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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: August 15, 1994
XTRA Corporation
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(Exact name of registrant as specified in its charter)
Delaware 1-7654 06-0954158
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
60 State Street, Boston, MA 02109
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: (617) 367-5000
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N/A
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(Former name or former address, if changed since last report)
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Item 5. Other Events
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Exhibits are filed herewith in connection with two Registration
Statements on Form S-3 (File Nos. 33-43481 and 33-54747) filed by XTRA
Corporation and XTRA, Inc. with the Securities and Exchange Commission
covering, among other securities, Medium-Term Notes issuable by XTRA, Inc.
under an indenture dated as of August 15, 1994 among XTRA Corporation, XTRA,
Inc. and The First National Bank of Boston. The exhibits attached hereto refer
specifically to XTRA, Inc.'s issuance and sale from time to time of Medium-Term
Notes pursuant to a prospectus supplement dated August 15, 1994 to be filed with
the Commission under Rule 424(b)(3).
Item 7. Exhibits
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1. Distribution Agreement for the Medium-Term Notes.
4.1. Indenture dated as of August 15, 1994 by and among XTRA
Corporation, XTRA, Inc. and The First National Bank of Boston.
4.2. Form of fixed rate Medium-Term Note.
4.3. Form of floating rate Medium-Term Note.
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Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Current Report to be signed on its behalf
by the undersigned thereunto duly authorized.
XTRA Corporation
By: /s/ JAMES R. LAJOIE
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James R. Lajoie
Vice President
DATED: August 15, 1994
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Exhibit 1.
XTRA, INC.
$500,000,000
Series C Medium-Term Notes
Guaranteed as to Payment of Principal,
Premium (if any) and Interest by
XTRA CORPORATION
DISTRIBUTION AGREEMENT
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August 15, 1994
Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Smith Barney Inc.,
1345 Avenue of the Americas,
New York, New York 10105.
Wertheim Schroder & Co.
Incorporated,
Equitable Center,
787 Seventh Avenue,
New York, New York 10019.
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 (the "Guarantor") (the Guarantee, together with the Series C
Medium-Term Notes, the "Securities"), in an aggregate principal amount up to
$500,000,000 and agrees with each of you (individually an "Agent" and
collectively the "Agents") as set forth in this Agreement.
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 the Guarantor hereby
(i) appoint each Agent as an agent of the Company and the Guarantor for the
purpose of soliciting and receiving offers to purchase Securities from the
Company and the Guarantor 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
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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 "Indenture"), between the Company, the Guarantor and The First
National Bank of Boston, as Trustee (the "Trustee"). 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
Guarantor 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 the Guarantor (the
"Procedure") and, if applicable, will be specified in a related Terms
Agreement.
1. The Company and the Guarantor represent and warrant to, and
agree with, each Agent that:
(a) Two registration statements on Form S-3 (Registration No.
33-43481 and No. 33-54747) have been filed with the Securities and
Exchange Commission (the "Commission"); such registration statements and
any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to such Agent, excluding exhibits to such
registration statements but including all documents incorporated by
reference in the prospectus included in the later registration statement,
have been declared effective by the Commission in such form; no other
document with respect to such registration statements 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 statements has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in the
later of such registration statements or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission
under the Act, being hereinafter called a "Preliminary Prospectus"; the
various parts of the later of such registration statements, 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
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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 to the Guarantor 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 the Guarantor 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 the Guarantor, the Company, nor 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,
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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 the Guarantor) or any increase in
excess of $50 million in the consolidated long-term debt of the Guarantor
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 the Guarantor or the Company and their
respective subsidiaries, otherwise than as set forth or contemplated in
the Prospectus;
(e) The Guarantor and the Company and their respective subsidiaries
have good and marketable title to all personal property owned by either
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 the Guarantor and their respective subsidiaries; and any
real property and buildings held under lease by the Guarantor 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 the Guarantor, the Company and their respective
subsidiaries;
(f) Each of the Guarantor and the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware and Maine, respectively, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus, and neither 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 the Guarantor, the Company and
their respective subsidiaries (taken as a whole); and each subsidiary of
the Guarantor or 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 the Guarantor, the Company and
their respective subsidiaries (taken as a whole);
(g) The Guarantor 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 the Guarantor 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 subsidiary of the Guarantor have been duly and validly
authorized and issued, are fully paid and nonassessable and (except for
directors' qualifying shares and except as
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set forth in the Prospectus) are owned directly by the Guarantor 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 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 the
Guarantor and the Company with, as applicable, all of the provisions of
the Securities, the Indenture, the Guarantees, 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 the Guarantor or any of its
subsidiaries, including the Company, is a party or by which the Guarantor
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 the Guarantor's Certificate of Incorporation, as amended, the
Company's Articles of Incorporation, as amended, the Guarantor'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 the
Guarantor 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 the Guarantor 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 the Guarantor 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 the
Guarantor and with purchases of Securities by the Agents as principal, as
the case may be, in each case in the manner contemplated hereby;
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(j) There are no legal or governmental proceedings pending to which
the Guarantor or any of its subsidiaries, including the Company, is a
party or to which any property of the Guarantor 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 the Guarantor and its subsidiaries,
including the Company), which, if determined adversely to the Guarantor
and 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 the
Guarantor and its subsidiaries, including the Company (taken as a whole);
and, to the best of the Guarantor'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
the Guarantor 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 the Guarantor 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 and sold by the Company
and the Guarantor hereunder or under any Terms Agreement and of any debt
securities of the Company or guarantees of the Guarantor (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 or registered under the earlier registration statement
(Registration No. 33-43481) referred to in paragraph (a) of this Section
to which the Prospectus also relates pursuant to Rule 429 under the Act.
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
the Guarantor, to use its reasonable efforts when requested by the Company 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 the Guarantor 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. The Guarantor 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
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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 the Guarantor 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 the Guarantor, the
Agents will suspend solicitation of offers to purchase Securities from the
Company and the Guarantor until such time as the Company and the Guarantor have
advised the Agents that such solicitation may be resumed.
<TABLE>
The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Company and the Guarantor 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:
<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.
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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
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 the
Guarantor 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, the Guarantor 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 the
Guarantor 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, 250 Park Avenue, New York, New
York, 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 the Guarantor but in no event shall be later than the day
prior to the date on which solicitation of offers to purchase Securities is
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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 the Guarantor 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) 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 the Guarantor 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 the Guarantor 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 the Guarantor 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
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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 the Guarantor 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 Indenture Act, to
notify such Agent and request such Agent, in its capacity as agent of the
Company and the Guarantor, to suspend solicitation of offers to purchase
Securities from the Company and the Guarantor 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 the Guarantor 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 the Guarantor by such Agent as principal, the Company and the Guarantor
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 the Guarantor 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 the Guarantor or the Company is listed; and (ii) such additional
information concerning the business and financial condition of the Guarantor
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 the Guarantor and its subsidiaries, including the Company, are consolidated
in reports furnished to its 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 the
Guarantor by the Agents and (ii) the related Time of Delivery, neither the
Company nor the Guarantor will, without the prior written consent of such
Agent, offer, sell, contract to sell or otherwise dispose of any debt
securities of the
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<PAGE> 11
Company or the Guarantor 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 the Guarantor of an
offer to purchase Securities hereunder, and each execution and delivery by the
Company and the Guarantor 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 the Guarantor contained in or made pursuant to this Agreement
are true and correct as of the date of such acceptance or of such Terms
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 the Guarantor sells 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 the Guarantor 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 the Guarantor 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 the Guarantor shall furnish or cause to be furnished forthwith to
such Agent a written opinion of Ropes & Gray, counsel for the Company and the
Guarantor, or other counsel for the Company and the Guarantor satisfactory to
such Agent, and of James R. Lajoie, general counsel for the Company and the
Guarantor, 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
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<PAGE> 12
incorporated by reference into the Prospectus, in either case to set forth
financial information included in or derived from the Guarantor's or the
Company's consolidated financial statements or accounting records, and each
time the Company and the Guarantor sell Securities to such 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 the Guarantor
shall cause the independent certified public accountants who have certified the
financial statements of the Guarantor and its 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) 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 the Guarantor 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) 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 the Guarantor 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 the Guarantor 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 the
Guarantor 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
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<PAGE> 13
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 the Guarantor covenant and agree with each Agent
that the Company and the Guarantor will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's and Guarantor's
counsel and accountants in connection with the registration of 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 the Guarantor; and (xi) all other costs and expenses incident
to the performance of the Company's or the Guarantor'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 the
Guarantor, 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 the Guarantor 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 the Guarantor 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
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<PAGE> 14
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
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 the Guarantor, 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,
Scribner, Allen, Smith & Lancaster or other counsel satisfactory to the Agents
in respect of matters of Maine law);
(c) Ropes & Gray, counsel for the Company and the Guarantor, or
other counsel for the Company and the Guarantor 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) Each of the Company and the Guarantor has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the States of Maine and Delaware, respectively, 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, Scribner, Allen, Smith & Lancaster 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) The Guarantor 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 the Guarantor 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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<PAGE> 15
(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 the Guarantor, 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 Indenture has been duly authorized, executed and
delivered by the Company and the Guarantor and constitutes a valid and
legally binding instrument, 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; 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 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 the Guarantor with, as applicable, all of the provisions of
the Securities, the Indenture, the Guarantees, 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, the Guarantor'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 the Guarantor or
any of its 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 the
Guarantor of the other transactions contemplated by this Agreement, any
applicable Terms Agreement, or the Indenture or the Guarantees, 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 the Guarantor and with purchases of
Securities by the Agents as principal, as the case may be, in each case
in the manner 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 the Guarantor or the Company
prior to the date of such
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<PAGE> 16
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 the Guarantor and the Company in reliance upon information
furnished in writing to the Guarantor 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 the Guarantor 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 the Guarantor 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 the Guarantor and the Company in reliance
upon information furnished in writing to the Guarantor 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 the Guarantor 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:
(i) Neither the Guarantor 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 the
Guarantor or the Company and their respective subsidiaries (in each case
taken as a whole);
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<PAGE> 17
(ii) Each of X-L-Co., Inc., Distribution International
Corporation, RenTco Trailer Corporation, XTRA Leasing, Inc., AJF
Warehouse Distributors, Inc., Strick Canada Limited and Strick 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 the Guarantor 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 the
Company's 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 the Guarantor (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 the Guarantor or its 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 the Guarantor or any of its
subsidiaries, including the Company, is a party or of which any property
of the Guarantor 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 the Guarantor
and its subsidiaries, including the Company, which individually and in
the aggregate is not material to the Guarantor 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 the
Guarantor and the Company with, as applicable, all of the provisions of
the Securities, the Indenture, the Guarantees, 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, the Guarantor's
Certificate of Incorporation, the Company's Articles of Incorporation,
the Company's or the Guarantor's By-laws, or any order, rule or
regulation known to such counsel of any court or governmental agency or
body having jurisdiction over the Guarantor 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 the
Guarantor or any of its subsidiaries, including the Company, is a party
or by which the Guarantor 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 Guarantees), 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 the
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<PAGE> 18
Guarantor 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 the Guarantor or the
Company with all the provisions of the Securities, the consummation by
the Guarantor or the Company of the transactions contemplated by this
Agreement, any applicable Terms Agreement or the Indenture or the
Guarantees, 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 the Guarantor and its 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 the Guarantor 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, 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 the Guarantor) or (y) any increase in excess of $50
million in the long-term debt of the Guarantor or any of its subsidiaries,
including the Company, or (z) any change, or any development involving a
prospective change, in or affecting the general
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<PAGE> 19
affairs, management, financial position, stockholders' equity or results of
operations of the Guarantor 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 the Guarantor and the Company
or the purchase by the Agents of Securities from the Guarantor 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 the Guarantor
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) The Guarantor and the Company shall have furnished or caused to
be furnished to such Agent certificates of officers of the Guarantor 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 the Guarantor
and the Company as shall be satisfactory to such Agent, as to the accuracy of
the representations and warranties of the Guarantor 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 the Guarantor 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) The Guarantor 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, 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
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<PAGE> 20
such expenses are incurred; provided, however, that the Guarantor 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 the Guarantor and Company by
any such Agent expressly for use in the Prospectus as amended or supplemented.
(b) Each Agent will indemnify and hold harmless the Guarantor and
the Company against any losses, claims, damages or liabilities to which the
Guarantor 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 the Guarantor and the Company
by such Agent expressly for use therein; and will reimburse the Guarantor and
the Company for any legal or other expenses reasonably incurred by the
Guarantor 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 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
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<PAGE> 21
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 the Guarantor 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 the Guarantor 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 the Guarantor 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 the Guarantor 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. The Guarantor 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 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 the Guarantor and the Company under this
Section 7 shall be in addition to any liability which the Guarantor 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 the
Guarantor and the Company and to each person, if any, who controls the
Guarantor or the Company within the meaning of the Act.
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<PAGE> 22
8. Each Agent, in soliciting offers to purchase Securities from the
Company and the Guarantor 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 the Guarantor and not as principal. Each Agent will
make reasonable efforts to assist the Company and the Guarantor in obtaining
performance by each purchaser whose offer to purchase Securities from the
Company and the Guarantor was solicited by such Agent and has been accepted by
the Company and the Guarantor, but such Agent shall not have any liability to
the Company and the Guarantor in the event such purchase is not consummated for
any reason. If the Company or the Guarantor shall default on its obligation to
deliver Securities to a purchaser whose offer it has accepted, the Company and
the Guarantor 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 the
Guarantor 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 the Guarantor 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 the Guarantor
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 the Guarantor 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 the Guarantor or the Company, or any officer or director or any
controlling person of the Guarantor 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 the Guarantor may be
suspended or terminated at any time by the Company and the Guarantor 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 the Guarantor,
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, 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 1345
Avenue of the Americas, New
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<PAGE> 23
York, New York 10105, Facsimile Transmission No. (212) 698-5517, Attention:
Capital Transactions Group, if to Wertheim Schroder & Co. Incorporated shall be
sufficient in all respects when delivered or sent by telex, facsimile
transmission or registered mail to 787 Seventh Avenue, New York, New York
10019, Facsimile Transmission No. (212) 492-7194, Attention: Fixed Income
Department, and if to the Company or the Guarantor 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 the
Guarantor, and to the extent provided in Section 7, Section 8 and Section 9
hereof, the officers and directors of the Company and the Guarantor and any
person who controls any Agent or the Company or the Guarantor, 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.
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> 24
If the foregoing is in accordance with your understanding, please
sign and return to us two 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: /s/ MICHAEL J. SOJA
---------------------
Name: Michael J. Soja
Title: Vice President, Finance
and Chief Financial Officer
XTRA CORPORATION
By: /s/ MICHAEL J. SOJA
---------------------
Name: Michael J. Soja
Title: Vice President, Finance
and Chief Financial Officer
Accepted in New York, New York,
as of the date hereof:
/s/ GOLDMAN, SACHS & CO.
- - ------------------------
(GOLDMAN, SACHS & CO.)
SMITH BARNEY INC.
By: /s/ BRUCE CUMMINGS
--------------------
Name: Bruce Cummings
Title: Managing Director
WERTHEIM SCHRODER & CO. INCORPORATED
By: /s/ JAY RANDALL BURWELL
-------------------------
Name: Jay Randall Burwell
Title: Vice President
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<PAGE> 25
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.
1345 Avenue of the Americas
New York, New York 10105]
[Wertheim Schroder & Co.
Incorporated
Equitable Center
787 Seventh Avenue
New York, New York 10019]
Dear Sirs:
XTRA, Inc. (the "Company") and XTRA Corporation (the "Guarantor")
propose, subject to the terms and conditions stated herein and in the
Distribution Agreement, dated August 15, 1994 (the "Distribution Agreement"),
between the Company and the Guarantor on the one hand and Goldman, Sachs & Co.,
Smith Barney Inc. ("Smith Barney") and Wertheim Schroder & Co. Incorporated
("Wertheim Schroder") on the other, to issue and sell to [Goldman, Sachs & Co.]
[Smith Barney] [Wertheim Schroder] 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 the Guarantor, 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 party hereto an agent of the Company or the Guarantor
or make such party subject to the provisions therein relating to the
solicitation of offers to purchase securities from the Company and the
Guarantor, 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
I-1
<PAGE> 26
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 the
Guarantor agree to issue and sell to [Goldman, Sachs & Co.] [Smith Barney]
[Wertheim Schroder] and [Goldman, Sachs & Co.] [Smith Barney] [Wertheim
Schroder] 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
I-2
<PAGE> 27
herein by reference, shall constitute a binding agreement between you and the
Company and the Guarantor.
XTRA, INC.
By:_____________________
Name:
Title:
XTRA CORPORATION
By:_____________________
Name:
Title:
Accepted:
___________________________
[(GOLDMAN, SACHS & CO.)]
[SMITH BARNEY INC.]
By:________________________
Name:
Title:
[WERTHEIM SCHRODER & CO. INCORPORATED]
By:________________________
Name:
Title:
I-3
<PAGE> 28
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] [Wertheim Schroder]:
% 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, the
Guarantor and The First National Bank of Boston, as Trustee
Time of Delivery:
Closing Location:
Maturity:
Interest Rate:
[ %]
I-4
<PAGE> 29
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] [Wertheim Schroder]]
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<PAGE> 30
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 $500,000,000 are to be offered from time to time by
XTRA, Inc. (the "Company") and XTRA Corporation (the "Guarantor"), through
Goldman, Sachs & Co., Smith Barney Inc. and Wertheim Schroder & Co.
Incorporated as agents of the Company and the Guarantor (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 the Guarantor, and each such Agent may also purchase
Securities from the Company and the Guarantor as principal. The Securities are
being sold pursuant to a Distribution Agreement, dated August 15, 1994 (the
"Distribution Agreement"), between the Company and the Guarantor and the
Agents, to which this Administrative Procedure is attached as Annex II.
