addresses of the participants for whom
the Depository has credited Book-Entry
Securities.
Preparation of If the Company accepts an offer to purchase a
Pricing Book-Entry
Supplement: Security, it will prepare a Pricing
Supplement reflecting the
terms of such Book-Entry Security and
arrange to have delivered to the Selling
Agent or Purchasing Agent, as the case
may be, at least ten copies of such
Pricing Supplement, not later than 5:00
p.m., New York City time, on the
Business Day following the receipt of
the Sale Information, or if the Company
and the purchaser agree to settlement on
the Business Day following the date of
acceptance, not later than noon, New
York City time, on such date. The
Company will arrange to have ten Pricing
Supplements filed with the Commission
not later than the close of business of
the Commission on the fifth Business Day
following the date on which such Pricing
Supplement is first used.
Delivery of The Selling Agent will deliver to the
Confirmation purchaser of a Book-Entry
and Prospectus Security a written confirmation of the
to Purchaser sale and delivery and
by Selling Agent: payment instructions. In addition,
the Selling Agent will
deliver to such purchaser or its agent
the Prospectus as
amended or supplemented (including
the Pricing Supplement)
in relation to such Book-Entry Security
prior to or together with the earlier of
the delivery to such purchaser or its
agent of (a) the confirmation of sale or
(b) the Book-Entry Security.
Date of The receipt by the Company of
Settlement: immediately available funds in
payment for a Book-Entry Security
and the authentication and issuance
of the Global Security representing
such Book-Entry Security shall
constitute "settlement" with
respect to such Book-Entry
Security. All orders accepted by
the Company will be settled on the
third Business Day pursuant to the
timetable for settlement set forth
below unless the Company and the
purchaser agree to settlement on
another day which shall be no
earlier than the next Business Day.
II-10
<PAGE>
Settlement For orders of Book-Entry Securities
Procedure solicited by an Agent, as
Timetable: agent, and accepted by the Company
for settlement on the
first Business Day after the sale
date, Settlement Procedures set
forth above shall be completed as
soon as possible but not later than
the respective times (New York City
time) set forth below:
II-11
<PAGE>
Settlement
Procedure Time
Sale 5:00 p.m. on the Business Day following the
acceptance of an offer
Information by the Company or 10:00 a.m.
on the Business Day prior
Communicated to the settlement date, whichever is earlier
A 12:00 noon on the sale date
B 2:00 p.m. on the sale date
C 5:00 p.m. on settlement date
D 10:00 a.m. on settlement date
E-F 2:00 p.m. on settlement date
G 4:45 p.m. on settlement date
H 5:00 p.m. on settlement date
If a sale is to be settled more than one
Business Day after the sale date,
Settlement Procedures "A" and "B" shall
be completed as soon as practicable but
not later than 2:00 p.m. on the first
Business Day after the sale date. If the
initial interest rate for a Floating
Rate Book-Entry Security has not been
determined at the time that the Sale
Information is communicated, Settlement
Procedures "A" and "B" shall be
completed as soon as such rate has been
determined but no later than 2:00 p.m.
on the second Business Day before the
settlement date. Settlement Procedure
"G" is subject to extension in
accordance with any extension of Fedwire
closing deadlines and in the other
events specified in the SDFS operating
procedures in effect on the settlement
date.
If settlement of a Book-Entry Security is
rescheduled or canceled, the Trustee,
upon obtaining knowledge thereof, will
deliver to the Depository, through the
Depository's Participation Terminal
System, a cancellation message to such
effect by no later than 2:00 p.m. on the
Business Day immediately preceding the
scheduled settlement date.
Failures in If the Trustee fails to enter an SDFS
Respect deliver order with respect to
of Book-Entry Book-Entry Security pursuant to
Securities: Settlement Procedure "E",
the Trustee may deliver to the
Depository, through the Deposi-
II-12
<PAGE>
tory's Participant Terminal System, as
soon as practicable a withdrawal message
instructing the Depository to debit such
Book-Entry Security to the Trustee's
participant account, provided that the
Trustee's participant account contains a
principal amount of the Global Security
representing such Book-Entry Security
that is at least equal to the principal
amount to be debited. If a withdrawal
message is processed with respect to all
the Book-Entry Securities represented by
a Global Security, the Trustee will mark
such Global Security "canceled", make
appropriate entries in the Trustee's
records and send such canceled Global
Security to the Company. The CUSIP
number assigned to such Global Security
shall, in accordance with CUSIP Service
Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal
message is processed with respect to one
or more, but not all, of the Book-Entry
Securities represented by a Global
Security, the Trustee will exchange such
Global Security for two Global
Securities, one of which shall represent
such Book-Entry Security or Securities
and shall be canceled immediately after
issuance and the other of which shall
represent the remaining Book-Entry
securities previously represented by the
surrendered Global Security and shall
bear the CUSIP number of the surrendered
Global Security.
