As filed with the Securities and Exchange Commission on October 24, 1997
REGISTRATION STATEMENT NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INTERPOOL, INC.
(Exact name of registrant is specified in its charter)
DELAWARE 7359
(State or other 6159 13-3467669
jurisdiction of (Primary Standard (I.R.S. Employer
incorporation or Industrial Classification Identification
organization) Code No.) Number)
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211 COLLEGE ROAD EAST
PRINCETON, NEW JERSEY 08540
(609) 452-8900
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
MARTIN TUCHMAN
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
Interpool, Inc.
211 College Road East
Princeton, New Jersey 08540
(609) 452-8900
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
JEFFREY S. LOWENTHAL, ESQ.
STROOCK & STROOCK & LAVAN LLP
180 Maiden Lane
New York, N.Y. 10038
APPROXIMATE DATE OF COMMENCEMENT OF
PROPOSED SALE TO PUBLIC: As soon as practicable
after this Registration Statement becomes
effective.
If the only securities being registered on this form are being in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. |_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=====================================================================================================================
TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED MAXIMUM AGGREGATE AGGREGATE OFFERING REGISTRATION FEE
REGISTERED PRICE PER UNIT(1) PRICE(1)
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<S> <C> <C> <C> <C>
7.20% Notes due 2007 $75,000,000 100% $75,000,000 $22,727.27
=====================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(f).
</TABLE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any jurisdiction in which such offer, solicitation or sale would be unlawful
prior to the registration or qualification under the securities laws of any such
jurisdiction.
<PAGE>
SUBJECT TO COMPLETION, DATED OCTOBER 24, 1997
PROSPECTUS
INTERPOOL, INC.
OFFER TO EXCHANGE
7.20% NOTES DUE 2007
FOR ANY AND ALL OUTSTANDING
7.20% NOTES DUE 2007
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
___________, ____________, 1997, UNLESS EXTENDED BY INTERPOOL, INC. As more
fully described herein under "The Exchange Offer--Expiration Date; Extensions;
Amendment," the time the Exchange Offer expires (including extensions, if any,
by the Company) is referred to as the "Expiration Date."
Interpool, Inc., a Delaware corporation ("Interpool" or the "Company"), is
hereby offering (the "Exchange Offer"), upon the terms and subject to the
conditions set forth in this prospectus (the "Prospectus") and the accompanying
letter of transmittal (the "Letter of Transmittal"), to exchange $1,000
principal amount of its 7.20% Notes due 2007 (the "Exchange Notes"), which
exchange has been registered under the Securities Act of 1933, as amended (the
"Securities Act") pursuant to a registration statement of which this Prospectus
is a part (the "Registration Statement"), for each $1,000 principal amount of
its outstanding 7.20% Notes due 2007 (the "Private Notes and, collectively with
the Exchange Notes, the "Notes"), of which $75,000,000 aggregate principal
amount was issued and sold in a transaction exempt from registration under the
Securities Act and is outstanding on the date hereof.
The form and terms of the Exchange Notes are substantially identical in all
respects (including principal amount, interest rate, maturity and ranking) to
the form and terms of the Private Notes, except that (i) the Exchange Notes will
have been registered under the Securities Act and, therefore, will not bear
legends restricting the transfer thereof, (ii) the Exchange Notes will not
provide for payment of additional distributions thereon, and (iii) holders of
the Exchange Notes will not be entitled to certain rights of holders of the
Private Notes under the Registration Rights Agreements (as defined), which
rights will terminate upon consummation of the Exchange Offer. The Exchange
Notes will evidence the same indebtedness as the Private Notes and will be
issued pursuant to, and entitled to the benefits of, the Indenture (as defined)
governing the Private Notes. The Exchange Offer is being made to satisfy the
obligations of the Company under the Registration Rights Agreement relating to
the Private Notes. See "The Exchange Offer" and "Description of Exchange Notes."
The Exchange Notes will bear interest at the rate of 7.20% per annum.
Interest on the Exchange Notes will be payable semiannually on February 1 and
August 1 of each year, commencing February 1, 1998. The Exchange Notes will bear
interest from and including the date of issuance of the Private Notes (August 5,
1997). The Exchange Notes will mature on August 1, 2007. The Exchange Notes will
be redeemable at any time at the option of the Company, in whole or from time to
time in part, at a redemption price equal to the sum of (i) the principal amount
of the Exchange Notes being redeemed plus accrued interest thereon to the
redemption date and (ii) the Make-Whole Amount (as defined herein), if any. The
Exchange Notes will be unsecured obligations of the Company and will rank
equally with all unsecured and unsubordinated indebtedness of the Company. See
"Description of Notes."
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMIS-
SION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRE-
SENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------------
The date of this Prospectus is _______________, 1997
<PAGE>
The Private Notes were originally issued and sold in reliance upon the
exemption provided in Section 4(2) of the Securities Act and Rule 144A of the
Securities Act. Accordingly, the Private Notes may not be reoffered, resold or
otherwise pledged, hypothecated or transferred in the United States or to a U.S.
person unless registered under the Securities Act or unless an applicable
exemption from the registration requirements of the Securities Act is available.
Based on an interpretation by the staff of the Commission set forth in no-action
letters issued to third parties, the Company believes that the Exchange Notes
issued pursuant to the Exchange Offer in exchange for Private Notes may be
offered for resale, resold and otherwise transferred by a holder thereof (other
than (i) an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act, (ii) a broker-dealer who acquired Private Notes directly from
the Company to resell pursuant to Rule 144A or any other available exemption
under the Securities Act or (iii) a broker-dealer who acquired Private Notes as
a result of market making or other trading activities), without compliance with
the registration and prospectus delivery requirements of the Securities Act;
PROVIDED that the holder is acquiring Exchange Notes in the ordinary course of
its business and is not participating, and has no arrangement or understanding
with any person to participate, in the distribution of the Exchange Notes.
Holders of Private Notes wishing to accept the Exchange Offer must represent to
the Company, as required by the Registration Rights Agreement, that such
conditions have been met. The Company believes that none of the registered
holders of the Private Notes is an affiliate (as such term is defined in Rule
405 under the Securities Act) of the Company.
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Private Notes must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Notes. The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of
Exchange Notes received in exchange for Private Notes, where such Private Notes
were acquired by such broker-dealer as a result of market-making or other
trading activities. The Company has agreed to make this Prospectus (as it may be
amended or supplemented) available to any broker-dealer, upon request, for use
in connection with any such resale, for a period of one year after the
Registration Statement is declared effective by the Commission or until such
earlier date on which all the Exchange Notes are freely tradeable. However, any
broker-dealer who acquired the Private Notes directly from the Company may not
fulfill its prospectus delivery requirements with this Prospectus, but must
comply with the registration and prospectus delivery requirements of the
Securities Act. See "The Exchange Offer--Resale of the Exchange Notes" and "Plan
of Distribution."
The Company will not receive any proceeds from, and has agreed to bear the
expenses of, the Exchange Offer. No underwriter is being used in connection with
the Exchange Offer. See "The Exchange Offer--Resale of the Exchange Notes."
Prior to the Exchange Offer, there has been no public market for the Notes.
The Exchange Notes will not be listed on any securities exchange. There can be
no assurance that an active market for the Notes will develop. To the extent
that a market for the Notes does develop the market value of the Notes will
depend on market conditions (such as yields on alternative investments), general
economic conditions, the Company's financial condition and certain other
factors. Such conditions might cause the Notes, to the extent they are traded,
to trade at a significant discount from face value. In addition, any Private
Notes not tendered and accepted in the Exchange Offer will remain outstanding.
To the extent that the Private Notes are tendered and accepted in the Exchange
Offer, a holder's ability to sell untendered, and tendered but unaccepted,
Private Notes could be adversely affected. Following consummation of the
Exchange Offer, the holders of Private Notes will continue to be subject to the
existing restrictions on transfer thereof and the Company will not have any
further obligation to such holders to provide for the registration under the
Securities Act of the Private Notes except under certain limited circumstances.
See "The Exchange Offer--Termination of Certain Rights."
The Company will accept for exchange any and all validly tendered Private
Notes not withdrawn prior to 5:00 p.m., New York City time, on the Expiration
Date. Tenders of Private Notes may be withdrawn at any time prior to 5:00 p.m.
on the Expiration Date. The Exchange Offer is not conditioned on any minimum
aggregate principal amount of Private Notes being tendered or accepted for
exchange; PROVIDED, HOWEVER, Private Notes may be tendered only in integral
multiples of $1,000. The Exchange Offer is subject to certain customary
conditions. See "The Exchange Offer--Conditions."
---------------------------
<PAGE>
THE EXCHANGE OFFER IS NOT BEING MADE TO, NOR WILL THE COMPANY ACCEPT
SURRENDERS FOR EXCHANGE FROM, HOLDERS OF PRIVATE NOTES IN ANY JURISDICTION IN
WHICH THE EXCHANGE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE
WITH THE SECURITIES OR BLUE SKY LAWS OF SUCH JURISDICTION.
NO PERSON IS AUTHORIZED IN CONNECTION WITH THE EXCHANGE OFFER TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
THE ACCOMPANYING LETTER OF TRANSMITTAL, AND, IF GIVEN OR MADE, SUCH OTHER
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY. THE INFORMATION CONTAINED HEREIN IS AS OF THE DATE HEREOF AND
SUBJECT TO CHANGE, COMPLETION OR AMENDMENT WITHOUT NOTICE. NEITHER THE DELIVERY
OF THIS PROSPECTUS OR THE ACCOMPANYING LETTER OF TRANSMITTAL AT ANY TIME NOR ANY
EXCHANGE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION
THAT THE INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY DATE
SUBSEQUENT TO THE DATE HEREOF.
IN MAKING AN INVESTMENT DECISION REGARDING THE SECURITIES OFFERED HEREBY,
PROSPECTIVE INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF THE COMPANY AND THE
TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THE OFFERING IS
BEING MADE ON THE BASIS OF THIS PROSPECTUS. ANY DECISION TO EXCHANGE SECURITIES
IN THE EXCHANGE OFFER MUST BE BASED ON THE INFORMATION CONTAINED HEREIN.
Except as described herein, the Exchange Notes will be represented by
global Exchange Notes in fully registered form, deposited with a custodian for
and registered in the name of a nominee of The Depository Trust Company ("DTC").
Beneficial interests in such Exchange Notes will be shown on, and transfers
thereof will be effected through, records maintained by DTC and its
participants. Beneficial interests in such Exchange Notes will trade in DTC's
Same-Day Funds Settlement System and secondary market trading activity in such
interests will therefore settle in immediately available funds.
TABLE OF CONTENTS
PAGE
Available Information.....................................................4
Incorporation Of Certain Documents By Reference...........................5
Forward Looking Statements................................................5
Prospectus Summary........................................................6
Risk Factors.............................................................15
Concurrent Exchange Offer For 7.35% Notes................................18
Ratio Of Earnings To Fixed Charges.......................................19
Use Of Proceeds..........................................................19
Capitalization...........................................................20
The Company..............................................................21
Business.................................................................22
The Exchange Offer.......................................................31
Description Of Exchange Notes............................................39
Description Of Private Notes.............................................48
Certain Federal Income Tax Considerations................................49
ERISA Considerations.....................................................49
Plan Of Distribution.....................................................49
Legal Matters............................................................50
Experts..................................................................51
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy statements
and other information filed by the Company with the Commission can be inspected
and copied at the public reference facilities maintained by the Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
Commission's regional offices located at Seven World Trade Center, New York, New
York 10048, and Suite 1400, Northwestern Atrium Center, 500 West Madison Street,
Chicago, Illinois 60661. Copies of such materials can be obtained from the
Public Reference Section of the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Such materials can also be
inspected at the New York Stock Exchange, 20 Broad Street, New York, New York
10005. The Commission maintains an Internet web site that contains reports,
proxy and information statements and other information regarding Issuers who
file electronically with the Commission. The address of that site is
http://www.sec.gov.
The Company has filed with the Commission a Registration Statement on Form
S-4 (together with all amendments, exhibits, annexes and schedules thereto, the
"Registration Statement") pursuant to the Securities Act, and the rules and
regulations promulgated thereunder, with respect to the securities being offered
hereby. This Prospectus does not contain all the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information with
respect to the Company and the securities offered hereby, reference is made to
the Registration Statement, including the exhibits filed as a part thereof and
otherwise incorporated therein. Statements made in this Prospectus as to the
contents of any contract, agreement or other document referred to are
necessarily summaries of the material elements of such contract, agreement or
document, and with respect to each contract, agreement or other document filed
as an exhibit to the Registration Statement, reference is made to such exhibit
for a more complete description of the matter involved. Each such statement
shall be deemed qualified in its entirety by such reference. Copies of the
Registration Statement and the exhibits may be inspected, without charge, at the
offices of the Commission, or obtained at prescribed rates from the Public
Reference Section of the Commission at the address set forth above.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission by the Company
pursuant to the Exchange Act are incorporated by reference in this Prospectus
and made a part hereof:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996;
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997;
(c) the Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997;
(d) the Company's Current Reports on Form 8-K dated July 27, 1997 and
July 29, 1997; and
(e) the Company's Proxy Statement dated April 17, 1997 in connection
with the Company's Annual Meeting of Stockholders in 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date hereof and prior to the
termination of the Offering shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which is also incorporated or deemed to be
incorporated by reference herein modifies, supersedes or replaces such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to any person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy of
any or all of the documents which have been incorporated by reference in this
Prospectus, other than exhibits to such documents, unless such exhibits are
specifically incorporated by reference into the documents so incorporated. Any
such request should be directed to Interpool, Inc., 211 College Road East,
Princeton, New Jersey, 08540, Attention: Investor Relations. Telephone requests
may be directed to (609) 452-8900.
FORWARD LOOKING STATEMENTS
This Prospectus, including certain information incorporated by reference
herein, contains certain forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995. These forward-looking
statements are subject to risks and uncertainties that could cause actual
results to differ materially from those contemplated in such forward-looking
statements, including in particular the risks and uncertainties described under
"Risk Factors." See also "The Company," "Summary Financial Data" and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" (incorporated by reference). Prospective investors are cautioned not
to place undue reliance on these forward-looking statements, which speak only as
of the date hereof. The Company undertakes no obligation to publicly release any
revisions to these forward-looking statements to reflect events or circumstances
after the date hereof or to reflect the occurrence of unanticipated events.
<PAGE>
PROSPECTUS SUMMARY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE MORE DETAILED
INFORMATION AND FINANCIAL STATEMENTS, INCLUDING THE NOTES THERETO, APPEARING
ELSEWHERE OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS. UNLESS THE CONTEXT
OTHERWISE REQUIRES, ALL REFERENCES HEREIN TO THE "COMPANY" OR "INTERPOOL"
INCLUDE INTERPOOL, INC. AND ITS SUBSIDIARIES.
THE COMPANY
Interpool is one of the world's leading lessors of intermodal dry freight
standard containers and is the second largest lessor of intermodal container
chassis in the United States. At December 31, 1996, the Company's container
fleet totaled approximately 301,000 twenty-foot equivalent units ("TEUs"), the
industry standard measure of dimension for containers used in international
trade, and its chassis fleet totaled approximately 57,000 chassis. The Company
leases its containers and chassis to over 200 customers, including nearly all of
the world's 20 largest international container shipping lines.
The Company focuses on leasing dry freight standard containers and
container chassis on a long-term basis in order to achieve high utilization of
its equipment and stable and predictable earnings. From 1991 through 1994, the
combined utilization rate of the Company's container and chassis fleets averaged
at least 90%. At the end of 1995 and 1996, the combined utilization rate of the
Company's container and chassis fleets was approximately 97%. Substantially all
of the Company's newly acquired equipment is leased on a long-term basis, and
approximately 91% of its total equipment fleet is currently leased on this
basis. The remainder of the Company's equipment is leased under short-term
agreements to satisfy customers' peak or seasonal requirements, generally at
higher rates than under long-term leases. The Company concentrates on dry
freight standard containers and chassis because such equipment may be more
readily remarketed upon expiration of a lease than specialized equipment. In
financing its equipment acquisitions, the Company generally seeks to meet debt
service requirements from the leasing revenue generated by its equipment.
The Company conducts its container and chassis leasing business through two
subsidiaries, Interpool Limited and Trac Lease, Inc. ("Trac Lease"). Certain
other United States equipment leasing activities are conducted through Interpool
itself. The Company and its predecessors have been involved in the leasing of
containers and chassis since 1968.
The Company leases containers throughout the world, with particular
emphasis on the Pacific Rim. The Company leases chassis to customers for use in
the United States. The Company maintains contact with its customers through a
worldwide network of offices, agents and sales representatives. The Company
believes one of the key factors in its ability to compete effectively has been
the long-standing relationships management has established with most of the
world's large shipping lines. In addition, Interpool relies on its strong credit
rating and low financing costs to maintain its competitive position.
<PAGE>
THE EXCHANGE OFFER
The Exchange Offer............... The Company is hereby offering to exchange
$1,000 principal amount of Exchange Notes for
each $1,000 principal amount of Private Notes
that are properly tendered and accepted.
Private Notes may be tendered for exchange in
multiples of $1,000. The Company will issue
Exchange Notes on or promptly after the
Expiration Date. As of the date hereof,
$75,000,000 aggregate principal amount of
Private Notes are outstanding. See "The
Exchange Offer--Purpose of the Exchange
Offer."
Based on an interpretation by the staff of
the Commission set forth in no-action letters
issued to third parties, the Company believes
that the Exchange Notes issued pursuant to
the Exchange Offer in exchange for Private
Notes may be offered for resale, resold and
otherwise transferred by a holder thereof
(other than (i) an "affiliate" of the Company
within the meaning of Rule 405 under the
Securities Act, (ii) a broker-dealer who
acquired Private Notes directly from the
Company to resell pursuant to Rule 144A or
any other available exemption under the
Securities Act or (iii) a broker-dealer who
acquired Private Notes as a result of market
making or other trading activities), without
compliance with the registration and
prospectus delivery requirements of the
Securities Act; PROVIDED that the holder is
acquiring Exchange Notes in the ordinary
course of its business and is not
participating, and has no arrangement or
understanding with any person to participate,
in the distribution of the Exchange Notes.
Holders of Private Notes wishing to accept
the Exchange Offer must represent to the
Company, as required by the Registration
Rights Agreement, that such conditions have
been met. The Company believes that none of
the registered holders of the Private Notes
is an affiliate (as such term is defined in
Rule 405 under the Securities Act) of the
Company.
Each broker-dealer that receives Exchange
Notes for its own account in exchange for
Private Notes must acknowledge that it will
deliver a prospectus in connection with any
resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging
and by delivering a prospectus, a
broker-dealer will not be deemed to admit
that it is an "underwriter" within the
meaning of the Securities Act. This
Prospectus, as it may be amended or
supplemented from time to time, may be used
by a broker-dealer in connection with resales
of Exchange Notes received in exchange for
Private Notes, where such Private Notes were
acquired by such broker-dealer as a result of
market-making or other trading activities.
The Company has agreed to make this
Prospectus (as it may be amended or
supplemented) available to any broker-dealer,
upon request, for use in connection with any
such resale, for a period of one year after
the Registration Statement is declared
effective by the Commission or until such
earlier date on which all the Exchange Notes
are freely tradeable. However, any
broker-dealer who acquired the Private Notes
directly from the Company other than as a
result of market-making activities or
ordinary trading activities may not fulfill
its prospectus delivery requirements with
this Prospectus, but must comply with the
registration and prospectus delivery
requirements of the Securities Act. See "The
Exchange Offer--Resale of the Exchange
Notes."
Registration Rights
Agreement................... The Private Notes were sold by the Company on
August 5, 1997 to Smith Barney Inc. (the
"Initial Purchaser") pursuant to a Purchase
Agreement, dated July 31, 1997, by and
between the Company and the Initial Purchaser
(the "Purchase Agreement"). Pursuant to the
Purchase Agreement, the Company and the
Initial Purchaser entered into a Registration
Rights Agreement, dated as of August 5, 1997
(the "Registration Rights Agreement"), which
grants the holders of the Private Notes
certain exchange and registration rights. The
Exchange Offer is intended to satisfy such
rights, which will terminate upon the
consummation of the Exchange Offer except
under certain limited circumstances. See "The
Exchange Offer--Termination of Certain
Rights."
Holders of Private Notes who do not tender
their Private Notes in the Exchange Offer
will continue to hold such Private Notes and
will be entitled to all the rights and
limitations applicable thereto under the
Indenture. All untendered, and tendered but
not unaccepted Private Notes will continue to
be subject to the restrictions on transfer
provided for in the Private Notes and the
Indenture. To the extent that Private Notes
are tendered and accepted in the Exchange
Offer, the trading market, if any, for the
Private Notes could be adversely affected.
Expiration Date.................. The Exchange Offer will expire at 5:00 p.m.,
New York City time, on _____________, 1997,
unless the Exchange Offer is extended by the
Company, in its sole discretion, in which
case the term "Expiration Date" shall mean
the latest date and time to which the
Exchange Offer is extended. See "The Exchange
Offer--Expiration Date; Extensions;
Amendments."
Accrued Interest on the
Exchange Notes and the
Private Notes............... The Exchange Notes will bear interest from
and including the date of issuance of the
Private Notes (August 5, 1997). Holders whose
Private Notes are accepted for exchange will
be deemed to have waived the right to receive
any interest accrued on the Private Notes.
See "The Exchange Offer -Distributions on
Exchange Notes."
Conditions to the Exchange
Offer....................... The Exchange Offer is subject to certain
customary conditions that may be waived by
the Company. The Exchange Offer is not
conditioned upon any minimum principal amount
of Private Notes being tendered for exchange.
See "The Exchange Offer--Conditions."
Procedures for Tendering
Private Notes............... Each Holder of Private Notes wishing to
accept the Exchange Offer must complete, sign
and date the Letter of Transmittal, or a
facsimile thereof, in accordance with the
instructions contained herein and therein,
and mail or otherwise deliver such Letter of
Transmittal, or such facsimile, together with
such Private Notes and any other required
documentation to United States Trust Company
of New York, as exchange agent (the "Exchange
Agent") at its address set forth herein. By
executing the Letter of Transmittal, the
holder will represent to and agree with the
Company that, among other things, (i) the
Exchange Notes to be acquired by such holder
of Private Notes in connection with the
Exchange Offer are being acquired by such
holder in the ordinary course of its
business, (ii) such holder is not currently
participating and has no arrangement or
understanding with any person to participate
in a distribution of the Exchange Notes,
(iii) if such holder is a broker-dealer
registered under the Exchange Act or is
participating in the Exchange Offer for the
purposes of distributing the Exchange Notes,
such holder will comply with the registration
and prospectus delivery requirements of the
Securities Act in connection with a secondary
resale transaction of the Exchange Notes
acquired by such person and cannot rely on
the position of the staff of the Commission
set forth in no-action letters (see "The
Exchange Offer--Resale of Exchange Notes"),
(iv) such holder understands that a secondary
resale transaction described in clause (iii)
above and any resales of Exchange Notes
obtained by such holder in exchange for
Private Notes acquired by such holder
directly from the Company should be covered
by an effective registration statement
containing the selling securityholder
information required by Item 507 of
Regulation S-K of the Commission and (v) such
holder is not an "affiliate," as defined in
Rule 405 under the Securities Act, of the
Company. If the holder is a broker-dealer
that will receive Exchange Notes for its own
account in exchange for Private Notes that
were acquired as a result of market-making
activities or other trading activities, such
holder will be required to acknowledge in the
Letter of Transmittal that such holder will
deliver a prospectus in connection with any
resale of such Exchange Notes; however, by so
acknowledging and by delivering a prospectus,
such holder will not be deemed to admit that
it is an "underwriter" within the meaning of
the Securities Act. See "The Exchange Offer-
-Procedures for Tendering."
Special Procedures for
Beneficial Owners........... Any beneficial owner whose Private Notes are
registered in the name of a broker,
commercial bank, trust company or other
nominee and who wishes to tender such Private
Notes in the Exchange Offer should contact
such registered holder promptly and instruct
such registered holder to tender on such
beneficial owner's behalf. If such beneficial
owner wishes to tender on such owner's own
behalf, such owner must, prior to completing
and executing the Letter of Transmittal and
delivering such owner's Private Notes, either
make appropriate arrangements to register
ownership of the Private Notes in such
owner's name or obtain a properly completed
bond power from the registered holder. The
transfer of registered ownership may take
considerable time and may not be able to be
completed prior to the Expiration Date. See
"The Exchange Offer--Procedures for
Tendering."
Guaranteed Delivery
Procedures.................. Holders of Private Notes who wish to tender
their Private Notes and whose Private Notes
are not immediately available or who cannot
deliver their Private Notes, the Letter of
Transmittal or any other documentation
required by the Letter of Transmittal to the
Exchange Agent prior to the Expiration Date
must tender their Private Notes according to
the guaranteed delivery procedures set forth
under "The Exchange Offer--Guaranteed
Delivery Procedures."
Acceptance of the Private
Securities and Delivery
of the Exchange Capital
Securities..................... Subject to the satisfaction or waiver of the
conditions to the Exchange Offer, the Company
will accept for exchange any and all Private
Notes that are properly tendered in the
Exchange Offer prior to the Expiration Date.
The Exchange Notes issued pursuant to the
Exchange Offer will be delivered on the
earliest practicable date following the
Expiration Date. See "The Exchange
Offer--Terms of the Exchange Offer."
Withdrawal Rights................ Tenders of Private Notes may be withdrawn at
any time prior to the Expiration Date. See
"The Exchange Offer--Withdrawal of Tenders."
Certain Federal Income Tax
Considerations.............. For a discussion of certain material federal
income tax considerations relating to the
exchange of the Exchange Notes for the
Private Notes, see "Certain Federal Income
Tax Considerations."
Exchange Agent................... United States Trust Company of New York is
serving as the Exchange Agent in connection
with the Exchange Offer.
Use of Proceeds.................. The Company will not receive any cash
proceeds from the issuance of the Exchange
Notes offered hereby. See "Use of Proceeds."
Risk Factors..................... Investors should carefully consider the risk
factors relating to the Company and the
Exchange Offer described on pages 15 through
18 of this Prospectus.
TERMS OF THE EXCHANGE NOTES
The Exchange Offer applies to $75,000,000 aggregate principal amount of the
Private Notes. The form and terms of the Exchange Notes are substantially
identical in all respects (including principal amount, interest rate, maturity
and ranking) to the form and terms of the Private Notes, except that (i) the
Exchange Notes will have been registered under the Securities Act and,
therefore, will not bear legends restricting the transfer thereof, (ii) the
Exchange Notes will not provide for payment of additional distributions thereon,
and (iii) holders of the Exchange Notes will not be entitled to certain rights
of holders of the Private Notes under the Registration Rights Agreement, which
rights will terminate upon consummation of the Exchange Offer. The Exchange
Notes will evidence the same obligations as the Private Notes and will be issued
pursuant to, and entitled to the benefits of, the Indenture governing the
Private Notes. The Exchange Offer is being made to satisfy the obligations of
the Company under the Registration Rights Agreement relating to the Private
Notes. For further information and for definitions of certain capitalized terms
used below, see "The Exchange Offer" and "Description of the Exchange Notes."
Securities Offered............... $75,000,000 of 7.20% Exchange Notes due 2007.
Interest ........................ The Exchange Notes will bear interest at the
rate of 7.20% per annum.
Interest Payment Dates........... Interest will be payable semi-annually on
February 1 and August 1, commencing February
1, 1998.
Maturity ........................ August 1, 2007 (10 years).
Optional Redemption.............. The Exchange Notes will be redeemable at any
time at the option of the Company, in whole
or from time to time in part, at a redemption
price equal to the sum of (i) the principal
amount of the Exchange Notes being redeemed
plus accrued interest thereon to the
redemption date and (ii) the Make-Whole
Amount, if any. See "Description of Exchange
Notes--Optional Redemption by the Company."
Mandatory Redemption............. The Company is not required to make any
mandatory redemption or annual sinking fund
payments.
Ranking ........................ The Exchange Notes will be general unsecured
obligations of the Company and will rank
equally with the Company's other unsecured
and unsubordinated indebtedness , including,
but not limited to, indebtedness represented
by the 7.35% Notes.
Certain Covenants................ The Company will not create, incur or assume
any Lien (as defined herein) on any assets of
the Company unless the Exchange Notes are
equally and ratably secured with the other
obligations secured by such Lien, so long as
such obligations shall be so secured;
PROVIDED, HOWEVER, that such restriction will
not apply if at the time of, and immediately
after giving PRO FORMA effect to, the
transaction giving rise to such lien, the
Consolidated Indebtedness-to-Stockholders'
Equity Ratio (as defined herein) does not
exceed 4.0 to 1.0. In addition, such
restriction will not apply to certain
categories of liens specified in the
Indenture. See "Description of Exchange
Notes--Certain Covenants--Limitation on
Liens."
Absence of Market for the
Exchange Notes................. There is currently no market for the Exchange
Notes. Although the Initial Purchaser has
informed the Company that it currently intend
to make a market in the Exchange Notes, the
Initial Purchaser is not obligated to do so,
and any such market making may be
discontinued at any time without notice.
Accordingly, there can be no assurance as to
the development or liquidity of any market
for the Exchange Notes. The Company does not
intend to apply for listing of the Notes on
any securities exchange or for quotation
through the Nasdaq Stock Market. See "Plan of
Distribution."
Risk Factors..................... Investors should carefully consider the risk
factors affecting the Company and the
Exchange Offer described on pages 15 through
18 of this Prospectus .
CONCURRENT EXCHANGE OFFER FOR 7.35% NOTES
Concurrently with this Exchange Offer, the Company has filed a Registration
Statement on Form S-4 to register the exchange of $150,000,000 aggregate
principal amount of its 7.35% Notes due 2007 (the "7.35% Notes") for any and all
outstanding 7.35% Notes due 2007. The 7.35% Notes were issued and sold to Smith
Barney Inc. on July 29, 1997, in a transaction exempt from registration under
the Securities Act. The terms of such exchange offer are substantially similar
to the terms of the Exchange Offer being registered hereby. The Company expects
that the exchange offer for the 7.35% Notes will be consummated on or about the
date that this Exchange Offer is consummated. See "Concurrent Exchange Offer For
7.35% Notes."
Holders who hold both the Private Notes and the 7.35% Notes who wish to
tender both the Private Notes and the 7.35% Notes must do so separately.