The Securities will be issued pursuant to an Indenture, dated as of
August 15, 1994 (the "Indenture"), between the Company, the Guarantor and The
First National Bank of Boston, as Trustee (the "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 the Guarantor 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.
Administrative and record-keeping responsibilities will be handled
for the Company by its Controllers 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.
II-1
<PAGE> 31
<TABLE>
<S> <C>
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 a 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
$150,000,000. If one or more Book-Entry Notes having an aggregate principal amount in excess of
$150,000,000 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 $150,000,000
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 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
</TABLE>
II-2
<PAGE> 32
<TABLE>
<S> <C>
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, on each April 1 and October
1 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 March 15 and September 15
record dates, 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 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.
</TABLE>
II-3
<PAGE> 33
<TABLE>
<S> <C>
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 the Guarantor'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 by telephone or
Offers: other appropriate means of all reasonable offers to purchase securities, other than those
rejected by the Agents. The Company shall inform the Guarantor 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 the Guarantor 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 the Guarantor 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 the
Guarantor reject an offer, they will promptly notify the Agents.
If the Company and the Guarantor 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.
If the Company and the Guarantor 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 pursuant to the Distribution
Prospectus: 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
</TABLE>
II-4
<PAGE> 34
<TABLE>
<S> <C>
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 fifth 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 made, prior to 3:00 p.m.,
Settlement: 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 following information (the
Settlement: "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,
(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.
</TABLE>
II-5
<PAGE> 35
<TABLE>
<S> <C>
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 the
Guarantor'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
acknowledgement 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 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 than the Agents acting as principal) shall fail to accept
Respect of delivery of and make payment for any Security, the Agents will forthwith notify the Company's
Certificated Treasurer by telephone (confirmed in writing) or by facsimile transmission. If the Security has
Securities: 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
</TABLE>
II-6
<PAGE> 36
<TABLE>
<S> <C>
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 CUSIP number to the Security from a list of CUSIP
Global numbers previously delivered to the Trustee by the Company representing such Book-Entry
Book-Entry Security and then advise the Company and the Selling Agent or Purchasing Agent, as the case may
Securities: 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
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;
</TABLE>
II-7
<PAGE> 37
<TABLE>
<S> <C>
(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 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 $500,000,000 (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).
</TABLE>
II-8
<PAGE> 38
<TABLE>
<S> <C>
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 The First National Bank of Boston, 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 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 Book-Entry Security, it will prepare a Pricing Supplement
Pricing reflecting the terms of such Book-Entry Security and arrange to have delivered to the Selling Agent
Supplement: 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
</TABLE>
II-9
<PAGE> 39
<TABLE>
<S> <C>
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 purchaser of a Book-Entry Security a written confirmation
Confirmation of the sale and delivery and payment instructions. In addition, the Selling Agent will
and Prospectus deliver to such purchaser or its agent the Prospectus as amended or supplemented (including
to Purchaser the Pricing Supplement) in relation to such Book-Entry Security prior to or together with the
by Selling Agent: earlier of the delivery to such purchaser or its agent of (a) the confirmation of sale or (b)
the Book-Entry Security.
Date of Settlement: The receipt by the Company of 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 fifth 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.
</TABLE>
<TABLE>
Settlement For orders of Book-Entry Securities solicited by an Agent, as agent, and accepted by the Company
Procedure for settlement on the first Business Day after the sale date, Settlement Procedures set
Timetable: forth above shall be completed as soon as possible but not later than the respective times
(New York City time) set forth below:
<CAPTION>
Settlement
- - ----------
Procedure Time
- - --------- ----
<S> <C> <C>
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
Settlement
- - ----------
Procedure Time
- - --------- ----
C 5:00 p.m. on settlement date
D 10:00 a.m. on settlement date
</TABLE>
II-10
<PAGE> 40
<TABLE>
<S> <C> <C>
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
</TABLE>
<TABLE>
<S> <C>
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 cancelled, 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 Respect If the Trustee fails to enter an SDFS deliver order with respect to Book-Entry Security pursuant
of Book-Entry to Settlement Procedure "E", the Trustee may deliver to the Depository, through the Deposi-
Securities: 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 "cancelled", make
appropriate entries in the Trustee's records and send such cancelled Global Security to the
Company. The CUSIP number assigned to such Global Security shall, in accordance with CUSIP
Service Bureau procedures, be cancelled 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 cancelled
immediately after
</TABLE>
II-11
<PAGE> 41
<TABLE>
<S> <C>
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 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.
</TABLE>
II-12
<PAGE> 42
<TABLE>
<S> <C>
PROCEDURES GENERALLY
APPLICABLE
Payment at Upon presentation of each Security at maturity, the Trustee or its
Maturity: 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 the Guarantor decide to "post" rates, the
Posting: Company and the Guarantor 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 the Guarantor 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.
"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" rules sticker
attached to Prospectus Supplements distributed to potential purchasers.
The Agents and the Company and the Guarantor 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 contained in the Distribution Agreement,
Solicitation; the Company or the Guarantor may instruct the Agents to suspend solicitation of
Amendment or offers to purchase Securities at any time. As soon as practicable, but in any event not later
Supplement: than one business day after,
</TABLE>
II-13
<PAGE> 43
<TABLE>
<S> <C>
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 the Guarantor have discretion regarding whether
to amend or supplement the Registration Statement or Prospectus. If the Company or the
Guarantor proposes so to amend or supplement, it 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 the Guarantor,
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 the Guarantor will have the sole responsibility for such decision and for any
arrangements which may be made in the event that the Company or the Guarantor deter-mines 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 furnish the Agents from time to time with the specimen
of Signatures: signatures of each of the Trustee's officers, employees or agents who have been 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, the Guarantor or the Trustee or
its agent on any Security.
Advertising The Company and the Guarantor 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 the Guarantor.
</TABLE>
II-14
<PAGE> 44
ANNEX III
Pursuant to Section 4(j) and Section 6(e), as the case may be, of
the Distribution Agreement, the Guarantor's independent certified public
accountants shall furnish letters to the effect that:
(i) They are independent certified public accountants with
respect to the Guarantor and its 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 the Guarantor's Quarterly Report on Form
10-Q, incorporated by reference into the Prospectus, and inquired of
certain officials of the Guarantor 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 the Guarantor and
its subsidiaries, including the Company, inspection of the minute books
of the Guarantor and its 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 the Guarantor
and its 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 the Guarantor and its subsidiaries,
including the Company, or any decrease in the amount of the
Guarantor'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
III-1
<PAGE> 45
(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 the Guarantor'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 the Guarantor
and its 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 the
Guarantor and its 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 the Guarantor
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
(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;
III-2
<PAGE> 46
(B) inquired of certain officials of the Guarantor (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.
III-3
<PAGE> 1
Exhibit 4.1
XTRA, INC.,
Issuer
XTRA CORPORATION,
Guarantor
To
THE FIRST NATIONAL BANK OF BOSTON
Trustee
____________________
INDENTURE
Dated as of August 15, 1994
__________
<PAGE> 2
XTRA, INC.
Certain Sections of this Indenture relating to Sections 310
through 318, inclusive, of the Trust Indenture Act of 1939
<TABLE>
Trust Indenture Act Section
<S> <C> <C>
[Section] 310 (a) (1) ................................... 6.9
(a) (2) ................................... 6.9
(a) (3) ................................... Not Applicable
(a) (4) ................................... Not Applicable
(b) ..................................... 6.8
6.10
[Section] 311 (a) ..................................... 6.13
(b) ..................................... 6.13
7.3
[Section] 312 (a) ..................................... 7.1
7.2
[Section] (b) ..................................... 7.2
(c) ..................................... 7.2
[Section] 313 (a) ..................................... 7.3
(b) ..................................... 7.3
(c) ..................................... 7.3
(d) ..................................... 7.3
[Section] 314 (a) ..................................... 7.4
(a)(4)..................................... 1.1, 10.9
(b) ..................................... Not Applicable
(c)(1)..................................... 1.2
(c)(2)..................................... 1.2
(c)(3)..................................... Not Applicable
(d) ..................................... Not Applicable
(e) ..................................... 1.2
[Section] 315 (a) ..................................... 6.1
(b) ..................................... 6.2
7.3
(c) ..................................... 6.1
(d) ..................................... 6.1
(e) ..................................... 5.14
[Section] 316 (a) ..................................... 1.1
(a)(1)(A).................................. 5.2
5.12
(a)(1)(B).................................. 5.13
(a)(2)..................................... Not Applicable
(b)........................................ 5.8
(c)........................................ 1.4
[Section] 317 (a)(1)..................................... 5.3
(a)(2)..................................... 5.4
(b)........................................ 10.3
[Section] 318 (a)........................................ 1.7
<FN>
________________
NOTE: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the Indenture.
</TABLE>
<PAGE> 3
<TABLE>
TABLE OF CONTENTS
<CAPTION>
Page
<S> <C>
RECITALS OF THE COMPANY ...................................................... 1
RECITALS OF THE GUARANTOR .................................................... 1
ARTICLE 1
Definitions and Other Provisions
of General Application ................................... 2
Section 1.1 DEFINITIONS ........................................... 2
Section 1.2 COMPLIANCE CERTIFICATES AND OPINIONS .................. 11
Section 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE ................ 12
Section 1.4 ACTS OF HOLDERS; RECORD DATES ......................... 12
Section 1.5 NOTICES, ETC., TO TRUSTEE, COMPANY OR
GUARANTOR ..................................................... 15
Section 1.6 NOTICE TO HOLDERS; WAIVER ............................. 16
Section 1.7 CONFLICT WITH TRUST INDENTURE ACT ..................... 16
Section 1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS .............. 17
Section 1.9 SUCCESSORS AND ASSIGNS ................................ 17
Section 1.10 SEPARABILITY CLAUSE .................................. 17
Section 1.11 BENEFITS OF INDENTURE ................................ 17
Section 1.12 GOVERNING LAW ........................................ 17
Section 1.13 LEGAL HOLIDAYS ....................................... 17
ARTICLE 2
Security and Guarantee Forms ................................ 18
Section 2.1 FORMS GENERALLY ....................................... 18
Section 2.2 GUARANTEE BY GUARANTOR; FORM OF GUARANTEE ............. 18
Section 2.3 FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION ................................................ 21
ARTICLE 3
The Securities ....................................... 21
Section 3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES .................. 21
Section 3.2 DENOMINATIONS ......................................... 25
Section 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND
DATING ........................................................ 25
Section 3.4 TEMPORARY SECURITIES .................................. 27
Section 3.5 REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE ...................................................... 28
Section 3.6 MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES .................................................... 30
Section 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED ..................................................... 31
Section 3.8 PERSONS DEEMED OWNERS ................................. 32
Section 3.9 CANCELLATION .......................................... 33
Section 3.10 COMPUTATION OF INTEREST .............................. 33
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE 4
Satisfaction and Discharge ............................... 33
Section 4.1 SATISFACTION AND DISCHARGE OF INDENTURE ............. 33
Section 4.2 APPLICATION OF TRUST MONEY .......................... 35
ARTICLE 5
Remedies ........................................ 35
Section 5.1 EVENTS OF DEFAULT ................................... 35
Section 5.2 ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT ................................................... 37
Section 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE ...................................... 39
Section 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM .................... 39
Section 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF SECURITIES .................................... 40
Section 5.6 APPLICATION OF MONEY COLLECTED ...................... 40
Section 5.7 LIMITATION ON SUITS ................................. 41
Section 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST ............................. 41
Section 5.9 RESTORATION OF RIGHTS AND REMEDIES .................. 42
Section 5.10 RIGHTS AND REMEDIES CUMULATIVE ..................... 42
Section 5.11 DELAY OR OMISSION NOT WAIVER ....................... 42
Section 5.12 CONTROL BY HOLDERS ................................. 42
Section 5.13 WAIVER OF PAST DEFAULTS ............................ 43
Section 5.14 UNDERTAKING FOR COSTS .............................. 43
Section 5.15 WAIVER OF USURY, STAY OR EXTENSION LAWS ............ 43
ARTICLE 6
The Trustee ...................................... 44
Section 6.1 CERTAIN DUTIES AND RESPONSIBILITIES ................. 44
Section 6.2 NOTICE OF DEFAULTS .................................. 44
Section 6.3 CERTAIN RIGHTS OF TRUSTEE ........................... 44
Section 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OF SECURITIES ............................................... 46
Section 6.5 MAY HOLD SECURITIES ................................. 46
Section 6.6 MONEY HELD IN TRUST ................................. 46
Section 6.7 COMPENSATION AND REIMBURSEMENT ...................... 46
Section 6.8 CONFLICTING INTERESTS ............................... 47
Section 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY ............. 47
Section 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR ................................................... 47
Section 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR ............. 49
Section 6.12 MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS ...................................... 51
Section 6.13 PREFERENTIAL COLLECTION OF CLAIMS .................. 51
Section 6.14 APPOINTMENT OF AUTHENTICATING AGENT ................ 51
</TABLE>
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<PAGE> 5
<TABLE>
<S> <C>
ARTICLE 7
Holders' Lists and Reports by Trustee, Company and Guarantor .................... 53
Section 7.1 COMPANY AND GUARANTOR TO FURNISH TRUSTEE
NAMES AND ADDRESSES OF HOLDERS .................................. 53
Section 7.2 PRESERVATION OF INFORMATION;
COMMUNICATIONS TO HOLDERS ....................................... 54
Section 7.3 REPORTS BY TRUSTEE ...................................... 54
Section 7.4 REPORTS BY COMPANY AND GUARANTOR ........................ 54
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease ...................... 55
Section 8.1 COMPANY OR GUARANTOR MAY CONSOLIDATE,
ETC., ONLY ON CERTAIN TERMS ..................................... 55
Section 8.2 SUCCESSOR CORPORATION SUBSTITUTED ....................... 56
ARTICLE 9
Supplemental Indentures .................................... 56
Section 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS ......................................................... 56
Section 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS ......................................................... 58
Section 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES .................... 59
Section 9.4 EFFECT OF SUPPLEMENTAL INDENTURES ....................... 60
Section 9.5 CONFORMITY WITH TRUST INDENTURE ACT ..................... 60
Section 9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES ...................................................... 60
ARTICLE 10
Covenants ........................................... 60
Section 10.1 PAYMENT OF PRINCIPAL, PREMIUM AND
INTEREST ........................................................ 60
Section 10.2 MAINTENANCE OF OFFICE OR AGENCY ........................ 60
Section 10.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD
IN TRUST ........................................................ 61
Section 10.4 CORPORATE EXISTENCE .................................... 63
Section 10.5 MAINTENANCE OF PROPERTIES .............................. 63
Section 10.6 PAYMENT OF TAXES AND OTHER CLAIMS ...................... 63
Section 10.7 LIMITATION ON LIENS OF THE GUARANTOR ................... 64
Section 10.8 LIMITATION ON LIENS OF THE COMPANY ..................... 64
Section 10.9 STATEMENT BY OFFICERS AS TO DEFAULT .................... 65
Section 10.10 WAIVER OF CERTAIN COVENANTS ........................... 66
ARTICLE 11
Redemption of Securities .................................... 66
</TABLE>
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<TABLE>
<S> <C>
Section 11.1 APPLICABILITY OF ARTICLE ............................... 66
Section 11.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE .................. 66
Section 11.3 SELECTION BY TRUSTEE OF SECURITIES TO BE
REDEEMED ....................................................... 67
Section 11.4 NOTICE OF REDEMPTION ................................... 68
Section 11.5 DEPOSIT OF REDEMPTION PRICE ............................ 68
Section 11.6 SECURITIES PAYABLE ON REDEMPTION DATE .................. 68
Section 11.7 SECURITIES REDEEMED IN PART ............................ 69
ARTICLE 12
Sinking Funds ......................................... 69
Section 12.1 APPLICABILITY OF ARTICLE ............................... 69
Section 12.2 SATISFACTION OF SINKING FUND PAYMENTS
WITH SECURITIES ................................................. 70
Section 12.3 REDEMPTION OF SECURITIES FOR SINKING
FUND ............................................................ 70
ARTICLE 13
Defeasance and Covenant Defeasance ............................... 71
Section 13.1 APPLICABILITY OF ARTICLE; COMPANY'S
OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE ...................................................... 71
Section 13.2 DEFEASANCE AND DISCHARGE ............................... 71
Section 13.3 COVENANT DEFEASANCE .................................... 72
Section 13.4 CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE ...................................................... 72
Section 13.5 DEPOSITED MONEY AND U.S. GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST; OTHER
MISCELLANEOUS PROVISIONS ........................................ 74
</TABLE>
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<PAGE> 7
INDENTURE, dated as of August 15, 1994, between XTRA, INC.,
a corporation duly organized and existing under the laws of the
State of Maine (herein called the "Company"), having its
principal executive offices at c/o X-L-CO., Inc., 60 State
Street, Boston, Massachusetts, XTRA CORPORATION, a corporation
duly organized and existing under the laws of the State of
Delaware (herein called the "Guarantor"), having its principal
executive offices at c/o X-L-CO., Inc., 60 State Street, Boston,
Massachusetts, and The First National Bank of Boston, as Trustee
(herein called the "Trustee"), having its corporate trust office
at 150 Royall Street, Canton, Massachusetts 02021.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time
of its unsecured debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in
one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
RECITALS OF THE GUARANTOR
The Guarantor desires to make the Guarantees provided for
herein, and has determined that such Guarantees are necessary and
convenient to the conduct of the business of the Company, a
wholly-owned Subsidiary of the Guarantor.
All things necessary to make the Guarantees, when executed
by the Guarantor and endorsed on the Securities authenticated and
delivered hereunder, the valid obligations of the Guarantor, and
to make this Indenture a valid agreement of the Guarantor, in
accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:
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<PAGE> 8
ARTICLE 1
Definitions and Other Provisions
of General Application
Section 1.1 Definitions.