If the purchase price for any Book-Entry
Security is not timely paid to the
participants with respect to such
Book-Entry Security by the beneficial
purchaser thereof (or a person including
an indirect participant in the
Depository, acting on behalf of such
purchaser), such participants and, in
turn, the Agent for such Book-Entry
Security may enter deliver orders
through the Depository's Participant
Terminal System debiting such Book-Entry
Security to such participant's account
and crediting such Book-Entry Security
to such Agent's account and then
debiting such Book-Entry Security to
such Agent's participant account and
crediting such Book-Entry Security to
the Trustee's participant account and
shall notify the Company and the Trustee
thereof. Thereafter, the Trustee will
(i) immediately notify the Company of
such order and the Company shall
transfer to such Agent funds available
for immediate use in an amount equal to
the price of such Book-Entry Security
which was credited to the account of the
company maintained at the Trustee in
accordance with Settlement Procedure I,
and (ii) deliver the withdrawal message
and take the related actions described
in the preceding paragraph. If such
failure shall have occurred for any
reason other than default by the
applicable Agent to perform its
obligations hereunder or under the
Distribution Agreement, the Company will
reimburse such Agent on an equitable
II-13
<PAGE>
basis for the loss of its use of funds
during the period when the funds were
credited to the account of the Company.
Notwithstanding the foregoing, upon any
failure to settle with respect to a
Book-Entry Security, the Depository may
take any actions in accordance with its
SDFS operating procedures then in
effect. In the event of a failure to
settle with respect to one or more, but
not all, of the Book-Entry Securities to
have been represented by a Global
Security, the Trustee will provide, in
accordance with Settlement Procedure "D"
for the authentication and issuance of a
Global Security representing the other
Book-Entry Securities to have been
represented by such Global Security and
will make appropriate entries in its
records. The Company will, from time to
time, furnish the Trustee with a
sufficient quantity of Securities.
Procedures Generally
Applicable
Payment at Upon presentation of each Security at
Maturity: maturity, the Trustee or its
agent will pay the principal amount
of such Security, together with
accrued interest due at maturity
(except when maturity occurs on
April 1 or October 1), in
immediately available funds by wire
transfer except as provided in the
Indenture. The Trustee or its agent
will cancel Securities presented at
maturity as provided in the
Indenture, and, unless otherwise
instructed by the Company, forward
them directly to the Company's
Controllers Department with an
appropriate debit advice.
Procedure for If the Company and XTRA decide to "post"
Posting: rates, the
Company, XTRA and the Agents will
discuss from time to time the rates of
interest per annum to be borne by and
the maturity of Securities that may be
sold as a result of the solicitation of
offers by the Agents. Once a decision
has been reached to set initially the
"posted" rates or to change already
"posted" rates, the Company or XTRA will
promptly advise the Agents to suspend
solicitation of offers until the initial
or changed "posted" rates have been
established. When such rates have been
established, the Company will then
promptly prepare "posted" rates stickers
reflecting such posted rates and
maturities. The Company will then
promptly arrange to have ten Prospectus
Supplements so stickered filed with the
Commission not later than the
Commissioner's close of business on the
second business day after such "posted"
rates have been established and to have
copies of such stickered Prospectus
Supplements delivered to the Agents.
II-14
<PAGE>
"Posting" rates shall mean establishing a
fixed set of interest rates and
maturities for an offering period, which
rates and maturities are to be set forth
on "posted" rates stickers attached to
Prospectus Supplements distributed to
potential purchasers.
The Agents and the Company and XTRA shall
destroy outdated "posted" rates stickers
and the Prospectus Supplements to which
they are attached (other than those
retained for files).
Suspension of Subject to its representations, warranties and covenants
Solicitation; contained in the Distribution
Agreement, the Company or XTRA
Amendment or may instruct the Agents to suspend
solicitation of offers to
Supplement: purchase Securities at any time. As
soon as practicable, but in any
event not later than one business
day after, the Agents will suspend
solicitation until such time as the
Company has advised the Agents that
solicitation of offers to purchase
Securities may be resumed. Except
as otherwise provided for in the
Distribution Agreement, the Company
and XTRA have discretion regarding
whether to amend or supplement the
Registration Statement or
Prospectus. If the Company or XTRA
propose so to amend or supplement,
they will promptly advise the
Agents and will furnish the Agents
such proposed amendment or
supplement and, after the Agents
has been afforded a reasonable
opportunity to review such
amendment or supplement, will cause
such amendment or supplement
promptly to be filed with, or
mailed for filing to, the
Commission. The Company will
promptly provide the Agents with
copies of any such amendment or
supplement and confirm to the
Agents that such amendment or
supplement has been filed with the
Commission.
In the event that at the time the Agents
suspend solicitation of offers to
purchase Securities there shall be any
orders for delayed settlement
out-standing, the Company and XTRA,
consistent with their obligations under
the Distribution Agreement, promptly
will advise the Agents whether such
orders may be settled and whether copies
of the Prospectus as in effect at the
time of the suspension may be delivered
in connection with the settlement of
such orders. The Company and XTRA will
have the sole responsibility for such
decision and for any arrangements which
may be made in the event that the
Company or XTRA determine that such
orders may not be settled or that copies
of such Prospectus may not be so
delivered.
Authenticity The Company will cause the Trustee to
of Signatures: furnish the Agents from
time to time with the specimen
signatures of each of the Trustee's
officers, employees or agents who
have been
II-15
<PAGE>
authorized by the Trustee
to authenticate Securities, but the
Agents will have no obligation or
liability to the Company or the
Trustee or its agent in respect of
the authenticity of the signature
of any officer, employee or agent
of the Company, XTRA or the Trustee
or its agent on any Security.