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The following table sets forth selected historical and pro forma
consolidated financial data for the Company, for the periods and at the dates
indicated. The historical financial data for each of the five years in the
period ended December 31, 1996, and at December 31, 1992, 1993, 1994, 1995 and
1996, have been derived from and are qualified by reference to the historical
consolidated financial statements that have been audited and reported upon by
Arthur Andersen LLP, independent public accountants. The historical financial
data for the six months ended, and at, June 30, 1996 and 1997 have been derived
from the unaudited financial statements of the Company. The historical financial
information for the six months ended, and at, June 30, 1996 and 1997 reflects,
in the opinion of management, all adjustments (consisting only of normal
recurring adjustments) necessary to present fairly the results for the interim
period. This information should be read in conjunction with the historical
consolidated financial statements of the Company and the notes thereto and the
other financial information included elsewhere or incorporated by reference in
this Prospectus. The historical financial information for the six months ended
June 30, 1997 is not necessarily indicative of results for the full year ending
December 31, 1997.
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED JUNE 30,
----------------------- --------------
1992 1992 1993 1994 1995 1996(2) 1996(2) 1997
---- ---- ---- ---- ---- ------- ------- ----
PRO
ACTUAL FORMA(1)
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
INCOME STATEMENT DATA:
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Revenues............................. $41,117 $74,538 $79,526 $92,272 $127,925 $147,148 $ 71,610 $ 77,960
Income before provision for income
taxes and extraordinary item....... 12,003 17,574 23,604 28,602 35,670 41,996 19,077 21,071
Provision for income taxes(3)........ 1,888 3,628 3,600 4,500 6,125 7,800 3,550 3,150
-------- -------- -------- ------- -------- -------- -------- --------
Income before extraordinary item..... 10,115 13,946 20,004 24,102 29,545 34,196 15,527 17,921
Extraordinary item - gain (loss)
on early retirement of debt,
net of taxes....................... --- --- --- --- 2,422 --- --- (328)
----------- -------- ----------- ---------- ------- ----------- ---------- -----------
Net income........................... $10,115 $13,946 $20,004 $24,102 $31,967 $34,196 $15,527 $17,593
======= ======= ======= ======= ======= ======= ======= =======
Income per share before extraordinary
items and premium paid on redemption
of preferred stock in 1997(2)(4):
Primary......................... $ 0.57 $ 0.77 $ 0.86 $ 0.93 $ 1.08 $ 1.21 $0.60 $ 0.61
Fully diluted................... N/A N/A N/A $ 0.87 $ 1.01 $ 1.15 $0.57 N/A
Weighted average shares outstanding:
Primary......................... 17,777 18,191 23,180 25,953 26,193 26,726 26,468 27,968
Fully diluted................... N/A N/A N/A 30,326 30,834 31,820 31,209 N/A
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTHS ENDED
DECEMBER 31, 1996 JUNE 30, 1997
----------------- ----------------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
PRO FORMA DATA:(5)
<S> <C> <C>
Income before extraordinary items................................ $30,396 $17,673
Income per share before extraordinary items
and premium paid on redemption of preferred
stock in 1997(6)(7)............................................ $1.16 $ 0.62
Weighted average shares outstanding(7)........................... 28,322 28,579
</TABLE>
<TABLE>
<CAPTION>
AT DECEMBER 31, AT JUNE 30,
--------------- -----------
1992 1992 1993 1994 1995 1996 1996 1997
---- ---- ---- ---- ---- ---- ---- ----
ACTUAL PRO
FORMA(1)
(DOLLARS IN
THOUSANDS)
BALANCE SHEET DATA:
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Cash and short-term investments..... $ 12,945 $ 9,266 $105,182 $ 69,112 $ 40,208 $ 45,333 $46,274 $36,875
Marketable securities............... 20,640 20,640 19,392 38,286 30,453 24,722 9,595 12,296
Net investment in direct financing
leases............................ 70,053 38,371 47,657 123,158 202,576 264,955 237,104 308,841
Leasing equipement, net of
accumulated depreciation and
amortization...................... 84,735 184,101 239,021 397,202 523,620 541,371 528,304 552,172
Total assets 203,509 277,554 435,984 664,792 851,600 939,418 885,350 980,347
Total long-term debt and capital
lease obligations(8).............. 107,672 158,520 226,799 385,247 499,998 521,873 525,284 524,086
Stockholders' equity................ 34,555 46,850 133,454 156,147 246,690 280,546 265,587 242,590
Total liabilities and stockholders'
equity............................ 203,509 277,544 435,984 664,792 851,600 939,418 885,350 980,347
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, SIX MONTHS
----------------------- ENDED JUNE 30,
--------------
1992 1992 1993 1994 1995 1996(2) 1996 1997
---- ---- ---- ---- ---- ------ ---- ----
ACTUAL PRO
FORMA(1)
(DOLLARS IN THOUSANDS)
OTHER DATA:
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Adjusted EBITDA (9)................. $ 38,994 $ 53,141 $ 56,613 $ 79,888 $127,293 $168,257 $ 80,448 $ 90,617
Interest expense, net, on senior
debt.............................. 8,403 13,995 11,512 17,568 35,082 39,485 20,081 19,598
Interest expense on Capital
Securities........................ --- --- --- --- --- --- --- 3,130
Total Interest expense, net..... 8,403 13,995 11,512 17,568 35,082 39,485 20,081 22,728
Ratio of Adjusted EBITDA to interest
expense on senior debt (9)........ 4.64x 3.80x 4.92x 4.55x 3.63x 4.26x 4.01x 4.62x
Ratio of Adjusted EBITDA to total
interest expense, net (9)........... 4.64 3.80 4.92 4.55 3.63 4.26 4.01 3.99
Ratio of earnings to fixed charges(10) 1.80 1.80 2.40 2.20 1.90 1.90 1.70 1.80
Total Capitalization (11)........... $142,227 $ 205,370 $360,253 $541,394 $746,688 $802,419 $790,871 $841,676
Total long-term debt and capital
lease obligations as a % of total
capitalization.................... 75.70% 77.19% 62.96% 71.16% 66.96% 65.04% 66.42% 62.27%
Capital expenditures................ $ 81,932 $ 72,274 $120,526 $277,726 $273,643 $166,602 80,755 102,623
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(1) The 1992 pro forma financial data give effect to (a) the
recapitalization of Trac Lease (effected in July 1992), and (b) the
acquisition of Trac Lease and the minority interest in Interpool
Limited (effected in 1993), as if these transactions had been
consummated as of January 1, 1992.
(2) The 1996 income statement data include a non-cash and non-recurring
charge of $2,392 representing cumulative unpaid dividends of the
Company's subsidiary Trac Lease which resulted from the acquisition of
the outstanding preferred stock of Trac Lease through the issuance of
shares of the Company's 5 3/4% Preferred Stock.
(3) In connection with its initial public offering in May 1993, the
Company ceased to be a Subchapter "S" corporation for federal income
tax purposes and thereafter became subject to federal income taxes.
The Company's financial statements for the years ended December 31,
1992 and 1993 include a pro forma provision for taxes as if the
Company had been subject to federal income taxes for such periods.
(4) Restated to give effect to a three-for-two stock split effective March
27, 1997.
(5) The pro forma information gives effect to the issuance by the Company
of $75,000 of 9 7/8% Junior Subordinated Deferrable Interest
Debentures (the "Junior Subordinated Debentures") to Interpool Capital
Trust in January 1997 and to the use by the Company of $52,871 of the
net proceeds therefrom to retire 509,964 shares of 5 3/4% Preferred
Stock, as if such transactions had occurred on the first day of the
period indicated; the remaining net proceeds from the sale of the
Junior Subordinated Debentures of $20,429 are treated as if invested
in interest bearing accounts earning 5% per annum. The pro forma
effects of the sale of the Private Notes and the 7.35% Notes on the
Company's income statement for these periods, as determined in
accordance with the rules of the Commission, are note presented
because they would not be material.
(6) Pro forma income per share before extraordinary items and premium paid
on redemption of preferred stock does not reflect a one-time charge of
approximately $0.24 per share which resulted from the excess of the
redemption price of 509,964 shares of 5 3/4% Preferred Stock over the
carrying amount and an extraordinary loss of $0.01 per share on
retirement of debt. The charge on the redemption of preferred stock
has been reflected as a reduction in retained earnings.
(7) Pro forma income per share before extraordinary items and premium paid
on redemption of preferred stock has been determined using the
weighted average shares outstanding on a primary basis. The impact of
full dilution on income per share would not be material.
(8) Debt at December 31, 1993 and 1994 included $60,000 and $67,600,
respectively, of the Company's 5 1/4% Convertible Exchangeable
Subordinated Notes due 2018. Subsequent to June 30, 1997, the Company
issued and sold the Private Notes and the 7.35% Notes.
(9) "Adjusted EBITDA" is defined as earnings before net interest expense,
provision for income taxes, depreciation and amortization of leasing
equipment and return of principal from direct financing leases.
Adjusted EBITDA is presented because it is an indicator of funds
available to service debt, although it is not a U.S. GAAP-based
measure of liquidity or financial performance. The Company believes
that Adjusted EBITDA, while providing useful information, should not
be considered in isolation or as an alternative to net income and cash
flows as determined under GAAP.
(10) For the purpose of calculating the ratio of earnings to fixed charges,
(i) earnings consist of income before provision for income taxes,
extraordinary items and fixed charges and (ii) fixed charges consist
of interest expense and 75% of rental payments under operating leases
(an amount estimated by management to be the interest component of
such rentals). Interest for the six months ended June 30, 1997
included $3,130 of interest payments relating to the Company's Junior
Subordinated Debentures. Excluding such interest, the ratio of
earnings to fixed charges for such six-month period would have been
1.9x.
(11) Total capitalization equals total long-term debt and capital lease
obligations, plus the sum of $75,000 of Company obligated mandatorily
redeemable preferred securities of grantor trusts (holding solely the
Junior Subordinated Debentures) and stockholders' equity. See
"Capitalization."
</TABLE>
<PAGE>
RISK FACTORS
PROSPECTIVE INVESTORS SHOULD CAREFULLY REVIEW THE INFORMATION CONTAINED
ELSEWHERE IN THIS PROSPECTUS AND SHOULD PARTICULARLY CONSIDER THE FOLLOWING
MATTERS IN CONNECTION WITH THE EXCHANGE OFFER AND EXCHANGE NOTES OFFERED HEREBY.
RISK FACTORS RELATING TO THE EXCHANGE NOTES
RANKING OF THE NOTES AND HOLDING COMPANY STRUCTURE
The Exchange Notes will be unsecured general obligations of the Company and
rank equally with the Company's other unsecured and unsubordinated indebtedness
including, but not limited to, indebtedness represented by the 7.35% Notes. The
Exchange Notes will be effectively subordinated to the secured debt of the
Company with respect to the assets pledged as collateral therefor and,
consequently, the rights of the holders of the Exchange Notes to receive
payments from the assets of the Company will be subject to the rights of the
secured creditors of the Company. As of June 30, 1997, the aggregate amount of
the Company's secured debt was $623.4 million. In addition, the Indenture and
the covenants thereunder will permit the Company to incur substantial secured
indebtedness in the future.
Most of the Company's business activities and assets are operated or held
by subsidiaries. As a holding company, the Company's ability to meet its
financial obligations, including its obligations under the Exchange Notes, and
its ability to pay dividends is dependent primarily upon the receipt of cash
dividends, advances and other payments from its subsidiaries, principally Trac
Lease and Interpool Limited. In addition, the Exchange Notes are effectively
subordinated to all existing and future liabilities, including trade payables,
of the Company's subsidiaries. Any right of the Company to participate in any
distribution of the assets of any of the Company's subsidiaries upon the
liquidation, reorganization or insolvency of such subsidiary (and the consequent
right of the holders of the Notes to participate in such distributions) will be
subject to the claims of the creditors (including trade creditors) and preferred
shareholders of such subsidiaries. As of June 30, 1997, liabilities (excluding
intercompany payables) of the subsidiaries of the Company, to which the Exchange
Notes would have been effectively subordinated, aggregated approximately $459.7
million. See "Description of Exchange Notes."
CONSEQUENCES OF A FAILURE TO EXCHANGE PRIVATE NOTES
The Private Notes have not been registered under the Securities Act or any
state securities laws and therefore may not be offered, sold or otherwise
transferred except in compliance with the registration requirements of the
Securities Act and any other applicable securities laws, or pursuant to an
exemption therefrom or in a transaction not subject thereto, and in each case in
compliance with certain other conditions and restrictions. Private Notes which
remain outstanding after consummation of the Exchange Offer will continue to
bear a legend reflecting such restrictions on transfer. In addition, upon
consummation of the Exchange Offer, holders of Private Notes which remain
outstanding will not be entitled to any rights to have such Private Notes
registered under the Securities Act or to any similar rights under the
Registration Rights Agreement (subject to certain limited exceptions). The
Company does not intend to register under the Securities Act any Private Notes
which remain outstanding after consummation of the Exchange Offer (subject to
such limited exceptions, if applicable). To the extent that Private Notes are
tendered and accepted in the Exchange Offer, a holder's ability to sell
untendered Private Notes could be adversely affected.
The Exchange Notes and any Private Notes which remain outstanding after
consummation of the Exchange Offer will vote together as a single class for
purposes of determining whether holders of the requisite percentage in
outstanding principal amount thereof have taken certain actions or exercised
certain rights under the Declaration. See "Description of Exchange Notes--Voting
Rights; Amendment of the Indenture."
The Private Notes provide, among other things, that, if a registration
statement relating to the Exchange Offer has not been declared effective by
December 4, 1997, additional distributions will be payable on the Private Notes
at a rate of 0.25% per annum until the Exchange Offer is consummated. Upon
consummation of the Exchange Offer, holders of Private Notes will not be
entitled to any additional distributions thereon or any further registration
rights under the Registration Rights Agreement, except under limited
circumstances. See "Description of Private Notes."
ABSENCE OF PUBLIC MARKET
The Private Notes were issued to, and the Company believes such securities
are currently owned by, a relatively small number of beneficial owners. The
Private Notes have not been registered under the Securities Act and will be
subject to restrictions on transferability if they are not exchanged for the
Exchange Notes. Although the Exchange Notes may be resold or otherwise
transferred by the holders (who are not affiliates of the Company) without
compliance with the registration requirements under the Securities Act, they
will constitute a new issue of securities with no established trading market.
Exchange Notes may be transferred by the holders thereof in blocks having a
principal amount of $1,000 (one Exchange Note) or integral multiples thereof.
The Company has been advised by the Initial Purchaser that the Initial Purchaser
presently intends to make a market in the Exchange Notes. However, the Initial
Purchaser is not obligated to do so and any market-making activity with respect
to the Exchange Notes may be discontinued at any time without notice. In
addition, such market-making activity will be subject to the limits imposed by
the Securities Act and the Exchange Act and may be limited during the Exchange
Offer. Accordingly, no assurance can be given that an active public or other
market will develop for the Exchange Notes or the Private Notes. If an active
public market does not develop, the market price and liquidity of the Exchange
Notes may be adversely affected.
If a public trading market develops for the Exchange Notes, future trading
prices will depend on many factors, including, among other things, prevailing
interest rates, the Company's results and the market for similar securities.
Depending on prevailing interest rates, the market for similar securities and
other factors, including the financial condition of the Company, the Exchange
Notes may trade at a discount.
Notwithstanding the registration of the Exchange Notes in the Exchange
Offer, holders who are "affiliates" (as defined under Rule 405 of the Securities
Act) of the Company may publicly offer for sale or resell the Exchange Notes
only in compliance with the provisions of Rule 144 under the Securities Act.
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Private Notes, where such Private Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See "Plan of Distribution."
EXCHANGE OFFER PROCEDURE
Issuance of the Exchange Notes in exchange for Private Notes pursuant to
the Exchange Offer will be made only after a timely receipt by the Company of
such Private Notes, a properly completed and duly executed Letter of Transmittal
and all other required documents. Therefore, holders of the Private Notes
desiring to tender such Private Notes in exchange for Exchange Notes should
allow sufficient time to ensure timely delivery. The Company is not under any
duty to give notification of defects or irregularities with respect to the
tenders of Private Notes for exchange.
RISK FACTORS RELATING TO THE COMPANY
CYCLICALITY OF WORLD TRADE
The demand for the Company's containers and chassis primarily depends upon
levels of world trade of finished goods and component parts. Recessionary
business cycles, as well as political conditions, the status of trade agreements
and international conflicts, can have an impact on the operating results of the
Company. The demand for leased chassis also depends upon domestic economic
conditions and import-export volumes. In addition, operating costs such as
storage and repair and maintenance costs increase as utilization decreases. When
the volume of world trade decreases, the Company's business of leasing
containers and chassis may be adversely affected as the demand for such
equipment is reduced. Suppliers of leased containers and chassis, such as the
Company, are dependent upon decisions by shipping lines and other transportation
companies to lease rather than buy their equipment. Most of these factors are
outside the control of the Company. A substantial decline in world trade may
also adversely affect the Company's customers, leading to possible defaults and
the return of equipment prior to the end of a lease term. The Company expects
that the maritime container industry would be adversely affected during an
economic downturn.
COMPETITION
The transportation equipment leasing industry is highly competitive. The
Company competes with numerous domestic and foreign leasing companies, some of
which are much larger than the Company, or are divisions of much larger
companies, and have larger equipment fleets and greater financial resources than
the Company. In addition, if the available supply of intermodal transportation
equipment were to increase significantly as a result of, among other factors,
new companies entering the business of leasing and selling such equipment, the
Company's competitive position could be adversely affected.
ELIGIBILITY FOR TAX BENEFITS UNDER U.S.-BARBADOS TAX TREATY
The Company currently receives certain tax benefits under an income tax
convention (the "Tax Convention") between the United States and Barbados, the
jurisdiction in which the Company's subsidiary Interpool Limited is
incorporated. There can be no assurance that at some future date the Tax
Convention will not be modified in a manner adverse to the Company or repealed
in its entirety, nor can there be any assurance that the Company will continue
to be eligible for such tax benefits.
RISK OF MANUFACTURING IN CHINA
China is currently the largest container producing nation in the world and
the Company currently purchases a substantial majority of its containers from
manufacturers in China. In the event that it were to become more expensive for
the Company to procure containers in China or to transport these containers at a
low cost from China to the locations where needed by customers, either because
of increased tariffs imposed by the United States or other governments or for
any other reason, the Company would have to seek alternative sources of supply.
Although the Company believes it has strong relationships with many
manufacturers throughout the world, there can be no assurance that upon the
occurrence of such an event the Company would be able to make alternative
arrangements quickly to meet its equipment needs, nor can there be any assurance
that such alternative arrangements would not increase the costs to the Company.
VOLATILITY OF RESIDUAL VALUE OF EQUIPMENT
Although the Company's operating results primarily depend upon equipment
leasing, the Company's profitability is also affected by the residual values
(either for sale or continued operation) of its containers and chassis upon
expiration of its leases. These values, which can vary substantially, depend
upon, among other factors, the maintenance standards observed by lessees, the
need for refurbishment, the ability of the Company to remarket equipment, the
cost of comparable new equipment, the availability of used equipment, rates of
inflation, market conditions, the costs of materials and labor and the
obsolescence of the equipment. Most of these factors are outside the control of
the Company.
CONTROL OF THE COMPANY
Currently, approximately 63% of the Company's common stock is beneficially
owned, directly or indirectly, in the aggregate by Warren L. Serenbetz, Martin
Tuchman, Raoul J. Witteveen and Arthur L. Burns, each of whom is a director of
and/or either an executive officer of or a consultant to the Company, and
certain members of their immediate families. Such individuals, either directly
or indirectly, have the ability to elect all of the members of the Board of
Directors of the Company and to control the outcome of all matters submitted to
a vote of the Company's stockholders. Messrs. Serenbetz, Tuchman, Witteveen and
Burns, as well as certain family members and affiliated entities, are parties to
a Stockholders Agreement that imposes certain restrictions on their ability to
dispose of their shares of the Company's common stock and requires them to vote
for the re-election of Messrs. Serenbetz, Tuchman, Witteveen and Burns as
directors of the Company. In addition, the Company's Restated Certificate of
Incorporation and Restated Bylaws contain provisions that may discourage
acquisition bids for the Company.
DEPENDENCE UPON MANAGEMENT
The Company's growth and continued profitability are dependent upon, among
other things, the abilities, experience and continued service of certain members
of its senior management, particularly Martin Tuchman, its Chairman and Chief
Executive Officer, and Raoul J. Witteveen, its President, Chief Operating
Officer and Chief Financial Officer. Each of Messrs. Tuchman and Witteveen
holds, either directly or indirectly, a substantial equity interest in the
Company and also is a director of the Company. There can be no assurance,
however, that the Company will be able to retain the services of either of
Messrs. Tuchman or Witteveen. The loss of either such individual could adversely
affect the Company's business and prospects.
CONCURRENT EXCHANGE OFFER FOR 7.35% NOTES
Concurrently with this Exchange Offer, the Company has filed a Registration
Statement on Form S-4 with the Commission to register the exchange of
$150,000,000 aggregate principal amount of its 7.35% Notes due 2007 (the "7.35%
Notes") for any and all outstanding 7.35% Notes due 2007. The 7.35% Notes were
originally issued and sold to Smith Barney Inc. on July 29, 1997, in a
transaction exempt from registration under the Securities Act. The terms of the
7.35% Notes and such exchange offer are substantially similar to the terms of
the Exchange Offer being registered hereby. The Company expects that the
exchange offer for the 7.35% Notes will be consummated on or about the date that
this Exchange Offer is consummated.
Holders who hold both the Private Notes and the 7.35% Notes who wish to
tender both the Private Notes and the 7.35% Notes must do so separately.
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges
for the Company for the periods indicated.
<TABLE>
<CAPTION>
Six Months
YEARS ENDED DECEMBER 31, ENDED JUNE 30,
1992 1992 1993 1994 1995 1996 1996 1997 1997
---- ---- ---- ---- ---- ---- ---- ---- ----
(Pro (Pro (Pro
(Actual) Forma)(1) (Actual) (Actual) (Actual) (Actual) Forma)(2) (Actual) Forma)(2)
Ratio of Earnings to
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Fixed Charges(3) 1.8x 1.8x 2.4x 2.2x 1.9x 1.9x 1.7x 1.9x 1.9x
(1) The 1992 pro forma ratio gives effect to (a) the recapitalization of
Trac Lease (effected in July 1992), and (b) the acquisition of Trac
Lease and the minority interest in Interpool Limited (effected in
1993), as if these transactions had been consummated as of January 1,
1992.
(2) The pro forma ratios give effect to the issuance by the Company of the
Junior Subordinated Debentures to Interpool Capital Trust in January
1997 and to the use by the Company of approximately $52.9 million of
the net proceeds therefrom to retire 509,964 shares of 5 3/4%
Preferred Stock, as if such transactions had occurred on the first day
of the period indicated; the remaining net proceeds from the sale of
the Junior Subordinated Debentures of approximately $20.4 million are
treated as if invested in interest bearing accounts earning 5% per
annum. The pro forma effects of the sale of the Private Notes and the
7.35% Notes, as determined in accordance with the rules of the
Commission, are not presented because they would not be material.
(3) For the purpose of calculating the ratio of earnings to fixed charges,
(i) earnings consist of income before provision for income taxes,
extraordinary items and fixed charges and (ii) fixed charges consist
of interest expense and 75% of rental payments under operating leases
(an amount estimated by management to be the interest component of
such rentals). Interest for the six months ended June 30, 1997
included approximately $3.1 million (approximately $3.7 million on a
pro forma basis) of interest payments relating to the Junior
Subordinated Debentures. Excluding such interest, the ratio of
earnings to fixed charges for such six-month period would have been
1.9x (1.9x on a pro forma basis).
</TABLE>
USE OF PROCEEDS
The Company will not receive any cash proceeds from the issuance of the
Exchange Notes offered hereby. In consideration for issuing the Exchange Notes
in exchange for Private Notes as described in this Prospectus, the Company will
receive Private Notes in like principal amount. The Private Notes surrendered in
exchange for the Exchange Notes will be retired and canceled.
The proceeds to the Company (without giving effect to expenses of the
offering payable by the Company) from the offering of the Private Notes was
$74,088,750. The Company used $69.6 million of the proceeds from the sale of the
Private Notes to retire indebtedness. The remaining net proceeds of $4.5 million
were invested in interest bearing accounts and other investments and used for
general corporate purposes.
<PAGE>
CAPITALIZATION
The following table sets forth the cash and short-term investments,
marketable securities, short-term debt and consolidated capitalization of the
Company at June 30, 1997 and as adjusted to give effect to (i) the offering of
the Private Notes and the use of the net proceeds therefrom to repay certain
secured indebtedness of the Company and (ii) the offering of the Company's 7.35%
Notes due 2007, which were issued and sold to the Initial Purchaser on July 29,
1997, and the use of the net proceeds therefrom to retire indebtedness. The
table should be read in conjunction with the Company's consolidated financial
statements and notes thereto included in the documents incorporated by reference
herein. See "Incorporation of Certain Documents by Reference."
<TABLE>
<CAPTION>
AT JUNE 30, 1997
ACTUAL AS ADJUSTED
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Cash and short-term investments...................................................... $ 36,875 $ 41,856
======== ========
Marketable securities................................................................ $ 12,296 $ 12,296
======== ========
Other Assets......................................................................... $ 21,106 $ 36,154
======== ========
Short-term debt (including current portion of
long-term debt and capital lease obligations)...................................... $ 99,308 $ 89,330
======== ========
Long-term debt:
Revolving credit debt.............................................................. $ 60,000 $ 12,000
Other existing senior debt and capital lease
obligations (less current portion)............................................... 464,086 326,400
7.35% Notes due 2007............................................................... --- 149,789
7.20% Notes due 2007............................................................... --- 74,933
--------- --------
Total long-term debt and capital lease obligations.......................... 524,086 563,122
------- -------
Company obligated mandatory redeemable preferred
securities of subsidiary grantor trust (holding solely junior subordinated
deferrable interest debentures of the Company) (75,000 shares 9 7/8% Capital
Securities outstanding and as adjusted,
liquidation preference $75,000)(1)................................................. 75,000 75,000
Stockholders' equity:
Preferred stock, par value $0.001 per share,
1,000,000 shares authorized; none issued......................................... --- ---
Common stock, par value $0.001 per share, 100,000,000
shares authorized; 27,551,728 shares issued and
outstanding...................................................................... 28 28
Additional paid-in capital......................................................... 124,046 124,046
Retained earnings.................................................................. 117,654 113,754 (2)
Net unrealized gain on marketable securities....................................... 862 862
-------- -----------
Total stockholders' equity.................................................. 242,590 238,690
------- ---------
Total capitalization........................................................ $841,676 $876,812
======== ========
</TABLE>
- --------------------
(1) The sole asset of this trust is $77,320,000 aggregate principal amount
of the Company's 9 7/8% Junior Subordinated Deferrable Interest
Debentures Due February 15, 2027.
(2) As Adjusted retained earnings reflects an extraordinary loss on early
retirement of debt of $3,900, net of tax benefit of $2,600 resulting
from the use of proceeds of the Private Notes to retire indebtedness.
<PAGE>
THE COMPANY
Interpool is one of the world's leading lessors of intermodal dry freight
standard containers and is the second largest lessor of intermodal container
chassis in the United States. At December 31, 1996, the Company's container
fleet totaled approximately 301,000 twenty-foot equivalent units ("TEUs"), the
industry standard measure of dimension for containers used in international
trade, and its chassis fleet totaled approximately 57,000 chassis. The Company
leases its containers and chassis to over 200 customers, including nearly all of
the world's 20 largest international container shipping lines.
The efficiencies and cost savings inherent in intermodal transportation of
containerized cargo have facilitated the dramatic growth of international trade.
Intermodal transportation permits movement of cargo in a standard steel
container by means of a combination of ship, rail and truck without unpacking
and repacking of the contents during transit. The world's dry freight standard
container fleet has grown from fewer than .4 million TEUs in 1970 to
approximately 8.7 million TEUs by mid-1996. During the twelve month period
ending in mid-1996 approximately 1.3 million TEUs were produced, of which 0.4
million have been estimated as replacements of older containers. Concurrently
with this growth of the world's container fleet, the domestic chassis fleet has
grown to accommodate the increased container traffic. Leasing companies have
played a significant role in the growth of intermodal transportation, supplying
approximately half of the world's container and chassis requirements.
The Company focuses on leasing dry freight standard containers and
container chassis on a long-term basis in order to achieve high utilization of
its equipment and stable and predictable earnings. From 1991 through 1994, the
combined utilization rate of the Company's container and chassis fleets averaged
at least 90%. At the end of 1995 and 1996, the combined utilization rate of the
Company's container and chassis fleets was approximately 97%. Substantially all
of the Company's newly acquired equipment is leased on a long-term basis, and
approximately 91% of its total equipment fleet is currently leased on this
basis. The remainder of the Company's equipment is leased under short-term
agreements to satisfy customers' peak or seasonal requirements, generally at
higher rates than under long-term leases. The Company concentrates on dry
freight standard containers and container chassis because such equipment may be
more readily remarketed upon expiration of a lease than specialized equipment.
In financing its equipment acquisitions, the Company generally seeks to meet
debt service requirements from the leasing revenue generated by its equipment.
The Company conducts its container and chassis leasing business through two
subsidiaries, Interpool Limited and Trac Lease, respectively. Certain other
United States equipment leasing activities are conducted through Interpool
itself.
The Company and its predecessors have been involved in the leasing of
containers and chassis since 1968. The Company leases containers throughout the
world, with particular emphasis on the Pacific Rim. The Company leases chassis
to customers for use in the United States. The Company maintains contact with
its customers through a worldwide network of offices, agents and sales
representatives. The Company believes one of the key factors in its ability to
compete effectively has been the long-standing relationships management has
established with most of the world's large shipping lines. In addition,
Interpool relies on its strong credit rating and low financing costs to maintain
its competitive position.
From time to time the Company considers possible acquisitions of
complementary businesses and asset portfolios.
The Company is a Delaware corporation formed in February 1988 with its
principal executive offices located at 211 College Road East, Princeton, New
Jersey 08540. Its telephone number is (609) 452-8900.
<PAGE>
BUSINESS
Interpool is one of the world's leading lessors of intermodal dry freight
standard containers and is the second largest lessor of intermodal container
chassis in the United States. At December 31, 1996, the Company's container
fleet totaled approximately 301,000 twenty foot equivalent units ("TEUs"), the
industry standard measure of dimension for containers used in international
trade, and its chassis fleet totaled approximately 57,000 chassis. The Company
leases its containers and chassis to over 200 customers, including nearly all of
the world's 20 largest international container shipping lines.
The efficiencies and cost savings inherent in intermodal transportation of
containerized cargo have facilitated the dramatic growth of international trade.