------------
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "generally accepted accounting prin-
ciples" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
(4) unless the context otherwise requires, any reference to
an "Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
"Acquired Equipment Indebtedness" of a Person means 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.
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<PAGE> 9
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.
For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.14 to act on behalf of the Trustee
to authenticate Securities.
"Board of Directors", when used with reference to the
Company or the Guarantor, means either the board of directors, or
any duly authorized committee of the board of directors, of the
Company or the Guarantor, as the case requires.
"Board Resolution", when used with reference to the Company
or the Guarantor, means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or the
Guarantor, as the case requires, to have been duly adopted by the
Board of Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in Boston, Massachusetts and New York City, New York
are authorized or obligated by law or executive order to close.
"Capitalized Lease" shall mean a lease the obligations under
which are required to be capitalized and included in determining
total liabilities in accordance with Financial Accounting
Standard No. 13 of the Financial Accounting Standards Board as
from time to time in effect.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, or, if at any time after the execution of
this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor Person shall
have become such pursuant to the applicable provisions of this
-3-
<PAGE> 10
Indenture, and thereafter "Company" shall mean such successor
Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company or the Guarantor, as
the case requires, by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated", when used with reference to any term defined
herein, means the term in question as applied to the accounts of
the Person in question and its Subsidiaries consolidated in
accordance with generally accepted accounting principles, after
eliminating all intercompany items.
"Consolidated Net Worth" of any Person means, 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, 1993.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall
be principally administered, which office, as at the date of this
Indenture, is located at 150 Royall Street, Canton, Massachusetts
02021. Attention: Corporate Trust Administration.
The term "corporation" includes corporations, associations,
companies, joint-stock companies and business trusts.
The terms "covenant defeasance" and "defeasance" have the
meanings assigned to such terms, respectively, by Sections 13.3
and 13.2.
-4-
<PAGE> 11
"Defaulted Interest" has the meaning specified in
Section 3.7.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one
or more Global Securities, the Person designated as Depositary
for such series by the Company pursuant to Section 3.1 (17),
which Person shall be a clearing agency registered under the
Securities Exchange Act of 1934, as amended; and if at any time
there is more than one such Person, "Depositary" as used with
respect to the Securities of any series shall mean the Depositary
with respect to the Securities of such series.
"Event of Default" has the meaning specified in Section 5.1.
"Expiration Date" has the meaning specified in Section 1.4.
"Fiscal Year" means with respect to the Company and the
Guarantor, the fiscal year ending September 30 of each year or
such other date as the Company or the Guarantor may hereafter
elect, and with respect to any other Person the calendar year or
other annual accounting period of the Person in question.
"Global Security" or "Global Securities" means a Security or
Securities, as the case may be, evidencing all or part of a
series of Securities and bearing the legend specified in Section
2.4, issued to the Depositary for such series or its nominee, and
registered in the name of such Depositary or nominee.
"Guarantee" means any guarantee of the Guarantor endorsed on
a Security authenticated and delivered pursuant to this Indenture
and shall include the guarantees set forth in Section 2.2.
"Guarantor" means the Person named as "Guarantor" in the
first paragraph of this Indenture until a successor corporation
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Guarantor" shall include such
successor corporation.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indebtedness" means (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
twelve 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
-5-
<PAGE> 12
others; PROVIDED, HOWEVER, that Indebtedness shall not include
Subordinated Indebtedness.
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this
instrument and any such supplemental indenture, the provisions of
the Trust Indenture Act that are deemed to be a part of and to
govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms
of particular series of Securities established as contemplated by
Section 3.1.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"Lease Obligation" of a Person means all rental
obligations under leases of property (other than electronic data
processing and computer equipment and leases of office space by
such Person or its Subsidiaries) either (a) which are Capitalized
Leases, or (b) if not Capitalized Leases, which are leases of
equipment which had an initial term of more than three years
(including any renewal terms at the option of the lessor). The
amount of Lease Obligations shall be equal to the aggregate value
of rentals payable (other than rentals consisting of taxes,
indemnities, maintenance items, replacements and other similar
charges which are in addition to the basic financial rent for the
use of the property) by the lessee thereof during the remaining
term thereof, including periods of renewal at the option of the
lessor, discounted to present value using the lessee's
"incremental borrowing rate at the inception of the lease" in
accordance with Financial Accounting Standard No. 13 of the
Financial Accounting Standards Board from time to time in effect.
"Maturity", when used with respect to any Security, means
the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind
specified in Section 5.1(4) or 5.1(5).
-6-
<PAGE> 13
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company or the Guarantor, as the case
may be, and delivered to the Trustee. One of the officers
signing each Officers' Certificate given pursuant to Section 10.9
shall be the principal executive, financial or accounting officer
of the Company or the Guarantor, as the case may be.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company or the Guarantor (including an
employee or officer of the Company, the Guarantor or any of its
Affiliates), as the case may be, and who shall be acceptable to
the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2.
"Outstanding", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company or the
Guarantor) in trust or set aside and segregated in trust by the
Company (if the Company or the Guarantor, as the case may be,
shall act as its own Paying Agent) for the Holders of such
Securities; PROVIDED that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities as to which defeasance has been effected
pursuant to Section 13.2; and
(iv) Securities which have been paid pursuant to Section
3.6 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands
such Securities are valid obligations of the Company;
-7-
<PAGE> 14
PROVIDED, HOWEVER, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have
given, made or taken any request, demand, authorization, direc-
tion, notice, consent, waiver or other action hereunder as of any
date, (i) the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding shall 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 pursuant to Section 5.2, (ii) if as of such date, the
principal amount payable at The Stated Maturity is not
determinable, the principal amount of such Security as shall be
deemed to be Outstanding shall be the amount specified or
determined as contemplated by Section 3.1, (iii) the principal
amount of a Security denominated in one or more foreign
currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of
such date in the manner as contemplated by Section 3.1, of the
principal amount of such Security (or, in the case of the
Security described in Clause (i) above, of the amount determined
as provided in such clause), and (iv) Securities owned by the
Company, the Guarantor or any other obligor upon the Securities
or any Affiliate of the Company, the Guarantor or of such other
obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or other
action, only Securities which the Trustee knows to be so owned
shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the
pledgee's independent right so to act with respect to such
Securities and that the pledgee is not the Company, the Guarantor
or any other obligor upon the Securities or any Affiliate of the
Company, the Guarantor or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any
Securities on behalf of the Company.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of
(and premium, if any) and interest on the Securities of that
series are payable as specified as contemplated by Section 3.1.
-8-
<PAGE> 15
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Purchase Money Equipment Indebtedness" of a Person means
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. For purposes hereof, 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,
customs duties and all other amounts which may be capitalized and
included in the cost of the equipment under generally accepted
accounting principles.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the
Trustee, means any officer in the Corporate Trust Office of the
Trustee and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular
subject.
"Secretary" and "Assistant Secretary" include with respect
to the Company, the Clerk and any Assistant Clerk of the Company.
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<PAGE> 16
"Secured Equipment Indebtedness" means 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 shall include
all Lease Obligations. For purposes of this Indenture,
Transportation Equipment which is subject to a lease or contract
which is included as a Lease Obligation shall be deemed to secure
the Indebtedness evidenced thereby.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section
3.7.
"Stated Maturity", when used with respect to any security or
any installment of principal thereof or interest thereon, means
the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal
or interest is due and payable.
"Subordinated Indebtedness" means Indebtedness of the
Company or the Guarantor which is expressly subordinated and
subject in right of payment, in bankruptcy or in the event of a
payment default on the Securities or the Guarantees, to the prior
payment in full in money or money's worth in accordance with
their terms, of all principal of, premium, if any, and interest
on the Securities or the Guarantees.
"Subsidiary" means a corporation more than 50% of the
outstanding Voting Stock of which is owned, directly or
indirectly, by the Company, the Guarantor or by one or more other
Subsidiaries.
"Transportation Equipment" means 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 accessories and attachments thereto.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of
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<PAGE> 17
1939, is amended after such date, "Trust Indenture Act" means, to
the extent required by any amendment thereto, the Trust Indenture
Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee
with respect to Securities of that series.
"U.S. Government Obligation" has the meaning set forth in
Section 13.4.
"Vice President", when used with respect to the Company or
the Guarantor or the Trustee, means any vice president, whether
or not designated by a number or a word or words added before or
after the title "vice president".
"Voting Stock" means stock which ordinarily has voting power
for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason
of any contingency, but shall not include securities convertible
into such Voting Stock.
Section 1.2 Compliance Certificates and Opinions.
-------------------------------------
Upon any application or request by the Company or the
Guarantor to the Trustee to take any action under any provision
of this Indenture, the Company or the Guarantor, as the case may
be, shall furnish to the Trustee such certificates and opinions
as may be required under the Trust Indenture Act. Each such
certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company or the
Guarantor, or an Opinion of Counsel, if to be given by counsel,
and shall comply with the requirements of the Trust Indenture Act
and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (other
than certificates provided pursuant to Section 10.9) shall
include
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
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<PAGE> 18
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Trustee.
---------------------------------------
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of any officer of the Company or
the Guarantor may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such
certificate or opinion of counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company or the
Guarantor, as the case may be, stating that the information with
respect to such factual matters is in the possession of the
Company or the Guarantor, as the case may be, unless such counsel
knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
Section 1.4 Acts of Holders; Record Dates.
------------------------------
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<PAGE> 19
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders may be embodied
in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company and the
Guarantor. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument
or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.1) conclusive
in favor of the Trustee and the Company and the Guarantor, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any
Person of any such instrument or writing may be proved by
the affidavit of a witness of such execution or by a certificate
of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing
the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee, the Company
or the Guarantor in reliance thereon, whether or not notation of
such action is made upon such Security or such other Security.
(e) The Company may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities of
any series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or
taken by Holders of Securities of such series, provided that the
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<PAGE> 20
Company may not set a record date for, and the provisions of this
paragraph shall not apply with respect to, the giving or making
of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant
series on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and
of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Company,
at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to
be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in
Section 1.6.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any
series entitled to join in the giving or making of (i) any Notice
of Default, (ii) any declaration of acceleration referred to in
Section 5.2, (iii) any request to institute proceedings referred
to in Section 5.7(2) or (iv) any direction referred to in Section
5.12, in each case with respect to Securities of such series. If
any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and
of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the
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<PAGE> 21
relevant series on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Trustee,
at the Company's expense, shall cause notice of such record date,
the proposed action by Holders and the applicable Expiration Date
to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in
Section 1.6.
With respect to any record date set pursuant to this
Section, the party hereto which sets such record dates may
designate any day as the "Expiration Date" and from time to time
may change the Expiration Date to any earlier or later day;
provided that no such change shall be effective unless notice of
the proposed new Expiration Date is given to the other party
hereto in writing, and to each Holder of Securities of the
relevant series in the manner set forth in Section 1.6, on or
prior to the existing Expiration Date. If an Expiration Date is
not designated with respect to any record date set pursuant to
this Section, the party hereto which set such record date shall
be deemed to have initially designated the 180th day after such
record date as the Expiration Date with respect thereto, subject
to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record
date.
Without limiting the foregoing, a Holder entitled hereunder
to take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the
principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal
amount.
(f) The Depositary selected pursuant to subsection (17) of
Section 3.1, as a Holder, may appoint agents and otherwise
authorize participants to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action
which a Holder is entitled to give or take hereunder.
Section 1.5 Notices, Etc., to Trustee, Company or Guarantor.
------------------------------------------------
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished
to, or filed with,
(1) the Trustee by any Holder, the Company or the
Guarantor shall be sufficient for every purpose hereunder
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<PAGE> 22
if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, or
(2) the Company or the Guarantor by the Trustee or
by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to
the Company or the Guarantor as the case requires
addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at
any other address previously furnished in writing to the
Trustee by the Company or the Guarantor.
Section 1.6 Notice to Holders; Waiver.
--------------------------
Where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such
event, at his address as it appears in the Security Register, not
later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice.
In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable
to give such notice by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder.
Section 1.7 Conflict with Trust Indenture Act.
----------------------------------
If any provision hereof limits, qualifies or conflicts
with a provision of the Trust Indenture Act which is required
under such Act to be a part of and govern this Indenture, the
latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
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<PAGE> 23
Section 1.8 Effect of Headings and Table of Contents.
-----------------------------------------
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
Section 1.9 Successors and Assigns.
-----------------------
All covenants and agreements in this Indenture by the
Company or the Guarantor shall bind its successors and assigns,
whether so expressed or not.
Section 1.10 Separability Clause.
--------------------
In case any provision in this Indenture or in the
Securities or in the Guarantees shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
Section 1.11 Benefits of Indenture.
----------------------
Nothing in this Indenture or in the Securities or in the
Guarantees, express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 1.12 Governing Law.
--------------
This Indenture, the Securities and the Guarantees shall
be governed by and construed in accordance with the laws of the
State of New York.
Section 1.13 Legal Holidays.
---------------
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities other than a
provision of any Security which specifically states that such
provision shall apply in lieu of this Section) payment of
interest or principal (and premium, if any) need not be made at
such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, provided that no
interest shall accrue for the period from and after such Interest
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<PAGE> 24
Payment Date, Redemption Date or Stated Maturity, as the case may
be.
ARTICLE 2
Security and Guarantee Forms
Section 2.1 Forms Generally.
----------------
The Securities of each series shall be in substantially
the form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, and
the Guarantees shall be in substantially the form set forth in
Section 2.2 or in such other form as shall be established
pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or Depositary
therefor or as may, consistently herewith, be determined by the
officers executing such Securities or such Guarantees, as
evidenced by their execution of such Securities or such
Guarantees. If the form of Securities of any series or the
Guarantees of such Securities is established by action taken
pursuant to a Board Resolution, a copy of an appropriate record
of such action shall be certified by the Secretary or an
Assistant Secretary of the Company or the Guarantor, as the case
may be, and delivered to the Trustee at or prior to the delivery
of the Company Order contemplated by Section 3.3 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article.
The definitive Securities and Guarantees shall be
printed, lithographed or engraved on steel engraved borders or
may be produced in any other manner, all as determined by the
officers executing such Securities and Guarantees, as evidenced
by their execution of such Securities and Guarantees.
Section 2.2 Guarantee by Guarantor; Form of Guarantee.
------------------------------------------
The Guarantor by its execution of this Indenture hereby
agrees with each Holder of a Security authenticated and delivered
by the Trustee, and with the Trustee on behalf
of each such Holder, to be unconditionally bound by the
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<PAGE> 25
terms and provisions of the Guarantee set forth below and
authorizes the Chairman of the Board, President or Vice President
or the Treasurer of the Guarantor to execute, manually or by
facsimile signature on behalf of the Guarantor, or the Company,
in the name and on behalf of the Guarantor, to confirm such
Guarantee to the Holder of each such Security by its execution
and delivery of each such Security, with such Guarantee endorsed
thereon, authenticated and delivered by the Trustee. When
delivered pursuant to the provisions of Section 3.3 hereof, the
Guarantee so set forth on the Security shall bind the Guarantor
notwithstanding the fact that such Guarantee does not bear the
signature of the Guarantor.
Guarantees to be endorsed on the Securities shall,
subject to Section 2.1, be in substantially the form set forth
below:
GUARANTEE
For value received, XTRA Corporation, a corporation
organized under the laws of the State of Delaware (herein called
the "Guarantor", which term includes any successor corporation
under the Indenture referred to in the Security upon which this
Guarantee is endorsed), hereby unconditionally guarantees to the
Holder of the Security upon which this Guarantee is endorsed and
to the Trustee on behalf of each such Holder the due and punctual
payment of the principal of, premium, if any, and interest on
such Security, when and as the same shall become due and payable,
whether at the Stated Maturity, by declaration of acceleration,
call for redemption or otherwise, according to the terms thereof
and of the Indenture referred to therein. In case of the failure
of XTRA, Inc., a corporation organized under the laws of Maine
(herein called the "Company", which term includes any successor
corporation under such Indenture), punctually to make any such
payment of principal (premium, if any) or interest, the Guarantor
hereby agrees to cause any such payment to be made punctually
when and as the same shall become due and payable, whether at the
Stated Maturity or by declaration of acceleration, call for
redemption or otherwise, and as if such payment were made by the
Company.
The Guarantor hereby agrees that its obligations
hereunder shall be as if it were principal debtor and not merely
surety, and shall be absolute and unconditional, irrespective of,
and shall be unaffected by, any invalidity, irregularity or
unenforceability of such Security or such Indenture, any failure
to enforce the provisions of such Security or such Indenture, or
any waiver, modification or indulgence granted to the Company
with respect thereto, by the holder of such Security or the
Trustee or any other circumstance which may otherwise constitute
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<PAGE> 26
a legal or equitable discharge of a surety or guarantor;
PROVIDED, HOWEVER, that, notwithstanding the foregoing, no such
waiver, modification or indulgence shall, without the consent of
the Guarantor, increase the principal amount of such Security,
change the redemption terms thereof or alter the Stated Maturity
thereof. The Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with
respect to such Security or the indebtedness evidenced thereby
and all demands whatsoever, and covenants that this Guarantee
will not be discharged except by strict and complete performance
of the obligations contained in such Security and this Guarantee.
The Guarantor shall be subrogated to all rights of the
Holder of such Security and the Trustee against the Company in
respect of any amounts paid to such Holder by the Guarantor
pursuant to the provisions of this Guarantee; PROVIDED, HOWEVER,
that the Guarantor shall not be entitled to enforce, or to
receive any payments arising out of or based upon, such right of
subrogation until the principal of, premium if any, and interest
on all Securities issued under such Indenture shall have been
paid in full.