Advertising The Company and XTRA will determine upon
consultation with the Agents the
amount of advertising that may be
appropriate in the solicitation of
offers to purchase the Securities.
Advertising expenses will be paid
by the Company and XTRA.
II-16
<PAGE>
ANNEX III
Pursuant to Section 4(j) and Section 6(e)(i), as the
case may be, of the Distribution Agreement, XTRA's independent
certified public accountants shall furnish letters to the effect
that:
(i) They are independent certified public accountants with respect to
XTRA
and its direct and indirect subsidiaries, including the
Company, within the meaning of the Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the financial statements and financial
statement
schedules audited by them and included or incorporated by
reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the
applicable accounting requirements of the Act or the
Exchange Act, as applicable, and the related published rules
and regulations thereunder;
(iii) They have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71 on
the unaudited financial statements included in XTRA's
Quarterly Report on Form 10-Q, incorporated by reference
into the Prospectus, and inquired of certain officials of
XTRA who have responsibility for financial and accounting
matters as to whether the unaudited financial statements
comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act as it
applies to Form 10-Q and the related published rules and
regulations, and based on the foregoing procedures, nothing
came to their attention that caused them to believe that any
material modifications should be made to the unaudited
financial statements for them to be in conformity with
generally accepted accounting principles, or that the
unaudited condensed consolidated financial statements do not
comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and
the related published rules and regulations;
(iv) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial
statements, a reading of the latest available interim
financial statements of XTRA and its direct and indirect
subsidiaries, including the Company, inspection of the
minute books of XTRA and its direct and indirect
subsidiaries, including the Company, since the date of the
latest audited financial statements included or incorporated
by reference in the Prospectus, inquiries of officials of
XTRA and its direct and indirect subsidiaries, including the
Company, responsible for financial and accounting matters,
nothing came to their attention that caused them to believe
that:
(A) as of a specified date not more than five
days prior to the date of such letter, there has been
any increase in the consolidated long-term debt of XTRA
and its direct and indirect subsidiaries, including the
Company, or any decrease in the amount of XTRA's
retained earnings, or any decreases in common stock,
consolidated net property and equipment or lease
contracts receivable in each case as compared with
amounts shown on the most recently filed Form 10-Q,
except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
<PAGE>
(B) for the period from the date of the latest
financial statements included or incorporated by
reference in the Prospectus to the specified date
referred to in Clause (A) there were any decreases, as
compared with the corresponding period in the preceding
year, in the amount of XTRA's consolidated revenues, or
income from operations before provision for income
taxes or any decreases in the ratio of income from
operations before provision for income taxes to
revenues, or any increases in the ratios of
depreciation on rental equipment, rental equipment
operating expense (which includes repair, and
maintenance, tires and tubes, transportation and
storage, facilities and other expense), selling and
administrative expense or interest expense to revenues,
except in each case for increases or decreases which
the Prospectus discloses have occurred or may occur or
which are described in such letter;
(v) In addition to the audit referred to in their report
(s) included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (iv) above,
they have carried out certain specified procedures, not
constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts,
percentages and financial information specified by the
Agents which are derived from the general accounting records
of XTRA and its direct and indirect subsidiaries, including
the Company, which appear in the Prospectus (including
documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement
specified by the Agents or in documents incorporated by
reference in the Prospectus specified by the Agents, and
have compared certain of such amounts, percentages and
financial information with the accounting records of XTRA
and its direct and indirect subsidiaries, including the
Company, and have found them to be in agreement;
(vi) They compared the amounts included in the Selected
Financial Data to the appropriate annual reports on Form 10-K
and found them to be in agreement. They have also compared the
amounts included in the selected quarterly financial data to the
Company's accounting records, the appropriate Quarterly
Report on Form 10-Q or the appropriate Form 10-K, and found
them to be in agreement. They compared the information
included in the Selected Financial Data, the Selected
Quarterly Financial Data and the Ratios of Earnings to Fixed
Charges and Earnings to Combined Fixed Charges and Preferred
Stock Dividends tables with the requirements of Items 301 or
302 or 503, respectively, of Regulation S-K. They also
inquired of certain officials of XTRA who have
responsibility for financial and accounting matters whether
this information conforms in all material respects with the
disclosure requirements of Items 301 or 302 or 503,
respectively, of Regulation S-K. Nothing came to their
attention to cause them to believe that the Selected
Financial Data, the Selected Quarterly Financial Data and
Ratios of Earnings to Fixed Charges and Earnings to Combined
Fixed Charges and Preferred Stock Dividends did not conform
in all material respects to the disclosure requirements of
Rule 301 or 302 or 503, respectively, of Regulation S-K; and
(vii) If pro forma financial information is required to be
included in or incorporated by reference into the Registration
Statement or the Prospectus, they have
<PAGE>
(A) read the unaudited pro forma balance sheet
and the unaudited pro forma statements of income
included in or incorporated by reference into the
Registration Statement or Prospectus;
(B) inquired of certain officials of XTRA (and
the company being acquired) who have responsibility for
financial and accounting matters about (1) the basis
for such officials' determination of the pro forma
adjustments; and (2) whether the unaudited pro forma
financial statements referred to above comply as to
form in all material respects with the applicable
accounting requirements of Rule 11-02 of
Regulation S-X; and
(C) proved the arithmetic accuracy of the
application of the pro forma adjustments to the
historical amounts in the unaudited pro forma financial
statements.