Intermodal transportation permits movement of cargo in a standard steel
container by means of a combination of ship, rail and truck without unpacking
and repacking of the contents during transit. The world's dry freight standard
container fleet has grown from fewer than 0.4 million TEUs in 1970 to
approximately 8.7 million TEUs by mid-1996. During the twelve month period
ending in mid-1996 approximately 1.3 million TEUs were produced, of which 0.4
million have been estimated as replacements of older containers. Concurrently
with this growth of the world's container fleet, the domestic chassis fleet has
grown to accommodate the increased container traffic. Leasing companies have
played a significant role in the growth of intermodal transportation, supplying
approximately half of the world's container and chassis requirements.
The Company focuses on leasing dry freight standard containers and
container chassis on a long-term basis in order to achieve high utilization of
its equipment and stable and predictable earnings. From 1991 through 1994, the
combined utilization rate of the Company's container and chassis fleets averaged
at least 90%. At the end of 1995 and 1996 the combined utilization rate of the
Company's container and chassis fleets was approximately 97%. Substantially all
of the Company's newly acquired equipment is leased on a long-term basis, and
approximately 91% of its total equipment fleet is currently leased on this
basis. The remainder of the Company's equipment is leased under short-term
agreements to satisfy customers' peak or seasonal requirements, generally at
higher rates than under long-term leases. The Company concentrates on dry
freight standard containers and chassis because such equipment may be more
readily remarketed upon expiration of a lease than specialized equipment. In
financing its equipment acquisitions, Interpool generally seeks to meet debt
service requirements from the leasing revenue generated by its equipment.
The Company conducts its container and chassis leasing business through its
two subsidiaries, Interpool Limited and Trac Lease, respectively. Certain other
United States equipment leasing activities are conducted through Interpool
itself.
The Company and its predecessors have been involved in the leasing of
containers and chassis since 1968. The Company leases containers throughout the
world, with particular emphasis on the Pacific Rim. The Company leases chassis
to customers for use in the United States. The Company maintains contact with
its customers through a worldwide network of offices, agents and sales
representatives. The Company believes one of the key factors in its ability to
compete effectively has been the long-standing relationships management has
established with most of the world's large shipping lines. In addition,
Interpool relies on its strong credit rating and low financing costs to maintain
its competitive position.
From time to time the Company considers possible acquisitions of
complementary business and asset portfolios.
COMPANY HISTORY
The Company is a Delaware corporation formed in February 1988. The Company
is the successor to a line of container and chassis leasing businesses that
traces its beginning to the 1960s. Interpool Limited, a container and chassis
leasing business, was formed in 1968 by Warren L. Serenbetz, a director of the
Company and executive consultant until January 1995, Martin Tuchman, currently
Chairman of the Board, Chief Executive Officer and director of the Company, and
two other individuals. In 1978, Interpool Limited was sold to
Thyssen-Bornemisza, N.V. ("Thyssen"). As part of Thyssen, Interpool Limited
continued to be managed by Messrs. Serenbetz and Tuchman. In 1986, Messrs.
Serenbetz and Tuchman, along with Mr. Raoul J. Witteveen and two other senior
executives formed and became the stockholders of Trac Lease. In 1988, the
Company was formed by Messrs. Serenbetz, Tuchman and Witteveen and acquired
Interpool Limited from Thyssen. In 1993, Trac Lease was combined with the
Company such that the Company then owned 87.5% of Trac Lease (the "Trac Lease
Acquisition"). In the first quarter of 1996 pursuant to an Agreement of Merger
between Trac Lease and Trac Lease Merger Corp., a newly formed subsidiary (the
"Trac Merger"), the Company acquired the minority interests in Trac Lease and
Trac Lease became a wholly owned subsidiary.
INTERMODAL TRANSPORTATION
The fundamental component of intermodal transportation is the container.
Containers provide a secure and cost-effective method of transporting finished
goods and component parts because they are generally freely inter-changeable
between different modes of transport, making it possible to move cargo from a
point of origin to a final destination without the repeated unpacking and
repacking of the goods required by traditional shipping methods. The same
container may be carried successively on a ship, rail car and truck and across
international borders with minimal customs formalities. Containerization is more
efficient, more economical and safer in the transportation of cargo than "break
bulk transport" in which the goods are unpacked and repacked at various
intermediate points enroute to their final destination. By eliminating manual
repacking operations when differing modes of transportation are used,
containerization reduces freight and labor costs. In addition, automated
handling of containers permits faster loading and unloading and more efficient
utilization of transportation equipment, thereby reducing transit time. The
protection provided by sealed containers also reduces damage to goods and loss
and theft of goods during shipment. Containers may also be picked up, dropped
off, stored and repaired at independent common user depots located throughout
the world.
The adoption of uniform standards for containers in 1968 by the
International Standards Organization (the "ISO") precipitated a rapid growth of
the container industry, as shipping companies recognized the advantages of
containerization over traditional break bulk transportation of cargo. This
growth resulted in substantial investments in containers, container ships, port
facilities, chassis, specialized rail cars and handling equipment.
Most containers are constructed of steel in accordance with recommendations
of the ISO. The basic container type is the general purpose dry freight standard
container (accounting for approximately 87% of the world's container fleet),
which measures 20 or 40 feet long, 8 feet wide and 8 1/2 or 9 1/2 feet high. In
general, 20-foot containers are used to carry heavy, dense cargo loads (such as
industrial parts and certain food products) and in areas where transport
facilities are less developed, while 40-foot containers are used for lighter
weight finished goods (such as apparel, electronic appliances and other consumer
goods) in areas with better developed transport facilities. Standards adopted by
the International Convention for Safe Containers and the Institute of
International Container Lessors govern the operation and maintenance of
containers.
The demand for containers is influenced primarily by the volume of
international and domestic trade. In recent years, however, the rate of growth
in the container industry has exceeded that of world trade as a whole due to
several factors, including the existence of geographical trade imbalances, the
expansion of shipping lines, and changes in manufacturing practices, such as
growing reliance on "just-in-time" delivery methods and increased exports by
certain technologically advanced countries of component parts for assembly in
other countries and the subsequent re-importation of finished products.
When a container vessel arrives in port, each container is loaded onto a
chassis or rail car. A chassis is a rectangular, wheeled steel frame, generally
20 or 40 feet in length, built specifically for the purpose of transporting a
container. Once mounted, the container and chassis are the functional equivalent
of a trailer. When mounted on a chassis, the container may be trucked either to
its final destination or to a railroad terminal for loading onto a rail car.
Similarly, a container shipped by rail may be transferred to a chassis to travel
over the road to its final destination. As the use of containers has become a
predominant factor in the intermodal movement of cargo, the chassis has become a
prerequisite for the domestic segment of the journey. A chassis seldom travels
permanently with a single container, but instead serves as a transport vehicle
for containers that are loaded or unloaded at ports or railroad terminals.
Because of differing international road regulations and the lack of
international standards for chassis, chassis used in the United States are
seldom used in other countries.
The Company's management believes that over the recent years, domestic
railroads and trucking lines have begun actively marketing intermodal use of
services for the domestic transportation of freight. In 1992, container loadings
represented, for the first time, a majority of total domestic rail loadings of
intermodal transportation equipment. Management further believes that this trend
should serve to accelerate the growth of intermodal transportation, and hence
result in increased container and chassis demand.
As a result of the advantages of intermodal containerization and the
increased globalization of the world economy, the use of containers for domestic
intermodal transportation has also grown over the last few years. Greater use of
containers on cargo ships led railroad and trucking companies to develop the
capacity to transport containers domestically by chassis and rail car. In
addition, shipping companies began soliciting domestic cargo in order to
mitigate the cost of moving empty containers back to the port areas for use
again in international trade. The introduction in the mid-1980's of the double
stack railroad car, specially designed to carry containers stacked one on top of
another, accelerated the growth of domestic intermodal transportation by
reducing shipping costs still further. Due to these trends, an increasing
portion of domestic cargo is now being shipped by container instead of by a
conventional highway trailer. The Company has acquired over 7,000 units of
equipment, including domestic trailers, domestic chassis and domestic containers
in order to increase its participation in the growing domestic intermodal
market.
THE LEASING MARKET AND THE COMPANY'S STRATEGY
BENEFITS OF LEASING
Leasing companies own approximately half of the world's container fleet and
half of the domestic chassis fleet, with the balance owned predominantly by
shipping lines. Leasing companies have maintained this market position because
container shipping lines receive both financial and operational benefits by
leasing a portion of their equipment. The principal benefits to shipping lines
of leasing are:
* to provide shipping lines with an alternative source of financing in a
traditionally capital-intensive industry;
* to enable shipping lines to expand their routes and market shares at a
relatively inexpensive cost without making a permanent commitment to
support their new structure;
* to enable shipping lines to benefit from leasing companies'
anticipatory buying and volume purchases, thereby offering them
attractive pricing and prompt delivery schedules;
* to enable shipping lines to accommodate seasonal and/or directional
trade route demand, thereby limiting their capital investment and
storage costs; and
* to enable shipping lines at all times to maintain the optimal mix of
equipment types in their fleets.
Because of these benefits, container shipping lines generally obtain a
significant portion of their container fleets from leasing companies, either on
short-term or long-term leases. Short-term leases provide a considerable degree
of operational flexibility in allowing a customer to pick up and drop off
containers at various locations worldwide at any time. However, customers pay
for this flexibility in the form of substantially higher lease rates for
short-term leases and drop-off charges for the privilege of returning equipment
to certain locations. Most short-term leases are "master leases," under which a
customer reserves the right to lease a certain number of containers as needed
under a general agreement between the lessor and the lessee. Long-term leases
provide the lessee with advantageous pricing structures, but usually contain an
early termination provision allowing the lessee to return equipment prior to
expiration of the lease only upon payment of an early termination fee. Since
1991, the Company has experienced minimal early returns under its long-term
leases, primarily because of the penalties involved and because customers must
immediately return all containers covered by the particular long-term lease
being terminated, generally totaling several hundred units, and bear substantial
costs related to their repositioning and repair. Frequently, a lessee will
retain long-term leased equipment well beyond the initial lease term. In these
cases, long-term leases will be renewed at the then prevailing market rate,
either for additional one year periods or as part of a short-term agreement. In
some cases, the customer has the right to purchase the equipment at the end of a
long-term lease. The Company's long-term leases generally have five to eight
year terms.
The Company often enters into long-term "direct finance" leases. Under a
direct finance lease, the customer owns the container at the expiration of the
lease term. Although customers pay a higher per diem rate under a direct finance
lease than under a long-term operating lease, a direct finance lease enables the
Company to provide customers with access to financing on terms generally
comparable to those available from financial institutions which provide this
type of financing. The percentage of the Company's revenues provided by direct
finance leases has increased from 11% in 1991 to 20% in 1996.
Shipping lines generally spread their business over a number of leasing
companies in order to avoid dependence on a single supplier.
Unlike the business of container leasing, which is global in scale, the
Company's chassis leasing business is almost exclusively a domestic business.
Many of the customers for the Company's chassis, however, are United States
subsidiaries or branches of international shipping lines.
COMPANY STRATEGY
The Company emphasizes long-term leases in order to minimize the impact of
economic cycles on the Company's revenues and so as to achieve high utilization
and stable and predictable earnings. The lower rate of turnover provided by
long-term leases enables the Company to concentrate on the expansion of its
asset base through the purchase and lease of new equipment, rather than on the
repeated re-marketing of its existing fleet.
The result of this strategy has been to establish the Company as one of the
world's leading lessors of dry freight standard containers. The Company intends
to continue its emphasis on acquiring and leasing dry freight standard
containers, rather than investing significantly in special purpose equipment
such as refrigerated or tank containers. Management believes that the Company
currently has one of the youngest container fleets of the world's ten largest
container lessors.
Trac Lease, with a fleet of approximately 57,000 chassis, is currently the
second largest chassis lessor in the United States, with the largest lessor
having a fleet approximately 100,000 chassis. The Company's chassis leasing
strategy includes an emphasis on long-term leasing of new or re-manufactured
chassis which allows the Company to offer equipment packages to its customers at
the most attractive cost to the Company.
In order to redeploy chassis that are coming off long-term leases, the
Company operates "chassis pools" for most of the major port authorities and
terminal operators on the Eastern seaboard and the Gulf coast. A chassis pool is
an inventory of chassis available for short-term leasing to customers of the
port or terminal. The principal ports in the United States where the Company
supplies chassis pools are Boston, New York, Baltimore, Norfolk, Charleston,
Savannah, Jacksonville, New Orleans and Houston.
Like most leasing companies, the Company depends on high utilization of its
equipment in order to run its operations profitably. Because the Company has
most of its container and chassis fleets under long-term leases, the Company
believes that it has generally experienced better utilization in periods of weak
demand than other leasing companies having a smaller proportion of their fleets
under long-term leases. From 1991 through 1994, the annual utilization of the
Company's container fleet and Trac Lease's chassis fleet has averaged at least
90%. At the end of 1995 and 1996, the combined utilization rate of the Company's
container and chassis fleets was approximately 97%.
OPERATIONS
LEASE TERMS
Lease rentals are typically calculated on a per diem basis, regardless of
the term of the lease. The Company's leases generally provide for monthly or
quarterly billing and require payment by the lessee within 30 to 60 days after
presentation of an invoice. Generally, the lessee is responsible for payment of
all taxes and other charges arising out of use of the equipment and must carry
specified amounts of insurance to cover physical damage to and loss of
equipment, as well as bodily injury and property damage to third parties. In
addition, the Company's leases usually require lessees to repair any damage to
the containers and chassis, although in certain circumstances the Company
relieves lessees of the responsibility of paying repair costs in return for
higher lease payments. Lessees are also required to indemnify the Company
against losses to the Company arising from accidents or similar occurrences
involving the leased equipment. The Company's leases generally provide for
pick-up, drop-off and other charges and set forth a list of locations where
lessees may pick up or return equipment.
EQUIPMENT TRACKING AND BILLING
The Company uses a computer system with proprietary software for equipment
tracking and billing to provide a central operating data base showing the
Company's container and chassis leasing activities. The system processes
information received electronically from the Company's regional offices. The
system records the movement and status of each container and chassis and links
that information with the complex data comprising the specific lease terms in
order to generate billings to lessees. More than 10,000 movement transactions
per month are routinely processed through the system, which is capable of
tracking revenue on the basis of individual containers and chassis. The system
also generates a wide range of management reports containing information on all
aspects of the Company's leasing activities.
SOURCES OF SUPPLY
Because of the rising demand for containers and the availability of
relatively inexpensive labor in the Pacific Rim, approximately 50% of world
container production now occurs in China. Containers are also produced in other
countries, such as Korea, Malaysia, Indonesia, Taiwan, and, to a lesser extent,
Thailand, India and in Europe, South America and South Africa. Most chassis used
in the United States are manufactured domestically due to the high cost of
transportation to the United States of chassis manufactured abroad.
Manufacturers of chassis frequently produce over-the-road trailers as well and
can convert some production capability to chassis as needed.
Upon completion of manufacture, new containers and chassis are inspected to
insure that they conform to applicable standards of the ISO and other
international self-regulatory bodies.
MAINTENANCE, REPAIRS AND REFURBISHMENT
Maintenance for new containers and chassis has generally been minor in
nature. However, as containers and chassis age, the need for maintenance
increases, and they may eventually require extensive maintenance.
The Company's customers are generally responsible for maintenance and
repairs of equipment other than normal wear and tear. When normal wear and tear
to equipment is extensive, the equipment may have to be refurbished or
remanufactured. Refurbishing and remanufacturing involve substantial cost,
although chassis can be remanufactured for substantially less than the cost of
purchasing a new chassis. Because facilities for this purpose are not available
at all depots or branches, equipment requiring refurbishment or remanufacture
may have to be repositioned, at additional expense, to the nearest suitable
facility. Alternatively, the Company may elect to sell equipment requiring
refurbishment.
DEPOTS
The Company operates out of approximately 60 depots throughout the world.
Depots are facilities owned by third parties at which containers and other items
of transportation equipment are stored, maintained and repaired. The Company
retains independent agents at these depots to handle and inspect equipment
delivered to or returned by lessees, store equipment that is not leased and
handle maintenance and repairs of containers and chassis. Some agents are paid a
fixed monthly retainer to defray recurring operating expenses and some are
guaranteed a minimum level of commission income. In addition, the Company
generally reimburses its agents for incidental expenses.
REPOSITIONING AND RELATED EXPENSES
If lessees in large numbers return equipment to a location which has a
larger supply than demand, the Company may incur expenses in repositioning the
equipment to a better location. Such repositioning expenses generally range
between $50 and $500 per month per item of equipment, depending on geographic
location, distance and other factors, and may not be fully covered by the
drop-off charge collected from the lessee. In connection with necessary
repositioning, the Company may also incur storage costs, which generally range
between $.20 and $2.50 per TEU per day. In addition, the Company bears certain
operating expenses associated with its containers and chassis, such as the costs
of maintenance and repairs not performed by lessees, agent fees, depot expenses
for handling, inspection and storage and any insurance coverage in excess of
that maintained by lessee. The Company's insurance coverage provides protection
against various risks but generally excludes war-related and other political
risks.
DISPOSITION OF CONTAINERS AND CHASSIS AND RESIDUAL VALUES
From time to time, the Company sells equipment that was previously leased.
The decision whether to sell depends on the equipment's condition, remaining
useful life and suitability for continued leasing or for other uses, as well as
prevailing local market resale prices and an assessment of the economic benefits
of repairing and continuing to lease the equipment compared to the benefits of
selling. Containers are usually sold to shipping or transportation companies for
continued use in the intermodal transportation industry or to secondary market
buyers, such as wholesalers, depot operators, mini storage operators,
construction companies and others, for use as storage sheds and similar
structures. Because old chassis are more easily remanufactured than old
containers, chassis are less likely to be sold than containers.
At the time of sale, the residual value of a container or chassis will
depend, among other factors, upon mechanical or economic obsolescence, as well
as its physical condition. While there have been no major technological advances
in the short history of containerization that have made active equipment
obsolete, several changes in standards have decreased the demand for older
equipment, such as the increase in the standard height of containers from 8 feet
to 8 1/2 feet in the early 1970's.
MARKETING AND CUSTOMERS
The Company leases its containers and chassis to over 200 shipping and
transportation companies throughout the world, including nearly all of the
world's 20 largest international container shipping lines. With a network of
offices and agents covering all major ports in the United States, Europe and the
Far East, the Company has been able to supply containers in nearly all locations
requested by its customers. In 1996, the Company's top 25 customers represented
approximately 66% of its consolidated revenues, with no single customer
accounting for more than 6%.
The customers for the Company's chassis are a large number of domestic
companies, many of which are domestic subsidiaries or branches of international
shipping lines to which the Company also leases containers.
The Company maintains close relationships with a larger customer base on
which detailed credit records are kept. The Company's credit policy sets maximum
exposure limits for various customers. Credit criteria may include, but are not
limited to, customer trade route, country, social and political climate,
assessments of net worth, asset ownership, bank and trade credit references,
credit bureau reports, and operational history. Since 1990, the Company's losses
from defaults by customers have averaged less than 1% of consolidated revenues.
The Company seeks to reduce credit risk by maintaining insurance coverage
against defaults and equipment losses. Although there can be no assurance that
such coverage will be available in the future, the Company currently maintains
contingent physical damage, recovery/repatriation and loss of revenue insurance
which provides coverage in the event of a customer's default. The policy covers
the cost of recovering the Company's containers from the customer, including
repositioning costs, the cost of repairing the containers and the value of
containers which cannot be located or are uneconomical to recover. It also
covers a portion of the lease revenues the Company may lose as a result of the
customer's default (i.e., six months of lease payments following default). The
Company has the option to renew the current policy through August 1999, subject
to premium adjustment.
COMPETITION
There are many companies leasing intermodal transportation equipment with
which the Company competes. Some of the Company's competitors have greater
financial resources than the Company or are subsidiaries or divisions of much
larger companies. Management believes that the Company is currently one of the
world's largest dry freight container leasing companies and the second largest
container chassis leasing company in the United States.
In addition, the containerized shipping industry which the Company
services, competes with providers of alternative methods of transporting goods,
such as by air, truck and rail. The Company believes that in most instances such
alternative methods are not as cost-effective as shipping of containerized
cargo.
Because rental rates for containers and chassis are not subject to
regulation by any government authority but are determined principally by the
demand for and supply of equipment in each geographical area, price is one of
the principal methods by which the Company competes. In times of low demand and
excess supply, leasing companies tend to grant price concessions, such as free
days or pick-up credits, in order to keep their equipment on lease and to avoid
storage charges. The Company attempts to design lease packages tailored to the
requirements of individual customers and considers its long-term relationships
with customers to be important to its ability to compete effectively. The
Company also competes on the basis of its ability to deliver equipment in a
timely manner in accordance with customer requirements.
OTHER BUSINESS OPERATIONS
In addition to its container and chassis leasing operations through
Interpool Limited and Trac Lease, the Company also receives revenues from other
activities. The Company leases approximately 500 freight rail cars to railroad
companies through its Chicago based Railpool division. Microtech Leasing
Corporation, a 75.5% owned subsidiary of the Company, leases microcomputers and
related equipment. The Company also leases intermodal trailers which are
designed to be carried on rail flatcars and pulled by tractor over the highway.
The Company received, in the aggregate, approximately 11% of its consolidated
revenues for the year ended December 31, 1996 from these other business
operations. These operations have been consistently profitable since the
Company's formation.
In December 1996, Interpool acquired all of the limited partnership
interests and substantially all of the senior securities of the Interpool Income
Fund I, L.P., a Delaware limited partnership (the "Income Fund") for
approximately $21.5 million. Interpool co-sponsored the offering of the
securities of the Income Fund during 1992 and 1993 and managed the containers
and chassis owned by the Income Fund. The Income Fund originally acquired
approximately 5,700 TEU containers and approximately 1,500 chassis. As a result
of this acquisition, Interpool received title to the equipment and will receive
all of the revenue from the containers and chassis owned by the Income Fund, and
will no longer be subject to the Income Fund's obligations to make payments of
approximately 11% on its outstanding securities.
GRAND ALLIANCE CHASSIS POOL CONTRACT
Trac Lease has recently been awarded a contract by the Grand Alliance
Chassis Pool, an association of four of the world's largest steamship lines, to
administer through the Company's proprietary "Poolstat" computer software
program the movement and utilization by the members of Grand Alliance of a fleet
of up to 42,000 marine shipping container chassis. Trac Lease will also
administer over 30 pool locations throughout the United States where the chassis
are based. The 42,000 Grand Alliance chassis will make Trac Lease one of the
largest administrators of chassis in the world.
<PAGE>
MANAGEMENT
The following table sets forth certain information with respect to the
executive officers and directors of the Company:
NAME AGE POSITIONS AND OFFICERS
Martin Tuchman 56 Chairman of the Board of Directors and Chief
Executive Officer
Raoul J. Witteveen 42 President, Chief Operating Officer, Chief
Financial Officer and Director
Warren L. Serenbetz 73 Director
Arthur L. Burns 52 Secretary and Director
John M. Bucher 67 Director
Peter D. Halstead 55 Director
Joseph J. Whalen 65 Director
Ernst Baenziger 61 Director of Interpool Limited
Richard W. Gross 52 Senior Vice President
Sheldon Landy 66 Vice President, President Railpool Division
William Geoghan 47 Controller
Martin Tuchman, Chairman of the Board of Directors and Chief Executive
Officer of the Company since February 1988, is also Chairman of the Board of
Directors, Chief Executive Officer and a director of Interpool Limited, which he
cofounded in 1968. He also has served as a director of Trac Lease since June
1987, President of Trac Lease for the period including June 1987 through January
1994 and currently serves as its Chairman and Chief Executive Officer. He has
also been Chairman of the Board of Directors of Princeton International
Properties, Inc., a family-owned real estate company, which owns and has
interests in properties located in Princeton, New Jersey. Mr. Tuchman was
previously a member of the Society of Automotive Engineers as well as the
American National Standards Institute. Currently, Mr. Tuchman is a member of the
United Nations Business Council, a Council comprised of leading international
executives organized to promote understanding and cooperation between business
and government and a member of the Board of Trustees of the New Jersey Institute
of Technology. In 1995, Mr. Tuchman was honored as General Services Entrepreneur
Of The Year in an awards program founded by Ernst & Young LLP and in 1996 was
named Alumni of the Year by the New Jersey Institute of Technology. Mr. Tuchman
holds a bachelor's degree in mechanical engineering from the New Jersey
Institute of Technology (Newark College of Engineering) and a master's degree in
business administration from Seton Hall University.
Raoul J. Witteveen has been President, Chief Operating Officer, Chief
Financial Officer and a director of the Company since March 1993 and has been
President, Chief Operating Officer, Chief Financial Officer and a director of
Interpool Limited since April 1988. He is a co-founder of Trac Lease and has
been Chief Financial Officer, Vice President and a director of Trac Lease since
June 1987. From 1982 to 1986, Mr. Witteveen served in a variety of management
capacities at Thyssen-Bornemisza N.V., the former parent of Interpool Limited.
Mr. Witteveen holds a bachelor's degree in economics and business administration
and a master's degree in economics from the Erasmus University in Rotterdam, The
Netherlands.
Warren L. Serenbetz has been a director of the Company since February 1988
and served as Executive Consultant through January 1995. He has also been a
director of Trac Lease, a subsidiary of the Company, since its founding in
November 1986. After co-founding Interpool Limited, a subsidiary of the Company,
in 1968, Mr. Serenbetz served as Interpool Limited's president and chief
executive officer and as a director until 1975, after which he was director,
chairman of the Executive Committee and chief executive officer until his
retirement in 1986. Mr. Serenbetz rejoined the Board of Directors of Interpool
Limited in 1988. Mr. Serenbetz is currently president of Radcliff Group, Inc. He
has been active in industry affairs, serving as an officer, director and member
of various world trade and shipping associations. Mr. Serenbetz holds a
bachelor's degree in engineering from Columbia University and a master's degree
in industrial engineering from Columbia University.
Arthur L. Burns, General Counsel, Secretary and a director of the Company
since January 1990, was Senior Vice President of Law and Administration and
Secretary of Interpool Limited from 1986 until June 1996. Since June 1996, Mr.
Burns has acted as the Company's independent General Counsel. Prior to joining
Interpool Limited, Mr. Burns served as assistant general counsel to GATX Leasing
Corp. between 1975 and 1980, and as an associate attorney at the New York law
firm of Cahill, Gordon & Reindel from 1969 to 1975. Mr. Burns holds a bachelor's
degree in economics from Holy Cross College and a law degree from Fordham
University School of Law.
John M. Bucher has been a director of the Company since March 1993. He has
been an investment broker with the firm of Stires and Company, Inc. since 1978,
where he advises individual and institutional investors and is active in venture
capital placements. Mr. Bucher holds a bachelor's degree in English from Amherst
College.
Peter D. Halstead, a Director of the Company since June 1994, has been with
Summit Bank since 1971 and is now an Executive Vice President. In addition to
serving as a Trustee for numerous associations including McCarter Theater and
Cancer Care of New Jersey, Mr. Halstead serves on the commercial lending
committee of the New Jersey Banker's Association. Mr. Halstead holds a
bachelor's degree from Colgate University and a master's degree in business
administration from Fairleigh Dickinson University.
Joseph J. Whalen, a Director of the Company since April 1996, originally
joined the accounting firm of Arthur Andersen LLP in 1957 and served as an audit
partner in Andersen's New York and New Jersey office for more than ten years
prior to his retirement in 1994. Mr. Whalen is a member of the American
Institute of Certified Public Accounts and the New Jersey State Society of
Certified Public Accountants where he previously served on the Cooperation with
Credit Grantors Committee and the Technical Standards Section of the
Professional Conduct Committee. Mr. Whalen is a Certified Public Accountant in
New Jersey and New York and holds a bachelor's degree from St. Peter's College.
Ernst Baenziger has been an employee since 1977, serving as Senior Vice
President and a director of Interpool Limited since 1991. Mr. Baenziger is
responsible for Europe, Far East, Australia and New Zealand operations. He is
also Managing Director of Interpool Limited's Basel, Switzerland branch,
handling sales and operations, and serves as the managing director of CTC
Equipment A.G. Mr. Baenziger holds a bachelor's degree in economics and business
administration from Handelshochschule, St. Gallen.
Richard W. Gross, Senior Vice President of the Company since 1996 has been
Senior Vice President, Finance of Interpool Limited since 1990 and is
responsible for investor and lender relations. Mr. Gross originally joined
Interpool Limited as Controller, and has been with Interpool for more than 20
years. Prior to joining Interpool, Mr. Gross spent five years with Arthur
Andersen in their New York office. Mr. Gross is a certified public accountant
and a received a Bachelor of Science degree in Accounting from Long Island
University.
Sheldon Landy, Vice President of the Company since March 1993, has been
President of the Company's Railpool division since 1979. Mr. Landy is a member
of the Transportation Research Board, a part of the National Research Council
and serves as a committee member studying the intermodal transportation
industry. Mr. Landy holds a bachelor's degree in liberal arts from the
University of Chicago and master's degree in business administration from
Northwestern University.
William Geoghan, Controller of the Company since April 1992 and Vice
President and Controller of Interpool Limited since January 1989, is a certified
public accountant. He joined Interpool Limited in 1981 and served as assistant
controller for Interpool Limited 1985 to 1989. Mr. Geoghan holds a bachelor's
degree in commerce from Rider University.
EMPLOYEES
As of December 31, 1996 the Company had approximately 110 employees,
approximately 87 of whom are based in the United States. None of the Company's
employees is covered by a collective bargaining agreement. The Company believes
its relations with its employees are good.
<PAGE>
THE EXCHANGE OFFER
PURPOSE OF THE EXCHANGE OFFER
The Private Notes were sold by the Company on August 5, 1997 (the "Issue
Date") to the Initial Purchaser pursuant to the Purchase Agreement. The Initial
Purchaser subsequently sold the Private Notes to (i) "qualified institutional
buyers" ("QIBs"), as defined in Rule 144A under the Securities Act ("Rule
144A"), in reliance on Rule 144A and (ii) to institutional "accredited
investors" within the meaning of subparagraph (a)(1), (2) (3) or (7) of Rule 501
under the Securities Act. As a condition to the sale of the Private Notes, the
Company and the Initial Purchaser entered into the Registration Rights Agreement
on August 5, 1997. Pursuant to the Registration Rights Agreement the Company
agreed that, unless the Exchange Offer is not permitted by applicable law or
Commission policy, it would (i) file with the Commission a Registration
Statement under the Securities Act with respect to the Exchange Notes within 90
days after the Issue Date, (ii) use its best efforts to cause such Registration
Statement to become effective under the Securities Act within 120 days after the
Issue Date and (iii) use its best efforts to consummate the Exchange Offer
within 30 days after the Registration Statement has become effective. A copy of
the Registration Rights Agreement has been filed as an exhibit to the
Registration Statement. The Registration Statement is intended to satisfy
certain of the Company's obligations under the Registration Rights Agreement and
the Purchase Agreement.