No reference herein to such Indenture and no provision of
this Guarantee or of such Indenture shall alter or impair the
guarantee of the Guarantor, which is absolute and unconditional,
of the due and punctual payment of principal, premium (if any),
and interest on the Security upon which this Guarantee is
endorsed.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication of the Security
upon which this Guarantee is endorsed shall have been manually
executed by or on behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined in
such Indenture shall have the meanings assigned to them in such
Indenture.
This Guarantee shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes
shall be governed by and construed in accordance with the laws of
the State of New York.
Executed and dated the date on the face hereof.
XTRA CORPORATION
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<PAGE> 27
By:________________________________
Title:_____________________________
Attest:
_________________________
Section 2.3 Form of Trustee's Certificate of Authentication.
------------------------------------------------
This is one of the Securities of the series designated in
the within-mentioned Indenture and referred to therein.
THE FIRST NATIONAL BANK OF BOSTON
as Trustee
By_________________________________
Authorized Signatory
--------------------
Section 2.4. Form of Legend for Global Securities.
-------------------------------------
Unless otherwise specified as contemplated by Section 3.1
for the Securities evidenced thereby, every Global Security
authenticated and delivered hereunder shall bear a legend in
substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO
TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED,
IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
ARTICLE 3
The Securities
Section 3.1 Amount Unlimited; Issuable in Series.
-------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
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<PAGE> 28
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, and
(subject to Section 3.3) set forth or determined in the manner
provided in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of
Securities of any series,
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all
Securities of any other series);
(2) any limit upon the aggregate principal amount of
the Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7
and except for any Securities which, pursuant to Section
3.3, are deemed never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a Security of
the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of any
Securities of the series is payable;
(5) the rate or rates (or method for establishing the
rate or rates) at which the Securities of the series shall
bear interest, if any, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which
any such interest shall be payable and the Regular Record
Date for the interest payable on any Interest Payment Date
(or method for establishing such date or dates);
(6) the place or places where the principal of (and
premium, if any) and interest on Securities of any series
shall be payable;
(7) the period or periods within which, the price or
prices at which and the terms and conditions upon which any
Securities of the series may be redeemed, in whole or in
part, at the option of the Company and, if other than by a
Board Resolution, the manner in which any election by the
Company to redeem the Securities shall be evidenced;
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<PAGE> 29
(8) the obligation, if any, of the Company to redeem,
repay or purchase Securities of the series 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 Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which
Securities of the series shall be issuable;
(10) if other than the full principal amount thereof,
the portion of the principal amount of Securities of the
series which shall be payable upon declaration of accelera-
tion of the Maturity thereof pursuant to Section 5.2;
(11) if the principal amount payable at the Stated
Maturity of any Securities of the series will not be
determinable as of any one or more dates prior to the Stated
Maturity, the amount which shall be deemed to be the
principal amount of such Securities as of any such date for
any purpose thereunder or hereunder, including the principal
amount thereof which shall be due and payable upon any
Maturity other than the Stated Maturity or which shall be
deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such
amount deemed to be the principal amount shall be
determined);
(12) if other than the currency of the United States
of America, the currency, currencies or currency units in
which the principal of (and premium, if any) and/or interest
on the Securities of such series shall be payable and the
manner of determining the equivalent thereof in the currency
of the United States of America for any purpose, including
the purpose of the definition of "Outstanding" in Section
1.1;
(13) if the principal of (and premium, if any) and/or
interest on the Securities of such series are to be payable,
at the election of the Company or any Holder, in a currency,
currencies or currency units other than that or those in
which the Securities are stated to be payable, the currency,
currencies or currency units in which the principal of
(premium, if any) and/or interest on such Securities as to
which such election is made shall be payable, the period or
periods within which, and the terms and conditions, upon
which, such election may be made and the amount so payable
(or the manner in which such amount shall be determined);
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(14) if the amounts of payments of principal of (and
premium, if any) and/or interest on the Securities of such
series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts
shall be determined;
(15) in the case of Securities of a series the terms
of which are not established pursuant to subsection (11),
(12) or (13) above, the application, if any, of Section 13.2
and/or Section 13.3 to the Securities of such series; or, in
the case of Securities the terms of which are established
pursuant to subsection (11), (12) or (13) above, the
adoption and applicability to such Securities of any terms
and conditions similar to those contained in Section 13.2
and/or Section 13.3; and, if other than by a Board
Resolution, the manner in which any election by the Company
to defease such Securities shall be evidenced;
(16) the issuance of a temporary global Security
representing all of the Securities of such series and
exchange of such temporary global Security for definitive
Securities of such series;
(17) whether the Securities of the series shall be
issued in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary for such Global
Security or Securities, the form of any legend or legends
which shall be borne by any such Global Security in addition
to or in lieu of that set forth in Section 2.4 and any
circumstances in addition to or in lieu of that set forth in
Clause (2) of the last paragraph of Section 3.5 in which any
such Global Security may be exchanged in whole or in part
for Securities registered, and any transfer of such Global
Security in whole or in part may be registered, in the name
or names of Persons other than the Depositary for such
Global Security or a nominee thereof;
(18) any addition to or change in the Events of
Default which applies to any Securities of the series and
any change in the right of the Trustee or the requisite
Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 5.2;
(19) any addition to or change in the covenants set
forth in Article Ten which applies to Securities of the
series; and
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(20) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture),
except as permitted by Section 9.1(5).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise
be provided in or pursuant to the Board Resolution referred to
above and (subject to Section 3.3) set forth or determined in the
manner provided in the Officer's Certificate referred to above or
in any such indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
Section 3.2 Denominations.
--------------
The Securities of each series shall be issuable only in
registered form without coupons and only in such denominations as
shall be specified as contemplated by Section 3.1. In the
absence of any such specified denominations with respect to the
Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple
thereof.
Section 3.3 Execution, Authentication, Delivery and Dating.
-----------------------------------------------
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested
by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be
manual or facsimile.
Securities or Guarantees bearing the manual or facsimile
signatures of individuals who were at any time the proper offi-
cers of the Company or the Guarantor shall bind the Company and
the Guarantor, respectively, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or
Guarantees or did not hold such offices at the date of such
Securities or Guarantees.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company having endorsed thereon
Guarantees of the Guarantor to the Trustee for authentication,
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together with a Company Order for the authentication and delivery
of such Securities and a Company Order from the Guarantor
approving the delivery of the Guarantees endorsed thereon; and
the Trustee in accordance with such Company Orders shall
authenticate and deliver such Securities having such Guarantees
endorsed thereon. If the form or terms of the Securities or the
Guarantees or both of the series have been established in or
pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.1, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(a) if the form of any of such Securities and
Guarantees has been established by or pursuant to Board
Resolution as permitted by Section 2.1, that such form has
been established in conformity with the provisions of this
Indenture;
(b) if the terms of any of such Securities and
Guarantees have been established by or pursuant to Board
Resolution as permitted by Section 3.1, that such terms have
been established in conformity with the provisions of this
Indenture; and
(c) that such Securities and Guarantees, when
authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company and of the
Guarantor, respectively, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles.
If such form or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of
such Securities pursuant to this Indenture will adversely affect
the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the
preceding paragraph, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to
deliver the Officers' Certificate otherwise required pursuant to
Section 3.1 or the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the
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time of authentication of each Security of such series if such
documents are delivered at or prior to the time of authentication
upon original issuance of the first Security of such series to be
issued.
Each Security shall be dated the date of its authentication.
No Security or Guarantee endorsed thereon shall be entitled
to any benefit under this Indenture or be valid or obligatory for
any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section
3.9 for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder
and shall never be entitled to the benefits of this Indenture.
Section 3.4 Temporary Securities.
---------------------
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order from the
Company and a Company Order from the Guarantor, the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, and
having endorsed thereon Guarantees of the Guarantor substantially
of the tenor of the definitive Guarantees, with such appropriate
insertions, omissions, substitutions and other variations as the
officers executing such Securities and Guarantees may determine,
as evidenced by their execution of such Securities and
Guarantees.
If temporary Securities of any series are issued, the
Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of
Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a
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like principal amount of definitive Securities of the same series
and of like tenor, having endorsed thereon Guarantees of the
Guarantor, of authorized denominations. Until so exchanged the
temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities of such series.
Section 3.5 Registration, Registration of Transfer and Exchange.
----------------------------------------------------
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such
office and in any other office or agency of the Company in a
Place of Payment being herein sometimes collectively referred to
as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for
the registration of Securities and of transfers of Securities.
The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of any Security
of any series at the office or agency of the Company in a Place
of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities
of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor having endorsed thereon the
Guarantee duly executed by the Guarantor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series of any
authorized denominations and of a like aggregate principal amount
and tenor, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities having
endorsed thereon Guarantees of the Guarantor which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities, and all Guarantees endorsed thereon,
shall be the valid obligations of the Company or the Guarantor,
as the case may be, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities and all
Guarantees endorsed thereon surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written
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instrument of transfer in form satisfactory to the Company and
the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any
transfer.
If the Securities of any series (or of any series and
specified tenor) are to be redeemed in part, the Company shall
not be required (i) to issue, register the transfer of or
exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at
the opening of business 15 days before the day of the mailing of
a notice of redemption of any such Securities of that series
selected for redemption under Section 11.3 and ending at the
close of business on the day of such mailing, or (ii) to register
the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall
apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated for
such Global Security or a nominee thereof and delivered to such
Depositary or a nominee thereof or custodian therefor, and each
such Global Security shall constitute a single Security for all
purposes of this Indenture.
(2) Notwithstanding any other provision of this Indenture,
no Global Security may be exchanged in whole or in part for
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 Security or its nominee unless (i)
such Depositary has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Security or if
at any time such Depositary has ceased to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended,
(ii) there shall have occurred and be continuing an Event of
Default with respect to the Securities, (iii) the Company
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
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lieu of the foregoing as have been specified for this purpose as
contemplated by Section 3.1.
(3) Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part,
and all Securities issued in exchange for a Global Security or
any portion thereof shall be registered in such names as the
Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a
Global Security or any portion thereof, whether pursuant to this
Section, Section 3.4, 3.6, 9.6 or 11.7 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a
Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or
a nominee thereof.
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
-------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series
and of like tenor and principal amount, having endorsed thereon
the Guarantee of the Guarantor, and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company, the Guarantor
and the Trustee (i) evidence to their satisfaction of the
destruction, loss or theft of any Security and (ii) such security
or indemnity as may be required by them to save each of them and
any agent of any of them harmless, then, in the absence of notice
to the Company, the Guarantor or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security,
a new Security of the same series and of like tenor and principal
amount, having endorsed thereon the Guarantee of the Guarantor,
and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security,
pay such Security.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
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Every new Security of any series, having endorsed thereon
the Guarantee of the Guarantor, issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the
Company and the Guarantor, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 3.7 Payment of Interest; Interest Rights Preserved.
-----------------------------------------------
Unless otherwise provided as contemplated by Section 3.1
with respect to any series of Securities, interest on any
Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of
such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause
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provided. Thereupon the Trustee shall fix a special record
date (the "Special Record Date") for the payment of such
Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given to
each Holder of Securities of such series in the manner set
forth in Section 1.6 not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause
(2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture, having endorsed thereon
the Guarantee of the Guarantor, upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Security.
Section 3.8 Persons Deemed Owners.
----------------------
Prior to due presentment of a Security for registration of
transfer, the Company, the Guarantor, the Trustee and any agent
of the Company, the Guarantor or the Trustee may treat the Person
in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of
(and premium, if any) and (subject to Section 3.7) interest on
such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the
Guarantor, the Trustee nor any agent of the Company, the
Guarantor or the Trustee shall be affected by notice to the
contrary.
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Section 3.9 Cancellation.
-------------
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company or the Guarantor may at
any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the
Company or the Guarantor may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other
Person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company
has not issued and sold and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by
the Trustee shall be disposed of as directed by a Company Order
from the Company.
Section 3.10 Computation of Interest.
------------------------
Except as otherwise specified as contemplated by Section 3.1
for Securities of any series, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve
30-day months.
ARTICLE 4
Satisfaction and Discharge
Section 4.1 Satisfaction and Discharge of Indenture.
----------------------------------------
This Indenture shall upon Company Request from the Company
cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
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destroyed, lost or stolen and which have been replaced
or paid as provided in Section 3.6 and (ii) Securities
for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.3) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of
the Company,
and the Company or the Guarantor, in the case of (i),
(ii) or (iii) above, has deposited or caused to be
deposited with the Trustee as trust funds in trust for
the purpose money in an amount sufficient to pay and
discharge the entire indebtedness on such Securities
not theretofore delivered to the Trustee for cancella-
tion, for principal (and premium, if any) and interest
to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company or the Guarantor, as the case may be,
has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company and the Guarantor to
the Trustee under Section 6.7, the obligations of the Trustee to
any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under
Section 4.2 and the last paragraph of Section 10.3 shall survive.
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Section 4.2 Application of Trust Money.
---------------------------
Subject to provisions of the last paragraph of Section 10.3,
all money deposited with the Trustee pursuant to Section 4.1, all
money and U.S. Government Obligations deposited with the Trustee
pursuant to Section 13.2 or Section 13.3 and all money received
by the Trustee in respect of U.S. Government Obligations
deposited with the Trustee pursuant to Section 13.2 or Section
13.3, shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including
the Company or the Guarantor acting as Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment
such money has been deposited with or received by the Trustee as
contemplated by Section 4.1, Section 13.2 or Section 13.3.
ARTICLE 5
Remedies
Section 5.1 Events of Default.
------------------
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its
Maturity; or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of a Security of that
series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company or the Guarantor in this
Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this
Section specifically dealt with or which has expressly been
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included in this Indenture solely for the benefit of series
of Securities other than that series), and continuance of
such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the
Company and the Guarantor by the Trustee or to the Company,
the Guarantor and the Trustee by the Holders of at least 10%
in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other
evidence of or agreement for Indebtedness by the Company or
the Guarantor (including a default with respect to
Securities of any series other than that series) or under
any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or the
Guarantor including this Indenture, whether such
Indebtedness now exists or shall hereafter be created, in
each case, involving an aggregate principal amount of at
least $10,000,000, which default is in payment thereof at
its stated maturity or shall have resulted in such
Indebtedness in an aggregate principal amount of $10,000,000
or more becoming or being declared due and payable prior to
the date on which it would otherwise have become due and
payable, without such Indebtedness having been discharged or
such acceleration having been rescinded or annulled, within
a period of 10 days after there shall have been given, by
registered or certified mail, to the Company and the
Guarantor by the Trustee or to the Company, the Guarantor
and the Trustee by the Holders of at least 10% in principal
amount of the Outstanding Securities of that series a
written notice specifying such default and requiring the
Company or the Guarantor to cause such Indebtedness to be
discharged or cause such acceleration to be rescinded or
annulled, as the case may be, and stating that such notice
is a "Notice of Default" hereunder; PROVIDED, HOWEVER, that,
subject to the provisions of Sections 6.1 and 6.2, the
Trustee shall not be deemed to have knowledge of such
default unless either (A) a Responsible Officer of the
Trustee shall have actual knowledge of such default or (B)
the Trustee shall have received written notice thereof from
the Company, from the Guarantor, from any Holder, from the
holder of any such Indebtedness or from the trustee under
any such mortgage, indenture or other instrument; or
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of
the Company or the Guarantor in an involuntary case or
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<PAGE> 43
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company or the Guarantor a
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or the Guarantor
under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or the
Guarantor or of any substantial part of either of their
property, or ordering the winding up or liquidation of
either of their affairs, and the continuance of any such
decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days;
or
(7) the commencement by the Company or the Guarantor
of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by the
Company or the Guarantor to the entry of a decree or order
for relief in respect of either of them in an involuntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case
or proceeding against the Company or the Guarantor, or the
filing by the Company or the Guarantor of a petition or
answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by the
Company or the Guarantor to the filing of such petition or
to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or
other similar official of either of them or of any
substantial part of either of their property, or the making
by the Company or the Guarantor of an assignment for the
benefit of creditors, or the admission by the Company or the
Guarantor in writing of its inability to pay its debts
generally as they become due, or the taking of corporate
action by the Company or the Guarantor in furtherance of any
such action; or
(8) any other Event of Default provided with respect
to Securities of that series.
Section 5.2 Acceleration of Maturity; Rescission and Annulment.
---------------------------------------------------
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then and
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in every such case the Trustee or the Holders of not less than
25% in principal amount of the Outstanding Securities of that
series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Securities of that
series to be due and payable immediately, by a notice in writing
to the Company and the Guarantor (and to the Trustee if given by
Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Company, the
Guarantor and the Trustee, may rescind and annul such declaration
and its consequences if
(1) the Company or the Guarantor has paid or deposited
with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of
that series,
(B) the principal of (and premium, if any, on)
any Securities of that series which have become due
otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate
or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel;
and
(2) all Events of Default with respect to Securities
of that series, other than the non-payment of the principal
of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived
as provided in Section 5.13.
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No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
----------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on
any Security when such interest becomes due and payable and
such default continues for a period of 30 days; or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal (and premium, if
any) and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, at
the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
Section 5.4 Trustee May File Proofs of Claim.
---------------------------------
In case of any judicial proceeding relative to the Company,
the Guarantor (or any other obligor upon the Securities), its
property or its creditors, the Trustee shall be entitled and
empowered by intervention in such proceeding or otherwise to take
any and all actions authorized under the Trust Indenture Act in
order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be
authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator,
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sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any
Holder thereof or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding; provided,
however, that the Trustee, may, on behalf of the Holders, vote
for the election of a trustee in bankruptcy or similar official
and be a member of a creditors' or other similar committee.
Section 5.5 Trustee May Enforce Claims Without Possession of Securities.
------------------------------------------------------------
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 5.6 Application of Money Collected.
-------------------------------
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest,
upon presentation of the Securities and the notation thereon of
the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 6.7; and
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest
on the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without
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preference or priority of any kind, according to the amounts
due and payable on such Securities for principal (and
premium, if any) and interest, respectively.