The foregoing procedures are substantially less in
scope than an examination, the object of which is the expression
of an opinion on management's assumptions, the pro forma
adjustments and the application of those adjustments to
historical financial information. Accordingly, they make no
representation about the sufficiency of such procedures for each
Agent's purposes.
Nothing came to their attention as a result of the
procedures specified in the above paragraphs, however, that
caused them to believe that the unaudited pro forma financial
statements referred to above included in or incorporated by
reference into the Registration Statement or the Prospectus do
not comply as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation
S-X and that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements. Had they performed additional procedures or had they
made an examination of the pro forma financial statements, other
matters might have come to their attention that would have been
reported to the Agents.
All references in this Annex III to the Prospectus
shall be deemed to refer to the Prospectus (including the
documents incorporated by reference therein) as defined in the
Distribution Agreement as of the Commencement Date referred to in
Section 6(e) thereof and to the Prospectus as amended or
supplemented (including the documents incorporated by reference
therein) as of the date of the amendment, supplement,
incorporation or the Time of Delivery relating to the Terms
Agreement requiring the delivery of such letter under
Section 4(j) thereof.
<PAGE>
----------------------------------------------------------------
----------------------------------------------------------------
XTRA, INC.,
Issuer
XTRA CORPORATION,
Guarantor
TO
STATE STREET BANK AND TRUST COMPANY,
Trustee
-------------
SECOND SUPPLEMENTAL INDENTURE
Dated as of May__, 1997
-------------
Supplemental to the Indenture
Dated as of August 15, 1994
----------------------------------------------------------------
----------------------------------------------------------------
<PAGE>
SECOND SUPPLEMENTAL INDENTURE, dated as of May__, 1997, among XTRA,
INC., a corporation duly organized and validly existing under the laws of the
State of Maine (herein called the "Company"), having its principal executive
office at c/o X-L-Co., Inc., 60 State Street, Boston, Massachusetts, XTRA
CORPORATION, a corporation duly organized and validly existing under the laws
of the state of Delaware (herein called "XTRA" or the "Guarantor"), having
its principal executive offices at c/o X-L-Co., Inc., 60 State Street,
Boston, Massachusetts, and STATE STREET BANK AND TRUST COMPANY, a trust
company organized and existing under the laws of the Commonwealth of
Massachusetts (herein called the "Trustee"), having its corporate trust
office at Two International Place, Boston, Massachusetts.
RECITALS
WHEREAS, the Company and the Guarantor have entered into an Indenture dated
as of August 15, 1994 (the "Original Indenture") with the Trustee (as successor
in interest to the First National Bank of Boston) to provide for the issuance
from time to time of the Company's unsecured debentures, notes or other
evidences of indebtedness (herein called the "Securities"), to be issued in one
or more series and to provide for the guarantee of the Securities by the
Guarantor (the "Guarantee");
WHEREAS, in September 1995 the Guarantor transferred its properties and
assets substantially as an entirety to XTRA Missouri, Inc. ("XTRA Missouri"),
a wholly-owned subsidiary of the Guarantor;
WHEREAS, the Company, as a result of such transfer, became a wholly-owned
subsidiary of XTRA Missouri, and, accordingly, remained an indirect
wholly-owned subsidiary of the Guarantor;
WHEREAS, the Company, the Guarantor, XTRA Missouri Inc., and the Trustee
(as successor in interest to The First National Bank of Boston) entered into
the First Supplemental Indenture dated as of September 30, 1995 (the "First
Supplemental Indenture" and together with the original Indenture, the
"Indenture"), to provide for the Guarantee of the Securities by XTRA Missouri;
WHEREAS, XTRA Missouri has been merged with and into the Guarantor
effective September 30, 1996 (the "Merger"); and
WHEREAS, there has been filed with the Trustee: (a) an Opinion of
Counsel in accordance with Sections 8.4 and 9.3 of the Indenture; and (b) an
Officer's Certificate in accordance with the provisions of Sections 8.4 and
1.2 of the Indenture and the parties hereto wish to enter into this Second
Supplemental Indenture to take into consideration the Merger.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree, covenant, represent and warrant as
follows:
Section 1. DEFINITIONS IN INDENTURE. Capitalized terms used in this
Second Supplemental Indenture and in any certificate or other document executed
by any party in connection herewith shall have the meaning set forth in the
Original Indenture, unless a different meaning is set forth herein, in which
case such terms shall have the meaning set forth herein.
Section 2. CONTINUANCE OF OBLIGATIONS AND COVENANTS BY THE GUARANTOR.
The Guarantor, by its execution hereof, hereby expressly affirms that, it
shall remain as a Guarantor of the Securities and that it shall perform and
observe every obligation and covenant of the Guarantee and Indenture on the
part of the Guarantor to be performed or observed.
Section 3. MODIFICATION OF FORMS OF SERIES C MEDIUM-TERM NOTES. The
forms of the Series C Medium-Term Notes (the "Series C Notes") attached to the
resolutions of the Note Committee of the Company effective August 11, 1994 and
the resolutions of the Note Guaranty Committee of XTRA effective August 11, 1994
-2-
<PAGE>
as exhibits, as amended by the First Supplemental Indenture, are hereby amended
to read in their respective entirety as set forth in the forms of fixed-rate
and floating rate Series C Notes attached as Exhibits 1-A and 1-B to this
Second Supplemental Indenture, the terms of which Exhibits 1-A and 1-B are
hereby incorporated by reference and are made a part of this Second
Supplemental Indenture.