RESALE OF THE EXCHANGE NOTES
With respect to the Exchange Notes, based upon an interpretation by the
staff of the Commission set forth in certain no-action letters issued to third
parties, the Company believes that a holder (other than (i) a broker-dealer who
purchased such Exchange Notes directly from the Company to resell pursuant to
Rule 144A or any other available exemption under the Securities Act, (ii) any
such holder that is an "affiliate" of the Company within the meaning of Rule 405
under the Securities Act or (iii) a broker-dealer who acquired Private Notes as
a result of market making or other trading activities) who exchanges Private
Notes for Exchange Notes in the ordinary course of business and who is not
participating, does not intend to participate, and has no arrangement with any
person to participate, in a distribution of the Exchange Notes, will be allowed
to resell Exchange Notes to the public without further registration under the
Securities Act and without delivering to the purchasers of the Exchange Notes a
prospectus that satisfies the requirements of Section 10 of the Securities Act.
However, if any holder acquires Exchange Notes in the Exchange Offer for the
purpose of distributing or participating in the distribution of the Exchange
Notes or is a broker-dealer, such holder cannot rely on the position of the
staff of the Commission enumerated in certain no-action letters issued to third
parties and must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any resale transaction,
unless an exemption from registration is otherwise available. Each broker-dealer
that receives Exchange Notes for its own account in exchange for Private Notes,
where such Private Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange Notes.
The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Notes received in exchange for Private
Notes where such Private Notes were acquired by such broker-dealer as a result
of market-making or other trading activities. Pursuant to the Registration
Rights Agreement, the Company has agreed to make this Prospectus, as it may be
amended or supplemented from time to time, available to broker-dealers for use
in connection with any resale for a period of one year after the Registration
Statement is declared effective or until such earlier date on which the Exchange
Notes are freely tradable. See "Plan of Distribution."
TERMS OF THE EXCHANGE OFFER
Upon the terms and subject to the conditions set forth in this Prospectus
and in the Letter of Transmittal, the Company will accept any and all Private
Notes validly tendered and not withdrawn prior to the Expiration Date. The
Company will issue $1,000 principal amount of Exchange Notes in exchange for
each $1,000 principal amount of outstanding Private Notes surrendered pursuant
to the Exchange Offer. Private Notes may be tendered in whole or in part in a
principal amount of not less than $100,000 (100 Private Notes) or any integral
multiple of $1,000 principal amount (one Private Note) in excess thereof.
The form and terms of the Exchange Notes are the same as the form and terms
of the Private Notes except that (i) the exchange will be registered under the
Securities Act and, therefore, the Exchange Notes will not bear legends
restricting the transfer thereof, (ii) the Exchange Notes will not contain the
$100,000 minimum principal amount transfer restriction, (iii) the Exchange Notes
will not provide for payment of additional distributions thereon, and (iv)
holders of the Exchange Notes will not be entitled to any of the rights of
holders of Private Notes under the Registration Rights Agreement, which rights
will terminate upon the consummation of the Exchange Offer except under certain
limited circumstances. See "--Termination of Certain Rights." The Exchange Notes
will evidence the same obligations as the Private Notes (which they replace) and
will be issued under, and be entitled to the benefits of, the Indenture, which
also authorized the issuance of the Private Notes, such that both series of
Securities will be treated as a single class of securities under the Indenture.
As of the date of this Prospectus, $75,000,000 in aggregate principal
amount of the Private Notes are outstanding, all of which are registered in the
name of Cede & Co., as nominee for DTC. Only a registered holder of the Private
Notes (or such holder's legal representative or attorney-in-fact) as reflected
on the records of the Property Trustee under the Declaration may participate in
the Exchange Offer. There will be no fixed record date for determining
registered holders of the Private Notes entitled to participate in the Exchange
Offer.
Holders of the Private Notes do not have any appraisal or dissenters'
rights under the Indenture in connection with the Exchange Offer. The Company
intends to conduct the Exchange Offer in accordance with the provisions of the
Registration Rights Agreement and the applicable requirements of the Securities
Act, the Exchange Act and the rules and regulations of the Commission
thereunder.
The Company shall be deemed to have accepted validly tendered Private Notes
when, as and if the Company had given oral or written notice thereof to the
Exchange Agent. The Exchange Agent will act as agent for the tendering holders
of Private Notes for the purposes of receiving the Exchange Notes from the
Company.
Holders who tender Private Notes in the Exchange Offer will not be required
to pay brokerage commissions or fees or, subject to the instructions in the
Letter of Transmittal, transfer taxes with respect to the exchange of Private
Notes pursuant to the Exchange Offer. The Company will pay all charges and
expenses, other than certain applicable taxes described below, in connection
with the Exchange Offer. See "--Fees and Expenses."
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" shall mean 5:00 p.m., New York City time on
_______________, 1997, unless the Company, in its sole discretion, extends the
Exchange Offer, in which case the term "Expiration Date" shall mean the latest
date and time to which the Exchange Offer is extended.
In order to extend the Exchange Offer, the Company will (i) notify the
Exchange Agent of any extension by oral or written notice, (ii) mail to the
registered holders an announcement thereof and (iii) issue a press release or
other public announcement, which shall include disclosure of the approximate
number of Private Notes deposited to date, each prior to 9:00 a.m., New York
City time, on the next business day after the previously scheduled Expiration
Date. Without limiting the manner in which the Company may choose to make a
public announcement of any delay, extension, amendment or termination of the
Exchange Offer, the Company shall have no obligation to publish, advertise, or
otherwise communicate any such public announcement, other than by making a
timely release to an appropriate news agency.
The Company reserves the right, in its reasonable discretion, (i) to delay
accepting any Private Notes, (ii) to extend the Exchange Offer or (iii) if any
conditions set forth below under "--Conditions" shall not have been satisfied,
to terminate the Exchange Offer by giving oral or written notice of such delay,
extension or termination to the Exchange Agent. Any such delay in acceptance,
extension, termination or amendment will be followed as promptly as practicable
by oral or written notice thereof to the registered holders. If the Exchange
Offer is amended in a manner determined by the Company to constitute a material
change, the Company will promptly disclose such amendment by means of a
prospectus supplement that will be distributed to the registered holders, and
the Company will extend the Exchange Offer for a period of five to ten business
days, depending upon the significance of the amendment and the manner of
disclosure to the registered holders, if the Exchange Offer would otherwise
expire during such five to ten business day period.
DISTRIBUTIONS ON EXCHANGE NOTES
Holders of Private Notes whose Private Notes are accepted for exchange will
not receive Distributions on such Private Notes and will be deemed to have
waived the right to receive any Distributions on such Private Notes accumulated
from and after the Closing Date. Accordingly, holders of Exchange Notes as of
the record date for payment of distributions on February 1, 1998 will be
entitled to receive Distributions accumulated from and after the Closing Date.
PROCEDURES FOR TENDERING
Only a registered holder of Private Notes may tender such Private Notes in
the Exchange Offer. To tender in the Exchange Offer, a holder of Private Notes
must complete, sign and date the Letter of Transmittal, or a facsimile thereof,
have the signatures thereon guaranteed if required by the Letter of Transmittal,
and mail or otherwise deliver such Letter of Transmittal or such facsimile to
the Exchange Agent at the address set forth below under "--Exchange Agent" for
receipt prior to the Expiration Date. In addition, either (i) certificates for
such Private Notes must be received by the Exchange Agent along with the Letter
of Transmittal, (ii) a timely confirmation of a book-entry transfer (a
"Book-Entry Confirmation") of such Private Notes, if such procedure is
available, into the Exchange Agent's account at the Depositary pursuant to the
procedure for book-entry transfer described below, must be received by the
Exchange Agent prior to the Expiration Date or (iii) the holder must comply with
the guaranteed delivery procedures described below.
THE TENDER BY A HOLDER THAT IS NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE
WILL CONSTITUTE AN AGREEMENT BETWEEN SUCH HOLDER AND THE COMPANY IN ACCORDANCE
WITH THE TERMS AND SUBJECT TO THE CONDITIONS SET FORTH HEREIN AND IN THE LETTER
OF TRANSMITTAL.
THE METHOD OF DELIVERY OF PRIVATE NOTES AND THE LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION AND RISK
OF THE HOLDER. INSTEAD OF DELIVERY BY MAIL, IT IS RECOMMENDED THAT HOLDERS USE
AN OVERNIGHT OR HAND DELIVERY SERVICE, PROPERLY INSURED. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE DELIVERY TO THE EXCHANGE AGENT
BEFORE THE EXPIRATION DATE. NO LETTER OF TRANSMITTAL OR PRIVATE NOTES SHOULD BE
SENT TO THE COMPANY. HOLDERS MAY REQUEST THEIR RESPECTIVE BROKERS, DEALERS,
COMMERCIAL BANKS, TRUST COMPANIES OR NOMINEES TO EFFECT THE ABOVE TRANSACTIONS
FOR SUCH HOLDERS.
Any beneficial owner(s) of the Private Notes whose Private Notes are
registered in the name of a broker, dealer, commercial bank, trust company or
other nominee and who wishes to tender should contact the registered holder
promptly and instruct such registered holder to tender on such beneficial
owner's behalf. If such beneficial owner wishes to tender on such owner's own
behalf, such owner must, prior to completing and executing the Letter of
Transmittal and delivering such owner's Private Notes, either make appropriate
arrangements to register ownership of the Private Notes in such owner's name or
obtain a properly completed bond power from the registered holder. The transfer
of registered ownership may take considerable time.
Signatures on a Letter of Transmittal or a notice of withdrawal described
below (see "--Withdrawal of Tenders"), as the case may be, must be guaranteed by
an Eligible Institution (as defined) unless the Private Notes tendered pursuant
thereto are tendered (i) by a registered holder who has not completed the box
titled "Special Delivery Instructions" on the Letter of Transmittal or (ii) for
the account of an Eligible Institution. In the event that signatures on a Letter
of Transmittal or a notice of withdrawal, as the case may be, are required to be
guaranteed, such guarantee must be made by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible guarantor institution" within
the meaning of Rule 17Ad-15 under the Exchange Act which is a member of one of
the recognized signature guarantee programs identified in the Letter of
Transmittal (an "Eligible Institution").
If the Letter of Transmittal is signed by a person other than the
registered holder of any Private Notes listed therein, such Private Notes must
be endorsed or accompanied by a properly completed bond power, signed by such
registered holder as such registered holder's name appears on such Private
Notes.
If the Letter of Transmittal or any Private Notes or bond powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and unless waived by the Company,
evidence satisfactory to the Company of their authority to so act must be
submitted with the Letter of Transmittal.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and withdrawal of tendered Private Notes will be determined
by the Company in its reasonable discretion, which determination will be final
and binding. The Company reserve the absolute right to reject any and all
Private Notes not properly tendered or any Private Notes the Company's
acceptance of which would, in the opinion of counsel for the Company, be
unlawful. The Company also reserves the right to waive any defects,
irregularities or conditions of tender as to particular Private Notes. The
Company's interpretation of the terms and conditions of the Exchange Offer
(including the instructions in the Letter of Transmittal) will be final and
binding on all parties. Unless waived, any defects or irregularities in
connection with tenders of Private Notes must be cured within such time as the
Company shall determine. Although the Company intends to notify holders of
defects or irregularities with respect to tenders of Private Notes, neither the
Company, the Exchange Agent nor any other person shall incur any liability for
failure to give such notification. Tenders of Private Notes will not be deemed
to have been made until such defects or irregularities have been cured or
waived.
While the Company has no present plan to acquire any Private Notes that are
not tendered in the Exchange Offer or to file a registration statement to permit
resales of any Private Notes that are not tendered pursuant to the Exchange
Offer, the Company reserves the right in its sole discretion to purchase or make
offers for any Private Notes that remain outstanding subsequent to the
Expiration Date or, as set forth below under "--Conditions," to terminate the
Exchange Offer and, to the extent permitted by applicable law, purchase Private
Notes in the open market, in privately negotiated transactions or otherwise. The
terms of any such purchases or offers could differ from the terms of the
Exchange Offer.
By tendering, each holder of Private Notes will represent to the Company
that, among other things, (i) Exchange Notes to be acquired by such holder of
Private Notes in connection with the Exchange Offer are being acquired by such
holder in the ordinary course of business of such holder, (ii) such holder has
no arrangement or understanding with any person to participate in the
distribution of the Exchange Notes, (iii) such holder acknowledges and agrees
that any person who is a broker-dealer registered under the Exchange Act or is
participating in the Exchange Offer for the purposes of distributing the
Exchange Notes must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale
transaction of the Exchange Notes, acquired by such person and cannot rely on
the position of the staff of the Commission set forth in certain no-action
letters, (iv) such holder understands that a secondary resale transaction
described in clause (iii) above and any resales of Exchange Notes obtained by
such holder in exchange for Private Notes acquired by such holder directly from
the Company should be covered by an effective registration statement containing
the selling securityholder information required by Item 507 of the Commission
and (v) such holder is not an "affiliate," as defined in Rule 405 under the
Securities Act, of the Company. If the holder is a broker-dealer that will
receive Exchange Notes for such holder's own account in exchange for Private
Notes that were acquired as a result of market-making activities or other
trading activities, such holder will be required to acknowledge in the Letter of
Transmittal that such holder will deliver a copy of this Prospectus (as it may
be supplemented or amended) in connection with any resale of such Exchange
Notes; however, by so acknowledging and by delivering a prospectus, such holder
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
RETURN OF PRIVATE NOTES; ATOP
If any tendered Private Notes are not accepted for any reason set forth in
the terms and conditions of the Exchange Offer or if Private Notes are withdrawn
or are submitted for a greater principal amount than the holders desire to
exchange, such unaccepted, withdrawn or non-exchanged Private Notes will be
returned without expense to the tendering holder thereof (or, in the case of
Private Notes tendered by book-entry transfer into the Exchange Agent's account
at the Depositary pursuant to the book-entry transfer procedures described
below, such Private Notes will be credited to an account maintained with the
Depositary) as promptly as practicable.
The exchange Agent and DTC have confirmed that the Exchange Offer is
eligible for the Book-Entry Facility Automated Tender Offer Program ("ATOP").
Accordingly, DTC participants listed on an official DTC proxy may electronically
transmit their acceptance of the Exchange Offer by causing DTC to transfer Notes
to the Exchange Agent in accordance with DTC's ATOP procedures for transfer. DTC
will then send an Agent's Message to the Exchange Agent.
The term "Agent's Message" means a message transmitted by DTC, received by
the Exchange Agent and forming part of the confirmation of a book-entry
transfer, which states that DTC has received an express acknowledgment from the
participant in DTC tendering Notes which are the subject of such book-entry
confirmation, that such participant has received and agrees to be bound by the
terms of the Letter of Transmittal and that the Issuer may enforce such
agreement against the participant. In the case of an Agent's Message relating to
guaranteed delivery, the term means a message transmitted by DTC and received by
the Exchange Agent which states that DTC has received an express acknowledgment
from the participant in DTC tendering Notes that such participant has received
and agrees to be bound by the Notice of Guaranteed Delivery.
Each DTC participant transmitting an acceptance of the Exchange Offer
through the ATOP procedures will be deemed to have agreed to be bound by the
terms of the Letter of Transmittal. Nevertheless, in order for such acceptance
to constitute a valid tender of the DTC participant's Notes, such participant
must complete and sign a Letter of Transmittal and deliver it to the Exchange
Agent before the Expiration Date.
BOOK-ENTRY TRANSFER
The Exchange Agent will make a request to establish an account with respect
to the Private Notes at DTC for purposes of the Exchange Offer within two
business days after the date of this Prospectus, and any financial institution
that is a participant in the Depositary's systems may make book-entry delivery
of Private Notes by causing DTC to transfer such Private Notes into the Exchange
Agent's account at DTC in accordance with DTC's procedures for transfer.
However, although delivery of Private Notes may be effected through book-entry
transfer at DTC, the Letter of Transmittal or facsimile thereof, with any
required signature guarantees and any other required documents, must, in any
case, be transmitted to and received by the Exchange Agent at the address set
forth below under "--Exchange Agent" on or prior to the Expiration Date or
pursuant to the guaranteed delivery procedures described below.
GUARANTEED DELIVERY PROCEDURES
Holders who wish to tender their Private Notes and (i) whose Private Notes
are not immediately available or (ii) who cannot deliver their Private Notes,
the Letter of Transmittal or any other required documents to the Exchange Agent
prior to the Expiration Date, may effect a tender if:
(a) The tender is made through an Eligible Institution;
(b) Prior to the Expiration Date, the Exchange Agent receives from
such Eligible Institution a properly completed and duly executed Notice of
Guaranteed Delivery substantially in the form provided by the Company (by
facsimile transmission, mail or hand delivery) setting forth the name and
address of the holder, the certificate number(s) of such Private Notes and
the principal amount of Private Notes tendered, stating that the tender is
being made thereby and guaranteeing that, within five New York Stock
Exchange trading days after the Expiration Date, the Letter of Transmittal
(or a facsimile thereof), together with the certificate(s) representing the
Private Notes in proper form for transfer or a Book-Entry Confirmation, as
the case may be, and any other documents required by the Letter of
Transmittal, will be deposited by the Eligible Institution with the
Exchange Agent; and
(c) Such properly executed Letter of Transmittal (or facsimile
thereof), as well as the certificate(s) representing all tendered Private
Notes in proper form for transfer and all other documents required by the
Letter of Transmittal are received by the Exchange Agent within five New
York Stock Exchange trading days after the Expiration Date.
Upon request to the Exchange Agent, a Notice of Guaranteed Delivery will be
sent to holders who wish to tender their Private Notes according to the
guaranteed delivery procedures set forth above.
WITHDRAWAL OF TENDERS
Except as otherwise provided herein, tenders of Private Notes may be
withdrawn at any time prior to the Expiration Date.
To withdraw a tender of Private Notes in the Exchange Offer, a written or
facsimile transmission notice of withdrawal must be received by the Exchange
Agent at its address set forth herein prior to the Expiration Date. Any such
notice of withdrawal must (i) specify the name of the person having deposited
the Private Notes to be withdrawn (the "Depositor"), (ii) identify the Private
Notes to be withdrawn (including the certificate number or numbers and principal
amount of such Private Notes) and (iii) be signed by the holder in the same
manner as the original signature on the Letter of Transmittal by which such
Private Notes were tendered (including any required signature guarantees). All
questions as to the validity, form and eligibility (including time of receipt)
of such notices will be determined by the Company, in its sole discretion, whose
determination shall be final and binding on all parties. Any Private Notes so
withdrawn will be deemed not to have been validly tendered for purposes of the
Exchange Offer and no Exchange Notes will be issued with respect thereto unless
the Private Notes so withdrawn are validly retendered. Properly withdrawn
Private Notes may be retendered by following one of the procedures described
above under "The Exchange Offer--Procedures for Tendering" at any time prior to
the Expiration Date.
CONDITIONS
Notwithstanding any other term of the Exchange Offer, the Company shall not
be required to accept for exchange, or exchange the Exchange Notes for, any
Private Notes, and may terminate the Exchange Offer as provided herein before
the acceptance of such Private Notes, if the Exchange Offer violates applicable
law, rules or regulations or an applicable interpretation of the staff of the
Commission.
If the Company determines in its reasonable discretion that any of these
conditions are not satisfied, the Company may (i) refuse to accept any Private
Notes and return all tendered Private Notes to the tendering holders, (ii)
extend the Exchange Offer and retain all Private Notes tendered prior to the
expiration of the Exchange Offer, subject, however, to the rights of holders to
withdraw such Private Notes (see "--Withdrawal of Tenders") or (iii) waive such
unsatisfied conditions with respect to the Exchange Offer and accept all
properly tendered Private Notes that have not been withdrawn. If such waiver
constitutes a material change to the Exchange Offer, the Company will promptly
disclose such waiver by means of a prospectus supplement that will be
distributed to the registered holders of the Private Notes, and the Company will
extend the Exchange Offer for a period of five to ten business days, depending
upon the significance of the waiver and the manner of disclosure to the
registered holders, if the Exchange Offer would otherwise expire during such
five to ten business day period.
TERMINATION OF CERTAIN RIGHTS
All rights under the Registration Rights Agreement (including registration
rights) of holders of the Private Notes eligible to participate in the Exchange
Offer will terminate upon consummation of the Exchange Offer except with respect
to the Company's continuing obligations (i) to indemnify such holders (including
any broker-dealers) and certain parties related to such holders against certain
liabilities (including liabilities under the Securities Act), (ii) to provide,
upon the request of any holder of a transfer-restricted Private Note, the
information required by Rule 144A(d)(4) under the Securities Act in order to
permit resales of such Private Notes pursuant to Rule 144A, (iii) to use its
best efforts to keep the Registration Statement effective to the extent
necessary to ensure that it is available for resales of Exchange Notes by
broker-dealers for a period of up to one year from the date the Registration
Statement is declared effective or until such earlier date on which the Exchange
Notes are freely tradeable and to provide copies of the latest version of the
Prospectus to such broker-dealers upon their request during such period and (iv)
to file a shelf registration statement as required by the Registration Rights
Agreement if any holder of transfer-restricted Notes notifies the Company within
20 business days of the consummation of the Exchange Offer that (A) such holder
is prohibited by applicable law or Commission policy from participating in the
Exchange Offer, or (B) such holder may not resell the Exchange Notes acquired by
it in the Exchange Offer to the public without delivering a prospectus and that
this Prospectus is not appropriate or available for such resales by such holder,
or (C) that such holder is a broker-dealer and holds Private Notes acquired
directly from the Company as one of its affiliate (see "--Liquidated Damages").
LIQUIDATED DAMAGES
The Registration Rights Agreement provides that (i) the Company will file
the Registration Statement with the Commission on or prior to 90 days after the
issue date of the Private Notes (August 5, 1997), (ii) the Company will use its
best efforts to have the Registration Statement declared effective by the
Commission on or prior to 120 days after the Issue Date, (iii) unless the
Exchange Offer would not be permitted by applicable law or Commission policy,
the Company will commence the Exchange Offer and use its best efforts to issue,
on or prior to 30 days after the date on which the Registration Statement is
declared effective by the Commission, Exchange Notes in exchange for all Private
Notes tendered prior thereto in the Exchange Offer and (iv) if obligated to file
a shelf registration statement pursuant to the terms of the Registration Rights
Agreement (the "Shelf Registration Statement" and, collectively with the
Registration Statement, the "Registration Statements"), the Company will use its
best efforts to file such Shelf Registration Statement with the Commission.
If the Company fails to comply with the Registration Rights Agreement or if
the Exchange Offer Registration Statement or the Shelf Registration Statement
fails to become effective, then an additional amount ("Liquidated Damages")
shall become payable in respect of the Private Notes as provided in the
Registration Rights Agreement.
Holders of Private Notes will be required to make certain representations
to the Company (as described in the Registration Rights Agreement) in order to
participate in the Exchange Offer and will be required to deliver information to
be used in connection with the Shelf Registration Statement and to provide
comments on the Shelf Registration Statement within the time periods set forth
in the Registration Rights Agreement in order to have their Private Notes
included in the Shelf Registration Statement and benefit from the provisions
regarding Liquidated Damages set forth above.
FEES AND EXPENSES
The expenses of soliciting tenders will be borne by the Company. The
principal solicitation is being made by mail; however, additional solicitation
may be made by telegraph, telephone or in person by officers and regular
employees of the Company and its affiliates.
The Company has not retained any dealer-manager in connection with the
Exchange Offer and will not make any payments to brokers, dealers or others
soliciting acceptances of the Exchange Offer. The Company, however, will pay the
Exchange Agent reasonable and customary fees for its services and will reimburse
it for its reasonable out-of-pocket expenses in connection therewith.
The cash expenses to be incurred in connection with the Exchange Offer will
be paid by the Company and are estimated in the aggregate to be approximately
$200,000. Such expenses include registration fees, fees and expenses of the
Exchange Agent and the Trustee, accounting and legal fees and printing costs,
among others.
The Company will pay all transfer taxes, if any, applicable to the exchange
of Private Notes pursuant to the Exchange Offer. If, however, a transfer tax is
imposed for any reason other than the exchange of the Private Notes pursuant to
the Exchange Offer, then the amount of any such transfer taxes (whether imposed
on the registered holder or any other persons) will be payable by the tendering
holder. If satisfactory evidence of payment of such taxes or exemption therefrom
is not submitted with the Letter of Transmittal, the amount of such transfer
taxes will be billed directly to such tendering holder.
CONSEQUENCE OF FAILURE TO EXCHANGE
Participation in the Exchange Offer is voluntary. Holders of the Private
Notes are urged to consult their financial and tax advisors in making their own
decisions on what action to take.
The Private Notes that are not exchanged for the Exchange Notes pursuant to
the Exchange Offer will remain restricted securities. Accordingly, such Private
Notes may be resold only (i) to a person whom the seller reasonably believes is
a QIB in a transaction meeting the requirements of Rule 144A, (ii) in a
transaction meeting the requirements of Rule 144 under the Securities Act, (iii)
outside the United States to a foreign person in a transaction meeting the
requirements of Rule 904 under the Securities Act, (iv) in accordance with
another exemption from the registration requirements of the Securities Act (and
based upon an opinion of counsel if the Company so requests), (v) to the Company
or (vi) pursuant to an effective registration statement and, in each case, in
accordance with any applicable securities laws of any state of the United States
or any other applicable jurisdiction.
ACCOUNTING TREATMENT
For accounting purposes, the Company will recognize no gain or loss as a
result of the Exchange Offer. The expenses of the Exchange Offer will be
amortized over the term of the Exchange Notes.
EXCHANGE AGENT
United States Trust Company of New York has been appointed Exchange Agent
for the Exchange Offer. Delivery of the Letters of Transmittal and any other
required documents, questions, requests for assistance and requests for
additional copies of this Prospectus or of the Letter of Transmittal should be
directed to the Exchange Agent as follows:
<TABLE>
<CAPTION>
BY REGISTERED OR CERTIFIED MAIL: BY HAND: BY OVERNIGHT COURIER:
<S> <C> <C>
United States Trust Company United States Trust Company United States Trust Company
of New York of New York of New York
P.O. Box 844 111 Broadway 770 Broadway, 13th Floor
Attn: Corporate Trust Services Lower Level New York, New York 10003
Cooper Station Attn: Corporate Trust Services Attn: Corporate Trust Services
New York, New York 10276-0844 New York, New York 10006
</TABLE>
CONFIRM BY TELEPHONE:
1-800-548-6565
FACSIMILE TRANSMISSIONS:
(ELIGIBLE INSTITUTIONS ONLY)
United States Trust Company of New York
(212) 420-6152
Attn: Corporate Trust Services
Delivery to other than the above addresses or facsimile number will not
constitute a valid delivery.
<PAGE>
DESCRIPTION OF EXCHANGE NOTES
The following description of the terms of the Exchange Notes sets forth
certain general terms and provisions of the Exchange Notes. The Exchange Notes
were issued under an indenture dated as of August 5, 1997 (the "Indenture"),
between the Company and United States Trust Company of New York, as Trustee (the
"Trustee"). The terms of the Exchange Notes include those stated in the
Indenture.
The following description of the Exchange Notes and the Indenture are
summaries of the provisions thereof, and does not purport to be complete and is
qualified in its entirety by reference to the Indenture. Certain capitalized
terms used below but not defined herein have the meanings ascribed to them in
the applicable Indenture.
GENERAL
The Notes (including the Private Notes and the Exchange Notes) will be
limited to $75,000,000 in aggregate principal amount and will mature on August
1, 2007 (the "Maturity Date"). The Exchange Notes will bear interest from August
5, 1997 at the rate of 7.20% per annum. The Exchange Notes will be issued in
denominations of $1,000 and integral multiples of $1,000. Interest will be
payable semi-annually in arrears on February 1 and August 1 of each year,
commencing February 1, 1998 (each, an "Interest Payment Date"), to the persons
in whose names the Exchange Notes are registered at the close of business on the
preceding January 15 or July 15, respectively, regardless of whether such day is
a Business Day. If any Interest Payment Date or the Maturity Date falls on a day
that is not a Business Day, the required payment shall be made on the next
Business Day as if it were made on the date such payment was due and no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be. "Business Day"
means any day, other than a Saturday or Sunday, on which banking institutions in
the city of New York, New York are open for business.
The Exchange Notes will be direct, unsecured obligations of the Company and
will rank equally with all other unsecured and unsubordinated indebtedness of
the Company from time to time, including, but not limited to, indebtedness
represented by the 7.35% Notes. The Exchange Notes will be effectively
subordinated to any secured indebtedness of the Company to the extent of the
value of the assets securing such indebtedness. The Indenture will permit the
Company to incur additional secured and unsecured indebtedness. See "--Certain
Covenants" below.
The Exchange Notes will not be subject to any mandatory redemption or
annual sinking fund payments.
Reference is made to the section entitled "--Certain Covenants" herein for
a description of certain covenants applicable to the Exchange Notes. Compliance
with such covenants with respect to the Exchange Notes generally may not be
waived by the Trustee unless the holders of at least a majority in principal
amount of all outstanding Exchange Notes consent to such waiver.
Except as described herein under "--Certain Covenants" and under
"--Consolidation, Merger, Sale or Conveyance," the Indenture does not contain
any other provisions that would limit the ability of the Company to incur
indebtedness or that would afford holders of the Exchange Notes protection in
the event of (i) a highly leveraged or similar transaction involving the
Company, (ii) a change of control, or (iii) a reorganization, restructuring,
merger or similar transaction involving the Company that may adversely affect
the holders of the Exchange Notes. In addition, subject to the limitations set
forth under "-- Consolidation, Merger, Sale or Conveyance," the Company may, in
the future, enter into certain transactions such as the sale of all or
substantially all of its assets or the merger or consolidation of the Company
that would increase the amount of the Company's indebtedness or substantially
reduce or eliminate the Company's assets, which may have an adverse effect on
the Company's ability to service its indebtedness, including the Exchange Notes.
The Company and its management have no present intention of engaging in a highly
leveraged or similar transaction involving the Company.
The Company conducts certain of its operations through its subsidiaries.
The rights of the Company and its creditors, including the holders of the
Exchange Notes, to participate in the assets of any subsidiary upon the latter's
liquidation or reorganization will be subject to the prior claims of the
subsidiary's creditors except to the extent that the Company may itself be a
creditor with recognized claims against the subsidiary.
OPTIONAL REDEMPTION BY THE COMPANY
The Company may redeem the Exchange Notes, at any time, in whole or from
time to time in part, at the election of the Company, at a redemption price
equal to the sum of (i) the principal amount of the Exchange Notes being
redeemed plus accrued interest thereon to the redemption date and (ii) the
Make-Whole Amount (as defined below), if any, with respect to such Exchange
Notes (the "Redemption Price").