Section 5.7 Limitation on Suits.
--------------------
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to
the Securities of that series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of
the Outstanding Securities of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or
to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
Section 5.8 Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
- - ---------------------
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 3.7) interest on such
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<PAGE> 48
Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date)
and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such
Holder.
Section 5.9 Restoration of Rights and Remedies.
-----------------------------------
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such
proceeding, the Company, the Guarantor, the Trustee and the
Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies
of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
-------------------------------
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in
the last paragraph of Section 3.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver.
-----------------------------
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 5.12 Control by Holders.
--------------------
The Holders of a majority in principal amount of
the Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust
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<PAGE> 49
or power conferred on the Trustee, with respect to the Securities
of such series, PROVIDED that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
Section 5.13 Waiver of Past Defaults.
------------------------
The Holders of not less than a majority in principal amount
of the Outstanding Securities of any series may on behalf of the
Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if
any) or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section 5.14 Undertaking for Costs.
----------------------
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the court may
require any party litigant in such suit to file an undertaking to
pay the costs of such suit, and may assess costs against any such
party litigant, in the manner and to the extent provided in the
Trust Indenture Act; provided that neither this Section nor the
Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any
suit instituted by the Company or the Guarantor.
Section 5.15 Waiver of Usury, Stay or Extension Laws.
----------------------------------------
Each of the Company and the Guarantor covenants (to the
extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take
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the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture;
and each of the Company and the Guarantor (to the extent that it
may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE 6
The Trustee
Section 6.1 Certain Duties and Responsibilities.
------------------------------------
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of
this Section.
Section 6.2 Notice of Defaults.
-------------------
If a default occurs hereunder with respect to the Securities
of any series, the Trustee shall give the Holders of Securities
of such series notice of such default hereunder known to the
Trustee, as and to the extent provided in the Trust Indenture
Act; PROVIDED, HOWEVER, that in the case of any default of the
character specified in Section 5.1(4) with respect to the
Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
Section 6.3 Certain Rights of Trustee.
--------------------------
Subject to the provisions of Section 6.1:
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(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company or the
Guarantor mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order, or as otherwise
expressly provided herein, and any resolution of the Board
of Directors of the Company or the Guarantor shall be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises
of the Company and the Guarantor, personally or by agent or
attorney; and
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(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder.
Section 6.4 Not Responsible for Recitals or Issuance of Securities.
-------------------------------------------------------
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as
the statements of the Company or the Guarantor, and neither the
Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the
Securities or the Guarantees. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 6.5 May Hold Securities.
--------------------
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, of the
Guarantor or of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities and,
subject to Sections 6.8 and 6.13, may otherwise deal with the
Company and the Guarantor with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 6.6 Money Held in Trust.
--------------------
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the
Company or the Guarantor, as the case may be.
Section 6.7 Compensation and Reimbursement.
-------------------------------
Each of the Company and the Guarantor agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
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(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its
powers or duties hereunder.
Section 6.8 Conflicting Interests.
----------------------
If the Trustee has or shall acquire any conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall
either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture. To the extent permitted
by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this
Indenture with respect to Securities of more than one series.
Section 6.9 Corporate Trustee Required; Eligibility.
----------------------------------------
There shall at all times be one (and only one) Trustee with
respect to the Securities of each series, which may be the
Trustee hereunder for Securities of one or more other series.
Each Trustee shall be a Person eligible pursuant to the Trust
Indenture Act to act as such, and has a combined capital and
surplus of at least $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for
the purposes of this Section and to the extent permitted by the
Trust Indenture Act, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
If at any time the Trustee with respect to the Securities of any
series shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article.
Section 6.10 Resignation and Removal; Appointment of Successor.
--------------------------------------------------
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<PAGE> 54
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements
of Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof
to the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.11 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company and the Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8
after written request therefor by the Company, the Guarantor
or any Holder who has been a bona fide Holder of a Security
for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after written request
therefor by the Company, the Guarantor or any such Holder,
or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (ii)
subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
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Trustee for any cause, with respect to the Securities of one or
more series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year
after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to
the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner
required by Section 6.11, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may,
on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect
to the Securities of any series to all Holders of Securities of
such series in the manner provided in Section 1.6. Each notice
shall include the name of the successor Trustee with respect to
the Securities of such series and the address of its Corporate
Trust Office.
Section 6.11 Acceptance of Appointment by Successor.
---------------------------------------
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor
Trustee so appointed shall execute, acknowledge and deliver to
the Company, the Guarantor and the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the
Company, the Guarantor or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver
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an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not
all) series, the Company, the Guarantor, the retiring Trustee and
each successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest
in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company,
the Guarantor or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
and the Guarantor shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts referred to in
paragraph (a) and (b) of this Section, as the case may be.
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(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
Section 6.12 Merger, Conversion, Consolidation or Succession to Business.
------------------------------------------------------------
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 6.13 Preferential Collection of Claims.
----------------------------------
If and when the Trustee shall be or become a creditor of the
Company or the Guarantor (or any other obligor upon the
Securities), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims
against the Company or the Guarantor (or any such other obligor).
Section 6.14 Appointment of Authenticating Agent.
------------------------------------
The Trustee may appoint an Authenticating Agent or Agents
with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof
or pursuant to Section 3.6, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture
to the authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation
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organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having
a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee, the Company and the
Guarantor. The Trustee may at any time terminate the agency of
an Authenticating Agent by giving written notice thereof to such
Authenticating Agent, the Company and the Guarantor. Upon
receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent
shall cease to be eligible in accordance with the provisions of
this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in Section 1.6
to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall
be appointed unless eligible under the provisions of this
Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this
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Section, and the Trustee shall be entitled to be reimbursed for
such payments, subject to the provisions of Section 6.7.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in
the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF BOSTON
As Trustee
By_________________________________
As Authenticating Agent
By_________________________________
Authorized Officer
ARTICLE 7
Holders' Lists and Reports by Trustee, Company and Guarantor
Section 7.1 Company and Guarantor to Furnish Trustee Names and
--------------------------------------------------
Addresses of Holders.
- - ---------------------
The Company and the Guarantor will furnish or cause to be
furnished to the Trustee
(a) semi-annually, not later than January 31 and
July 31 in each year, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the
Holders of Securities of each series as of the preceding
September 30 or March 31 as the case may be, as of such
date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company or
the Guarantor of any such request, a list of similar form
and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
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Section 7.2 Preservation of Information; Communications to Holders.
-------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 7.1 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar.
The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding
the same, agrees with the Company, the Guarantor and the Trustee
that neither the Company, the Guarantor nor the Trustee nor any
agent of any of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses
of the Holders made pursuant to the Trust Indenture Act.
Section 7.3 Reports by Trustee.
-------------------
The Trustee shall transmit to all Holders such reports
concerning the Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto. A copy of each such
report shall, at the time of such transmission to Holders, be
filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company
and the Guarantor. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
Section 7.4 Reports by Company and Guarantor.
---------------------------------
The Company and the Guarantor shall file with the Trustee
and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may
be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any
such information, documents and reports required to be filed with
the Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, shall be filed with the Trustee
within 15 days after the same is so required to be filed with the
Commission.
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ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1 Company or Guarantor May Consolidate, Etc., Only on Certain Terms.
------------------------------------------------------------------
Neither the Company nor the Guarantor shall consolidate with
or merge into any other Person or convey, transfer or lease its
properties and assets substantially as an entirety to any Person,
and neither the Company nor the Guarantor shall permit any Person
to consolidate with or merge into the Company or the Guarantor,
as the case may be, or convey, transfer or lease its properties
and assets substantially as an entirety to the Company or the
Guarantor, as the case may be, unless:
(1) in case the Company or the Guarantor, as the case
may be, shall consolidate with or merge into another Person
or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person
formed by such consolidation or into which the Company or
the Guarantor, as the case may be, is merged or the Person
which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company or the Guarantor,
as the case may be, substantially as an entirety shall be a
corporation, partnership or trust organized and validly
existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, in the case of the Company, the
due and punctual payment of the principal of (and premium,
if any) and interest on all the Securities and the per-
formance and observance of every covenant of this Indenture
on the part of the Company to be performed or observed and,
in the case of the Guarantor, the due and punctual perform-
ance of the Guarantees and the performance and observance of
every covenant of this Indenture on the part of the
Guarantor to be performed or observed;
(2) immediately after giving effect to such
transaction and treating any Indebtedness which becomes an
obligation of the Company or one of its Subsidiaries or of
the Guarantor or one of its Subsidiaries as a result of such
transaction as having been incurred by the Company, the
Guarantor or such Subsidiary at the time of 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;
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(3) if, as a result of any such consolidation or
merger or such conveyance, transfer or lease, properties or
assets of the Company or the Guarantor would become subject
to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture,
the Company, the Guarantor, or such successor Person, as the
case may be, shall take such steps as shall be necessary
effectively to secure the Securities equally and ratably
with (or prior to) all Indebtedness secured thereby so long
as the same shall be secured as provided in Section 10.8;
and
(4) the Company or the Guarantor, as the case may be,
has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating
to such transaction have been complied with.
Section 8.2 Successor Corporation Substituted.
----------------------------------
Upon any consolidation by the Company or the Guarantor, as
the case may be, with or merger by the Company or the Guarantor,
as the case may be, into any other Person or any conveyance,
transfer or lease of the properties and assets of the Company or
the Guarantor, as the case may be, substantially as an entirety
in accordance with Section 8.1, the successor Person formed by
such consolidation or into which the Company or the Guarantor, as
the case may be, is merged or to which such conveyance, transfer
or lease is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company or the
Guarantor, as the case may be, under this Indenture with the same
effect as if such successor Person had been named as the Company
or the Guarantor, as the case may be, herein, and thereafter,
except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture
and the Securities.
ARTICLE 9
Supplemental Indentures
Section 9.1 Supplemental Indentures Without Consent of Holders.
---------------------------------------------------
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, the Guarantor, when authorized
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by a Board Resolution, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to
the Company or the Guarantor, as the case may be, and the
assumption by any such successor of the covenants of the
Company or the Guarantor, as the case may be, herein and in
the Securities; or
(2) to add to the covenants of the Company or the
Guarantor for the benefit of the Holders of all or any
series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or
power herein conferred upon the Company or the Guarantor; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities
(and if such additional Events of Default are to be for the
benefit of less than all series of Securities, stating that
such additional Events of Default are expressly being
included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form,
registrable or not registrable as to principal, and with or
without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the
provisions of this Indenture in respect of one or more
series of Securities, provided that any such addition,
change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit
of such provision nor (ii) modify the rights of the Holder
of any Security with respect to such provision or (B) shall
become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities pursuant to the
requirements of Section 8.1(3) or Section 10.8 or otherwise;
or
(7) to establish the form or terms of Securities of
any series as permitted by Sections 2.1 and 3.1; or
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(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 6.11; or
(9) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
provisions with respect to matters or questions arising
under this Indenture, PROVIDED that such action pursuant to
this clause (9) shall not adversely affect the interests of
the Holders of Securities of any series in any material
respect.
Section 9.2 Supplemental Indentures with Consent of Holders.
------------------------------------------------
With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Securities of each series
affected by such supplemental indenture and of not less than 66
2/3% in principal amount of the Outstanding Securities of all
series affected by such supplemental indenture, by Act of said
Holders delivered to the Company, the Guarantor and the Trustee,
the Company, when authorized by a Board Resolution, the
Guarantor, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities
of such series under this Indenture; PROVIDED, HOWEVER, that no
such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the rate
of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of
an Original Issue Discount Security or any other Security
which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section
5.2, or change any Place of Payment where, or the coin or
currency in which, any Security or any premium or the
interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
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(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided
for in this Indenture, or
(3) modify any of the provisions of this Section,
Section 5.13 or Section 10.10 except to increase any such
percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected
thereby; PROVIDED, HOWEVER, that this clause shall not be
deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant
changes in this Section and Section 10.10, or the deletion
of this proviso, in accordance with the requirements of
Sections 6.11(b) and 9.1(8), or
(4) change in any manner adverse to the interests of
the Holders of the Securities of any series the terms and
conditions of the obligations of the Guarantor in respect of
the due and punctual payment of the principal thereof,
premium (if any), and interest thereon.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
Section 9.3 Execution of Supplemental Indentures.
-------------------------------------
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section
6.1) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental
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indenture which affects the Trustee's own rights, duties, or
immunities or liabilities under this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indentures.
----------------------------------
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.5 Conformity with Trust Indenture Act.
------------------------------------
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
Section 9.6 Reference in Securities to Supplemental Indentures.
---------------------------------------------------
Securities authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company and the Guarantor shall
so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee, the Company and the
Guarantor, to any such supplemental indenture may be prepared and
executed by the Company, the Guarantees of the Guarantor may be
endorsed thereon and such Securities may be authenticated and
delivered by the Trustee in exchange for Outstanding Securities
of such series.
ARTICLE 10
Covenants
Section 10.1 Payment of Principal, Premium and Interest.
-------------------------------------------
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Securities
of that series in accordance with the terms of the Securities and
this Indenture.
Section 10.2 Maintenance of Office or Agency.
--------------------------------
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that
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series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Company and the Guarantor in respect of the Securities of that
series and this Indenture may be served. The Company and the
Guarantor will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or
agency. If at any time the Company and the Guarantor shall fail
to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and each of the Company
and the Guarantor hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
The Company and the Guarantor may also from time to time
designate one or more other offices or agencies where the
Securities of one or more series may be presented or surrendered
for any or all such purposes and may from time to time rescind
such designations; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve either the Company or the
Guarantor of its obligation to maintain an office or agency in
each Place of Payment for Securities of any series for such
purposes. The Company or the Guarantor, as the case may be, will
give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other
office or agency.
Section 10.3 Money for Securities Payments to Be Held in Trust.
--------------------------------------------------
If the Company or the Guarantor, as the case may be, shall
at any time act as its own Paying Agent with respect to any
series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the
Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due
until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company or the Guarantor, as the case may be,
shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of
(and premium, if any) or interest on any Securities of that
series, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such
sum to be held as provided in the Trust Indenture Act and (unless
such Paying Agent is the Trustee) the Company or the Guarantor,
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as the case may be, will promptly notify the Trustee of its
action or failure so to act.
The Company or the Guarantor, as the case may be, will cause
each Paying Agent for any series of Securities other than the
Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will
(1) comply with the provisions of the Trust Indenture
Act applicable to it as Paying Agent and
(2) during the continuance of any default by the
Company, the Guarantor (or any other obligor upon the
Securities of that series) in the making of any payment in
respect of the Securities of that series, upon the written
request of the Trustee, forthwith pay to the Trustee all
sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company or the Guarantor may at any time, for the
purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or by Company Order of
the Company or the Guarantor, as the case may be, direct any
Paying Agent to pay, to the Trustee all sums held in trust by the
Company, the Guarantor or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums
were held by the Company, the Guarantor or such Paying Agent;
and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company or the Guarantor, as the case may be, in
trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed
for two years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company
or the Guarantor, as the case may be, on Company Request of the
Company or the Guarantor, as the case may be, or (if then held by
the Company or the Guarantor) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company or the
Guarantor (pursuant to the Guarantees) for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company or the
Guarantor as trustee thereof, shall thereupon cease; PROVIDED,
HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the
Company cause to be published once in a newspaper published in
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the English language, customarily published on each Business Day
and of general circulation in The City of New York, notice that
such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then
remaining will be repaid to the Company or the Guarantor, as the
case may be.
Section 10.4 Corporate Existence.
--------------------
Subject to Article Eight, each of the Company and the
Guarantor will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate
existence.
Section 10.5 Maintenance of Properties.
--------------------------
The Company and the Guarantor will cause all properties used
or useful in the conduct of their respective businesses or the
business of any of their respective Subsidiaries to be maintained
and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments, and
improvements thereof, all as in the judgment of the Company or
the Guarantor, as the case may be, may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section shall prevent the Company or the
Guarantor, as the case may be, from discontinuing the operation
or maintenance of any of such properties if such discontinuance
is, in the judgment of the Company or the Guarantor, as the case
may be, desirable in the conduct of its business or the business
of any of their respective Subsidiaries and not
disadvantageous in any material respect to the Holders.
Section 10.6 Payment of Taxes and Other Claims.
----------------------------------
The Company and the Guarantor will pay or discharge or cause
to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges
levied or imposed upon the Company, the Guarantor or any of their
Subsidiaries or upon the income, profits or property of the
Company, the Guarantor or any of their Subsidiaries, and (2) all
lawful claims for labor, materials and supplies which, if unpaid,
might by law become a lien upon the property of the Company, the
Guarantor or any of their Subsidiaries; PROVIDED, HOWEVER, that
the Company and the Guarantor shall not be required to pay or
discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or
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validity is being contested in good faith by appropriate
proceedings.
Section 10.7 Limitation on Liens of the Guarantor.
-------------------------------------
The Guarantor 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 10.8 Limitation on Liens of the Company.
-----------------------------------
The Company 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 obliga-
tions not incurred in connection with Indebtedness or (3) in
connection with the opening of commercial letters of credit
naming the Company 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
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(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); 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 the Company;
unless prior to or simultaneously with the inception of any such
Lien which is not referred to as a permitted Lien in paragraphs
(i), (ii), (iii), (iv), (v) or (vi) above, the Company 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 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 the Company has agreed to
permit such holders to share in such Lien. Such security
agreement or security agreements may provide, at the option of
the Company, 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 the Company or any holder of Indebtedness to whom
the Company 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. For the purposes of this
Section 10.8, "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 10.9 Statement by Officers as to Default.