Section 4. DELIVERY OF NOTES. Upon execution and delivery of this
Second Supplemental Indenture, the Company shall execute and deliver Series C
Notes to the Trustee and the Trustee shall authenticate the Series C Notes
and deliver them to the Holders of the Outstanding Series C Notes upon the
direction of the Company and upon receipt of the Outstanding Series C Note,
which shall thereupon be canceled and destroyed by the Trustee. Interest on
each Outstanding Series C Note shall accrue from the last Interest Payment
Date upon which interest shall have been paid or duly provided for on the
Outstanding Series C Notes. Prior to delivery by the Trustee of said Notes
there shall be filed with the Trustee: (a) an Opinion of Counsel in
accordance with Sections 8.4 and 9.3 of the Original Indenture and (b) an
Officers' Certificate in accordance with the provisions of Sections 1.2 and
8.4 of the Original Indenture.
Section 5. RECITALS. The recitals contained in this Second
Supplemental Indenture shall be taken as statements of the Company and the
Guarantor, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Second Supplemental Indenture.
Section 6. INCORPORATION OF INDENTURE. From and after the date
hereof the Original Indenture, as supplemented and amended by the First
Supplemental Indenture and by this Second Supplemental Indenture, shall be
read, taken and construed as one and the same instrument with respect to the
Securities.
Section 7. COUNTERPARTS. This Second Supplemental Indenture may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original but all such counterparts together constitute but one
in the same instrument.
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed, and the respective seals to be hereunto affixed
and attested all as of the date(s) set forth below.
XTRA, INC.
Attest:____________________ By:____________________________
Title: Vice President and Chief Financial Officer
Date:
XTRA CORPORATION
Attest:__________________ By:__________________________________
Title: Vice President and Chief Financial Officer
Date:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
Attest:___________________ By:______________________________
Title: Title:
Date:
-4-
<PAGE>
County of Suffolk )
ss:
Commonwealth of Massachusetts )
On the day of , before me personally came
Michael J. Soja, to me known, who, being by me duly sworn, did depose and say
that he is the Vice President, Finance and Chief Financial Officer of XTRA
CORPORATION, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
-------------------------------
Notary Public
My commission expires:
-5-
<PAGE>
County of Suffolk )
ss:
Commonwealth of Massachusetts )
On the day of , before me personally came
Michael J. Soja, to me known, who, being by me duly sworn, did depose and say
that he is the Vice President and Chief Financial Officer of XTRA, INC., one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
---------------------------
Notary Public
My commission expires:
County of Suffolk )
ss:
Commonwealth of Massachusetts )
On the day of , before me personally came
_____________, to me know, who, being by me duly sworn, did depose and say that
he is of STATE STREET BANK AND TRUST COMPANY, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
---------------------------
Notary Public
My commission expires:
-6-
<PAGE>
Exhibit 5
[LETTERHEAD]
Ropes & Gray
One International Place
Boston, Ma. 02110
May 7, 1997
XTRA Corporation
XTRA, Inc.
60 State Street
Boston, Massachusetts 02108
Re: XTRA Corporation and XTRA, Inc. -
$604,000,000 Aggregate Amount of Securities
Ladies and Gentlemen:
You have asked our opinion concerning the proposed issue by XTRA
Corporation (the "Company") of (i) shares of its preferred stock, no par
value (the "New Preferred Stock"), in one or more series and/or (ii) shares
of its common stock, par value $0.50 per share (the "New Common Stock"), and
the proposed issue by XTRA, Inc. ("XTRA, Inc.) of its debt securities (the
"New Debt Securities"), which may be either senior debt securities ("Senior
Securities") or subordinated debentures, notes and/or other evidences of
indebtedness, in one or more series, to be unconditionally guaranteed on a
senior or subordinated basis, as the case may be, as to the payment of
principal of, premium, if any, and interest on the New Debt Securities by the
Company (the "Guarantees"), which Senior Securities 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, 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 (the "First Supplemental
Indenture"), and as supplemented by the Second Supplemental Indenture among
XTRA, Inc., the Company, as guarantor, and State Street Bank and Trust Company,
as trustee (the "Second Supplemental Indenture," and together with the First
Supplemental Indenture and the Original Senior Indenture, the "Senior
Indenture") and which Subordinated Securities are to be issued under an
indenture (the "Subordinated Indenture') among XTRA, Inc., the Company, as
guarantor, and a trustee to be designated (the "Subordinated Trustee")
(the New Preferred Stock, the New Common Stock, the Guarantees and the New Debt
Securities are referred to herein collectively as the "Securities"). 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
<PAGE>
XTRA Corporation
XTRA, Inc. 2 May 6, 1997
Boston, thereby becoming the successor trustee pursuant to the terns of the
Senior Indenture (hereinafter the "Senior Trustee" and, together with the
Subordinated Trustee, the "Trustees"). The Securities are to be issued at an
aggregate initial offering price not to exceed $604,000,000.
We have acted as counsel for the Company and XTRA, Inc. in connection
with the proposed issue and sale of the Securities. We are familiar with the
proceedings taken by the Company and XTRA, Inc. in respect thereof and have
examined originals or certified or attested copies of such certificates,
records and documents as we have deemed necessary for the purposes of this
opinion.