From and after notice has been given as provided in the Indenture, if funds
for the redemption of any Exchange Notes called for redemption shall have been
made available on such redemption date, such Exchange Notes will cease to bear
interest on the date fixed for such redemption specified in such notice and the
only right of the holders of the Exchange Notes will be to receive payment of
the Redemption Price.
Notice of any optional redemption of any Exchange Notes will be given to
holders at their addresses, as shown in the Note register, not more than 60 nor
less than 30 days prior to the date fixed for redemption. The notice of
redemption will specify, among other items, the Redemption Price and the
principal amount of the Exchange Notes held by such holder to be redeemed.
The Company will notify the Trustee at least 45 days prior to the
redemption date (or such shorter period as satisfactory to the Trustee) of the
aggregate principal amount of Exchange Notes to be redeemed and the redemption
date. If less than all the Exchange Notes are to be redeemed at the option of
the Company, the Trustee shall select, pro rata or by lot or by any other method
that the Trustee considers fair and appropriate under the circumstances,
Exchange Notes of such series to be redeemed in whole or in part. Exchange Notes
may be redeemed in part in the minimum authorized denomination for Exchange
Notes or in any integral multiple thereof.
As used herein,
"Make-Whole Amount" means, in connection with any optional redemption of
any Exchange Note, the excess, if any of (i) the aggregate present value as of
the date of such redemption of each dollar of principal being redeemed and the
amount of interest (exclusive of any interest accrued to the date of redemption)
that would have been payable in respect of such dollar if such redemption had
not been made, determined by discounting, on a semi-annual basis, such principal
and interest at the Reinvestment Rate (as defined below) (determined on the
third Business Day preceding the date such notice of redemption is given) from
the respective dates on which such principal and interest would have been
payable if such redemption had not been made, over (ii) the aggregate principal
amount of the Exchange Notes being redeemed.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of the yields
under the respective headings "This Week" and "Last Week" published in the most
recent Statistical Release (as defined below) under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date of the
principal being redeemed or paid. If no maturity exactly corresponds to such
maturity, yields for the two published maturities most closely corresponding to
such maturity shall be calculated pursuant to the immediately preceding sentence
and the Reinvestment Rate shall be interpolated or extrapolated from such yields
on a straight-line basis, rounding in each of such relevant periods to the
nearest month. For the purposes of calculating the Reinvestment Rate, the most
recent Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated "H.15(519)"
or any successor publication which is published weekly by the Federal Reserve
System and which establishes yields on actively traded United States government
securities adjusted to constant maturities, or, if such statistical release is
not published at the time of any determination under the Indenture, then such
other reasonably comparable index which shall be designated by the Company.
CERTAIN COVENANTS
LIMITATION ON LIENS
The Indenture will provide that the Company will not, directly or
indirectly, create, incur or assume any mortgage, pledge, deed of trust,
financing lease or security interest ("Liens") on any of its properties whether
now or hereafter acquired, or any income or profits therefrom, or assign or
convey any right to receive income therefrom (any such Lien, an "Initial Lien"),
unless prior to or simultaneously with the inception of such Initial Lien, the
Company shall have delivered to the Trustee a security agreement or security
agreements and such other documents as the Trustee may reasonably request, each
in form and substance satisfactory to the Trustee, granting to the Trustee an
equal and ratable security interest in such property subject to such Initial
Lien, such security interest to be for the equal and ratable benefit of the
Holders. Any such security interest created in favor of the Exchange Notes will
be automatically and unconditionally released and discharged upon the release
and discharge of the Initial Lien to which it relates. Notwithstanding the
foregoing, the restrictions set forth in this paragraph shall not apply if at
the time of, and immediately after giving PRO FORMA effect to, the transaction
giving rise to such Initial Lien, the Consolidated Indebtedness-to-Stockholders'
Equity Ratio does not exceed 4.0 to 1.0.
The foregoing restrictions shall not apply to:
(i) Liens securing obligations outstanding from time to time under any
revolving credit agreement to which the Company is a party;
(ii) Liens on assets existing at the time of acquisition thereof by
the Company, provided that such Liens were in existence prior to such
acquisition and were not created in contemplation of such acquisition;
(iii) Liens on assets of another Person existing at the time such
Person is merged into or consolidated with the Company, provided that such
Liens were in existence prior to such merger or consolidation and were not
created in contemplation of such merger or consolidation and do not extend
to any assets of the Company other than those previously owned by the
Person merged into or consolidated with the Company;
(iv) Liens securing Purchase Money Indebtedness, but only on assets in
respect to the purchase of which such Purchase Money Indebtedness shall
have been incurred;
(v) Liens on real property;
(vi) Liens in favor of any subsidiary of the Company;
(vii) Liens incurred or deposits made in the ordinary course of
business (1) in connection with workers' compensation, unemployment
insurance, social security or other like laws, (2) to secure the
performance of letters of credit, bids, tenders, trade contracts (other
than for borrowed money), sales contracts, leases, statutory obligations,
surety, appeal and performance bonds and other similar obligations, (3) in
connection with the opening of commercial letters of credit naming the
Company or any of its subsidiaries as an account party or (4) for the
benefit of any governmental agency or body created or approved by law or
governmental regulation as a condition to the transaction of business or
the exercise of any privilege, franchise or license;
(viii) Liens 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;
(ix) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings, provided that any reserve or other appropriate
provision as shall be required in conformity with generally accepted
accounting principles shall have been made therefor;
(x) Liens imposed by law, including but not limited to carriers',
seamen's, stevedores', wharfinger's, warehousemen's, mechanics',
suppliers', materialmen's, repairman's or other like Liens, in each case
for sums not yet due or being contested in good faith by appropriate
proceedings, or other Liens arising out of judgments or awards against the
Company or any of its subsidiaries with respect to which the Company or
such subsidiary shall then be proceeding with an appeal or other proceeding
for review;
(xi) Leases, lease agreements and other contracts entered into in the
ordinary course of business providing for the leasing, sale or exchange of
Transportation Equipment owned by the Company;
(xii) Liens securing hedging obligations;
(xiii) Liens (x) existing on the date of the Indenture and (y) to
secure any Refinancing (or successive Refinancings), in whole or in part,
of any Indebtedness (or commitment for Indebtedness) existing on the date
of the Indenture, provided, however, that the Indebtedness secured by such
Lien is not, solely by virtue of such Refinancing, increased to an amount
greater than the greater of (A) the outstanding principal amount of such
Indebtedness existing on the date of the Indenture that is secured by such
Lien, or (B) if such Lien secures Indebtedness under a line of credit, the
commitment amount of such line of credit existing on the date of the
Indenture; and
(xiv) Liens incurred in the ordinary course of business of the Company
with respect to obligations that do not exceed $1.0 million at any one time
outstanding and that (x) are not incurred in connection with the borrowing
of money or the obtaining of advances or credit (other than trade credit in
the ordinary course of business) and (y) do not in the aggregate materially
detract from the value of the assets subject to such Lien or materially
impair the use thereof in the operation of business by the Company.
"CONSOLIDATED INDEBTEDNESS-TO-STOCKHOLDERS' EQUITY RATIO" means at any date
of determination (the "Determination Date"), the ratio of (i) the aggregate Debt
of the Company and its Subsidiaries on a consolidated basis as at the
Determination Date to (ii) the sum of (w) the stockholders' equity of the
Company and its Subsidiaries on a consolidated basis calculated in accordance
with generally accepted accounting principles as at the Determination Date, (x)
the amount set forth on the consolidated balance sheet of the Company and its
Subsidiaries under the caption "Company-obligated mandatorily redeemable
preferred securities in subsidiary grantor trusts" or a similar caption, (y) to
the extent not included in clause (w), the aggregate amount of preferred stock
of the Company (as reflected on the consolidated balance sheet of the Company
calculated in accordance with generally accepted accounting principles) which is
not subject to mandatory redemption prior to the maturity date of the Exchange
Notes and (z) the Subordinated Indebtedness of the Company as to which no
principal payments are due until after the maturity date of the Notes (to the
extent such Subordinated Indebtedness was included in the calculation of Debt in
clause (i) above).
"DEBT" 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 12 months from the date on which the obligation was
created or (iii) evidenced by notes, bonds or other instruments, and (b) all
Lease Obligations; PROVIDED, HOWEVER, that, except for purposes of the
definition of Consolidated Indebtedness-to-Stockholders' Equity Ratio, Debt
shall not include Subordinated Indebtedness as to which no principal payments
are due until after the maturity date of the Exchange Notes.
"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 term 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 Standards No. 13 of the Financial Standards
Board from time to time in effect.
"PURCHASE MONEY INDEBTEDNESS" of a Person means all Debt (excluding all
Lease Obligations) of such Person which is Secured Indebtedness incurred to
finance the purchase of assets if such Debt (a) shall have been incurred within
180 days of the acquisition of such assets by the Person whose Purchase Money
Indebtedness is being determined and (b) does not exceed in principal amount the
initial cost of such assets and shall include all extensions, renewals and
refinancings of such Debt not in excess of the principal amount thereof
outstanding immediately prior to such extension, renewal or refinancing. The
initial cost of assets may include, in addition to the purchase price thereof
and the purchase price of all accessories and equipment installed thereon, all
freight, delivery and handling charges, excise, sales and use taxes and all
other amounts which may be capitalized and included in the cost of the assets
under generally accepted accounting principles.
"SALE AND LEASEBACK", with respect to a Person, means any transaction with
a bank, company, lender or investor providing for the leasing by such Person of
any property which has been or is to be sold or transferred by such Person to
such bank, company, lender or investor, or of 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.
"SECURED INDEBTEDNESS" means with respect to a Person all Debt which is
secured by any security interest, mortgage, charge, pledge, deed of trust, or
other similar lien on assets by the owner thereof and includes all Lease
Obligations. Transportation Equipment which is subject to a lease or contract
which is included as a Lease Obligation is deemed to secure the Debt evidenced
thereby.
"SUBORDINATED INDEBTEDNESS" means Debt of the Company which is expressly
subordinated and subject in right of payment to the prior payment, in bankruptcy
or in the event of a payment default on the Exchange Notes, in full in money or
money's worth in accordance with their terms, of all principal of, premium, if
any, and interest on the Notes.
"SUBSIDIARY" of a Person means (i) any corporation more than 50% the
outstanding voting power of which is owned or controlled, directly or
indirectly, by such Person or by one or more other subsidiaries of such Person,
or by such Person and one or more other subsidiaries thereof, or (ii) any
limited partnership of which such Person or any subsidiary of such Person is a
general partner, or (iii) any other Person (other than a corporation or limited
partnership) in which such Person and one or more subsidiaries thereof, directly
or indirectly, has more than 60% of the outstanding partnership or similar
interests or has the power, by contract or otherwise, to direct or cause the
direction of the policies, management and affairs thereof.
"TRANSPORTATION EQUIPMENT" means domestic and marine containers, trucks,
tractors, trailers, chassis, cranes, portable ramps, lifting equipment, railroad
locomotives, railroad rolling stock, modular office units, mobile office and
storage trailers and all other transportation equipment, and includes all
accessories and attachments thereto.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
The Indenture provides that the Company may merge or consolidate with, or
sell or convey all or substantially all of its assets to, any other corporation,
provided that (i) either the Company shall be the continuing entity, or the
successor entity (if other than the Company) shall be any entity organized and
existing under the laws of the United States or a state thereof or the District
of Columbia and such entity shall expressly assume by supplemental indenture all
of the obligations of the Company under the Notes and the Indenture, (ii)
immediately after giving effect to such transactions no Default or Event of
Default shall have occurred and be continuing, and (iii) the Company shall have
delivered to the Trustee an Officer's Certificate and opinion of counsel,
stating that the transaction and supplemental indenture comply with the
Indenture.
MODIFICATION OF THE INDENTURE
Under the Indenture, with certain exceptions, the rights and obligations of
the Company with respect to the Exchange Notes and the rights of holders of the
Exchange Notes may only be modified by the Company and the Trustee with the
consent of the holders of at least a majority in principal amount of the
outstanding Exchange Notes. However, without the consent of each holder of
Exchange Notes affected, an amendment, waiver or supplement may not (i) reduce
the principal of, or rate of interest on, any Exchange Notes; (ii) change the
stated maturity date of the principal of, or any installment of interest on, any
Exchange Notes; (iii) waive a default in the payment of the principal amount of,
or the interest on, or any premium payable on redemption of, any Exchange Notes;
(iv) change the currency for payment of the principal of, or premium or interest
on, any Exchange Notes; (v) impair the right to institute suit for the
enforcement of any such payment when due; (vi) reduce the amount of outstanding
Exchange Notes necessary to consent to an amendment, supplement or waiver
provided for in the Indenture; or (vii) modify any provisions of the Indenture
relating to the modification and amendment of the Indenture or waivers of past
defaults, except as otherwise specified.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Company is permitted under the Indenture to discharge certain
obligations to holders of the Exchange Notes issued thereunder that have not
already been delivered to the Trustee for cancellation and that either have
become due and payable or will become due and payable within one year (or
scheduled for redemption within one year) by irrevocably depositing with the
Trustee, in trust, funds in such currency in which the Exchange Notes are
payable in an amount sufficient to pay the entire indebtedness on the Exchange
Notes in respect of principal (and premium, if any) and interest to the date of
such deposit (if the Exchange Notes have become due and payable) or to the
stated maturity and redemption date, as the case may be.
The Indenture provides that the Company may elect either (a) to defease and
be discharged from any and all obligations with respect to the Exchange Notes
(except for the obligation to pay additional amounts, if any, upon the
occurrence of certain events of tax, assessment or governmental charge with
respect to payments on such Exchange Notes and the obligations to register the
transfer or exchange of such Exchange Notes, to replace temporary or mutilated,
destroyed, lost or stolen Exchange Notes, to maintain an office or agency in
respect of such Exchange Notes and to hold moneys for payment in trust)
("defeasance"), or (b) to be released from its obligations with respect to such
Exchange Notes under the restrictions described under "--Certain Covenants" or
its obligations with respect to any other covenant, and any omission to comply
with such obligations will not constitute an Event of Default with respect to
such Exchange Notes ("covenant defeasance"), in either case upon the irrevocable
deposit by the Company with the Trustee, in trust, of an amount, in cash in
United States dollars, or Government Obligations, or both, applicable to such
Exchange Notes which through the scheduled payment of principal and interest in
accordance with their terms will provide money in an amount sufficient to pay
the principal of (and premium, if any) and interest on such Exchange Notes on
the scheduled due dates therefor.
Such a trust will only be permitted to be established if, among other
things, the Company has delivered to the Trustee an opinion of counsel to the
effect that the holders of such Exchange Notes will not recognize income, gain
or loss for U.S. federal income tax purposes as a result of such defeasance or
covenant defeasance and will be subject to U.S. 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 or covenant defeasance had not occurred, and such opinion of
counsel, in the case of defeasance, will be required to refer to and be based
upon a ruling of the Internal Revenue Service or a change in applicable United
States federal income tax law occurring after the date of the Indenture.
If the Company effects covenant defeasance with respect to the Exchange
Notes and such Exchange Notes are declared due and payable because of an Event
of Default, the amount in cash in United States dollars and Government
Obligations on deposit with the Trustee, will be sufficient to pay amounts due
on such Exchange Notes at the time of their stated maturity but may not be
sufficient to pay amounts due on such Exchange Notes at the time of the
acceleration resulting from such Event of Default. However, the Company would
remain liable to make payment of such amounts due at the time of acceleration.
"GOVERNMENT OBLIGATIONS" means securities which are (a) direct obligations
of the United States of America, for the payment of which its full faith and
credit is pledged, or (b) 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 are not callable or redeemable
at the option of the issuer thereof, and will also include a depository receipt
issued by a bank or trust as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the holder of a
depositary 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 Government Obligation or the specific payment of interest on or principal of
the Government Obligation evidenced by such depository receipt.
EVENTS OF DEFAULT, NOTICE AND WAIVER
The following are Events of Default under the Indenture: (i) default in the
payment of interest on the Exchange Notes when due and payable, which continues
for 30 days; (ii) default in the payment of principal of the Exchange Notes when
due and payable at maturity; (iii) failure to perform any other covenant of the
Company contained in the Indenture or the Exchange Notes which continues for 60
days after written notice as provided in the Indenture; (iv) default under any
bond, debenture or other Indebtedness of the Company or any subsidiary if (a)
either (x) such event of default results from the failure to pay any such
Indebtedness at maturity or (y) as a result of such event of default, the
maturity of such Indebtedness has been accelerated prior to its expressed
maturity and such acceleration shall not be rescinded or annulled or the
accelerated amount paid within 10 days after notice to the Company of such
acceleration, or such Indebtedness having been discharged, and (b) the principal
amount of such Indebtedness, together with the principal amount of any other
such Indebtedness in default for failure to pay principal or interest thereon,
or the maturity of which has been so accelerated, aggregates $10,000,000 or
more; and (v) certain events of bankruptcy, insolvency or reorganization
relating to the Company.
If an Event of Default occurs and is continuing with respect to the
Exchange Notes, either the Trustee or the holders of a majority in aggregate
principal amount of the outstanding Exchange Notes may declare the Exchange
Notes due and payable immediately.
The Company will not declare or pay any dividends or make any distribution
to holders of its capital stock (other than dividends or distributions payable
in capital stock of the Company) if at the time of any of the aforementioned
actions an Event of Default has occurred and is continuing or would exist
immediately after giving effect to such action, except for the payment of any
dividend within 60 days after the date of declaration when the payment would
have complied with the foregoing provisions on the date of declaration.
The Indenture provides that the Trustee will, within 90 days after the
occurrence of any Default or Event of Default with respect to the Notes, give to
the holders of the Exchange Notes notice of all uncured Defaults and Events of
Default known to it, but the Trustee will be protected in withholding such
notice if it in good faith determines that the withholding of such notice is in
the interest of such holders, except in the case of a default in the payment of
the principal of (or premium, if any) or interest on any of the Notes.
The Indenture provides that the holders of a majority in aggregate
principal amount of the Exchange Notes then outstanding may direct the time,
method and place of conducting any proceedings for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with respect
to the Exchange Notes. The right of a holder to institute a proceeding with
respect to the Indenture is subject to certain conditions precedent including
notice and indemnity to the Trustee, but the holder has an absolute right to
receipt of principal of (and premium, if any) and interest on such holder's
Exchange Notes on or after the respective due dates expressed in the Exchange
Notes, and to institute suit for the enforcement of any such payments.
The holders of a majority in principal amount of the Exchange Notes then
outstanding may on behalf of the holders of all Exchange Notes waive certain
past defaults, except a default in payment of the principal of (or premium, if
any) or interest on any Exchange Notes or in respect of certain provisions of
the Indenture which cannot be modified or amended without the consent of the
holder of each Exchange Note affected thereby.
The Company will be required to furnish to the Trustee annually a statement
of certain officers of the Company stating whether or not they know of any
Default or Events of Default and, if they have knowledge of a Default or Event
of Default, a description of the efforts to remedy the same.
GOVERNING LAW
The Exchange Notes and the Indenture will be governed by and construed in
accordance with the laws of the State of New York, without giving effect to its
conflicts of law rules.
FORM, DENOMINATION, BOOK-ENTRY PROCEDURES AND TRANSFER
The Exchange Notes initially will be represented by one or more Notes in
registered, global form (collectively, the "Global Exchange Notes"). The Global
Exchange Notes will be deposited upon issuance with the Trustee as custodian for
DTC in New York, New York, and registered in the name of DTC or its nominee, in
each case for credit to an account of a direct or indirect participant in DTC as
described below.
Except as set forth below, the Global Exchange Notes may be transferred, in
whole and not in part, only to another nominee of DTC or to a successor of DTC
or its nominee. Beneficial interests in the Global Exchange Notes may not be
exchanged for Exchange Notes in certificated form except in the limited
circumstances described under "--Exchange of Book-Entry Exchange Notes for
Certificated Exchange Notes" below.
Other Exchange Notes will be issued only in registered, certificated (I.E.,
non-global) form. Other Exchange Notes may not be exchanged for beneficial
interests in any Global Exchange Notes except in the limited circumstances
described below. See "--Exchange of Certificated Exchange Notes for Book-Entry
Exchange Notes."
DEPOSITARY PROCEDURES
DTC has advised the Company that DTC is a limited-purpose trust company
created to hold securities for its participating organizations (collectively,
the "Participants") and to facilitate the clearance and settlement of
transactions in those securities between Participants through electronic
book-entry changes in accounts of its Participants. The Participants include
securities brokers and dealers (including the Initial Purchaser), banks, trust
companies, clearing corporations and certain other organizations. Access to
DTC's system is also available to other entities such as banks, brokers, dealers
and trust companies that clear through or maintain a custodial relationship with
a Participant, either directly or indirectly (collectively, the "Indirect
Participants"). Persons who are not Participants may beneficially own securities
held by or on behalf of DTC only through the Participants or the Indirect
Participants. The ownership interest and transfer of ownership interest of each
actual purchaser of each security held by or on behalf of DTC are recorded on
the records of the Participants and Indirect Participants.
DTC has also advised the Company that, pursuant to procedures established
by it, (i) upon deposit of the Global Exchange Notes, DTC will credit the
accounts of Participants designated by the Initial Purchaser with portions of
the principal amount of the Global Exchange Notes and (ii) ownership of such
interests in the Global Exchange Notes will be shown on, and the transfer of
ownership thereof will be effected only through, records maintained by DTC (with
respect to the Participants) or by the Participants and the Indirect
Participants (with respect to other owners of beneficial interests in the Global
Exchange Notes).
Investors in the Global Exchange Notes may hold their interests therein
directly through DTC if they are Participants in such system or indirectly
through organizations which are Participants in such system. All interests in a
Global Exchange Note will be subject to the procedures and requirements of DTC.
The laws of some states require that certain persons take physical delivery in
certificated form of securities that they own. Consequently, the ability to
transfer beneficial interests in a Global Exchange Note to such persons will be
limited to that extent. Because DTC can act only on behalf of Participants,
which in turn act on behalf of Indirect Participants and certain banks, the
ability of a person having beneficial interests in a Global Exchange Note to
pledge such interests to persons or entities that do not participate in the DTC
system, or otherwise take actions in respect of such interests, may be affected
by the lack of a physical certificate evidencing such interests. For certain
other restrictions on the transferability of the Notes, see "--Exchange of
Book-Entry Notes for Certificated Notes" and "--Exchange of Certificated Notes
for Book-Entry Notes" below.
Except as described below, owners of interests in the Global Exchange Notes
will not have Notes registered in their name, will not receive physical delivery
of Notes in certificated form and will not be considered the registered owners
or holders thereof under the Declaration for any purpose.
Payments in respect of the Global Exchange Note registered in the name of
DTC or its nominee will be payable by the Trustee to DTC in its capacity as the
registered holder under the Indenture. Under the terms of the Indenture, the
Trustee will treat the persons in whose names the Notes, including the Global
Exchange Notes, are registered as the owners thereof for the purpose of
receiving such payments and for any and all other purposes whatsoever.
Consequently, neither the Trustee nor any agent thereof has or will have any
responsibility or liability for (i) any aspect of DTC's records or any
Participant's or Indirect Participant's records relating to or payments made on
account of beneficial ownership interests in the Global Exchange Notes, or for
maintaining, supervising or reviewing any of DTC's records or any Participant's
or Indirect Participant's records relating to the beneficial ownership interests
in the Global Exchange Notes or (ii) any other matter relating to the actions
and practices of DTC or any of its Participants or Indirect Participants. DTC
has advised the Company that its current practice, upon receipt of any payment
in respect of securities such as the Notes, is to credit the accounts of the
relevant Participants with the payment on the payment date, in amounts
proportionate to their respective holdings in principal amount of beneficial
interests in the relevant security as shown on the records of DTC unless DTC has
reason to believe it will not receive payment on such payment date. Payments by
the Participants and the Indirect Participants to the beneficial owners of Notes
will be governed by standing instructions and customary practices and will be
the responsibility of the Participants or the Indirect Participants and will not
be the responsibility of DTC, the Trustee or the Company. Neither the Company
nor the Trustee will be liable for any delay by DTC or any of its Participants
in identifying the beneficial owners of the Notes, and the Company and the
Trustee may conclusively rely on and will be protected in relying on
instructions from DTC or its nominee for all purposes.
Interests in the Global Exchange Notes will trade in DTC's Same-Day Funds
Settlement System and secondary market trading activity in such interests will
therefore settle in immediately available funds, subject in all cases to the
rules and procedures of DTC and its Participants and Indirect Participants.
Transfers among Participants and Indirect Participants in DTC will be effected
in accordance with DTC's procedures, and will be settled in same-day funds.
DTC has advised the Company that it will take any action permitted to be
taken by a holder of Notes only at the direction of one or more Participants to
whose account with DTC interests in the Global Exchange Notes are credited and
only in respect of such portion of the principal amount of the Notes as to which
such Participant or Participants has or have given such direction. However, if
there is an Event of Default under the Declaration, DTC reserves the right to
exchange the Global Exchange Notes for legended Notes in certificated form and
to distribute such Notes to its Participants.
The information in this section concerning DTC and its book-entry system
has been obtained from sources that the Company believe to be reliable, but the
Company does not take responsibility for the accuracy thereof.
Although DTC has agreed to the foregoing procedures to facilitate transfers
of interest in the Global Exchange Notes among Participants in DTC, it is under
no obligation to perform or to continue to perform such procedures, and such
procedures may be discontinued at any time. Neither the Company nor the Trustee
will have any responsibility for the performance by DTC or its Participants or
Indirect Participants of their respective obligations under the rules and
procedures governing DTC's operations.
EXCHANGE OF BOOK-ENTRY EXCHANGE NOTES FOR CERTIFICATED EXCHANGE NOTES
A Global Exchange Note is exchangeable for Notes in registered certificated
form if (i) DTC (x) notifies the Company that it is unwilling or unable to
continue as Depositary for the Global Exchange Note and the Company thereupon
fails to appoint a successor Depositary within 90 days or (y) has ceased to be a
clearing agency registered under the Exchange Act, (ii) the Company in its sole
discretion elects to cause the issuance of the Notes in certificated form or
(iii) there shall have occurred and be continuing an Event of Default or any
event which after notice or lapse of time or both would be an Event of Default
under the Declaration. In addition, beneficial interests in a Global Exchange
Note may be exchanged for certificated Notes upon request but only upon at least
20 days prior written notice given to the Trustee by or on behalf of DTC in
accordance with customary procedures. In all cases, certificated Notes delivered
in exchange for any Global Exchange Note or beneficial interests therein will be
registered in the names, and issued in any approved denominations, requested by
or on behalf of the Depositary (in accordance with its customary procedures) and
will bear the legend referred to in "Notice to Investors," unless the Trustee
determines otherwise in compliance with applicable law.
EXCHANGE OF CERTIFICATED NOTES FOR BOOK-ENTRY NOTES
Other Notes, which will be issued in certificated form, may not be
exchanged for beneficial interests in any Global Exchange Note unless such
exchange occurs in connection with a transfer of such Other Notes and the
transferor first delivers to the Trustee a written certificate (in the form
provided in the Indenture) to the effect that such transfer will comply with the
appropriate transfer restrictions applicable to such Notes.
PAYMENT AND PAYING AGENT
Payments in respect of the Global Notes held in global form shall be made
to the Depositary, which shall credit the relevant accounts at the Depositary on
the applicable payment dates. In respect of the Notes that are not held by the
Depositary, such payments shall be made by check mailed to the address of the
holder entitled thereto as such address shall appear on the register. The paying
agent (the "Paying Agent") shall initially be the Trustee and any co-paying
agent chosen by the Trustee and acceptable to the Company. The Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Trustee and the Company. In the event that the Trustee shall no longer be the
Paying Agent, the Company shall appoint a successor (which shall be a bank or
trust company) to act as Paying Agent.
Any moneys deposited with the Trustee or any Paying Agent, or then held by
the Company in trust, for the payment of the principal of (and premium, if any)
or interest on any Exchange Notes and remaining unclaimed for two years after
such principal or interest has become due and payable shall, at the request of
the Company, be repaid to the Company and the holder of such Exchange Notes
shall thereafter look, as a general unsecured creditor, only to the Company for
payment thereof.
INFORMATION CONCERNING THE TRUSTEE
The Trustee under the Indenture is United States Trust Company of New York.
The Trustee will act as registrar and transfer agent for the Exchange
Notes. Registration of transfers of the Exchange Notes will be effected without
charge by or on behalf of the Company, but upon payment of any tax or other
governmental charges that may be imposed in connections with any transfer or
exchange.
The Trustee is subject to all the duties and responsibilities specified
with respect to an indenture trustee under the Trust Indenture Act. Subject to
such provisions, the Trustee is under no obligation to exercise any of the
powers vested in it by the Indenture at the request of any holder of Exchange
Notes, unless offered reasonable indemnity by such holder against the costs,
expenses and liabilities which might be incurred thereby. The Trustee is not
required to expend or risk its own funds or otherwise incur personal financial
liability in the performance of its duties if the Trustee reasonably believes
that repayment or adequate indemnity is not reasonably assured to it.
ADDITIONAL INFORMATION
Anyone who receives this Offering Memorandum may obtain a copy of the
Indenture without charge by writing to Interpool, Inc., 211 College Road East,
Princeton New Jersey, Attention: Investor Relations.
DESCRIPTION OF PRIVATE NOTES
The terms of the Private Notes are identical in all material respects to
the Exchange Notes, except that (i) the Private Notes have not been registered
under the Securities Act, are subject to certain restrictions on transfer and
are entitled to certain rights under the applicable Registration Rights
Agreement (which rights will terminate upon consummation of the Exchange Offer,
except under limited circumstances), (ii) the Exchange Notes will not contain
the $100,000 minimum principal amount transfer restriction and certain other
restrictions on transfer applicable to Private Notes, and (iii) the Exchange
Notes will not provide for payment of additional distributions thereon. The
Private Notes provide that, in the event that the Exchange Offer is not
consummated within 30 days after the date notice of the Exchange Offer has been
mailed to holders of the Private Notes or, in certain limited circumstances, in
the event a shelf registration statement (the "Shelf Registration Statement")
with respect to the resale of the Private Notes is not declared effective within
120 days of August 5, 1997, then liquidated damages will accrue (in addition to
the stated interest rate on the Private Notes) at the rate of 0.25% per annum on
the principal amount of the Private Notes and additional Distributions will
accrue (in addition to the stated Distribution rate on the Private Notes) at the
rate of 0.25% per annum on the principal amount of the Private Notes, for the
period from the occurrence of such event until such time as such required
Exchange Offer is consummated or any required Shelf Registration Statement is
effective. The Exchange Notes are not, and upon consummation of the Exchange
Offer the Private Notes will not be, entitled to any such liquidated damages or
additional Distributions. Accordingly, holders of Private Notes should review
the information set forth under "Risk Factors-- Certain Consequences of a
Failure to Exchange Private Notes" and "Description of Exchange Notes."