------------------------------------
Each of the Company and the Guarantor will deliver to the
Trustee, within 120 days after the end of each Fiscal Year of the
Company and the Guarantor, respectively, ending after the date
hereof, an Officers' Certificate, stating whether or not to the
best knowledge of the signers thereof the Company or the
Guarantor, as the case may be, is in default in the performance
and observance of any of the terms, provisions and conditions
applicable to the Company or the Guarantor hereunder (without
regard to any period of grace or requirement of notice provided
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hereunder), and if the Company or the Guarantor shall be in
default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
Section 10.10 Waiver of Certain Covenants.
----------------------------
Except as otherwise specified as contemplated by Section 3.1
for Securities of such series, the Company or the Guarantor, as
the case may be, may, with respect to the Securities of any
series, omit in any particular instance to comply with any term,
provision or condition set forth in any covenant pursuant to
Section 3.1 (19) 9.1(2) or 9.1(7) for the benefit of the Holder
of such series, or in Sections 10.7 and 10.8, inclusive, if
before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of
such series and of at least 66 2/3% in principal amount of the
Outstanding Securities of all series affected thereby shall, by
Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision
or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the
obligations of the Company and the Guarantor and the duties of
the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE 11
Redemption of Securities
Section 11.1 Applicability of Article.
-------------------------
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated by
Section 3.1 for Securities of any series) in accordance with this
Article.
Section 11.2 Election to Redeem; Notice to Trustee.
--------------------------------------
The election of the Company to redeem any Securities shall
be evidenced by a Board Resolution or in any other manner
specified as contemplated in Section 3.1 for such Securities. In
case of any redemption at the election of the Company of less
than all the Securities of any series (including any redemption
affecting only a single Security), the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of
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Securities of such series to be redeemed and, if applicable, of
the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 11.3 Selection by Trustee of Securities to Be Redeemed.
--------------------------------------------------
If less than all the Securities of any series are to be
redeemed (unless all the Securities of such series and of a
specified tenor are to be redeemed or unless such redemption
affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities
of such series not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which
may provide for the selection for redemption of a portion of the
principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security. If
less than all the Securities of such series and of a specified
tenor are to be redeemed (unless such redemption affects only a
single Security), the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series and
specified tenor not previously called for redemption in
accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount
thereof to be redeemed.
The provisions of the two preceding paragraphs shall not
apply with respect to any redemption affecting only a single
Security, whether such Security is to be redeemed in whole or in
part. In the case of any such redemption in part, the unredeemed
portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
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Section 11.4 Notice of Redemption.
---------------------
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be
redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any
series consisting of more than a single Security are to be
redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities
to be redeemed and, if less than all the Outstanding Securities
of any series consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed;
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed
and, if applicable, that interest thereon will cease to accrue on
and after said date;
(5) the place or places where each such Security is to be
surrendered for payment of the Redemption Price; and
(6) that the redemption is for a sinking fund, if such is
the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense
of the Company.
Section 11.5 Deposit of Redemption Price.
----------------------------
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided
in Section 10.3) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be
an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 11.6 Securities Payable on Redemption Date.
--------------------------------------
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Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified,
and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; PROVIDED,
HOWEVER, that, unless otherwise specified as contemplated by
Section 3.1, installments of interest whose Stated Maturity is on
or prior to the Redemption Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of
Section 3.7.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and
premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security.
Section 11.7 Securities Redeemed in Part.
----------------------------
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company
or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, the
Guarantees of the Guarantor shall be endorsed on and the Trustee
shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE 12
Sinking Funds
Section 12.1 Applicability of Article.
-------------------------
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except
as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
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The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as
a "mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of Securities of
any series is herein referred to as an "optional sinking fund
payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 12.2. Each sinking
fund payment shall be applied to the redemption of Securities of
any series as provided for by the terms of Securities of such
series.
Section 12.2 Satisfaction of Sinking Fund Payments with Securities.
------------------------------------------------------
The Company (1) may deliver Outstanding Securities of a
series (other than any previously called for redemption) and (2)
may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of such
series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; PROVIDED
that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
Section 12.3 Redemption of Securities for Sinking Fund.
------------------------------------------
Not less than 60 days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to
the Trustee an Officers' Certificate specifying the amount of the
next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 12.2 and will also deliver to
the Trustee any Securities to be so delivered. Not less than 30
days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 11.3 and cause
notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section
11.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated
in Sections 11.6 and 11.7.
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ARTICLE 13
Defeasance and Covenant Defeasance
Section 13.1 Applicability of Article; Company's Option to
---------------------------------------------
Effect Defeasance or Covenant Defeasance.
- - -----------------------------------------
The Company may elect, at its option at any time, to have
Section 13.2 or Section 13.3 applied to any Securities or any
series of Securities, as the case may be, designated pursuant to
Section 3.1 as being defeasible pursuant to such Section 13.2 or
13.3, in accordance with any applicable requirements provided
pursuant to Section 3.1 and upon compliance with the conditions
set forth in this Article. Any such election shall be evidenced
by a Board Resolution or in another manner specified as
contemplated by Section 3.1 for such Securities.
Section 13.2 Defeasance and Discharge.
-------------------------
Upon the Company's exercise of the above option (if any)
applicable to this Section applied to any Securities or any
series of Securities, as the case may be, the Company and the
Guarantor shall be deemed to have been discharged from their
respective obligations with respect to Securities, and the
corresponding Guarantees, as provided in this Section on and
after the date the conditions set forth in Section 13.4 are
satisfied (hereinafter, called "defeasance"). For this purpose,
such defeasance means that the Company and the Guarantor shall be
deemed to have paid and discharged the entire indebtedness
represented by such Securities and Guarantees and to have
satisfied all their other obligations under such Securities and
Guarantees and this Indenture insofar as such Securities and
Guarantees are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Securities to receive, solely from the trust fund
described in Section 13.4 and as more fully set forth in such
Section, payments in respect of the principal of (and premium, if
any) and interest on such Securities when payments are due, (B)
the Company's obligations with respect to such Securities under
Sections 3.4, 3.5, 3.6, 10.2 and 10.3, (C) the rights, powers,
trusts, duties, and immunities of the Trustee hereunder and (D)
this Article Thirteen. Subject to compliance with this Article
Thirteen, the Company may exercise its option (if any) under this
Section 13.2 applied to any Securities notwithstanding the prior
exercise of its option (if any) to have Section 13.3 applied to
such Securities.
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Section 13.3 Covenant Defeasance.
--------------------
Upon the Company's exercise of the above option (if any)
applicable to this Section applied to any Securities or series of
Securities, as the case may be, (A), the Company shall be
released from its obligations under Section 10.8 and any
covenants provided pursuant to Sections 3.1(19), 9.1(2) and
9.1(7) and (B) the occurrence of any event specified in Section
5.1(4) with respect to either of Section 8.1(3) or Section 10.8
and any such covenants provided pursuant to Sections 3.1(19),
9.1(2), 9.1(7), 5.1(5) and 5.1(8) shall be deemed not to be or
result in an Event of Default, in each case with respect to such
Securities as provided in this Section, and the Guarantor shall
be released from its obligations under Section 10.7 respect to
such Securities as provided in this Section, on and after the
date the conditions set forth in Section 13.4 are satisfied
(hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to such Securities,
the Company and the Guarantor may omit to comply with and shall
have no liability in respect of any term, condition or limitation
set forth in any such specified Section (to the extent so
specified in the case of Section 5.1(4)), whether directly or
indirectly by reason of any reference elsewhere herein to any
such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be
unaffected thereby.
Section 13.4 Conditions to Defeasance or Covenant Defeasance.
------------------------------------------------
The following shall be the conditions to application of
either Section 13.2 or Section 13.3 to any Securities or any
series of Securities, as the case may be:
(a) the Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee which
satisfies the requirements contemplated by Section 6.9 and who
agrees to comply with the provisions of this Article Thirteen
applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, in
each case sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
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discharge the principal of and any premium and interest on such
Securities on the respective Stated Maturities, in accordance
with the terms of this Indenture and of such Securities. As used
herein, "U.S. Government Obligations" means securities that are
(x) direct obligations of the United States of America for the
payment of which its full faith and credit is pledged or (y)
obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in
either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with respect to any such
U.S. Government Obligation or a specific payment of principal of
or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository
receipt, PROVIDED that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or
the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(b) In the case of an election to have Section 13.2 apply
to any Securities or any series of Securities, as the case may
be, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (x) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or
(y) since the date of this Indenture there has been a change in
the applicable Federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that,
the Holders of such Securities will not recognize gain or loss
for Federal income tax purposes as a result of the deposit,
defeasance and discharge to be effected with respect to such
Securities and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred.
(c) In the case of an election to have Section 13.3 apply
to any Securities or series of Securities, as the case may be,
the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Securities will
not recognize gain or loss for Federal income tax purposes as a
result of such deposit and covenant defeasance to be effected
with respect to such Securities and will be subject to Federal
income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant
defeasance had not occurred.
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(d) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that neither such Securities
nor any other Securities of the same series, if then listed on
any securities exchange, will be delisted as a result of such
deposit.
(e) No event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to such
Securities or any other Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any
such event specified in Section 5.1(6) and (7), at any time on or
prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied
until after such 90th day).
(f) Such defeasance or covenant defeasance shall not cause
the Trustee to have a conflicting interest within the meaning of
the Trust Indenture Act (assuming all Securities are in default
within the meaning of such Act).
(g) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company or the
Guarantor is a party or by which either of them is bound.
(h) Such defeasance or covenant defeasance shall not result
in the trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act of 1940
unless such trust shall be registered under such Act or exempt
from registration thereunder.
(i) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for relating to either the
defeasance under Section 13.2 or the covenant defeasance under
Section 13.3 (as the case may be) have been complied with.
Section 13.5 Deposited Money and U.S. Government Obligations to
--------------------------------------------------
Be Held in Trust; Other Miscellaneous Provisions.
- - -------------------------------------------------
Subject to the provisions of the last paragraph of Section
10.3, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee or other qualifying
trustee (solely for purposes of this Section 13.5 and Section
13.6, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 13.4 in
respect of the Outstanding Securities of such series shall be
held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the
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<PAGE> 81
Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and
to become due thereon in respect of principal (and premium, if
any) and interest, but such money need not be segregated from
other funds except to the extent required by law.
The Company and the Guarantor shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited
pursuant to Section 13.4 or the principal and interest received
in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of the Outstanding
Securities of such series.
Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 13.4
which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited
to effect an equivalent defeasance or covenant defeasance.
Section 13.6. Reinstatement.
--------------
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company and
Guarantor have been discharged or released pursuant to Section
13.2 or 13.3 shall be revived and reinstated as though no deposit
had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section
13.5 with respect to such Securities in accordance with this
Article; provided, however, that if the Company or the Guarantor
makes any payment of principal of or any premium or interest on
any such Security following such reinstatement of its
obligations, the Company or the Guarantor, as the case may be,
shall be subrogated to the rights (if any) of the Holders of such
Securities to receive such payment from the money so held in
trust.
* * * *
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
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<PAGE> 82
original, but all such counterparts shall together constitute but
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed, all as of the day and year first
above written.
XTRA, INC.
By /s/ MICHAEL J. SOJA
-----------------------
Name: Michael J. Soja
Title: Vice President, Finance
and Chief Financial
Officer
Attest:
/s/ JAMES R. LAJOIE
- - -------------------------
Assistant Clerk
XTRA CORPORATION
By /s/ MICHAEL J. SOJA
----------------------
Name: Michael J. Soja
Title: Vice President, Finance
and Chief Financial
Officer
Attest:
/s/ JAMES R. LAJOIE
- - -------------------------
Secretary
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THE FIRST NATIONAL BANK OF BOSTON,
as Trustee
By /s/ DONNA L. GERMANO
----------------------
Name: Donna L. Germano
Title: Authorized Officer
Attest:
/s/ JAMES E. MOGAVERO
- - ------------------------
Title: Assistant Cashier
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<PAGE> 84
County of Suffolk )
) ss.:
Commonwealth of Massachusetts )
On the 11th day of August, 1994, 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, 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.
/s/ MARION F. EWELL
----------------------------------
[Notary Seal]
County of Suffolk )
) ss.:
Commonwealth of Massachusetts )
On the 11th day of August, 1994, 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.
/s/ MARION F. EWELL
-----------------------------
[Notary Seal]
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<PAGE> 85
County of Norfolk )
) ss.:
Commonwealth of Massachusetts )
On this 10th day of August in the year of 1994 before me personally
came James E. Mogavero, to me personally known, who being by me duly sworn did
depose and say that he is an Assistant Cashier of The First National Bank of
Boston, one of the corporations described in and which executed the foregoing
Indenture; that he knows the seal of said corporation; that the seal affixed to
said instrument opposite the execution thereof on behalf of said corporation is
the corporate seal of said corporation; that said instrument was signed and
said corporate seal was so affixed on behalf of said corporation by authority
and order of its board of directors; that he signed his name thereto by like
authority; and he acknowledged said instrument to be his free act and deed and
the free act and deed of said .
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official
seal, at Norfolk County in said Commonwealth of Massachusetts, the day and year
first above written.
/s/ Bernadette L. May
---------------------------------------
[Notary Public]
Bernadette L. May
My commission expires
October 31, 1997
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<PAGE> 1
EXHIBIT 4.2.
Fixed Rate Medium-Term Note
REGISTERED REGISTERED
No. R- PRINCIPAL AMOUNT:
CUSIP
XTRA, INC.
SERIES C MEDIUM-TERM NOTE
Unconditionally Guaranteed as to payment of principal, premium (if
any), and interest by
XTRA CORPORATION
If the registered owner of this Security (as indicated below) is The
Depository Trust Company (the "Depository") or a nominee of the Depository, the
Security is a Global Security and the following two legends apply:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR A
NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
Unless this Security is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the
Company or its agent for registration of transfer, exchange or payment, and any
Security issued upon registration of transfer of, or in exchange for, or in
lieu of, this Security is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of The Depository Trust
Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL because
the registered owner hereof, Cede & Co., has an interest herein.
<TABLE>
<S> <C>
ISSUE PRICE: REGULAR RECORD DATES:
March 15
INTEREST PAYMENT DATES: September 15
April 1
October 1 INTEREST RATE:
ORIGINAL ISSUE DATE: INITIAL REDEMPTION DATE:
MATURITY DATE: REDEMPTION PRICES:
</TABLE>
<PAGE> 2
BOOK ENTRY __ CERTIFICATED __
OTHER TERMS:
XTRA, INC., a corporation duly organized and existing under the laws
of the State of Maine (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to,
tax identification number , or registered
assigns, the principal sum of on the
Maturity Date specified above and to pay interest thereon from the Original
Issue Date specified above or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, on the Interest Payment
Dates in each year specified above and at Maturity, commencing on the first
such Interest Payment Date next succeeding the Original Issue Date (or, if the
Original Issue Date is after a Regular Record Date and before the Interest
Payment Date immediately following such Regular Record Date, on the second such
Interest Payment Date next succeeding the Original Issue Date), at a rate per
annum equal to the Interest Rate specified above until the principal hereof is
paid or made available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the person in whose name this security (or one or
more Predecessor Securities) is registered (which, if this Security is a Global
Security, will be the Depository or a nominee of the Depository) at the close
of business on the Regular Record Date for such interest, which shall be the
15th day (whether or not a Business Day) of the month preceding such Interest
Payment Date; provided, however, that interest payable at Maturity will be
payable to the person to whom principal shall be payable (which, if this
Security is a Global Security will be the Depository or a nominee of the
Depository.) Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the registered Holder on such Regular
Record Date and may either be paid to the person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice of which shall be given to the registered Holders of
Securities of this Series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which this Security may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
Any payment on this Security due on any day which is not a Business
Day (as defined herein) in Boston, Massachusetts or New York, New York need not
be made on such day, but may be made on
-2-
<PAGE> 3
the next succeeding such Business Day with the same force and effect as if made
on such due date, and no interest shall accrue for the period from and after
such date.
Payment of the principal, premium (if any) and interest on this
Security will be made in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts. Payments of interest other than interest payable at Maturity will be
made by check mailed to the registered Holder hereof at the address shown in
the Security Register or, at the option of the registered Holder hereof, by
wire transfer in immediately available funds to an account located in the
United States of America as the registered Holder hereof shall designate to the
Trustee in writing at least 15 business days prior to such Interest Payment
Date.
The principal amount hereof and interest due at Maturity will be paid
upon Maturity in immediately available funds by wire transfer against
presentation of this Security at the office or agency of The First National
Bank of Boston as Trustee and Paying Agent located at 150 Royall Street,
Canton, Massachusetts 02021, or at such office in New York, New York as the
Trustee shall designate by written notice to the registered Holder of this
Security. The Company may treat the person in whose name this Security is
registered as the owner of this Security for the purpose of receiving payments
of principal, premium (if any) and interest on this Security and for all
purposes whatsoever.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY
SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
-3-
<PAGE> 4
Reverse of Security
-------------------
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of August 15, 1994 (herein referred to
as the "Indenture"), among the Company, XTRA Corporation, as Guarantor (herein
called the "Guarantor," which term includes any successor Guarantor under the
Indenture), and the Trustee, to which Indenture reference is hereby made for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Guarantor, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof.
If an Initial Redemption Date is specified on the face hereof, this
Security is subject to redemption upon notice by first- class mail given not
less than 30 nor more than 60 days prior to the date fixed for redemption, at
any time as a whole or in part, on or after the Initial Redemption Date, if
any, specified on the face hereof, at the election of the Company, at the
Redemption Prices, if any, specified on the face hereof, (expressed in
percentages of the principal amount), and thereafter at a redemption price
equal to 100% of the principal amount of this Security, plus accrued interest
to the Redemption Date; provided, that interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities (or one or more Predecessor Securities) of record at the
close of business on the relevant Record Date referred to on the face hereof,
all as provided in the Indenture.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in Boston,
Massachusetts or New York, New York are authorized or obligated by law or
executive order to close.