Basing our opinion on the foregoing, we are of the opinion that:
(1) when Post-Effective Admendment No. 1 to the Registration Statement
(No. 33-65293) (the "Registration Statement") relating to the Securities
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended, has been declared effective, no further authorization,
consent or approval by any regulatory authority will be required for the
valid issuance and sale of the Securities (except under the so-called "Blue
Sky" or securities laws of the several states, as to the applicability of
which we express no opinion);
(2) when the Board of Directors of the Company and/or XTRA, Inc. or
committees designated thereby, have determined the price and other terms and
conditions relating to the issue and sale of the Securities, the Securities will
have been duly authorized by the Company and XTRA, Inc.;
(3) upon the execution and filing with the Trustees of the proper papers,
the Senior Securities and the related Guarantees and the Subordinated Securities
and the related Guarantees will be issuable under the terms of their respective
Indentures;
(4) upon the execution, certification and delivery of the Senior
Securities and the related Guarantees in accordance with the corporate
authorization referred to above and in accordance with the Senior Indenture, the
Senior Securities will be valid and legally binding obligations of XTRA, Inc.,
and the related Guarantees will be the valid and legally binding obligations of
the Company, and the Senior Securities and related Guarantees will be entitled
to the benefits provided by the Senior Indenture together with any other series
of Senior Securities and Guarantees thereof and which may hereafter be issued
thereunder pursuant to the terms thereof; except that enforcement of the rights
and remedies created thereby is subject to bankruptcy, reorganization,
insolvency or similar laws affecting creditors' rights generally, as may from
time to time be in effect, and by the availability of specific performance or of
injunctive relief, which is subject to the discretion of the court before which
any proceeding may be brought;
(5) upon the execution, certification and delivery of the Subordinated
Securities and the related Guarantees in accordance with the corporate
authorization referred to above and in
<PAGE>
XTRA Corporation
XTRA, Inc. 3 May 6, 1997
accordance with the Subordinated Indenture, the Subordinated Securities will
be valid and legally binding obligations of XTRA, Inc. and the related
Guarantees will be the valid and legally binding obligations of the Company,
and the Subordinated Securities and related Guarantees will be entitled to
the benefits provided by the Subordinated Indenture together with any other
series of Subordinated Securities and Guarantees thereof and which may
hereafter be issued thereunder pursuant to the terms thereof; except that
enforcement of the rights and remedies created thereby is subject to
bankruptcy, reorganization, insolvency of similar laws affecting creditors'
rights generally, as may from time to time be in effect, and by the
availability of specific performance or of injunctive relief, which is
subject to the discretion of the court before which any proceeding may be
brought;
(6) upon the issuance by the Company of the New Common Stock against
payment of the agreed consideration in accordance with the corporate
authorization referred to above, the New Common Stock will be validly issued,
fully paid and nonassessable; and
(7) upon the issuance by the Company of the New Preferred Stock against
payment of the agreed consideration in accordance with the corporate
authorization referred to above, the New Preferred Stock will be validly
issued, fully paid and nonassessable.
We understand that this opinion is to be used in connection with the
Company's and XTRA, Inc.'s joint Registration Statement relating to the
Securities to be filed under the Securities Act of 1933, as amended. We
consent to the filing of this opinion with and as part of said Registration
Statement and the use of our names therein and in the related Prospectus
under the caption "Validity of Securities."
Very truly yours,
/s/ Ropes & Gray
----------------------------
Ropes & Gray
<PAGE>
Exhibit 12.1
XTRA CORPORATION
STATEMENT OF THE CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Millions of dollars)
<TABLE>
<CAPTION>
FISCAL YEAR ENDED SEPTEMBER 30,
---------------------------------------------------- Three Months Ended
1992 1993 1994 1995 1996 December 31, 1996
-------- --------- --------- --------- --------- -----------------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS
Income from operations before
provision for income taxes........ $44.3 $ 72.4 $ 98.4 $ 98.0 $ 69.1 $ 21.8
Add: Fixed charges.................. 25.5 44.0 36.2 41.8 66.2 15.9
------ --------- --------- --------- --------- -------
$69.8 $ 116.4 $ 134.6 $ 139.8 $ 135.3 $ 37.7
------ --------- --------- --------- --------- -------
------ --------- --------- --------- --------- -------
FIXED CHARGES
Interest expense.................... $21.1 $ 38.8 $ 34.0 $ 41.4 $ 66.0 $ 15.9
Interest portion of rent expense.... 4.4 5.2 2.2 0.4 0.2 --
------ --------- --------- --------- --------- -------
$25.5 $ 44.0 $ 36.2 $ 41.8 $ 66.2 $ 15.9
------ --------- --------- --------- --------- -------
------ --------- --------- --------- --------- -------
Ratio of earnings to fixed
charges........................... 2.7x 2.6x 3.7x 3.3x 2.0x 2.4x
------ --------- --------- --------- --------- -------
------ --------- --------- --------- --------- -------
</TABLE>
- ------------------------
Note: For purposes of computing the ratio of earnings to fixed charges,
"earnings" represents income from operations before taxes plus fixed
charges. "Fixed charges" for operations consist of interest on
indebtedness and the portion of rental expense which represents interest.