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The exchange of the Private Notes for Exchange Notes should not be a
taxable event to holders of Notes for United States federal income tax purposes.
The exchange of Private Notes for Exchange Notes pursuant to the Exchange Offer
should not be treated as an "exchange" for United States federal income tax
purposes because the Exchange Notes should not be considered to differ
materially in kind or extent from the Private Notes and because the exchange
will occur by operation of the terms of the Private Notes. If, however, the
exchange of the Private Notes for the Exchange Notes were treated as an exchange
for United States federal income tax purposes, such exchange should constitute a
non-taxable recapitalization for United States federal income tax purposes.
Accordingly, the Exchange Notes should have the same issue price as the Private
Notes, and a holder should have the same adjusted tax basis and holding period
in the Exchange Notes as the holder had in the Private Notes immediately before
the exchange.
ERISA CONSIDERATIONS
Each of the Company and its affiliates and the Trustee may be considered a
"party in interest" (within the meaning of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) or a "disqualified person" (within
the meaning of Section 4975 of the Internal Revenue Code of 1986, as amended
(the "Code")) with respect to many employee benefit plans ("Plans") that are
subject to ERISA. Any purchaser proposing to acquire Exchange Notes with assets
of any Plan should consult with its counsel. The purchase and/or holding of
Exchange Notes by a Plan that is subject to the fiduciary responsibility
provisions of ERISA or the prohibited transaction provisions of Section 4975 of
the Code (including individual retirement arrangements and other plans described
in Section 4975(e)(1) of the Code) and with respect to which the Company, the
Trustee or any affiliate is a service provider (or otherwise is a party in
interest or a disqualified person) may constitute or result in a prohibited
transaction under ERISA or Section 4975 of the Code, unless such Exchange Notes
are acquired pursuant to and in accordance with an applicable exemption, such as
Prohibited Transaction Class Exemption ("PTCE") 84-14 (an exemption for certain
transactions determined by an independent qualified professional asset manager),
PTCE 91-38 (an exemption for certain transactions involving bank collective
investment funds), PTCE 90-1 (an exemption for certain transactions involving
insurance company pooled separate accounts), PTCE 95-60 (an exemption for
transactions involving certain insurance company general accounts), or PTCE
95-23 (an exemption for certain transactions determined by an in-house asset
manager).
PLAN OF DISTRIBUTION
Based on an interpretation by the staff of the Commission set forth in
no-action letters issued to third parties, the Company believes that the
Exchange Notes issued pursuant to the Exchange Offer in exchange for Private
Notes may be offered for resale, resold and otherwise transferred by a holder
thereof (other than (i) an "affiliate" of the Company within the meaning of Rule
405 under the Securities Act, (ii) a broker-dealer who acquired Private Notes
directly from the Company to resell pursuant to Rule 144A or any other available
exemption under the Securities Act or (iii) a broker-dealer who acquired Private
Notes as a result of market making or other trading activities), without
compliance with the registration and prospectus delivery requirements of the
Securities Act; PROVIDED that the holder is acquiring Exchange Notes in the
ordinary course of its business and is not participating, and has no arrangement
or understanding with any person to participate, in the distribution of the
Exchange Notes. Holders of Private Notes wishing to accept the Exchange Offer
must represent to the Company, as required by the Registration Rights Agreement,
that such conditions have been met. The Company believes that none of the
registered holders of the Private Notes is an affiliate (as such term is defined
in Rule 405 under the Securities Act) of the Company.
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Private Notes must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Notes. The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of
Exchange Notes received in exchange for Private Notes, where such Private Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Company has agreed to make this Prospectus (as it
may be amended or supplemented) available to any broker-dealer, upon request,
for use in connection with any such resale, for a period of one year after the
Registration Statement is declared effective by the Commission or until such
earlier date on which all the Exchange Notes are freely tradeable. However, any
broker-dealer who acquired the Notes directly from the Company may not fulfill
its prospectus delivery requirements with this Prospectus, but must comply with
the registration and prospectus delivery requirements of the Securities Act.
The Company will not receive any proceeds from any sale of the Exchange
Notes by broker-dealers or any other persons. Exchange Notes received by
broker-dealers for their own accounts pursuant to the Exchange Offer may be sold
for time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange Notes or
a combination of such methods of resale, at market prices prevailing at the time
of such resale, at prices related to such prevailing market prices or at
negotiated prices. Any such resale may be made directly to purchasers or to or
through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such broker-dealer and/or purchasers of any
such Exchange Notes. Any broker-dealer that resells Exchange Notes that were
received by it for its own account pursuant to the Exchange Offer and any broker
or dealer that participates in the distribution of such Exchange Notes may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Notes and any commissions or concessions
received by any such persons may be deemed to be underwriting compensation under
the Securities Act. The Letter of Transmittal states that by acknowledging that
it will deliver and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.
By acceptance of this Exchange Offer, each broker-dealer that receives
Exchange Notes pursuant to the Exchange Offer agrees that, upon receipt of
notice from the Company of the happening of any event which makes any statement
in the Prospectus untrue in any material respect or which requires the making of
any changes in the Prospectus in order to make the statements therein not
misleading (which notice the Company agrees to deliver promptly to such
broker-dealer), such broker-dealer will suspend use of the Prospectus until the
Company has amended or supplemented the Prospectus to correct such misstatement
or omission and has furnished copies of the amended or supplemented Prospectus
to such broker-dealer. If the Company shall give any such notice to suspend the
use of the Prospectus, it shall extend the one-year period referred to above by
the number of days during the period from and including the date of the giving
of such notice to and including the date when the broker-dealers shall have
received copies of the supplemented or amended Prospectus necessary to permit
resales of the Exchange Notes.
The Company has agreed to pay all expenses incident to the Company's
performance of, or compliance with, the Registration Rights Agreement and will
indemnify the holders (including any broker-dealers) and certain parties related
to the holders against certain liabilities, including liabilities under the
Securities Act.
LEGAL MATTERS
The legality of the Exchange Notes will be passed upon on behalf of the
Company by Stroock & Stroock & Lavan LLP, New York, New York.
EXPERTS
The consolidated financial statements of the Company included in the
Company's Annual Report on Form 10-K incorporated by reference into this
Prospectus have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto, and are
incorporated herein by reference in reliance upon the authority of said firm as
experts in giving said reports.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") provides, in summary, that directors and officers of Delaware
corporations are entitled, under certain circumstances, to be indemnified
against all expenses and liabilities (including attorneys' fees) incurred by
them as a result of suits brought against them in their capacity as a director
or officer, if they acted in good faith and in a manner they reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
their conduct was unlawful; provided, that no indemnification may be made
against expenses in respect of any claim, issue or matter as to which they shall
have been adjudged to be liable to the corporation, unless and only to the
extent that the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, they are fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper. Any such
indemnification may be made by the corporation only as authorized in each
specific case upon a determination by the stockholders or disinterested
directors that indemnification is proper because the indemnitee has met the
applicable standard of conduct. Article Ninth of the Company's Certificate of
Incorporation entitles officers, directors and controlling persons of the
Company to indemnification to the full extent permitted by Section 145 of the
DGCL, as the same may be supplemented or amended from time to time.
Article Ninth of the Company's Certificate of Incorporation provides that
no director shall have any personal liability to the Company or its stockholders
for any monetary damages for breach of fiduciary duty as a director, provided
that such provision does not limit or eliminate the liability of any director
(i) for breach of such director's duty or loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the DGCL (involving certain unlawful dividends or stock repurchases) or (iv) for
any transaction from which such director derived an improper personal benefit.
The provisions of such article do not limit or eliminate the liability of any
director for any act or omission occurring prior to the effective time of such
amendment.
Reference is made to Section 4 of the Registration Rights Agreement
included in Exhibit 4.3 hereto which provides certain indemnification rights to
the directors and officers of the Company.
<PAGE>
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
EXHIBIT
NO. DESCRIPTION
4.1 Indenture between Interpool, Inc. and United States Trust Company of
New York, as trustee, relating to the Notes, dated August 5, 1997.
4.2 Form of Exchange Note (included in Exhibit 4.1 hereto).
4.3 Registration Rights Agreement between Interpool, Inc. and Smith Barney
Inc., as initial purchaser, dated August 5, 1997.
5.1 Opinion of Stroock & Stroock & Lavan LLP as to the legality of the
Exchange Notes.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Stroock & Stroock & Lavan LLP (included in Exhibit 5.1).
24 Power of Attorney of certain officers and directors of Interpool, Inc.
(Included on page II-5 of this Registration Statement).
25.1 Form T-1 Statement of Eligibility of United States Trust Company of
New York to act as trustee under the Indenture.
99.1 Form of Letter of Transmittal.
99.2 Form of Notice of Guaranteed Delivery.
99.3 Form of Letter to Nominees.
99.4 Form of Letter to Clients.
99.5 Form of Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.
ITEM 22. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(b) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule
430A and contained in a form of prospectus filed by the Registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this registration statement as of the
time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) The undersigned registrant hereby undertakes that insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes to respond to
requests for information that is incorporated by reference into the
prospectus pursuant to Item 4, 10(b), 11 or 13 of this form, within one
business day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective date
of the registration statement through the date of responding to the
request.
(e) The undersigned registrant hereby undertakes to supply by means of
a post-effective amendment all information concerning a transaction, and
the company being acquired involved therein, that was not the subject of
and included in the registration statement when it became effective.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Princeton, State of New
Jersey, on October 24, 1997.
INTERPOOL, INC.
By: /S/ MARTIN TUCHMAN
Martin Tuchman
CHAIRMAN AND CHIEF
EXECUTIVE OFFICER
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Martin Tuchman, Raoul J. Witteveen and Richard W.
Gross, and each of them, his true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) of and supplements to this Registration Statement and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto such
attorneys-in-fact and agents and each of them full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, to all intents and purposes and as fully as they might or
could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents, or their substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/S/ MARTIN TUCHMAN Chairman of the Board October 24, 1997
Martin Tuchman and Chief Executive Officer
/S/ RAOUL J. WITTEVEEN President, Chief Operating October 24, 1997
Raoul J. Witteveen Officer, Chief Financial
Officer and Director
(Principal Financial Officer)
/S/ ARTHUR L. BURNS Director, Secretary and October 24, 1997
Arthur L. Burns General Counsel
/S/ WILLIAM GEOGHAN Controller (Principal October 24, 1997
William Geoghan Accounting Officer)
/S/ WARREN L. SERENBETZ Director October 24, 1997
Warren L. Serenbetz
/S/ JOHN M. BUCHER Director October 24, 1997
John M. Bucher
/S/ PETER D. HALSTEAD Director October 24, 1997
Peter D. Halstead
/S/ JOSEPH J. WHALEN Director October 24, 1997
Joseph J. Whalen
<PAGE>
EXHIBIT INDEX
EXHIBIT PAGE
NO. DESCRIPTION NO.
4.1 Indenture between Interpool, Inc. and United States Trust
Company of New York, as trustee, relating to the Notes,
dated August 5, 1997
4.2 Form of Exchange Note (included in Exhibit 4.1 hereto)
4.3 Registration Rights Agreement between Interpool, Inc.,
and Smith Barney Inc., as initial purchaser, dated
August 5, 1997
5.1 Opinion of Stroock & Stroock & Lavan LLP as to the
legality of the Exchange Notes
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Stroock & Stroock & Lavan LLP (included
in Exhibit 5.1)
24 Power of Attorney of certain officers and directors
of Interpool, Inc. (Included on page II-5
of this Registration Statement)
25.1 Form T-1 Statement of Eligibility of United States
Trust Company of New York to act as trustee under
the Indenture
99.1 Form of Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Letter to Nominees
99.4 Form of Letter to Clients
99.5 Form of Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9
Exhibit 4.1
INTERPOOL, INC.
Issuer,
and
UNITED STATES TRUST COMPANY OF NEW YORK
Trustee
-------------------
INDENTURE
Dated as of August 5, 1997
-------------------
$75,000,000
7.20% Notes due 2007
<PAGE>
CROSS-REFERENCE TABLE
INTERPOOL, INC.
Trust Indenture
ACT SECTION INDENTURE
ss. 310(a)(1) 7.10
(a)(2) 7.10
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 7.8
(b) 7.8; 7.10
(c) Not Applicable
ss. 311(a) 7.11
(b) 7.11
(c) Not Applicable
ss. 312(a) 2.15
(b) 11.3
(c) 11.3
ss. 313(a) 7.6
(b)(1) Not Applicable
(b)(2) 7.6
(c) 7.6; 11.2
(d) 7.6
ss. 314(a) 4.2; 11.2
(b) Not Applicable
(c)(1) 11.4
(c)(2) 11.4
(c)(3) Not Applicable
(d) Not Applicable
(e) 11.5
(f) Not Applicable
ss. 315(a) 7.1(b)
(b) 7.5; 11.2
(c) 7.1(a)
(d) 7.1(c)
(e) 6.10
ss. 316(a)(last sentence) 11.6
(a)(1)(A) 6.5
(a)(1)(B) 6.4
(a)(2) Not Applicable
(b) 6.6
ss. 317(a)(1) 6.7
(a)(2) 6.8
(b) 2.5
ss. 318(a) 11.1
- ----------
Note: This Cross-Reference Table shall not, for any
purpose, be deemed to be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.......................................... 1
SECTION 1.2 Other Definitions.................................... 11
SECTION 1.3 Incorporation by Reference to Trust
Indenture Act........................................ 11
SECTION 1.4 Rules of Construction................................ 12
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form Generally...................................... 12
SECTION 2.2 Execution and Authentication..........................13
SECTION 2.3 Form and Payment......................................13
SECTION 2.4 Registrar and Agents..................................14
SECTION 2.5 Paying Agent to Hold Money in Trust...................15
SECTION 2.6 Legends...............................................15
SECTION 2.7 Global Security.......................................16
SECTION 2.8 Interest..............................................17
SECTION 2.9 Transfer and Exchange.................................18
SECTION 2.10 Replacement Securities................................28
SECTION 2.11 Outstanding Securities................................28
SECTION 2.12 Temporary Securities..................................29
SECTION 2.13 Cancellation..........................................29
SECTION 2.14 Defaulted Interest....................................30
SECTION 2.15 Securityholder Lists..................................30
SECTION 2.16 Persons Deemed Owners.................................30
SECTION 2.17 CUSIP Number..........................................31
ARTICLE 3
REDEMPTION
SECTION 3.1 Right of Redemption.................................. 31
SECTION 3.2 Selection of Securities to be Redeemed............... 32
SECTION 3.3 Notice of Redemption by the Company.................. 32
SECTION 3.4 Effect of Notice of Redemption....................... 33
SECTION 3.5 Deposit of Redemption Price.......................... 33
SECTION 3.6 Securities Redeemed in Part.......................... 34
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of the Securities.............................34
SECTION 4.2 Commission Reports....................................34
SECTION 4.3 Waiver of Stay, Extension or Usury Laws...............35
SECTION 4.4 Notice of Default.....................................35
SECTION 4.5 Compliance Certificates...............................35
SECTION 4.6 Limitation on Dividends and Other Distributions.......36
SECTION 4.7 Maintenance of Office or Agency.......................36
SECTION 4.8 Existence.............................................37
SECTION 4.9 Payment of Taxes and Other Claims.....................38
SECTION 4.10 Maintenance of Properties.............................38
SECTION 4.11 Insurance.............................................39
SECTION 4.12 Limitation on Liens...................................39
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, etc......................... 42
SECTION 5.2 Successor Corporation or Trust Substituted.......... 42
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default................................... 43
SECTION 6.2 Acceleration..........................................45
SECTION 6.3 Other Remedies........................................45
SECTION 6.4 Waiver of Defaults and Events of Default..............46
SECTION 6.5 Control by Majority...................................46
SECTION 6.6 Rights of Holders to Receive Payment..................46
SECTION 6.7 Collection Suit by Trustee............................47
SECTION 6.8 Trustee May File Proofs of Claim......................47
SECTION 6.9 Priorities............................................48
SECTION 6.10 Undertaking for Costs.................................48
SECTION 6.11 Limitations on Suits..................................49
SECTION 6.12 Restoration of Rights and Remedies....................49
ARTICLE 7
TRUSTEE
SECTION 7.1 Duties of Trustee.....................................50
SECTION 7.2 Rights of Trustee.....................................51
SECTION 7.3 Individual Rights of Trustee..........................52
SECTION 7.4 Trustee's Disclaimer..................................52
SECTION 7.5 Notice of Defaults....................................53
SECTION 7.6 Reports by Trustee to Holders.........................53
SECTION 7.7 Compensation and Indemnity............................54
SECTION 7.8 Replacement of Trustee................................55
SECTION 7.9 Successor Trustee by Merger, etc......................56
SECTION 7.10 Eligibility; Disqualification.........................56
SECTION 7.11 Preferential Collection of Claims Against Company.....57
ARTICLE 8
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1 Option to Effect Defeasance or Covenant Defeasance....57
SECTION 8.2 Defeasance and Discharge..............................57
SECTION 8.3 Covenant Defeasance...................................58
SECTION 8.4 Conditions to Defeasance or Covenant Defeasance.......59
SECTION 8.5 Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.........61
ARTICLE 9
SATISFACTION AND DISCHARGE
SECTION 9.1 Satisfaction and Discharge of Indenture.............. 62
SECTION 9.2 Application of Trust Funds............................63
ARTICLE 10
SUPPLEMENTAL INDENTURES
SECTION 10.1 Supplemental Indentures Without Consent of Holders....64
SECTION 10.2 Supplemental Indentures with Consent of Holders...... 64
SECTION 10.3 Compliance with Trust Indenture Act.................. 66
SECTION 10.4 Revocation and Effect of Consents.................... 66
SECTION 10.5 Notation on or Exchange of Securities................ 67
SECTION 10.6 Effect of Supplemental Indentures.................... 67
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 Trust Indenture Act Controls..........................67
SECTION 11.2 Notices...............................................68
SECTION 11.3 Communications by Holders with Other Holders..........69
SECTION 11.4 Certificate and Opinion as to Conditions Precedent....69
SECTION 11.5 Statements Required in Certificate and Opinion........70
SECTION 11.6 Rules by Trustee and Agents...........................70
SECTION 11.7 Record Date...........................................70
SECTION 11.8 Business Days.........................................71
SECTION 11.9 Governing Law.........................................71
SECTION 11.10 No Adverse Interpretation of Other Agreements.........71
SECTION 11.11 No Recourse Against Others............................71
SECTION 11.12 Successors............................................71
SECTION 11.13 Multiple Counterparts.................................71
SECTION 11.14 Table of Contents, Headings, etc......................72
SECTION 11.15 Severability..........................................72
Signatures.......................................................... 73
<PAGE>
INDENTURE dated as of August 5, 1997 between Interpool, Inc., a
Delaware corporation (the "Company"), and United States Trust Company of New
York, a New York banking corporation (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of all Holders of the Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
the purposes of this definition, "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with"), as used
with respect to any Person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities or by agreement
or otherwise.
"Agent" means any Registrar, Paying Agent or agent for service of
notices and demands.
"Bankruptcy Law" means Title 11 of the U.S. Code or any similar
Federal or State law for the relief of debtors.
"Board of Directors of the Company" means the Board of Directors of
the Company or any committee of the Board.
"Board Resolution" means a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors of the Company and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each day, other than a Saturday or Sunday, which
is not a day on which banking institutions in the City of New York are
authorized or obligated by law or executive order to close.
"Capitalized Leases" of any Person means, at the time any
determination thereof is to be made, capital leases for property leased by such
Person that would at such time be required to be capitalized on the balance
sheet of such Person in accordance with generally accepted accounting
principles.
"Capital Stock" means any and all shares or other equivalents (however
designated) of capital stock, including all common stock and all preferred
stock.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to the Indenture and thereafter means the
successor.
"Company Order" means a written order of the Company signed by two
Officers of the Company.
"Consolidated Indebtedness-to-Stockholders' Equity Ratio" means at any
date of determination (the "Determination Date"), the ratio of (i) the aggregate
Debt of the Company and its Subsidiaries on a consolidated basis as at the
Determination Date to (ii) the sum of (w) the stockholder's equity of the
Company and its Subsidiaries on a consolidated basis calculated in accordance
with generally accepted accounting principles as at the Determination Date, (x)
the amount set forth on the consolidated balance sheet of the Company and its
Subsidiaries under the caption "Company-obligated mandatorily redeemable
preferred securities in subsidiary grantor trusts" or a similar caption, (y) to
the extent not included in clause (w), the aggregate amount of preferred stock
of the Company (as reflected on the consolidated balance sheet of the Company
calculated in accordance with generally accepted accounting principles) which is
not subject to mandatory redemption prior to the maturity date of the
Securities, and (z) the Subordinated Indebtedness of the Company as to which no
principal payments are due until after the maturity date of the Securities (to
the extent such Subordinated Indebtedness was included in the calculation of
Debt in clause (i) above).
"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 at the date of execution of this Indenture is located
at 114 West 47th Street, New York, New York 10036, Attn: Corporate Trust.
"Custodian" means any receiver, trustee, liquidator or similar
official under any Bankruptcy Law.
"Debt" 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 12 months from the date on which the
obligation was created or (iii) evidenced by notes, bonds or other instruments
and (b) all Lease Obligations; PROVIDED, HOWEVER, that, except for purposes of
the definition of Consolidated Indebtedness-to-Stockholders' Equity Ratio, Debt
shall not include Subordinated Indebtedness as to which no scheduled principal
payments are due until after the maturity date of the Securities.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Definitive Securities" means those securities issued in fully
registered certificated form not otherwise in global form.
"Depositary" means, with respect to Securities the Company determines
will be issued as a Global Security, The Depository Trust Company, New York, New
York, another clearing agency, or any successor registered as a clearing agency
under the Exchange Act or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to Section 2.7(c).
"Dollar" or "$" means the lawful money of the United States of
America.
"Exchange Offer" means the offer that may be made pursuant to the
Registration Rights Agreement by the Company to exchange Exchange Securities for
Original Securities.
"Exchange Securities" means the 7.20% Notes due 2007, as authenticated
and issued under this Indenture in exchange for an Original Security or Original
Securities pursuant to the offer to be made pursuant to the Registration
Rights Agreement to exchange Exchange Securities for Original Securities.
"Global Security" means, with respect to the Securities, a Security
executed by the Company and delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction, all in accordance with the Indenture,
which shall be registered in the name of the Depositary or its nominee.
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Registrar's books.
"Indebtedness," as applied to any Person, means, without duplication
(i) all indebtedness for borrowed money whether or not evidenced by a promissory
note, draft or similar instrument, (ii) that portion of obligations with respect
to leases that is properly classified as a liability on a balance sheet in
accordance with generally accepted accounting principles, (iii) notes payable
and drafts accepted representing extensions of credit, (iv) any balance owed for
all or any part of the deferred purchase price of property or services, which
purchase price is due more than six months from the date of incurrence of the
obligation in respect thereof (except any such balance that constitutes (a) a
trade payable or an accrued liability arising in the ordinary course of business
or (b) a trade draft or note payable issued in the ordinary course of business
in connection with the purchase of goods or services), if and to the extent such
debt would appear as a liability upon a balance sheet of such Person prepared in
accordance with generally accepted accounting principles, and (v) any deferral,
amendment, renewal, extension, supplement or refunding of any of the foregoing
indebtedness; PROVIDED, HOWEVER, that, in computing the "Indebtedness" of any
Person, there shall be excluded any particular indebtedness if, upon or prior to
the maturity thereof and at the time of determination of such indebtedness,
there shall have been deposited with a depository in trust money (or evidences
of indebtedness if permitted by the instrument creating such indebtedness) in
the necessary amount to pay, redeem or satisfy such indebtedness as it becomes
due, and the amount so deposited shall not be included in any computation of the
assets of such Person.
"Indenture" means this Indenture as originally executed or, if amended
or supplemented as provided in Article 10, as amended or supplemented from time
to time.
"Interest Payment Date" shall have the meaning set forth in Section
2.8.
"Investment Grade" means a rating of BBB- or higher by Standard &
Poor's.
"Issue Date" means August 5, 1997.
"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 term 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 Standards No. 13 of the Financial Standards
Board from time to time in effect.
"Make-Whole Amount" means, in connection with any optional redemption
of any Security, the excess, if any, of (i) the aggregate present value as of
the date of such redemption of each dollar of principal being redeemed and the
amount of interest (exclusive of any interest accrued to the date of redemption)
that would have been payable in respect of such dollar if such redemption has
not been made, determined by discounting, on a semi-annual basis, such principal
and interest at the Reinvestment Rate (which rate shall be determined as of the
third Business Day preceding the date such notice of redemption is given) from
the respective dates on which such principal and interest would have been
payable if such redemption had not been made, over (ii) the aggregate principal
amount of the Securities being redeemed.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer or Assistant Treasurer, the Secretary or Assistant
Secretary or the Controller or Assistant Controller of the Company.
"Officers' Certificate" means a certificate signed by two Officers of
the Company and otherwise complying with the requirements of Sections 11.4 and
11.5, and delivered to the Trustee or an Agent, as applicable.
"Opinion of Counsel" means a written opinion from Stroock & Stroock &
Lavan LLP or any other legal counsel who is reasonably acceptable to the Trustee
(which may include an employee of or counsel to the Company or the Trustee),
complying with the requirements of Sections 11.4 and 11.5, and delivered to the
Trustee or an Agent, as applicable.
"Original Securities" means the 7.20% Notes due 2007, as authenticated
and issued under this Indenture on the Issue Date.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, limited liability company,
unincorporated organization or government or any agency or political subdivision
thereof.
"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 2.10 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Principal" of a Security means the principal of the Security plus,
when appropriate, the premium, if any, on the Security.
"Purchase Money Indebtedness" of a Person means all Debt (excluding
all Lease Obligations) of such Person which is Secured Indebtedness incurred to
finance the purchase of assets if such Debt (a) shall have been incurred
within 180 days of the acquisition of such assets by the Person whose Purchase
Money Indebtedness is being determined and (b) does not exceed in principal
amount the initial cost of such assets and shall include all extensions,
renewals and refinancings of such Debt not in excess of the principal amount
thereof outstanding immediately prior to such extension, renewal or
refinancing. The initial cost of assets may include, in addition to the purchase
price thereof and the purchase price of all accessories and equipment installed
thereon, all freight, delivery and handling charges, excise, sales and use taxes
and all other amounts which may be capitalized and included in the cost of the
assets under generally accepted accounting principles.
"Ratings Decision" shall mean, with respect to the Securities, the
rating of the Securities by Standard & Poor's as Investment Grade.
"Redemption Date" when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
as specified in such Security.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Issue Date, by and among the Company and the Initial
Purchaser named therein as such agreement may be amended, modified or
supplemented from time to time.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of the yields
under the respective headings "This Week" and "Last Week" published in the most
recent Statistical Release under the caption "Treasury Constant Maturities:" for
the maturity (rounded to the nearest month) corresponding to the remaining life
to maturity, as of the payment date of the principal being redeemed or paid. If
no maturity exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate
shall be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the purposes
of calculating the Reinvestment Rate, the most recent Statistical Release
published prior to the date of determination of the Make-Whole Amount shall be
used.
"Restricted Security" means any Security that is subject to the
transfer restrictions set forth in Section 2.9(a).
"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 of 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.
"Secured Indebtedness" means with respect to a Person all Debt which
is secured by any security interest, mortgage, charge, pledge, deed of trust, or
other similar lien on assets by the owner thereof and includes all Lease
Obligations. Transportation Equipment which is subject to a lease or contract
which is included as a Lease Obligation is deemed to secure the Debt evidenced
thereby.
"Securities" means, collectively, the Original Securities and the
Exchange Securities.
"Security Register" means the list of holders provided to the Trustee
pursuant to Section 2.15 or any security register maintained by the Registrar.
"Significant Subsidiary" means any Subsidiary of the Company that
would be a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X
under the Securities Act, as such Rule is in effect on the date of this
Indenture.
"Standard & Poor's" means Standard & Poor's Rating Group (a division
of McGraw Hill, Inc.) or any successor rating agency.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which established yields on actively traded United
States government securities adjusted to constant maturities, or, if such
statistical release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which shall be designated
by the Company.
"Subordinated Indebtedness" means Debt of the Company which is
expressly subordinated and subject in right of payment to the prior payment, in
bankruptcy or in the event of a payment default on the Securities, 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.
"Subsidiary" of a Person means (i) any corporation more than 50% of
the outstanding voting power of the Voting Stock of which is owned or
controlled, directly or indirectly, by such Person or by one or more other Sub-
sidiaries of such Person, or by such Person and one or more other Subsidiaries
thereof, or (ii) any limited partnership of which such Person or any Subsidiary
of such Person is a general partner, or (iii) any other Person (other than a
corporation or limited partnership) in which such Person, or one or more other
Subsidiaries of such Person, or such Person and one or more other Subsidiaries
thereof, directly or indirectly, has more than 60% of the outstanding
partnership or similar interests or has the power, by contract or otherwise, to
direct or cause the direction of the policies, management and affairs thereof.
"Transportation Equipment" means domestic and marine containers,
trucks, tractors, trailers, chassis, cranes, portable ramps, lifting equipment,
railroad locomotives, railroad rolling stock, modular office units, mobile
office and storage trailers and all other transportation equipment, and includes
all accessories and attachments thereto.
"Trust Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice-president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer of the Trustee to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"United States" means the United States of America.
"U.S. Government Obligations" means securities which are (a) direct
obligations of the United States, for the payment of which its full faith and
credit is pledged, or (b) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, 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 or trust as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
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 interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Voting Stock" of a Person means Capital Stock of such Person of the
class or classes pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such Person (irrespective of whether or not
at the time the stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
SECTION 1.2 OTHER DEFINITIONS.
TERM DEFINED IN SECTION
"Covenant Defeasance" 8.3
"Defeasance" 8.2
"Event of Default" 6.1
"Initial Lien" 4.12
"Lien" 4.12
"Paying Agent" 2.4
"Refinancing" 4.12
"Registrar" 2.4
"Required Filing Dates" 4.2
SECTION 1.3 INCORPORATION BY REFERENCE TO TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the Trust Indenture
Act of 1939 (the "TIA"), the provision is incorporated by reference in and made
a part of this Indenture. The following TIA terms used in this Indenture have
the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or
any other obligor on the indenture securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rules have
the meanings assigned to them therein.
SECTION 1.4 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with United States generally accepted accounting
principles in effect as of the time as to which such accounting principles are
to be applied;
(3) "or" is not exclusive;
(4) words in the singular include the plural,
and in the plural include the singular; and
(5) references to Sections or Articles means reference to such
Section or Article in this Indenture, unless stated otherwise; and
(6) "including" or "included" means included but not limited
to.