Payments of interest hereon with respect to any Interest Payment date
will include interest accrued to but excluding such Interest Payment Date.
Accrued interest hereon from the Original Issue Date or from the last
date to which interest has been paid or duly provided for is calculated on the
basis of a 360-day year of twelve 30-day months. Such interest shall accrue
from the Original Issue Date, or from the last date to which interest has been
paid or duly provided for, but excluding the date for which accrued interest is
being calculated.
In any case where any Interest Payment Date or the Stated Maturity of
the principal of this Security shall not be a Business
-4-
<PAGE> 5
Day, then (notwithstanding any other provision hereof or of the Indenture) the
payment of interest and/or of principal need not be made on such date, but may
be made on the next succeeding Business Day with the same force and effect as
if made on such Interest Payment Date or at the Stated Maturity, and no
interest shall accrue with respect to such payment for the period from and
after such Interest Payment Date or Stated Maturity to such next succeeding
Business Day.
If an Event of Default with respect to the Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture contains provisions for defeasance at any time of (i)
the entire indebtedness of this Security or (ii) certain covenants with respect
to this Security, in each case upon compliance with certain conditions set
forth therein.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the Guarantor and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of 66 2/3% in
principal amount of all Outstanding Securities at the time and of a majority in
principal amount of the Securities at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of all the Securities and the
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company, the
Guarantor, or both with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, premium (if any) and
interest on this Security at the times, place and rate (except as provided for
in such Security), and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
(including, in the case of any Global Security, certain additional limitations)
therein set forth, the transfer of this Security is registrable in the Security
Register, upon
-5-
<PAGE> 6
surrender of such Securities for registration of transfer at the office or
agency of the Company in any place where the principal of, premium (if any) and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of like tenor,
of authorized denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $100,000 and any integral multiple of
$1,000 in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Guarantor or the Trustee and any agent of the
Company, the Guarantor or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not
this Security be overdue, and neither the Company, the Guarantor, the Trustee
nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
This Security shall be governed by and construed in accordance with
the laws of the State of New York.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
-6-
<PAGE> 7
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
XTRA, INC.
Dated: By:_________________________
Title: Vice President,
Finance and Chief
Financial Officer
Attest:
_____________________________
Title: Assistant Clerk
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series
designated in the within-mentioned Indenture
and referred to therein.
THE FIRST NATIONAL BANK OF BOSTON
as Trustee
By:______________________
Authorized Officer
Guarantee
---------
For value received, XTRA Corporation, a corporation organized under
the laws of the State of Delaware (herein called the "Guarantor," which term
includes any successor corporation under the Indenture referred to in the
Security upon which this Guarantee is endorsed), hereby unconditionally
guarantees to the Holder of the Security upon which this Guarantee is endorsed
and to the Trustee on behalf of each such Holder the due and punctual payment
of the principal of, premium, if any, and interest on such Security when and as
the same shall become due and payable, whether at the Stated Maturity, by
declaration of acceleration, call for redemption or otherwise, according to the
terms thereof and of the Indenture referred to therein. In case of the failure
-7-
<PAGE> 8
of XTRA, Inc., a corporation organized under the laws of the State of Maine
(herein called the "Company," which term includes any successor corporation
under such Indenture), punctually to make any such payment of principal,
premium (if any) or interest, the Guarantor hereby agrees to cause any such
payment to be made punctually when and as the same shall become due and
payable, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as
if it were principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of such Security or such Indenture, any
failure to enforce the provisions of such Security or such Indenture, or any
waiver, modification or indulgence granted to the Company with respect thereto,
by the Holder of such Security or the Trustee or any other circumstance which
may otherwise constitute a legal or equitable discharge of a surety or
guarantor; provided, however, that, notwithstanding the foregoing, no such
waiver, modification or indulgence shall, without the consent of the Guarantor,
increase the principal amount of such Security or change the redemption terms
thereof or alter the Stated Maturity thereof. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of merger or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest or notice with respect to such Security or
the indebtedness evidenced thereby and all demands whatsoever, and covenants
that this Guarantee will not be discharged except by strict and complete
performance of the obligations contained in such Security and this Guarantee.
The Guarantor shall be subrogated to all rights of the Holder of such
Security and the Trustee against the Company in respect of any amounts paid to
such Holder by the Guarantor pursuant to the provisions of this Guarantee;
provided, however, that the Guarantor shall not be entitled to enforce, or to
receive any payments arising out of or based upon, such right of subrogation
until the principal of, premium (if any), and interest on all Securities issued
under such Indenture shall have been paid in full.
No reference herein to such Indenture and no provision of this
Guarantee or of such Indenture shall alter or impair the guarantee of the
Guarantor, which is absolute and unconditional, of the due and punctual payment
of principal, premium (if any), and interest on the Security upon which this
Guarantee is endorsed.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication of the Security
-8-
<PAGE> 9
upon which this Guarantee is endorsed shall have been manually executed by or
on behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such Indenture
shall have the meanings assigned to them in such Indenture.
This Guarantee shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be governed by and construed
in accordance with the laws of the State of New York.
Executed and dated the date on the face hereof.
XTRA CORPORATION
By: _________________________
Title: Vice President,
Finance and
Chief Financial Officer
Attest:
_________________________
Title: Secretary
-9-
<PAGE> 10
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - .... Custodian....
(Cust) (Minor)
Uniform Gifts to
Minors Act
TEN ENT - as tenants by the entireties .................
(State)
JT TEN - as joint tenants with right of
survivorship and not as tenants
in common
</TABLE>
Additional abbreviations may also be used though not in the above list.
_______________________________________
FOR VALUE RECEIVED I or we sell, assign and transfer to
INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE:
______________________________
_______________________________________________________________________
(Print or type name, address and zip code of assignee)
_______________________________________________________________________
this Security and all rights hereunder and irrevocably appoint ____________
attorney to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: ________________________ Signed: ______________________________
Signature(s) Guaranteed by: (Sign exactly as name appears
on the other side of this
Note)
NOTICE: The signature(s) to this assignment must correspond with the name as
it appears upon the face of the within Note in every particular, without
alteration or enlargement or any change whatever.
-10-
<PAGE> 1
EXHIBIT 4.3.
Floating Rate (Resetting Weekly,
Monthly, Quarterly, Semi-Annually or Annually)
Medium-Term Note
REGISTERED REGISTERED
No. R- PRINCIPAL AMOUNT:
CUSIP
XTRA, INC.
SERIES C MEDIUM-TERM NOTE
Unconditionally Guaranteed as to payment of principal, premium (if any), and
interest by
XTRA CORPORATION
If the registered owner of this Security (as indicated below) is The
Depository Trust Company (the "Depository") or a nominee of the Depository, the
Security is a Global Security and the following two legends apply:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR A
NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
Unless this Security is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the
Company or its agent for registration of transfer, exchange or payment, and any
Security issued upon registration of transfer of, or in exchange for, or in
lieu of, this Security is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of The Depository Trust
Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL because
the registered owner hereof, Cede & Co., has an interest herein.
<TABLE>
<S> <C>
ISSUE PRICE: INITIAL REDEMPTION DATE:
ORIGINAL ISSUE DATE: MATURITY DATE:
BOOK ENTRY __ CERTIFICATED __
</TABLE>
<PAGE> 2
<TABLE>
<S> <C>
INTEREST RATE BASIS: INTEREST RESET DATE (applicable
only if Interest Reset Period is
semi-annual or annual)
Third Wednesday of:
INITIAL INTEREST RATE: INTEREST PAYMENT DATES:
INDEX MATURITY: INTEREST RESET PERIOD:
SPREAD (plus MAXIMUM INTEREST RATE:
or minus):
SPREAD MULTIPLIER: MINIMUM INTEREST RATE:
CALCULATION AGENT: INITIAL REDEMPTION
DATE:
REDEMPTION PERIODS: REDEMPTION PRICES:
OTHER TERMS:
</TABLE>
XTRA, INC., a corporation duly organized and existing under the laws
of the State of Maine (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ,
tax identification number ,
or registered assigns, the principal sum of on the
Maturity Date specified above and to pay interest thereon from the Original
Issue Date specified above or from the most recent Interest Payment Date (or,
if the Interest Reset Dates specified above are weekly, from the day following
the most recent Regular Record Date (as defined herein)) to which interest has
been paid or duly provided for, on the Interest Payment Dates in each year
specified above and at Maturity, commencing on the first such Interest Payment
Date next succeeding the Original Issue Date (or, if the Original Issue Date is
after a Regular Record Date and before the Interest Payment Date immediately
following such Regular Record Date, on the second such Interest Payment Date
next succeeding the Original Issue Date), at a rate per annum equal to the
Initial Interest Rate specified above until the first Interest Reset Date
following the Original Issue Date and on and after such Interest Reset Date at
the rate determined in accordance with the provisions set forth herein, until
the principal hereof is paid or made available for payment. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the person in whose name this
security (or one or more Predecessor Securities) is registered (which, if this
Security is a Global Security, will be the Depository or a nominee of the
Depository) at the close of business on the Regular Record Date for such
interest, which shall be the 15th day (whether or not a Business Day) prior to
such
-2-
<PAGE> 3
Interest Payment Date; provided, however, that interest payable at Maturity
will be payable to the person to whom principal shall be payable (which, if
this Security is a Global Security, will be the Depository or a nominee of the
Depository.) Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the registered Holder on such Regular
Record Date and may either be paid to the person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice of which shall be given to the Registered Holders of
Securities of this Series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which this Security may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
If an Interest Payment Date would otherwise fall on a date that is not
a Market Day (as defined herein), such Interest Payment Date will be the next
succeeding Market Day (or, if the interest rate basis specified above is LIBOR,
if such day falls in the next calendar month, the next preceding Market Day).
Any payment on this Security due on any day which is not a Business Day (as
defined herein) in Boston, Massachusetts or New York, New York need not be made
on such day, but may be made on the next succeeding such Business Day with the
same force and effect as if made on such due date, and no interest shall accrue
for the period from and after such date.
Payment of the principal, premium (if any) and interest on this
Security will be made in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts. Payments of interest other than interest payable at Maturity will be
made by check mailed to the registered Holder hereof at the address shown in
the Security Register or, at the option of the registered Holder hereof, by
wire transfer in immediately available funds to an account located in the
United States of America as the registered Holder hereof shall designate to the
Trustee in writing at least 15 days prior to such Interest Payment Date.
The principal amount hereof and Interest due at Maturity will be paid
upon Maturity in immediately available funds by wire transfer against
presentation of this Security at the office or agency of The First National
Bank of Boston as Trustee and Paying Agent located at 150 Royall Street,
Canton, Massachusetts 02021, or at such office in New York, New York as the
Trustee shall designate by written notice to the registered Holder of this
Security. The Company may treat the person in whose name this Security is
registered as the owner of this Security for the purpose of receiving payments
of principal, premium (if any) and interest on this Security and for all
purposes whatsoever.
-3-
<PAGE> 4
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY
SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
-4-
<PAGE> 5
Reverse of Security
-------------------
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of August 15, 1994 (herein referred to
as the "Indenture"), among the Company, XTRA Corporation, as Guarantor (herein
called the "Guarantor," which term includes any successor Guarantor under the
Indenture), and the Trustee, to which Indenture reference is hereby made for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Guarantor, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof.
If an Initial Redemption Date is specified on the face hereof, this
Security is subject to redemption upon notice by first- class mail given not
less than 30 nor more than 60 days prior to the date fixed for redemption, at
any time as a whole or in part, on or after the Initial Redemption Date, if
any, specified on the face hereof, at the election of the Company, at the
Redemption Prices, if any, specified on the face hereof, (expressed in
percentages of the principal amount), and thereafter at a redemption price
equal to 100% of the principal amount of this Security, plus accrued interest
to the Redemption Date; provided, that interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities (or one or more Predecessor Securities) of record at the
close of business on the relevant Record Date referred to on the face hereof,
all as provided in the Indenture.
The rate of interest on this Security will be reset and become
effective weekly, monthly, quarterly, semiannually or annually (each an
"Interest Reset Period"), as set forth on the face hereof depending on the
Interest Reset Period specified herein; provided, however, that (i) the
interest rate in effect from the Original Issue Date to the first Interest
Reset Date (as defined below) will be the Initial Interest Rate, and (ii) the
interest rate in effect for the ten days immediately before Stated Maturity of
this security will be that in effect hereon on the tenth day preceding such
Stated Maturity. Except as provided in the next sentence, the date or dates on
which interest will reset (each an "Interest Reset Date") will be, if this
Security resets weekly (unless the Interest Rate Basis for this Security is the
Treasury Rate), the Wednesday of each week; if this Security resets weekly and
the Interest Rate Basis for this Security is the Treasury Rate, the Tuesday of
each week (except as provided below); if this Security resets monthly, the
third Wednesday of each month; if this Security resets quarterly, the third
Wednesday of each March, June, September and December; if this Security
-5-
<PAGE> 6
resets semiannually, the third Wednesday of two months of each year, as
specified herein; and if this Security resets annually, the third Wednesday of
one month of each year, as specified herein. If any Interest Reset Date would
otherwise be a day that is not a Market Day for this Security, the Interest
Reset Date shall be postponed to the next day that is a Market Day for this
Security, except that if the Interest Rate Basis specified herein is LIBOR and
such next succeeding such Market Day is the next succeeding calendar month,
such Interest Reset Date shall be the immediately preceding Market Day for this
Security.
"Market Day" means, for any Security other than a Security the rate of
interest on which shall be determined in accordance with the provisions under
the heading "LIBOR" below, any Business Day, and, for any Security the rate of
interest on which shall be determined in accordance with the provisions under
the heading "LIBOR" below, any such Business Day on which dealings in deposits
in U.S. dollars are transacted in the London interbank market. "Business Day",
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in Boston, Massachusetts or New York, New York
are authorized or obligated by law or executive order to close.
The rate of interest on this Security in effect on any day on or after
the first Interest Reset Date shall equal either (i) if such day is an Interest
Reset Date, the interest rate for such Interest Reset Date or (ii) if such day
is not an Interest Reset Date, the interest rate for the immediately preceding
Interest Reset Date; provided, however, that the interest rate in effect for
the ten days immediately before the Stated Maturity of this Security will be
that in effect hereon on the tenth day preceding such stated Maturity.
Except as otherwise specified in this paragraph, the rate of interest
on this security for each Interest Reset Date shall be the rate determined in
accordance with the provisions below under the heading below corresponding to
the Interest Rate Basis specified herein:
Commercial Paper Rate. If the Interest Rate Basis of this Security is
the Commercial Paper Rate, the interest rate hereon for any Interest
Reset Date shall equal (a) the Money Market Yield (calculated as
described below) of the per annum rate (quoted on a bank discount
basis) for the relevant Commercial Paper Interest Determination Date
for commercial paper having the Index Maturity specified herein, (i)
as such rate is published by the Board of Governors of the Federal
Reserve System in "Statistical Release H.15(519), Selected Interest
Rates" or any successor publication of the Board of governors of the
Federal Reserve System ("H.15(519)") under the heading "Commercial
Paper" or (ii) if such rate is not published before 9:00 A.M., New
York City time, on the
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<PAGE> 7
relevant Calculation Date, then as such rate is published by the
Federal Reserve Bank of New York in its daily statistical release,
"Composite 3:30 P.M. Quotations for U.S. Government Securities" or any
successor publication published by the Federal Reserve Bank of New
York ("Composite Quotations") under the heading "Commercial Paper" or
(b) if by 3:00 P.M. New York City time, on such Calculation Date, such
rate is not yet published in either H.15(519) or Composite Quotations,
the Money Market Yield of the arithmetic mean of the offered per annum
rates (quoted on a bank discount basis) as of 11:00 A.M., New York
City time, on such Commercial Paper Interest Determination Date, of
three leading dealers of commercial paper in The City of New York
selected by the Calculation Agent for commercial paper of the Index
Maturity specified herein placed for an industrial issuer whose bond
rating is "AA", or the equivalent, from a nationally recognized rating
agency, in any of the above cases (a) or (b) as adjusted (x) by the
addition or subtraction of the Spread, if any, specified herein, and
then (y) by the multiplication by the Spread Multiplier, if any,
specified herein; provided, however, that, if fewer than three dealers
selected as provided above by the Calculation Agent are quoting as
mentioned in this sentence, the interest rate herein for such Interest
Reset Date will be the interest rate hereon in effect on such
Commercial Paper Interest Determination Date (or, in the case of the
first Interest Reset Date, the Initial Interest Rate). "Money Market
Yield" shall be a yield (expressed an a percentage) calculated in
accordance with the following formula:
Money Market Yield = 100 x 360 x D
-------
360 - (D x M)
where "D" refers to the per annum rate for commercial paper, quoted on
a bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the interest period for which the interest is
being calculated.
Prime Rate. If the Interest Rate Basis of this Security is the Prime
Rate, the interest rate hereon for any Interest Reset Date shall equal
(a)(i) the rate for the relevant Prime Rate Interest Determination
Date set forth in H.15(519) under the heading "Bank Prime Loan", or
(ii) if such rate is not published before 9:00 A.M., New York City
time, on the relevant Calculation Date, then the arithmetic mean of
the rates of interest publicly announced by each bank that appears on
the display designated as page "NYMF" on the Reuters Monitor Money
Rates Service (or such other page as may replace the NYMF page on that
services for the purpose of displaying prime rates or base lending
rates of major United States banks) ("Reuters Screen NYMF Page") as
such bank's prime rate or base lending rate as in effect for such
Prime
-7-
<PAGE> 8
Rate Interest Determination Date as quoted on the Reuters Screen NYMF
Page on such Prime Rate Interest Determination Date or (b) if fewer
than four such rates appear on the Reuters Screen NYMF Page on such
Prime Rate Interest Determination Date, the arithmetic mean of the
prime rates or base lending rates (quoted on the basis of the actual
number of days in the year divided by a 360-day year) as of the close
of business on such Prime Rate Interest Determination Date by three
major banks in The City of New York selected by the Calculation Agent,
in any of the above cases (a) or (b) as adjusted (x) by the addition
or subtraction of the Spread, if any, specified herein, and then (y)
by the multiplication by the Spread Multiplier, if any, specified
herein;provided, however, that, if fewer than three banks selected as
provided above by the Calculation Agent are quoting as mentioned in
this sentence, the interest rate hereon for such Interest Reset Date
will be the interest rate hereon in effect on such Prime Rate Interest
Determination Date (or in the case of the first Interest Reset Date,
the Initial Interest Rate).