<PAGE>
Exhibit 12.2
XTRA CORPORATION
STATEMENT OF THE CALCULATION OF RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(Millions of dollars)
<TABLE>
<CAPTION>
FISCAL YEAR ENDED SEPTEMBER 30,
-------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Three Months Ended
1992 1993 1994* 1995* 1996* December 31, 1996*
------------ --------- ----------- ----------- ----------- ------------------
EARNINGS
Income from operations before provision
for income taxes..................... $44.3 $ 72.4 $ -- $ -- $ -- $ --
Add: Fixed charges, excluding such
charges not deducted in the
determination of pre-tax income ....... 25.5 44.0 -- -- -- --
--------- -------- --------- ------- ------------ -----------------
$69.8 $ 116.4 $ 0.0 $ 0.0 $ 0.0 $ 0.0
--------- -------- --------- ------- ------------ -----------------
--------- -------- --------- ------- ------------ -----------------
FIXED CHARGES
Interest expense....................... $21.1 $ 38.8 $ -- $ -- $ -- $ --
Interest portion of rent expense....... 4.4 5.2 -- -- -- --
Pretax earnings required to cover
preferred dividend requirements...... 7.9 8.9 -- -- -- --
--------- -------- --------- ------- ------------ ----------------
$33.4 $ 52.9 $ 0.0 $ 0.0 $ 0.0 $ 0.0
--------- -------- --------- ------- ------------ ----------------
--------- -------- --------- ------- ------------ ----------------
Ratio of earnings to combined fixed
charges and Preferred Stock
dividends............................ 2.1x 2.2x -- -- -- --
--------- -------- --------- ------- ------------ ----------------
--------- -------- --------- ------- ------------ ----------------
</TABLE>
Note: For purposes of computing the ratio of earnings to combined fixed charges
and preferred stock dividends, "earnings" represent income from operations
before taxes plus fixed charges. "Fixed charges" for operations consist of
interest on indebtedness and the portion of rental expense which represents
interest and the amount of pre-tax income necessary to cover Preferred Stock
dividends.
* No shares of preferred stock were outstanding during the indicated period.
<PAGE>
Exhibit 12.3
XTRA, INC.
STATEMENT OF THE CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Millions of dollars)
<TABLE>
<CAPTION>
Three Months Ended
FISCAL YEAR ENDED SEPTEMBER 30, December 31, 1996
-------------------------------------------------- -------------------------
<S> <C> <C> <C> <C> <C> <C>
1992 1993 1994 1995 1996
-------- --------- -------- --------- ---------
EARNINGS
Income from operations before
provision for income taxes........ $44.3 $ 72.4 $ 98.4 $ 97.9 $ 68.9 $21.8
Add: Fixed charges ................. 25.5 44.0 36.2 41.8 66.2 15.9
-------- --------- -------- --------- --------- -------
$69.8 $116.4 $134.6 $139.7 $135.1 $37.7
-------- --------- -------- --------- --------- -------
-------- --------- -------- --------- --------- -------
FIXED CHARGES
Interest expense.................... $21.1 $ 38.8 $ 33.9 $ 41.4 $ 66.0 $15.9
Interest portion of rent expense.... 4.4 5.2 2.2 0.4 0.2 --
-------- --------- -------- --------- --------- -------
$25.5 $ 44.0 $ 36.1 $ 41.8 $ 66.2 $15.9
-------- --------- -------- --------- --------- -------
-------- --------- -------- --------- --------- -------
Ratio of earnings to fixed charges... 2.7x 2.6x 3.7x 3.3x 2.0x 2.4x
-------- --------- --------- --------- --------- -------
-------- --------- --------- --------- --------- -------
</TABLE>
Note: For purposes of computing the ratio of earnings to fixed charges,
"earnings" represents income from operations before taxes plus fixed
charges. "Fixed charges" for operations consist of interest on
indebtedness and the portion of rental expense which represents
interest.
<PAGE>
Exhibit 23.1
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this Post-Effective Amendment No. 1 to registration statement of
our reports dated November 13, 1996 included and incorporated by reference in
XTRA Corporation's Form 10-K for the year ended September 30, 1996 and to all
references to our Firm included in this Post-Effective Amendment No. 1 to
registration statement.
Boston, Massachusetts
May 5, 1997 Arthur Andersen L.L.P.
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
_________
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) __
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. Identification No.)
national bank)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
John R. Towers, Esq. Executive Vice President and Corporate Secretary
225 Franklin Street, Boston, Massachusetts 02110
(617)654-3253
(Name, address and telephone number of agent for service)
_____________________
XTRA CORPORATION XTRA, INC.
(Exact name of obligor as specified in its charter)
Delaware Maine
(State or other jurisdiction (State or other jurisdiction
of incorporation or organization) of incorporation or
organization)
(06-0954158) (01-0346274)
(I.R.S. Employer (I.R.S. Employer
Identification No.) Identification No.)
c/o X-L-CO., Inc. c/o X-L-CO., Inc.
60 State Street 60 State Street
Boston, MA 02110 Boston, MA 02110
(Address of principal executive offices) (Zip Code)
DEBT SECURITIES OF XTRA, INC.
GUARANTEES OF XTRA CORPORATION
(Title of indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to
which it is subject.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
Neither of the obligors is an affiliate of the trustee or of its
parent, State Street Corporation.