ARTICLE 2
THE SECURITIES
SECTION 2.1 FORM GENERALLY.
The Original Securities and related Trustee's certificate of
authentication shall be substantially in the form of Exhibit A and the Exchange
Securities and related Trustee's certificate of authentication shall be
substantially in the form of Exhibit B, the terms of each of which are
incorporated in and made a part of this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange rule, agree-
ments to which the Company is subject or usage. Each Security shall be dated the
date of its authentication. The Securities shall be issued in denominations of
$1,000 and integral multiples thereof. Notwithstanding the foregoing, Definitive
Securities issued to any "institutional accredited investor" within the meaning
of Rule 502 (A) (1), (2), (3) or (7) under the Securities Act shall be issued
only in minimum denominations of $100,000 and any amount in excess thereof that
is an integral multiple of $1,000.
SECTION 2.2 EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature in the manner set forth in Exhibits A and B. The Company's
seal shall be impressed, affixed, imprinted or reproduced on the Securities and
may be in facsimile form.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of an authorized officer of the Trustee. The signature of the Trustee
shall be conclusive evidence that the Security has been authenticated under this
Indenture. The form of Trustee's certificate of authentication to be borne by
the Securities shall be substantially as set forth in Exhibits A and B hereto.
The Trustee shall, upon a Company Order, authenticate for original
issue up to, and the aggregate principal amount of Securities outstanding at any
time may not exceed the sum of, $75,000,000 principal amount of the Securities,
except as provided in Sections 2.9, 2.10 and 2.12. The series of Securities to
be initially issued hereunder shall be the Original Securities.
The Trustee may appoint an authenticating agent to authenticate
Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate.
SECTION 2.3 FORM AND PAYMENT.
Except as provided in Section 2.7, the Securities shall be issued in
fully registered certificated form without interest coupons. Principal of and
interest on the Securities issued in certificated form will be payable, the
transfer of such Securities will be registrable and such Securities will be
exchangeable for Securities bearing identical terms and provisions at the office
or agency of the Company maintained for such purpose under Section 2.4;
PROVIDED, HOWEVER, that payment of interest with respect to the Securities may
be made at the option of the Company (i) by check mailed to the holder at such
address as shall appear in the Security Register or (ii) by transfer to an
account maintained by the Person entitled thereto, provided that proper transfer
instructions have been received in writing by the relevant record date.
SECTION 2.4 REGISTRAR AND AGENTS.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar"), an office
or agency where Securities may be presented for payment ("Paying Agent") and an
office or agency where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company may
have one or more co-registrars and one or more additional Paying Agents. The
Company or any Subsidiary thereof may act as Paying Agent. The term "Registrar"
includes any co-Registrar and the term "Paying Agent" includes any additional
paying agent.
Any Paying Agent or Registrar may resign as Paying Agent or Registrar
upon thirty (30) days' prior written notice to the Company and the Trustee. The
Company may change any Paying Agent or Registrar on sixty (60) days' prior
written notice to the Trustee. The Company shall notify the Trustee in writing
of the name and address of any such Agent. If the Company fails to maintain a
Registrar, Paying Agent, or agent for service of notices and demands, or fails
to give the foregoing notice, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar, Paying Agent
and agent for service of notices and demands.
SECTION 2.5 PAYING AGENT TO HOLD MONEY IN TRUST.
Prior to each due date of the principal of, premium if any, and
interest on the Securities, the Company shall deposit with each Paying Agent a
sum sufficient to pay such principal, premium, if any, and interest so becoming
due. The Company shall require each Paying Agent other than the Trustee to agree
in writing that it will hold in trust for the benefit of Holder of Securities or
the Trustee all money held by the Paying Agent for the payment of principal of,
premium if any, or interest on the Securities and to notify the Trustee
immediately in writing of any default by the Company (or any other obligor on
the Securities) in making any such payment. If the Company or a Subsidiary
thereof acts as Paying Agent, it shall on or before each due date of the
principal of, premium, if any, or interest on any Securities segregate the money
and hold it as a separate trust fund. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and the Trustee may at
any time during the continuance of any payment default, upon written request to
a Paying Agent, require such Paying Agent to forthwith pay to the Trustee all
sums so held in trust by such Paying Agent and account for any funds disbursed.
Upon doing so, the Paying Agent (other than the Company or a Subsidiary thereof)
shall have no further liability for the money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for payment of the principal of, premium, if any, or
interest on any Security and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall,
subject to the requirements of applicable law, be paid to the Company upon its
request; and the Holder of such Security shall thereafter look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money shall thereupon cease.
SECTION 2.6 LEGENDS.
(a) Except as permitted by subsection (b) of this Section 2.6 or as
otherwise determined by the Company in accordance with applicable law, each
Security shall bear the applicable legends relating to restrictions on transfer
pursuant to the securities laws in substantially the form set forth in Section
2.9(g)(1).
(b) The Company shall issue and the Trustee shall authenticate
Exchange Securities in exchange for Original Securities accepted for exchange in
the Exchange Offer, which Exchange Securities shall not bear the legends
required by subsection (a) above. Pursuant to the terms of the Exchange Offer as
set forth in the Registration Rights Agreement, certain Persons are not eligible
to tender their Original Securities in the Exchange Offer. Accordingly, a holder
of Original Securities who is either (A) a broker-dealer who purchased such
Original Securities directly from the Company for resale pursuant to Rule 144A
or any other available exemption under the Securities Act, (B) a Person
participating in the distribution of the Original Securities or (C) a Person who
is an affiliate (as defined in Rule 144 under the Securities Act) of the Company
shall, pursuant to the terms of the Registration Rights Agreement, only receive
Exchange Securities other than in connection with the Exchange Offer, which
Exchange Securities, notwithstanding anything else herein to the contrary, shall
bear the legends required by subsection (a) above and shall not be represented
by a Global Security.
SECTION 2.7 GLOBAL SECURITY.
(a) The Global Securities shall represent the aggregate amount of
outstanding Securities from time to time endorsed thereon; PROVIDED, that the
aggregate amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. At such time as all beneficial interests in a Global Security have
either been exchanged for Definitive Securities, redeemed, repurchased or
cancelled, such Global Security shall be returned to or retained and cancelled
by the Trustee. Any endorsement of a Global Security to reflect the amount of
any increase or decrease in the amount of outstanding Securities represented
thereby shall be made by the Trustee, in accordance with instructions given by
the Company as required by this Section 2.7.
(b) The Global Securities may be transferred, in whole but not in
part, only to the Depositary, another nominee of the Depositary, or to a
successor Depositary selected or approved by the Company or to a nominee of such
successor Depositary.
(c) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or the Depositary has ceased to be
a clearing agency registered under the Exchange Act, and a successor Depositary
is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, the Company will
execute, and the Trustee, upon receipt of a Company Order, will authenticate and
make available for delivery the Definitive Securities, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security. If there is
an Event of Default, the Depositary shall have the right to exchange the Global
Securities for Definitive Securities. In addition, the Company may at any time
determine that the Securities shall no longer be represented by a Global
Security. In the event of such an Event of Default or such a determination, the
Company shall execute, and subject to Section 2.9, the Trustee, upon receipt of
an Officers' Certificate evidencing such determination by the Company, will
authenticate and make available for delivery the Definitive Securities, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security, in exchange for such Global Security.
Upon the exchange of the Global Security for such Definitive Securities, in
authorized denominations, the Global Security shall be cancelled by the Trustee.
Such Definitive Securities issued in exchange for the Global Security shall be
registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Definitive Securities
to the Depositary for delivery to the Persons in whose names such Definitive
Securities are so registered.
SECTION 2.8 INTEREST.
(a) Each Security will bear interest at the rate of 7.20% per annum
PROVIDED, HOWEVER, that if a Ratings Decision (of which the Trustee has been
given notice by the Company) shall not have occurred by the 90th day after the
Issue Date, the rate per annum for regular interest payments on the Securities
and on overdue principal and overdue installments of interest, each as set forth
above, shall automatically and irrevocably increase to 7.45% per annum effective
retroactively from the Issue Date. Each Security will bear interest from the
most recent date to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for, from the Issue Date, until the
principal thereof becomes due and payable, and at the rate provided in the first
sentence of this Section 2.8 on any overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest, compounded semi-annually, payable semi-annually in
arrears on February 1 and August 1 of each year (each, an "Interest Payment
Date") commencing on February 1, 1998 to the Person in whose name such Security
or any Predecessor Security is registered, at the close of business on the
preceding January 15 or July 15, respectively, regardless of whether such day is
a Business Day.
(b) Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months and, for any period of less than a full
calendar month, the number of days lapsed in such month. In the event that any
Interest Payment Date falls on a day that is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), with the same force and effect as if made on such date.
(c) The Company will not be responsible for, and will not be required
to compensate holders of or investors in the Securities for, any withholding
taxes that are imposed on interest payments on the Securities.
SECTION 2.9 TRANSFER AND EXCHANGE.
(a) TRANSFER RESTRICTIONS. The Original Securities, and those Exchange
Securities with respect to which any Person described in Section 2.6(b)(A), (B)
or (C) is the beneficial owner, may not be transferred except in compliance with
the legend contained in Exhibit A unless otherwise determined by the Company in
accordance with applicable law.
(b) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES. When a
Security is presented to the Registrar with a request to register the transfer,
the Registrar shall register the transfer as requested and when Securities are
presented to the Registrar with a request to exchange them for a like aggregate
principal amount of Securities in other authorized denominations, the Registrar
shall make the exchange as requested, provided that every Security presented or
surrendered for registration or transfer or exchange shall be duly endorsed, or
be accompanied by a written instrument of transfer into a form satisfactory to
the Company and the Registrar duly executed by the Holder thereof or his
attorney-in-fact duly authorized in writing. To permit registrations of
transfers and exchanges, the Company shall issue and the Trustee or any
authenticating agent shall authenticate Securities at the Registrar's written
request. 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 relation
thereto, but this provision shall not apply to any exchange pursuant to Section
2.12, 3.6 or 10.5 not involving any transfer.
All Definitive Securities and Global Securities issued upon any
registration of transfer or exchange of Definitive Securities or Global
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Definitive
Securities or Global Securities surrendered upon such registration of transfer
or exchange.
Prior to due presentment for registration or transfer of any Security,
the Trustee and the Company may deem and treat the Person in whose name the
Security is registered as the absolute owner of such Security, and neither the
Trustee nor the Company shall be affected by notice to the contrary.
The Registrar shall not be required (i) to issue, register the
transfer of, or exchange Securities during a period beginning at the opening of
business 15 days before the day of any selection of Securities for redemption
under Section 3.2 and ending at the close of business on the day of selection,
(ii) to register the transfer or exchange of any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part, or (iii) to issue, register the transfer of, or exchange
Securities during the period between a record date and the next succeeding
Interest Payment Date.
(c) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES. When Definitive
Securities are presented to the Registrar with a request:
(y) to register the transfer of such Definitive Securities; or
(z) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; PROVIDED, HOWEVER,
that the Definitive Securities surrendered for registration of transfer or
exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company and the
Registrar duly executed by the Securityholder or such Holder's attorney duly
authorized in writing; and
(2) in the case of Definitive Securities that are Restricted
Securities, such request shall be accompanied by the following additional
information and documents, as applicable:
(A) if such Restricted Securities are being
delivered to the Registrar by a Securityholder for
registration in the name of such Securityholder, without
transfer, a certification from such Securityholder to that
effect (in substantially the form set forth on the reverse of
the Security); or
(B) if such Restricted Security is being
transferred to a "qualified institutional buyer" (as defined
in Rule 144A) in accordance with Rule 144A a certification to
that effect (in substantially the form set forth on the
reverse of the Security); or
(C) if such Restricted Security is being
transferred (i) pursuant to an exemption from registration in
accordance with Rule 144 or Regulation S under the Securities
Act or (ii) pursuant to an effective registration statement
under the Securities Act, or (iii) in a minimum principal
amount of $100,000 to an "institutional accredited investor"
within the meaning of Rule 501(A)(1), (2), (3) or (7) under
the Securities Act that is acquiring the security for its own
account, or for the account of such an institutional
accredited investor, not with a view to or for offer or sale
in connection with any distribution in violation of the
Securities Act, or (iv) in reliance on another exemption from
the registration requirements of the Securities Act, a
certification to that effect (in substantially the form set
forth on the reverse of the Security) and in the case of (i),
(iii) and (iv) above, if the Company or the Registrar so
request, a customary opinion of counsel reasonably acceptable
to the Company and to the Registrar to the effect that such
transfer is in compliance with the Securities Act.
(d) RESTRICTIONS ON TRANSFER OF A DEFINITIVE SECURITY FOR A BENEFICIAL
INTEREST IN A GLOBAL SECURITY.
A Definitive Security may not be exchanged for a beneficial interest
in a Global Security except upon satisfaction of the requirements set forth
below. Upon receipt by the Registrar of a Definitive Security, duly endorsed or
accompanied by appropriate instruments of transfer, in form satisfactory to the
Registrar, together with:
(1) if such Definitive Security is a Restricted Security,
certification, substantially in the form set forth on the reverse of the
Security, that such Definitive Security is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A) in accordance with
Rule 144A; and
(2) whether or not such Definitive Security is a
Restricted Security, written instructions of the Securityholder
directing the Registrar to make, or to direct the Trustee to make, an
endorsement on the Global Security to reflect an increase in the aggregate
principal amount of the Securities represented by the Global Security,
then the Registrar shall cancel such Definitive Security and cause, or direct
the Trustee to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Trustee, the aggregate
principal amount of Securities represented by the Global Security to be
increased accordingly. If no Global Securities are then outstanding, the Company
shall issue and the Trustee shall authenticate a new Global Security in the
appropriate principal amount.
(e) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES.
The transfer and exchange of Global Securities or beneficial
interests therein shall be effected through the Depositary, in accordance with
this Indenture (including applicable restrictions on transfer set forth herein,
if any) and the procedures of the Depositary therefor which shall include
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act.
(f) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL SECURITY FOR
A DEFINITIVE SECURITY.
(1) Any Person having a beneficial interest in a Global
Security may upon request exchange such beneficial interest for a
Definitive Security. Upon receipt by the Registrar of written instructions or
such other form of instructions as is customary for the Depositary from the
Depositary or its nominee on behalf of any Person having a beneficial interest
in a Global Security and upon receipt by the Registrar of a written order or
such other form of instructions as is customary for the Depositary or the Person
designated by the Depositary as having such a beneficial interest in a
Restricted Security only, the following additional information and documents
(all of which may be submitted by facsimile):
(A) if such beneficial interest is being
transferred to the Person designated by the Depositary as
being the beneficial owner, a certification from such person
to that effect (in substantially the form set forth on the
reverse of the Security); or
(B) if such beneficial interest is being
transferred to a "qualified institutional buyer" (as defined
in Rule 144A) in accordance with Rule 144A a certification to
that effect from the transferor (in substantially the form set
forth on the reverse of the Security); or
(C) if such beneficial interest is being
transferred (i) pursuant to an exemption from registration in
accordance with Rule 144 or Regulation S under the Securities
Act or (ii) pursuant to an effective registration statement
under the Securities Act, or (iii) in a minimum principal
amount of $100,000 to an "institutional accredited investor"
within the meaning of Rule 501(A)(1), (2), (3) or (7) under
the Securities Act that is acquiring the security for its own
account, or for the account of such an institutional
accredited investor, not with any distribution in violation of
the Securities Act, or (iv) in reliance on another exemption
from the registration requirements of the Securities Act, a
certification to that effect from the transferee or transferor
(in substantially the form set forth on the reverse of the
Security) and in the case of (i), (iii) and (iv) above, if the
Company or the Registrar so requests, a customary opinion of
counsel from the transferee or transferor reasonably
acceptable to the Company and to the Registrar to the effect
that such transfer is in compliance with the Securities Act;
then the Registrar, or the Trustee, will cause, in accordance with the standing
instructions and procedures existing between the Depositary and the Trustee, the
aggregate principal amount of the Global Security to be reduced and, following
such reduction, the Company will execute and, upon receipt of an authentication
order in the form of an Officers' Certificate, the Trustee or the Trustee's
authenticating agent will authenticate and deliver to the transferee a
Definitive Security.
(2) Definitive Securities issued in
exchange for a beneficial interest in a Global Security pursuant to this Section
2.9(f) shall be registered in such names and in such authorized denominations as
the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Registrar. The Registrar shall
deliver such Definitive Securities to the persons in whose names such Securities
are so registered.
(g) LEGENDS.
(1) Except as permitted by the following
paragraph (2), each Security certificate evidencing the Global Securities and
the Definitive Securities (and all securities issued in exchange therefor or
substitution thereof, but not including Exchange Securities as defined herein)
shall bear legends in substantially the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH
THE COMPANY OR ANY "AFFILIATE" OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) ONLY (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, (E) IN A MINIMUM PRINCIPAL AMOUNT OF $100,000
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE
COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO
CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO THE
COMPANY, AND (ii) PURSUANT TO CLAUSE (E), TO REQUIRE THAT THE
TRANSFEROR DELIVER TO THE COMPANY A LETTER FROM THE TRANSFEREE
SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING MEMORANDUM DATED
JULY 31, 1997. SUCH HOLDER FURTHER AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND.
(2) Upon any sale or transfer of a Restr-
icted Security (including any Restricted Security represented by a Global
Security) pursuant to Rule 144 under the Securities Act or an effective
registration statement under the Securities Act:
(A) in the case of any Restricted Security
that is a Definitive Security, the Registrar shall permit the
Securityholder to exchange such Restricted Security for a
Definitive Security that does not bear the legend set forth
above and rescind any restriction on the transfer of such
Restricted Security in the case of a sale or transfer pursuant
to Rule 144 under the Securities Act, after the Resale
Restriction Termination Date (as defined in clause (g)(1)
above) or delivery of a customary opinion of counsel
reasonably satisfactory to the Registrar; and
(B) any such Restricted Security represented
by a Global Security shall not be subject to the provisions
set forth in (1) above (such sales or transfers being subject
only to the provisions of Section 2.9(e) hereof); PROVIDED,
HOWEVER, that with respect to any request for an exchange of a
Restricted Security that is represented by a Global Security
for a Definitive Security that does not bear a legend, which
request is made in reliance upon Rule 144 under the Securities
Act, the Securityholder shall certify in writing to the
Registrar (to be accompanied by a customary opinion of counsel
reasonably satisfactory to the Registrar) that such request is
being made pursuant to Rule 144 under the Securities Act (such
certification to be substantially in the form set forth on the
reverse of the Security).
(h) EXCHANGE OF ORIGINAL SECURITIES FOR EXCHANGE SECURITIES.
The Original Securities may be exchanged for Exchange
Securities pursuant to the terms of the Exchange Offer and in accordance with
the provisions set forth in this Section 2.9, as may be applicable. The Trustee
shall make the exchange as follows:
The Company shall present the Trustee with an Officers'
Certificate certifying the following:
(A) upon issuance of the Exchange Securi-
ties, the transactions contemplated by the Exchange
Offer have been consummated; and
(B) the principal amount of Original
Securities properly tendered in the Exchange Offer that are represented by a
Global Security and the principal amount of Original Securities properly
tendered in the Exchange Offer that are represented by Definitive Securities,
the name of each holder of such Definitive Securities, the principal amount
properly tendered in the Exchange Offer by each such holder and the name and
address to which Definitive Securities representing Exchange Securities shall be
registered and sent for each such holder.
The Trustee, upon receipt of (i) such Officers' Certificate, (ii) an
Opinion of Counsel (x) to the effect that the Exchange Securities have been
registered under Section 5 of the Securities Act and the Indenture has been
qualified under the Trust Indenture Act and (y) with respect to the matters set
forth in Section 3(p) of the Registration Rights Agreement and (iii) a Company
Order, shall authenticate (A) a Global Security representing Exchange Securities
in an aggregate principal amount equal to the aggregate principal amount of
Original Securities represented by a Global Security indicated in such Officers'
Certificate as having been properly tendered and (B) Definitive Securities
representing Exchange Securities registered in the names of, and in the princi-
pal amounts indicated in, such Officers' Certificate.
If the principal amount of the Global Security representing Exchange
Securities is less than the principal amount of the Global Security representing
Original Securities, the Trustee shall make an endorsement on such Global
Security representing Original Securities indicating a reduction in the
principal amount represented thereby.
The Trustee shall deliver such Definitive Securities representing
Exchange Securities to the holders thereof as indicated in such Officers'
Certificate.
<PAGE>
SECTION 2.10 REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security presents evidence to the satisfaction of the Company and the
Trustee that the Security has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Security if
the requirements of the Trustee and the Company are met. An indemnity bond may
be required by the Company or the Trustee that is sufficient in the judgment of
the Company to protect the Company and is sufficient in the judgment of the
Trustee to protect the Trustee or any Agent from any loss which it may suffer if
a Security is replaced. The Company and the Trustee may each charge for its
expenses in replacing a Security.
Every replacement Security is an obligation of the Company and shall
be entitled to all of the benefits of this Indenture equally and proportionately
with all other Securities duly issued hereunder.
SECTION 2.11 OUTSTANDING SECURITIES.
Securities outstanding at any time are all Securities authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation and those described in this Section 2.11 as not outstanding.
If a Security is replaced pursuant to Section 2.10, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company or any of its
Subsidiaries) holds on a Redemption Date or maturity date money deposited with
it by or on behalf of the Company sufficient to pay the principal of and accrued
interest on the Securities payable on that date, then on and after that date
such Securities cease to be outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security; PROVIDED, HOWEVER, in determining whether the
holders of the requisite aggregate principal amount of Securities have concurred
in any direction, consent or waiver under this Indenture, Securities which are
owned by the Company or any other obligor on the Securities or by any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any other obligor on the Securities shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination; PROVIDED, THAT for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Securities which the Trustee actually knows are so owned shall be so
disregarded.
SECTION 2.12 TEMPORARY SECURITIES.
Until Definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of Definitive Securities but may
have non-material variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate Definitive Securities in exchange for temporary
Securities upon written order of the Company signed by two Officers. Until so
exchanged, temporary Securities represent the same rights as Definitive
Securities. Upon request of the Trustee, the Company shall provide a certificate
to the effect that the temporary Securities meet the requirement of the second
sentence of this Section 2.12.
SECTION 2.13 CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee shall cancel all Securities surrendered for transfer, exchange or
payment and destroy cancelled Securities in accordance with its customary
destruction procedures and deliver a certificate of such destruction to the
Company unless the company directs the Trustee in writing prior to such
destruction to deliver cancelled Securities to the Company. Subject to Sections
2.10 and 3.6, the company may not issue Securities to replace Securities that it
has previously paid or delivered to the Trustee for cancellation.
SECTION 2.14 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on Securities, it
shall pay the defaulted interest to the Persons who are Holders of the
Securities on a subsequent special record date. After the deposit by the
Company with the Trustee of money sufficient to pay such defaulted interest, the
Trustee shall fix the record date and payment date. Each such special record
date shall be not less than 10 days prior to such payment date. Each such
payment date shall be not more than 60 days after the deposit by the Company of
money to pay the defaulted interest. At least 15 days before the special record
date, the Company shall mail to each Holder of a Security a notice that states
the special record date, the payment date, and the amount of defaulted interest
to be paid. The Company may pay defaulted interest in any other lawful manner
if, after prior notice to the Trustee, such payment shall be deemed
operationally practicable by the Trustee.
SECTION 2.15 SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders of Securities. If the Trustee is not the Registrar, the Company or other
obligor, if any, shall furnish to the Trustee at least seven Business Days prior
to each semi-annual interest payment date and at such other times as the Trustee
may request in writing a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of Holders of Securities upon
which the Trustee may conclusively rely. The Trustee may destroy any such list
upon receipt of a replacement list. The Paying Agent will solicit from each
Securityholder a certification of social security number or taxpayer
identification number in accordance with its customary practice and as required
by law, unless the Paying Agent is in possession of such certification. Each
Paying Agent is authorized to impose back-up withholding with respect to
payments to be made to Securityholders to the extent required by law.
SECTION 2.16 PERSONS DEEMED OWNERS.
Prior to presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 2.17 CUSIP NUMBER.
The Company may use a "CUSIP" number when issuing Securities, and if
so, the Trustee may use the CUSIP number in notices of redemption or exchange as
a convenience to Holders of Securities; provided that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Securities, and that reliance may be
placed only on the other identification numbers printed on the Securities.
ARTICLE 3
REDEMPTION
SECTION 3.1 RIGHT OF REDEMPTION.
The Company may redeem the Securities, at any time, in whole or from
time to time in part, at the election of the Company, at a Redemption Price
equal to the sum of (i) the principal amount of the Securities being redeemed
plus accrued interest thereon to the Redemption Date and (ii) the Make-Whole
Amount, if any, with respect to such Securities. The election of the Company to
redeem any Securities pursuant to this Section shall be evidenced by a Board
Resolution. The Company shall, at least 45 but not more than 90 days prior to
the Redemption Date fixed by the Company (or such other period as the Company
and the Trustee may agree), notify the Trustee of such Redemption Date (such
notification to include the Company's calculation of the Make-Whole Amount,
which calculation the Trustee is authorized to rely on for purposes of the
Indenture) and, in the case of any redemption at the election of the Company of
less than all the Securities, of the principal amount of Securities to be
redeemed. The notice shall be in writing and accompanied by an Officers'
Certificate stating that the redemption complies with the provisions of this
Indenture and the provisions of the applicable Board Resolution, if any.
SECTION 3.2 SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed pro rata or by lot or by any other
method that the Trustee considers fair and appropriate under the circumstances
or otherwise required by any exchange upon which the Securities are listed. The
Trustee shall promptly notify the Company of the Securities to be so called for
redemption. The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption. The Trustee may select for redemption
portions of the principal of Securities that have denominations larger than
$1,000 principal amount. Securities and portions of Securities selected by the
Trustee shall be in principal amounts of $1,000 or multiples thereof. Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee's selection of
Securities for redemption by any method authorized by this Section 3.2 shall be
conclusively deemed reasonable.
SECTION 3.3 NOTICE OF REDEMPTION BY THE COMPANY.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail a notice of redemption by first-class mail to each Holder
of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the
Redemption Price;
(5) that interest on Securities called for redemption
ceases to accrue on and after the Redemption Date;
(6) if any Security is being redeemed in
part, the portion of the principal amount of
such Security to be redeemed and that,
after the Redemption Date, upon surrender
of such Security, a new Security or Secu-
rities in principal amount equal to the
unredeemed portion thereof will be issued;
(7) the CUSIP number, if any.
Upon its receipt of a Company Order, the Trustee shall give the notice
of redemption in the Company's name and at the Company's expense. If a CUSIP
number is listed in such notice or printed on the Security, the notice shall
state that no representation is made as to the correctness or accuracy of such
CUSIP number.
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the applicable Redemption Date and at the applicable
Redemption Price and shall cease to bear interest from and after the Redemption
Date (unless the Company shall default in payment of the Redemption Price or
accrued interest). Upon surrender to the Paying Agent, such Securities shall be
paid at the Redemption Price, plus accrued interest to the Redemption Date.
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE.
On or before 10 a.m. on the Redemption Date, the Company shall deposit
with the Paying Agent (or if the Company or a Subsidiary thereof is the Paying
Agent, shall segregate and hold in trust or cause such Subsidiary to segregate
and hold in trust) in immediately available funds money sufficient to pay the
Redemption Price of and accrued interest on all Securities to be redeemed on
that date.
SECTION 3.6 SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder, at the expense of the Company, a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE 4
COVENANTS
SECTION 4.1 PAYMENT OF THE SECURITIES.
The Company shall duly and punctually pay the principal of, premium if
any, and interest on the Securities on the dates and in the manner provided in
the Securities and this Indenture. An installment of principal, premium, if any,
or interest shall be considered paid on the date it is due if the Trustee or
Paying Agent (other than the Company or any of its Subsidiaries) holds on that
date money designated for and sufficient to pay the installment. The Company
shall pay interest on overdue principal and premium, if any, at the rate borne
by the Security; it shall pay interest, including post-petition interest in the
event of a proceeding under the Bankruptcy Laws, on overdue installments of
interest at the same rate to the extent lawful.
SECTION 4.2 COMMISSION REPORTS.
Whether or not the Company is then subject to Section 13(a) or 15(d)
of the Exchange Act, the Company will file with the Commission (unless such
filing is not permitted under the Exchange Act), so long as the Securities are
outstanding, the annual reports, quarterly reports and other periodic reports
(including financial statements and reports) which the Company would have been
required to file with the Commission pursuant to such Section 13(a) or 15(d) if
the Company were so subject, and such documents shall be filed with the
Commission on or prior to the respective dates (the "Required Filing Dates") by
which the Company would have been required so to file such documents if the
Company were so subject. The Company will also in any event (i) within 15 days
of each Required Filing Date, (a) transmit or cause to be transmitted by mail to
all Holders of Securities, as their names and addresses appear in the Security
Register, without cost to such Holders, and (b) file with the Trustee copies of
the annual reports, quarterly reports and other periodic reports which the
Company would have been required to file with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act if the Company were subject to such Sections
and (ii) if filing such documents by the Company with the Commission is
prohibited under the Exchange Act, promptly upon written request and payment of
the reasonable cost of duplication and delivery, supply copies of such documents
to any prospective Holder at the Company's cost. The Company also shall comply
with the provisions of TIA ss. 314(a).
SECTION 4.3 WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company expressly waives (to the extent that it may lawfully do
so) any stay or extension law or any usury law or other law that would prohibit
or forgive the Company from paying all or any portion of the principal of
(premium, if any) or interest on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or that may affect the covenants
or the performance of this Indenture.
SECTION 4.4 NOTICE OF DEFAULT.
The Company will, so long as any Securities are outstanding, deliver
to the Trustee, within 10 days of becoming aware of any Default or Event of
Default in the performance of any covenant, agreement or condition in this
Indenture, an Officers' Certificate specifying such Default or Event of Default
and what action the Company is taking or proposes to take with respect thereto.
SECTION 4.5 COMPLIANCE CERTIFICATES.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company (which as of the date hereof is December 31),
a written statement signed by the President or a Vice President and by the
Treasurer, an Assistant Treasurer, the Controller or an Assistant Controller of
the Company, stating, as to each signer thereof, that:
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under such signer's
supervision and
(2) to the best of such signer's knowledge, based on such
review, the Company has kept, observed, performed and fulfilled in all material
respects each and every condition and covenant contained in this Indenture
throughout such year, or, if there has been a default in the fulfillment of any
such condition or covenant, specifying each such default known to such signer
and the nature and status thereof and what action the Company is taking or
proposes to take with respect thereto.
The Company will give the Trustee written notice of a change in the
fiscal year of the Company, within a reasonable time after such change is
effected.
SECTION 4.6 LIMITATION ON DIVIDENDS AND OTHER DISTRIBUTIONS.