LIBOR. If the Interest Rate Basis of this Security is LIBOR, the
interest rate hereon for any Interest Reset Date shall be determined
in accordance with the following provisions:
(a) On the relevant LIBOR Interest Determination Date, the interest
rate will be determined on the basis of the arithmetic mean of the
offered rates for deposits of not less than U.S. $1,000,000 having the
Index Maturity specified herein, commencing on the second Market Day
immediately following such LIBOR Interest Determination Date, that
appear on the display designated as page "LIBO" on the Reuter Monitor
Money Rates Service (or such other page as may replace the LIBO page
on that service for the purpose of displaying London interbank offered
rates of major banks) ("Reuters Screen LIBO Page") as of 11:00 A.M.,
London time, on such LIBOR Interest Determination Date, if at least
two such offered rates appear on the Reuters Screen LIBO Page,
adjusted (x) by the addition or subtraction of the Spread, if any,
specified herein, and then (y) by the multiplication by the Spread
Multiplier, if any, specified herein. If fewer than two offered rates
appear, the interest rate hereon for such LIBOR Interest Reset Date
will be determined as described in (b) below.
(b) For a LIBOR Interest Determination Date on which fewer than two
offered rates for the Index Maturity specified herein appear on the
Reuters Screen LIBO Page as described in (a) above, the interest rate
hereon will be determined on the basis of the rates at approximately
11:00 A.M., London time, on such LIBOR Interest Determination Date at
which deposits in U.S. dollars for the period of the Index Maturity
specified herein are offered to prime banks in the London
-8-
<PAGE> 9
interbank market by four major banks in the London interbank market
selected by the Calculation Agent commencing on the second Market Day
immediately following such LIBOR Interest Determination Date and in a
principal amount equal to an amount of not less than U.S. $1,000,000
that in the Calculation Agent's judgment is representative for a
single transaction in such market at such time (a "Representative
Amount"). The Calculation Agent will request the principal London
office of each of such banks to provide a quotation of its rate. If
at least two such quotations are provided, the interest rate hereon
with respect to such Interest Reset Date will be the arithmetic mean
of such quotations, as adjusted (x) by the addition or subtraction of
the Spread, if any, specified herein, and then (y) by the
multiplication by the Spread multiplier, if any, specified herein. If
fewer than two quotations are provided, the interest rate hereon for
such Interest Reset Date will be the arithmetic mean of the rates
quoted at approximately 11:00 A.M., New York City time, on such LIBOR
Interest Determination Date by three major banks in The City of New
York, selected by the Calculation Agent, for loans in U.S. dollars to
leading European banks having the Index Maturity specified herein
commencing on the Interest Reset Date and in a Representative Amount,
as adjusted (x) by the addition or subtraction of the Spread, if any,
specified herein, and then (y) by the multiplication by the Spread
Multiplier, if any, specified herein; provided, however, that, if
fewer than three banks selected as provided above by the Calculation
Agent are quoting as mentioned in this sentence, the interest rate
hereon for such Interest Reset Date will be the interest rate hereon
in effect on such LIBOR Interest Determination Date (or, in the case
of the first Interest Reset Date, the Initial Interest Rate).
Treasury Rate. If the Interest Rate Basis of this Security is the
Treasury Rate, the interest rate hereon for any Interest Reset Date
shall equal (a) the rate for the auction on the relevant Treasury
Interest Determination Date of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified herein, (i) as
such rate is published in H.15(519) under the heading "U.S. Government
Securities/Treasury Bills/Auction Average (Investment)" or (ii) if
such rate is not so published by 9:00 A.M., New York City time, on the
relevant Calculation Date, then the auction average rate (expressed as
a bond equivalent, on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) for such auction as
otherwise announced by the United States Department of the Treasury or
(b) if the results of such auction of Treasury bills having the Index
Maturity specified herein are not published or reported as provided
above by 3:00 P.M., New York City time, on such Calculation Date or if
no such auction is held during such week, then the rate set forth in
H.15(519) for the relevant
-9-
<PAGE> 10
Treasury Interest Determination Date for the Index Maturity specified
herein under the heading "U.S. Government Securities/Treasury
Bills/Secondary Market" or (c) if such rate is not so published by
3:00 p.m., New York City time, on the relevant Calculation Date, then
the yield to maturity (expressed as a bond equivalent, on the basis of
a year of 365 or 366 days, as applicable, and applied on a daily
basis) of the arithmetic mean of the secondary market bid rates as of
approximately 3:30 P.M., New York City time, on such Treasury Interest
Determination Date, of three primary United States government
securities dealers in The City of New York selected by the Calculation
Agent for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified herein, in any of the above
cases (a), (b) or (c) as adjusted (x) by the addition or subtraction
of the Spread, if any, specified herein, and then (y) by the
multiplication by the Spread Multiplier, if any, specified herein;
provided, however, that, if fewer than three dealers selected as
provided above by the Calculation Agent are quoting as mentioned in
this sentence, the interest rate hereon for such Interest Reset Date
will be the interest rate hereon in effect on such Treasury Interest
Determination Date (or, in the case of the first Interest Reset Date,
the Initial Interest Rate).
CD Rate. If the Interest Rate Basis of this Security is the CD Rate,
the interest rate hereon for any Interest Reset Date shall equal (a)
the rate for the relevant CD Rate Interest Determination Date for
negotiable certificates of deposit having the Index Maturity specified
herein (i) as published in H.15(519) under the heading "CDs (Secondary
Market)" or (ii) if such rate is not published before 9:00 A.M., New
York City time, on the relevant Calculation Date, then the rate on
such CD Rate Interest Determination Date for negotiable certificates
of deposit having the Index Maturity specified herein as published in
Composite Quotations under the heading "Certificates of Deposit", or
(b) if by 3:00 P.M., New York City time, on such Calculation Date such
rate is not published in either H.15(519) or Composite Quotations, the
arithmetic mean of the secondary market offered rates, as of 10:00
A.M., New York City time, on such CD Rate Interest Determination Date,
of three leading nonbank dealers of negotiable U.S. dollar
certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable certificates of deposit of major
United States money center banks with a remaining maturity closest to
the Index Maturity specified herein in a denomination of U.S.
$5,000,000, in any of the above cases (a) or (b) as adjusted (x) by
the addition or subtraction of the Spread, if any, specified herein,
and then (y) by the multiplication by the spread multiplier, if any,
specified herein;provided, however, that, if fewer than three dealers
selected as provided above by the Calculation
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<PAGE> 11
Agent are quoting as mentioned in this sentence, the interest rate
hereon for such Interest Reset Date will be the interest rate hereon
in effect on such CD Rate Interest Determination Date (or, in the case
of the first Interest Reset Date, the Initial Interest Rate).
Federal Funds Rat. If the Interest Rate Basis of this security is the
Federal Funds Rate, the interest rate hereon for any Interest Reset
Date shall equal (a) the rate on the relevant Federal Funds Interest
Determination Date for Federal Funds (i) as published in H.15(519)
under the heading "Federal Funds (Effective)" or (ii) if such rate is
not published before 9:00 a.m., New York City time, on the relevant
Calculation Date, then the rate on such Federal Funds Interest
Determination Date as published in Composite Quotations under the
heading "Federal Funds/Effective Rate" or (b) if by 3:00 p.m., New
York City time, on such Calculation Date such rate is not published in
either H.15(519) or Composite Quotations, the arithmetic mean of the
rates, as of 9:00 a.m., New York City time, on such Federal Funds
Interest Determination Date, for the last transaction in overnight
Federal Funds arranged by three leading brokers of Federal Funds
transactions in The City of New York selected by the Calculation
Agent, in any of the above cases (a) or (b) as adjusted (x) by the
addition or subtraction of the Spread, if any, specified herein, and
then (y) by the multiplication by the Spread Multiplier, if any,
specified herein;provided, however, that, if fewer than three brokers
selected as provided above by the Calculation Agent are quoting as
mentioned in this sentence, the interest rate hereon for such Interest
Reset Date will be the interest rate hereon in effect on such Federal
Funds Interest Determination Date (or, in the case of the first
Interest Reset Date, the Initial Interest Rate).
Notwithstanding the foregoing, the interest rate hereon shall not be greater
than the Maximum Interest Rate, if any, or less than the Minimum Interest Rate,
if any, specified herein. In addition, the interest rate hereon will in no
event be higher than the maximum rate permitted by applicable law.
The Company will at all times appoint and maintain a banking
institution that is not an Affiliate of the Company as Calculation Agent
hereunder. The Company has initially appointed The First National Bank of
Boston as such Calculation Agent and will give prompt written notice to the
Trustee of any change in such appointment. The Company will cause the
Calculation Agent to calculate the interest rate on this Security for any
Interest Reset Date in accordance with the foregoing on or before the
Calculation Date pertaining to the related Interest Determination Date. Except
as otherwise provided herein, all percentages resulting from any calculations
will be rounded upwards, if
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<PAGE> 12
necessary, to the next higher one hundred-thousandth of a percentage point
(e.g., 9.876541% (or .09876541) being rounded to 9.87655% (or .0987655)), and
all U.S. dollar amounts used in or resulting from such calculations will be
rounded to the nearest cent (with one-half cent being rounded upwards). The
Calculation Agent's determination of any interest rate will be final and
binding in the absence of manifest error.
Upon the request of the Holder of this Security, the Company will
cause the Calculation Agent to provide to such Holder the interest rate hereon
then in effect and, if determined, the interest rate hereon which will become
effective on the next Interest Reset Date.
The Interest Determination Date pertaining to an Interest Reset Date
if the rate of interest hereon shall be determined in accordance with the
provisions under the headings above entitled "Commercial Paper Rate" (the
"Commercial Paper Interest Determination Date"), "Prime Rate" (the "Prime Rate
Interest Determination Date"), "LIBOR" (the "LIBOR Interest Determination
Date"), "CD Rate" (the "CD Rate Interest Determination Date") and "Federal
Funds Rate" (the "Federal Funds Interest Determination Date") will be the
second Market Day preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date if the rate of interest
hereon shall be determined in accordance with the provisions under the heading
above entitled "Treasury Rate" (the "Treasury Interest Determination Date")
will be the day of the week in which such Interest Reset Date falls on which
Treasury bills would normally be auctioned. If, as the result of a legal
holiday, an auction is held on the preceding Friday, such Friday will be the
Treasury Interest Determination Date pertaining to the Interest Reset Date
occurring in the next succeeding week. If an auction date shall fall on any
Interest Reset Date for a Treasury Rate Security, then such Interest Reset Date
shall instead be the first Market Day immediately following such auction date.
The Calculation Date pertaining to any LIBOR Interest Determination
Date for any Security shall be such LIBOR Interest Determination Date, and the
Calculation Date pertaining to any other Interest Determination Date for any
Security shall be the tenth day after such Interest Determination Date or, if
any such day is not a Market Day for such Security, the next succeeding such
Market Day.
Payments of interest hereon with respect to any Interest Payment date
will include interest accrued to but excluding such Interest Payment Date;
provided, however, that, if the Interest Reset Period with respect to this
Security is weekly, the interest payable on any Interest Payment Date, other
than interest payable on the date on which principal is payable, will include
interest
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<PAGE> 13
accrued to but excluding the day following the next preceding Regular Record
Date.
Accrued interest hereon from the Original Issue Date or from the last
date to which interest has been paid or duly provided for is calculated by
multiplying the principal amount of this Security by an accrued interest
factor. Such accrued interest factor is computed by adding the interest factor
calculated for each day from the Original Issue Date, or from the last date to
which interest has been paid or duly provided for, but excluding the date for
which accrued interest is being calculated. The interest factor (expressed as a
decimal) for each such day is computed by dividing the interest rate (expressed
as a decimal) applicable to such day by 360 or, if the Interest Rate Basis for
this Security is the Treasury Rate, by the actual number of days in the year.
In any case where any Interest Payment Date or the Stated Maturity of
the principal of this Security shall not be a Business Day, then
(notwithstanding any other provision hereof or of the Indenture) the payment of
interest and/or of principal need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect as if made on
such Interest Payment Date or at the Stated Maturity, and no interest shall
accrue with respect to such payment for the period from and after such Interest
Payment Date or Stated Maturity to such next succeeding Business Day.
If an Event of Default with respect to the Securities of this series
shall occur and be continuing, the principal of the securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the Guarantor and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of 66 2/3% in
principal amount of all Outstanding Securities at the time and of a majority in
principal amount of the Securities at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of all the Securities and the
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company, the
Guarantor, or both with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefore or in lieu
-13-
<PAGE> 14
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, premium (if any) and
interest on this Security at the times, place and rate (except as provided for
in such Security), and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
(including, in the case of any Global Security, certain additional limitations)
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of such Securities for registration of transfer at the
office or agency of the Company in any place where the principal of, premium
(if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $100,000 and any integral multiple of
$1,000 in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Guarantor or the Trustee and any agent of the
Company, the Guarantor or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not
this Security be overdue, and neither the Company, the Guarantor, the Trustee
nor any such Agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
-14-
<PAGE> 15
This Security shall be governed by and construed in accordance with
the laws of the State of New York.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
-15-
<PAGE> 16
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
XTRA, INC.
Dated: By:_________________________
Title: Vice President,
Finance and
Chief Financial Officer
Attest:
_____________________________
Title: Assistant Clerk
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series
designated in the within-mentioned Indenture
and referred to therein.
THE FIRST NATIONAL BANK OF BOSTON
as Trustee
By:______________________
Authorized Officer
Guarantee
---------
For value received, XTRA Corporation, a corporation organized under
the laws of the State of Delaware (herein called the "Guarantor," which term
includes any successor corporation under the Indenture referred to in the
Security upon which this Guarantee is endorsed), hereby unconditionally
guarantees to the Holder of the Security upon which this Guarantee is endorsed
and to the Trustee on behalf of each such Holder the due and punctual payment
of the principal of, premium, if any, and interest on such Security when and as
the same shall become due and payable, whether at the Stated Maturity, by
declaration of acceleration, call for redemption or otherwise, according to the
terms thereof
-16-
<PAGE> 17
and of the Indenture referred to therein. In case of the failure of XTRA,
Inc., a corporation organized under the laws of the State of Maine (herein
called the "Company," which term includes any successor corporation under such
Indenture), punctually to make any such payment of principal, premium (if any)
or interest, the Guarantor hereby agrees to cause any such payment to be made
punctually when and as the same shall become due and payable, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as
if it were principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of such Security or such Indenture, any
failure to enforce the provisions of such Security or such Indenture, or any
waiver, modification or indulgence granted to the Company with respect thereto,
by the Holder of such Security or the Trustee or any other circumstance which
may otherwise constitute a legal or equitable discharge of a surety or
guarantor; provided, however, that, notwithstanding the foregoing, no such
waiver, modification or indulgence shall, without the consent of the Guarantor,
increase the principal amount of such Security or change the redemption terms
thereof or alter the Stated Maturity thereof. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of merger or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest or notice with respect to such Security or
the indebtedness evidenced thereby and all demands whatsoever, and covenants
that this Guarantee will not be discharged except by strict and complete
performance of the obligations contained in such Security and this Guarantee.
The Guarantor shall be subrogated to all rights of the Holder of such
Security and the Trustee against the Company in respect of any amounts paid to
such Holder by the Guarantor pursuant to the provisions of this Guarantee;
provided, however, that the Guarantor shall not be entitled to enforce, or to
receive any payments arising out of or based upon, such right of subrogation
until the principal of, premium (if any), and interest on all Securities issued
under such Indenture shall have been paid in full.
No reference herein to such Indenture and no provision of this
Guarantee or of such Indenture shall alter or impair the guarantee of the
Guarantor, which is absolute and unconditional, of the due and punctual payment
of principal, premium (if any), and interest on the Security upon which this
Guarantee is endorsed.
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<PAGE> 18
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication of the Security upon which this Guarantee is
endorsed shall have been manually executed by or on behalf of the Trustee under
such Indenture.
All terms used in this Guarantee which are defined in such Indenture
shall have the meanings assigned to them in such Indenture.
This Guarantee shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be governed by and construed
in accordance with the laws of the State of New York.
Executed and dated the date on the face hereof.
XTRA CORPORATION
By: _________________________
Title: Vice President,
Finance and Chief
Financial Officer
Attest:
_________________________
Secretary
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<PAGE> 19
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - .... Custodian....
(Cust) (Minor)
Uniform Gifts to
Minors Act
TEN ENT - as tenants by the entireties .................
(State)
JT TEN - as joint tenants with right of
survivorship and not as tenants
in common
</TABLE>
Additional abbreviations may also be used though not in the above list.
_______________________________________
FOR VALUE RECEIVED I or we sell, assign and transfer to
INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE:
______________________________
_______________________________________________________________________
(Print or type name, address and zip code of assignee)
_______________________________________________________________________
this Security and all rights hereunder and irrevocably appoint ____________
attorney to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: ________________________ Signed: ______________________________
Signature(s) Guaranteed by: (Sign exactly as name appears
on the other side of this
Note)
NOTICE: The signature(s) to this assignment must correspond with the name as
it appears upon the face of the within Note in every particular, without
alteration or enlargement or any change whatever.
-19-