(See note on page 2.)
Item 3. through Item 15. Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
1. A copy of the articles of association of the trustee as now in
effect.
A copy of the Articles of Association of the trustee, as now in
effect, is on file with the Securities and Exchange Commission as
Exhibit 1 to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the Registration
Statement of Morse Shoe, Inc. (File No. 22-17940) and is
incorporated herein by reference thereto.
2. A copy of the certificate of authority of the trustee to commence
business, if not contained in the articles of association.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the trustee to
commence business was necessary or issued is on file with the
Securities and Exchange Commission as Exhibit 2 to Amendment No.
1 to the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Morse Shoe,
Inc. (File No. 22-17940) and is incorporated herein by reference
thereto.
3. A copy of the authorization of the trustee to exercise corporate
trust powers, if such authorization is not contained in the documents
specified in paragraph (1) or (2), above.
A copy of the authorization of the trustee to exercise corporate
trust powers is on file with the Securities and Exchange
Commission as Exhibit 3 to Amendment No. 1 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with
the Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4 to
the Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with the Registration Statement of Eastern Edison
Company (File No. 33-37823) and is incorporated herein by
reference thereto.
1
<PAGE>
5. A copy of each indenture referred to in Item 4. if the obligor is
in default.
Not applicable.
6. The consents of United States institutional trustees required by
Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of the Act
is annexed hereto as Exhibit 6 and made a part hereof.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority is annexed hereto as Exhibit 7 and made a
part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligors or any underwriter for
the obligors, the trustee has relied upon information furnished to it by the
obligors and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 6th day of May, 1997.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Henry W. Seemore
-----------------------------------
Henry W. Seemore
Assistant Vice President
2
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939, as amended, in connection with the proposed issuance by Xtra, Inc.. of
its Debt Securities, we hereby consent that reports of examination by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Henry W. Seemore
------------------------------------
Henry W. Seemore
Assistant Vice President
Dated: May 6, 1997
3
<PAGE>
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company of
Boston, Massachusetts and foreign and domestic subsidiaries, a state banking
institution organized and operating under the banking laws of this commonwealth
and a member of the Federal Reserve System, at the close of business December
31, 1996, published in accordance with a call made by the Federal Reserve Bank
of this District pursuant to the provisions of the Federal Reserve Act and in
accordance with a call made by the Commissioner of Banks under General Laws,
Chapter 172, Section 22(a).
Thousands of
ASSETS Dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ...... 1,561,409
Interest-bearing balances................................ 7,562,240
Securities .................................................. 9,388,513
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary...................... 5,622,962
Loans and lease financing receivables:
Loans and leases, net of unearned income ................... 4,858,187
Allowance for loan and lease losses ...................... 72,614
Loans and leases, net of unearned income and allowances... 4,785,573
Assets held in trading accounts.............................. 874,700
Premises and fixed assets................................. 383,955
Other real estate owned................................... 870
Investments in unconsolidated subsidiaries......................... 93,621
Customers' liability to this bank on acceptances outstanding....... 35,022
Intangible assets............................................. 148,190
Other assets...................................................... 932,673
----------
Total assets................................................. 31,389,728
----------
----------
LIABILITIES
Deposits:
In domestic offices....................................... 8,508,096
Noninterest-bearing ................................. 6,435,131
Interest-bearing .................................... 2,072,965
In foreign offices and Edge subsidiary.................... 11,395,724
Noninterest-bearing ................................. 27,508
Interest-bearing .................................... 11,368,216
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary....................... 7,518,222
Demand notes issued to the U.S. Treasury and Trading Liabilities..... 733,935
Other borrowed money....................................... 650,578
Bank's liability on acceptances executed and outstanding............. 35,022
Other liabilities.................................................... 770,029
----------
Total liabilities....................................... 29,611,606
----------
EQUITY CAPITAL
Common stock...................................... 29,931
Surplus.................................................. 358,146
Undivided profits.................................... 1,389,720
Cumulative foreign currency translation adjustments ......... 325
----------
Total equity capital.................................. 1,778,122
----------
Total liabilities and equity capital.................... 31,389,728
----------
----------
4
<PAGE>
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Charles F. Kaye
5
<PAGE>
5. A copy of each indenture referred to in Item 4. if the obligor is in
default.
Not applicable.
6. The consents of United States institutional trustees required by
Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of the Act is
annexed hereto as Exhibit 6 and made a part hereof.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining authority.
A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority is annexed hereto as Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates
to matters peculiarly within the knowledge of the obligors or any underwriter
of the obligors, the trustee has relied upon the information furnished to it
by the obligors and the underwriters, and the trustee disclaims responsibility
for the accuracy or completeness of such information.
The answer to Item 2. of this statement will be amended, if necessary, to
reflect any facts which differ from those stated and which would have been
required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts,
has duly caused this statement of eligibility to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 6th day of May, 1997.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Henry W. Seemore
------------------------------------
Henry W. Seemore
Assistant Vice President
2
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of
Section 321(b) of the Trust Indenture Act of 1939, as amended, in connection
with the proposed issuance by Xtra, Inc.. of its Debt Securities, we hereby
consent that reports of examination by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Henry W. Seemore
-----------------------------------
Henry W. Seemore
Assistant Vice President
Dated: May 6, 1997
3