The Company will not declare or pay any dividends or make any
distribution to holders of its Capital Stock (other than dividends or
distributions payable in Capital Stock of the Company), or purchase, redeem or
otherwise acquire or retire for value any of its Capital Stock or permit any
Subsidiary to purchase, redeem or otherwise acquire or retire for value any of
the Company's Capital Stock if at the time of any of the aforementioned actions
an Event of Default has occurred and is continuing or would exist immediately
after giving effect to such action.
Notwithstanding the foregoing, the provisions of this Section 4.6 will
not prevent the payment of any dividend within 60 days after the date of
declaration when the payment would have complied with the foregoing provisions
on the date of declaration.
SECTION 4.7 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in The City of New York, an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities, if any, and
this Indenture may be served. The office of the Trustee shall be such office or
agency of the Company, unless the Company shall designate and maintain some
other office or agency for one or more of such purposes. The Company will give
prompt written notice to the Trustee of any change in the location of any such
office or agency. If at any time the Company 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, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the Securities
may be presented or surrendered for any or all such purposes, and may from time
to time rescind such designation; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in the Borough of Manhattan in The City of New York for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such other
office or agency.
SECTION 4.8 EXISTENCE.
Subject to Article Five, the Company will do or cause to be done all
things necessary to, and will cause each of its Significant Subsidiaries to,
preserve and keep in full force and effect its corporate existence and the
corporate existence of each of the Significant Subsidiaries, and the rights
(charter and statutory), licenses and franchises of the Company and each of the
Significant Subsidiaries, as applicable, PROVIDED, HOWEVER, that the Company
shall not be required to, or cause any such Significant Subsidiary to, preserve
or keep in force or effect any such right, license or franchise, or any such
Significant Subsidiary's corporate existence, if its Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries as a whole and that the loss
thereof would not materially adversely affect the Company's ability to perform
its obligations under the Indenture and the Securities.
<PAGE>
SECTION 4.9 PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent and a penalty accrues from such
delinquency, (a) all material taxes, assessments and governmental charges levied
or imposed (i) upon the Company or any of its Subsidiaries or (ii) upon the
income, profits or property of the Company or any of its Subsidiaries and (b)
all material lawful claims for labor, materials and supplies, which, if unpaid,
would by law become a Lien (as defined herein) upon the property of the Company
or any of its Subsidiaries (other than any Lien permitted by this Indenture);
PROVIDED, HOWEVER, that the Company 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 validity is being contested in good faith by
appropriate proceedings properly instituted and diligently conducted, or where
the failure to effect such payment or discharge would not materially adversely
affect the Company's ability to perform its obligations under the Indenture and
the Securities.
SECTION 4.10 MAINTENANCE OF PROPERTIES.
The Company shall, and shall cause each of its Significant
Subsidiaries to, cause all material properties owned by the Company or the
Significant Subsidiaries or used in the conduct of its business or the
businesses of the Significant Subsidiaries to be maintained and kept in good
condition, repair and working order (reasonable wear and tear excepted) and
supplied with all necessary equipment, and cause to be made all repairs,
renewals, replacements, betterments and improvements thereof, all as shall be
reasonably necessary so that the business carried on in connection therewith may
be conducted at all times in the ordinary course; PROVIDED, HOWEVER, that
nothing in this Section 4.10 shall prevent the Company or any of its
Subsidiaries from discontinuing the operation and maintenance of any of such
properties if (x) such discontinuance is, in the judgement of the Company or the
Subsidiary, desirable in the conduct of its businesses or (y) if such
discontinuance or disposal is not materially adverse to the Company and its
Subsidiaries taken as a whole or the ability of the Company to otherwise satisfy
its obligations hereunder.
<PAGE>
SECTION 4.11 INSURANCE.
The Company will at all times keep all of its and its Subsidiaries'
properties which are of an insurable nature insured with insurers, believed by
the Company in good faith to be financially sound and responsible, against loss
or damage to the extent that property of similar character is usually so insured
by corporations similarly situated and owning like properties (which may include
self-insurance, if reasonable and in comparable form to that maintained by
companies similarly situated).
SECTION 4.12 LIMITATION ON LIENS.
The Company will not, directly or indirectly, create, incur or assume
any mortgage, pledge, deed of trust, financing lease or security interest
("Liens") on any of its properties whether now or hereafter acquired, or any
income or profits therefrom, or assign or convey any right to receive income
therefrom (any such Lien, an "Initial Lien"), unless prior to or simultaneously
with the inception of such Initial Lien, the Company shall have delivered to the
Trustee a security agreement or security agreements and such other documents as
the Trustee may reasonably request, each in form and substance satisfactory to
the Trustee, granting to the Trustee an equal and ratable security interest in
such property subject to such Initial Lien, such security interest to be for the
equal and ratable benefit of the Holders. Any such security interest created in
favor of the Securities will be automatically and unconditionally released and
discharged upon the release and discharge of the Initial Lien to which it
relates. Notwithstanding the foregoing, the restrictions set forth in this
paragraph shall not apply if at the time of, and immediately after giving PRO
FORMA effect to, the transaction giving rise to such Initial Lien, the
Consolidated Indebtedness-to-Stockholders' Equity Ratio does not exceed 4.0 to
1.0.
The foregoing restrictions shall not apply to:
(i) Liens securing obligations outstanding from time to time
under any revolving credit agreement to which the Company is a party;
(ii) Liens on assets existing at the time of acquisition
thereof by the Company, PROVIDED that such Liens were in existence prior to such
acquisition and were not created in contemplation of such acquisition;
(iii) Liens on assets of another Person existing at the time
such Person is merged into or consolidated with the Company, PROVIDED that such
Liens were in existence prior to such merger or consolidation and were not
created in contemplation of such merger or consolidation and do not extend to
any assets of the Company other than those previously owned by the Person merged
into or consolidated with the Company;
(iv) Liens securing Purchase Money Indebtedness, but only on
assets in respect to the purchase of which such Purchase Money Indebtedness
shall have been incurred;
(v) Liens on real property;
(vi) Liens in favor of any Subsidiary of the Company;
(vii) Liens incurred or deposits made in the ordinary course
of business (w) in connection with workers' compensation, unemployment
insurance, social security or other like laws, (x) to secure the performance of
letters of credit, bids, tenders, trade contracts (other than for borrowed
money), sales contracts, leases, statutory obligations, surety, appeal and
performance bonds and other similar obligations, (y) in connection with the
opening of commercial letters of credit naming the Company or any of its
Subsidiaries as an account party, or (z) for the benefit of any governmental
agency or body created or approved by law or governmental regulation as a
condition to the transaction of business or the exercise of any privilege,
franchise or license;
(viii) Liens 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;
(ix) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good faith by
appropriate proceedings, PROVIDED that any reserve or other appropriate
provision as shall be required in conformity with generally accepted accounting
principles shall have been made therefor;
(x) Liens imposed by law, including but not limited to
carriers', seamen's, stevedores', wharfinger's, warehousemen's, mechanics',
suppliers', materialmen's, repairman's or other like Liens, in each case for
sums not yet due or being contested in good faith by appropriate proceedings, or
other Liens arising out of judgments or awards against the Company or any of its
Subsidiaries with respect to which the Company or such Subsidiary shall then be
proceeding with an appeal or other proceeding for review;
(xi) Leases, lease agreements and other contracts entered into
in the ordinary course of business providing for the leasing, sale or exchange
of Transportation Equipment owned by the Company;
(xii) Liens securing hedging obligations;
(xiii) Liens (x) existing on the date of the Indenture and (y)
to secure any renewal, extension, substitution, refunding, defeasance,
refinancing, repayment or replacement (a "Refinancing") (or successive
Refinancings), in whole or in part, of any Indebtedness (or commitment for
Indebtedness) existing on the date of this Indenture, PROVIDED, however, that
the Indebtedness secured by such Lien is not, solely by virtue of such
Refinancing, increased to an amount greater than the greater of (A) the
outstanding principal amount of such Indebtedness existing on the date of the
Indenture that is secured by such Lien or (B) if such Lien secures Indebtedness
under a line of credit, the commitment amount of such line of credit existing on
the date of this Indenture; and
(xiv) Liens incurred in the ordinary course of business of the
Company with respect to obligations that do not exceed $1.0 million at any one
time outstanding and that (x) are not incurred in connection with the borrowing
of money or the obtaining of advances or credit (other than trade credit in the
ordinary course of business) and (y) do not in the aggregate materially detract
from the value of the assets subject to such Lien or materially impair the use
thereof in the operation of business by the Company.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate with or merge into, or transfer all
or substantially all of its assets to, another Person in any transaction in
which the Company is not the continuing or surviving entity unless (i) the
resulting, surviving or transferee Person is a corporation which expressly
assumes by supplemental indenture all the obligations of the Company under the
Securities and this Indenture; (ii) such corporation is organized and existing
under the laws of the United States, a State thereof or the District of
Columbia; (iii) immediately after giving effect to such transaction no Default
or Event of Default shall have happened and be continuing, and the Officers'
Certificate referred to in the following clause reflects that such Officers are
not aware of any such Default or Event of Default that shall have happened and
be continuing, and (iv) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture comply with
this Indenture.
SECTION 5.2 SUCCESSOR CORPORATION OR TRUST SUBSTITUTED.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company in accordance with Section 5.1,
the successor corporation formed by such consolidation or into which the Company
is merged or to which such transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor corporation has been named as the
Company herein, and thereafter all obligations of the Company shall terminate.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT.
An "Event of Default" occurs if, with respect to the Securities:
(1) the Company defaults in the payment of interest on the
Securities when the same becomes due and payable and the default continues for a
period of 30 days;
(2) the Company defaults in the payment of the principal of
(and premium, if any, on) the Securities when the same becomes due and payable
at maturity, upon redemption or otherwise;
(3) the Company fails to comply with any of its other
agreements in the Securities or this Indenture and the default continues for the
period and after the notice specified in the last paragraph of this Section 6.1;
(4) there shall be a default under any bond, debenture, note
or other evidence of Indebtedness or under any mortgage, indenture or other
instrument under which there may be issued or by which there may be secured or
evidenced any Indebtedness of the Company or any Significant Subsidiary, whether
any such Indebtedness now exists or shall hereafter be created, if (a) either
(i) such event of default results from the failure to pay any such Indebtedness
at maturity or (ii) as a result of such event of default, the maturity of such
Indebtedness has been accelerated prior to its expressed maturity, provided
that any such failure to pay shall not be cured and any such acceleration shall
not be rescinded or annulled or the accelerated amount paid within ten days
after notice to the Company of such failure to pay or acceleration, or such
Indebtedness having been discharged and (b) the principal amount of such
Indebtedness, together with the principal amount of any other such Indebtedness
in default for failure to pay principal or interest thereon, or the maturity of
which has been so accelerated, aggregates $10,000,000 or more;
(5) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order
for relief against it in an involuntary
case or proceeding,
(C) consents to the appointment of a
Custodian of it or for all or substantially
all of its property, or
(D) makes a general assignment for the
benefit of its creditors; or
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or
any Significant Subsidiary in an
involuntary case or proceeding,
(B) appoints a Custodian of the Company
or any Significant Subsidiary or for
all or substantially all of their
respective property, or
(C) orders the liquidation of the
Company or any Significant Subsidiary,
and the order or decree remains unstayed and in effect for 90 days.
A default under clause (3) is not an Event of Default with respect to
the Securities until the Trustee notifies the Company, or the Holders of a
majority in principal amount of the Securities then outstanding notify the
Company and the Trustee in writing, of the default and the Company does not cure
the default within 60 days after receipt of such notice. The notice must specify
the default, demand that it be remedied and state that the notice is a "Notice
of Default." Such notice by the Trustee shall not be deemed to be a
certification by the Trustee as to whether an Event of Default has occurred.
Failure of the Trustee to give such notice does not constitute a waiver of any
of its rights hereunder.
SECTION 6.2 ACCELERATION.
If an Event of Default occurs and is continuing with respect to the
Securities, the Trustee by notice to the Company, or the Holders of a majority
in principal amount of the Securities then outstanding by written notice to the
Company and the Trustee, may declare to be due and payable immediately the
principal amount of the Securities plus accrued interest to the date of
acceleration. Upon any such declaration, such amount shall be due and payable
immediately, and upon payment of such amount all of the Company's obligations
with respect to the Securities, other than obligations under Section 7.7, shall
terminate. The Holders of a majority in principal amount of the outstanding
Securities by written notice to the Trustee may rescind an acceleration and its
consequences if (x) all existing Events of Default with respect to the
Securities, other than the non-payment of the principal of the Securities, which
have become due solely by such declaration of acceleration, have been cured or
waived, (y) to the extent that payment of such interest is lawful, interest on
overdue installments of interest and overdue principal which has become due
otherwise than by such declaration of acceleration, has been paid, and (z) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction. The Trustee may rely upon such notice of rescission
without any independent investigation as to the satisfaction of conditions (x),
(y) and (z).
SECTION 6.3 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal (and premium, if any) or interest on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.4 WAIVER OF DEFAULTS AND EVENTS OF DEFAULT.
Subject to Section 10.2, the Holders of a majority in principal amount
of the Securities then outstanding, on behalf of the Holders of the Securities,
by written notice to the Trustee may waive a Default or Event of Default with
respect to the Securities and its consequences. When a Default is waived with
respect to the Securities it is cured and ceases to exist and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture.
SECTION 6.5 CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the Securities then
outstanding may direct in writing the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on it with respect to the Securities. The Trustee, however, may
refuse to follow any direction (i) that conflicts with law or this Indenture,
(ii) that the Trustee, in its reasonable discretion, determines may be unduly
prejudicial to the rights of other Securityholders or that may involve the
Trustee in personal liability or (iii) for which the Trustee determines, in its
reasonable discretion, that it does not have adequate indemnification pursuant
to Section 7.1(e); PROVIDED, that the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
SECTION 6.6 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provisions of this Indenture, the right of
any Holder of a Security to receive payment of principal of, premium, if any,
and interest on such Security, on or after the respective due dates expressed in
such Security, or to bring suit for the enforcement of any such payment on or
after such respective dates, is absolute and unconditional and shall not be
impaired or affected without the consent of the Holder.
SECTION 6.7 COLLECTION SUIT BY TRUSTEE.
If an Event of Default with respect to the Securities in payment of
interest or principal (and premium, if any) specified in Section 6.1(1) or (2)
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company or any other obligor on the
Securities for the whole amount of unpaid principal (and premium, if any) and
accrued interest remaining unpaid on the Securities, together with interest on
overdue principal (and premium, if any) and to the extent that payment of such
interest is lawful, interest on overdue installments of interest, in each case
at the rate borne by the Securities and 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.
SECTION 6.8 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of Securities allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Securities), its creditors or its
property and shall be entitled and empowered to collect and receive any monies
or other property payable or deliverable on any such claims and to distribute
the same. Any Custodian in any such judicial proceeding is hereby authorized by
each Securityholder 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
of Securities to pay to the Trustee any amount due to 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 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan or 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 Securityholder in any such proceeding.
SECTION 6.9 PRIORITIES.
If the Trustee collects any money pursuant to this Article 6 with
respect to the Securities, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under
Section 7.7, including payment of all compensa-
tion, expenses and liabilities incurred, and
all advances made by the Trustee and the costs
and expenses of collection;
SECOND: to Holders of Securities for amounts
due and unpaid on the Securities for principal
of (and premium, if any) and interest,
ratably, without preference or priority of any kind,
according to the amounts due and payable on
the Securities for principal (and premium, if
any) and interest, respectively;
THIRD: to the Company or to such party as a
court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Securities pursuant to this Section 6.9.
SECTION 6.10 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 or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorney's fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.10 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to section 6.6 or a suit by Holders of more than 10% in principal
amount of the Securities then outstanding.
SECTION 6.11 LIMITATIONS ON SUITS.
Subject to Section 6.6, a Holder of Securities may not pursue any
remedy with respect to this Indenture or the Securities unless:
(1) the Holder has given the Trustee written
notice of a continuing Event of Default;
(2) the Holders of at least 25% in principal amount of
Securities make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expenses;
(4) the Trustee does not comply with the request within 60
days after receipt of the notice, request and offer of indemnity; 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 then outstanding.
A Holder of any Security may not use this Indenture to
prejudice the rights of another Securityholder or to obtain a preference or
priority over another Securityholder.
SECTION 6.12 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 case, subject to any
determination in such proceeding, the Company, 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.
ARTICLE 7
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent Person
would exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that
are specifically set forth in this Indenture and no others,
and no implied covenants or obligation shall be read into this
Indenture against the Trustee.
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.
The Trustee, however, shall examine the certificates and
opinions to determinate whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.1.
(2) The Trustee shall not be liable for any error in
judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts.
(3) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
6.5.
(4) 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.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.1.
(e) Subject to subsection (c), the Trustee may refuse to
perform any duty or exercise any right or power unless, subject to the
provisions of the TIA, it receives indemnity satisfactory to it against any
loss, liability, expense or fee.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.2 RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely on and shall be
protected in acting or refraining from acting upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both, which shall
conform to Section 11.5 hereof. The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers.
(e) 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 the Trustee hereunder in good faith and reliance thereon.
(f) 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 of the Securities or the Company unless such
Holders or the Company shall have offered to the Trustee reasonable security or
indemnify against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee, however, is subject to Sections
7.10 and 7.11.
SECTION 7.4 TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities or any money paid to the Company or upon
the Company's direction under any provision of this Indenture, it shall not be
responsible for the use or application of any money received by any Paying Agent
other than the Trustee, and it shall not be responsible for any statement of the
Company in the Indenture or any statement in the Securities other than its
certificate of authentication or in any document used in the sale of the
Securities other than any statement in writing provided by the Trustee expressly
for use in such document.
SECTION 7.5 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee with respect to the Securities, the Trustee shall mail to
each Holder of Securities notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a default in payment of principal
of, premium, if any, or interest on any Security, the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of Holders of
Securities. Notwithstanding anything to the contrary expressed in this
Indenture, the Trustee shall not be deemed to have knowledge of any Event of
Default hereunder unless and until a Trust Officer shall have actual knowledge
thereof, or shall have received written notice thereof from the Company at its
principal corporate trust office in New York, New York. The Trustee shall not be
deemed to have actual knowledge of an Event of Default hereunder, except in the
case of an Event of Default under Sections 6.1(1) or 6.1(2) (provided that the
Trustee is the Paying Agent) until a Trust Officer receives written notice
thereof from the Company or any Securityholder that such an Event of Default has
occurred.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15, beginning with May 15, 1998, the
Trustee, if required by the provisions of TIA ss. 313(a), shall mail to each
Securityholder a brief report dated as of May 15 of such year that complies with
TIA ss. 313(a). The Trustee also shall comply with TIA ss.(b) and ss. 313(c).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the Commission and each stock exchange on which the
Securities are listed. The Company agrees to notify the Trustee in writing
whenever the Securities become listed or delisted on or from any stock exchange.
SECTION 7.7 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust). The Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it in addition to the
compensation for its services. Such expenses may include the reasonable
compensation, disbursements and expenses of the Trustee's agents, accountants,
experts and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability incurred by it in connection with the acceptance
or administration of this trust or its actions taken hereunder in whatever
capacity the Trustee is so acting, including the costs and expenses of defending
itself against any claim or liability in connection with the Securities or the
exercise or performance of any of its powers or duties hereunder, including
attorneys' fees and expenses. The Trustee shall notify the Company as soon as
practicable after the Trustee becomes aware of any claim asserted against the
Trustee for which it intends to seek indemnity (though failure by the Trustee
to so notify the Company shall not relieve the Company of its obligations
hereunder unless the Company is prejudiced thereby) and the Company may elect by
written notice to the Trustee to assume the defense of any such claim at the
Company's expense with counsel reasonably satisfactory to the Trustee, PROVIDED,
HOWEVER, that in the case where there is a conflict between the Company and the
Trustee, the Company shall pay the reasonable fees and expenses of counsel
retained by the Trustee.
The Company need not reimburse the Trustee for any expense or
indemnify it against any loss or liability incurred by it through the Trustee's
negligence, bad faith or willful misconduct. The Company shall not be liable for
any settlement of any claim or action effected without the Company's consent,
which consent shall not be unreasonably withheld.
The Company hereby grants the Trustee a security interest in all of
the funds and assets of the Company held by the Trustee pursuant to this
Indenture to secure the performance of the Company's obligations to the Trustee
hereunder.
The obligations of the Company under this Section 7.7 shall survive
the resignation or removal of the Trustee and/or the satifaction or discharge of
this Indenture.
SECTION 7.8 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.8.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities then outstanding may remove the
Trustee by so notifying the Trustee in writing and may appoint a successor
Trustee with the Company's written consent. The Company may remove the Trustee
if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
If a successor Trustee does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the Securities then outstanding may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall, upon payment of its charges, transfer all property
held by it as Trustee to the successor Trustee, the resignation or removal of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.8, the
Company's obligations under Section 7.7 shall continue for the benefit of the
retiring Trustee with respect to expenses and liabilities incurred by it and
compensation earned by it prior to such replacement or otherwise with respect to
the Securities or the Indenture. A successor Trustee shall mail notice of its
succession to each Holder of Securities.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1). The Trustee shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published annual
report of condition. The Trustee shall comply with TIA ss. 310(b), including the
optional provision permitted by the second sentence of TIA ss. 310(b)(9).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1 OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at its option and at any time, elect to have Section
8.2 or Section 8.3 be applied to all outstanding Securities upon compliance with
the conditions set forth below in this Article 8.
SECTION 8.2 DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the above option applicable to this
Section the Company shall be deemed to have been discharged from its obligations
with respect to the outstanding Securities on the date the conditions set forth
in Section 8.4 are satisfied ("Defeasance"). For this purpose, such Defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the outstanding Securities, which shall thereafter
be deemed to be "outstanding" only for the purposes of Section 8.5 and the other
Sections of this Indenture referred to in Paragraphs (a) and (b) below, and to
have satisfied all of its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same following delivery by the Company to the Trustee of an Officer's
Certificate and Opinion of Counsel stating that all such conditions have been
satisfied), except for the following which shall survive until otherwise
terminated or discharged hereunder:
(a) the rights of Holders to receive, solely from the trust
fund described in Section 8.4 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 such payments are due,
(b) the Company's obligations with respect to such Securities
under Sections 2.4, 2.5, 2.9, 2.10, 2.12 and 4.7.
(c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, and
(d) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its option
under this Section 8.2 notwithstanding the prior exercise of its option under
Section 8.3 with respect to such Securities.
SECTION 8.3 COVENANT DEFEASANCE.
Upon the Company's exercise of the above option applicable to this
Section 8.3, the Company shall be released from its obligations under Sections
4.9, 4.10, 4.11 and 4.12 with respect to the outstanding Securities on and after
the date the conditions set forth in Section 8.4 are satisfied ("Covenant
Defeasance"), and the Securities shall thereafter be deemed to be not
"outstanding" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with
Sections 4.9, 4.10, 4.11 and 4.12, but shall continue to be deemed "outstanding"
for all other purposes hereunder. For this purpose, such Covenant Defeasance
means that, with respect to the outstanding Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or such other covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any such Section or
such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a default or an Event of Default
under Section 6.1(4), 6.1(5) or 6.1(6) or otherwise, as the case may be, but,
except as specified above, the remainder of this Indenture and the Securities
shall be unaffected thereby.
SECTION 8.4 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of Section 8.2 or
Section 8.3 to the outstanding Securities:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements of
Section 7.10 who shall agree to comply with the provisions of this Article 8
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, (i) cash in an amount in
which such Securities are then specified as payable at stated maturity, (ii)
U.S. Government Obligations applicable to such Securities 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 of principal of (and premium, if any) and interest, if any, on such
Securities, money in an amount, or (iii) a combination thereof, in any case, in
an amount, sufficient, without consideration of any reinvestment of such
principal and interest, 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 discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge the principal of
(and premium, if any) and interest on the outstanding Securities on the stated
maturity of such principal (and premium, if any) or installment of principal or
interest; PROVIDED that the Trustee shall have been irrevocably instructed in
writing to apply such money or the proceeds of such U.S. Government Obligations
to said payments with respect to the Securities. Before such a deposit, the
Company may give to the Trustee, in accordance with Section 3.1(b) hereof, a
notice of its election to redeem all or any portion of the outstanding
Securities at a future date in accordance with the terms of the Securities and
Article 3 hereof, which notice shall be irrevocable. Such irrevocable redemption
notice, if given, shall be given effect in applying the foregoing.
(b) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by
which it is bound.
(c) No Default or Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such deposit or,
insofar as Section 6.1(5) or 6.1(6) is concerned, at any time during the period
ending on the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of such
period).
(d) In the case of an election under Section 8.2, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution 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 the outstanding Securities will not recognize income, gain or loss for
Federal income tax purposes as a result of such Defeasance 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.
(e) In the case of an election under Section 8.3, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the outstanding Securities will not recognize income, gain or loss
for Federal income tax purposes as a result of such Covenant Defeasance 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.
(f) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent to Defeasance under Section 8.2 or Covenant Defeasance
under Section 8.3 (as the case may be) have been complied with and an Opinion of
Counsel to the effect that either (i) as a result of a deposit pursuant to
Paragraph (a) above and the related exercise of the Company option under Section
8.2 or Section 8.3 (as the case may be), registration is not required under the
Investment Company Act of 1940, as amended, by the Company, with respect to the
trust funds representing such deposit or by the Trustee for such trust funds, or
(ii) all necessary registrations under said Act have been effected.
SECTION 8.5 DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 8.4 in respect of the
outstanding Securities 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 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), interest, if any, but such money need not be
segregated from other funds except to the extent required by law.
The Company 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 8.4 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.
Anything in this Article 8 to the contrary notwithstanding, subject to
Section 7.7, the Trustee shall deliver or pay to the Company from time to time
upon Company Order any money or U.S. Government Obligations (or other property
and any proceeds therefrom) held by it as provided in Section 8.4 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 Defeasance or Covenant Defeasance, as applicable, in accordance with this
Article 8.
ARTICLE 9
SATISFACTION AND DISCHARGE
SECTION 9.1 SATISFACTION AND DISCHARGE OF INDENTURE.
The Indenture shall upon Company Order cease to be of further effect
with respect to the Securities (except as to any surviving rights of
registration of transfer or exchange of Securities expressly provided for herein
or pursuant hereto, the rights of Holders of outstanding Securities to receive,
solely from the trust fund described in subclause (ii) of clause (a) of this
Section, payments in respect of the principal of (and premium, if any) and
interest on such Securities when such payments are due, and the Trustee, upon
receipt of a Company Order, and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
when
(a) either
(1) all the Securities theretofore authenticated and
delivered (other than (A) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.10 and (B) 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 2.5) have been delivered to the Trustee
for cancellation; or
(2) all the Securities not theretofore
delivered to the Trustee for cancellation
(A) have become due and payable,
(B) will become due and payable at their stated
maturity within one year or
(C) will 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, in the case of (A), (B) or (C) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust an amount sufficient to pay
and discharge the entire indebtedness on the Securities, 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;
(b) The Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) The Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided fore 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 to the Trustee and any predecessor Trustee under
Section 7.7 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (ii) of clause (a) of this Section 9.1, the obligations of
the Trustee under Section 9.2 shall be unaffected hereby.
SECTION 9.2 APPLICATION OF TRUST FUNDS.
All money deposited with the Trustee pursuant to Section 9.1 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 acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and any interest for whose payment such money has been
deposited or received by the Trustee, but such money need not be segregated from
other funds except to the extent required by law.
ARTICLE 10
SUPPLEMENTAL INDENTURES
SECTION 10.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
The Company, when authorized by Board Resolution, and the Trustee at
any time and from time to time, may amend this Indenture or enter into one or
more indentures supplemental hereto, to be in a form satisfactory to the Trustee
without notice to or consent of any Securityholder for any of the following
purposes:
(1) to comply with Section 5.1; or
(2) to provide for uncertificated Securities
in addition to or in place of certificated Securities; or
(3) to add to the covenants of the Company, for the benefit of
the Holders of all of the Securities, or to surrender any right or power herein
conferred upon the Company; or
(4) to add any Events of Default; or
(5) 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 which shall not be inconsistent with any provision
of this Indenture, provided such other provisions shall not adversely affect the
interests of the Holders of Securities in any material respect.
SECTION 10.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the written consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time outstanding, the
Company, when authorized by Board Resolution, and the Trustee may amend this
Indenture or from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the TIA
as in force at the date of the execution thereof) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture, except as otherwise permitted
by Section 10.1, or of modifying in any manner the rights of the Holders of the
Securities. Subject to Section 10.4, without the consent of each Holder of
Securities, however, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.4, may not:
(1) extend the fixed maturity of any Securities, or reduce the
principal amount thereof or premium, if any, or reduce the rate or extend the
time of payment of interest thereon, without the consent of the Holder of each
Security;
(2) reduce the aforesaid percentage of Securities, the consent
of the Holders of which is required for any such supplemental indenture, without
the consent of the Holders of all Securities then outstanding;
(3) waive (except, unless theretofore cured) a default in the
payment of the principal of (and premium, if any on), interest on or redemption
amounts with respect to any Security; or
(4) make any Security payable in money other than that stated
in the Security; or
(5) make any change in Sections 6.4 or 6.6 or in this sentence
of Section 10.2.
Upon the written request of the Company, accompanied by a copy of a
Board Resolution certified by the Secretary or an Assistant Secretary of the
Company authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless the Trustee, in its reasonable discretion,
determines that such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its reasonable discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent shall approve
the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall mail a notice, setting forth in general terms the substance of such
supplemental indenture, to all Holders of Securities as the names and addresses
of such Holders shall appear on the registry books. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 10.3 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Securities
shall comply with the TIA as then in effect.
SECTION 10.4 REVOCATION AND EFFECT OF CONSENTS.
Subject to this Indenture, each amendment, supplement or waiver
evidencing other action shall become effective in accordance with its terms.
Until an amendment, supplement or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder even if notation of
the consent is not made on any Security. Any such Holder or subsequent Holder,
however, may revoke the consent as to his Security or portion of a Security, if
the Trustee receives the written notice of revocation before the date the
amendment, waiver or other action becomes effective.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the
provisions of the immediately preceding paragraph, those Persons who were
Holders on such record date (or their duly designated proxies) and only those
Persons, shall be entitled to consent to such amendment, supplement or waiver or
to revoke any consent previously given, whether or not such Persons continue to
be Holders after such record date. No consent shall be valid or effective for
more than 90 days after such record date unless consent from Holders of the
principal amount of Securities then outstanding required hereunder for such
amendment, supplement or waiver to be effective shall have also been given and
not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder.
SECTION 10.5 NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may request the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms, the
cost and expense of which will be borne by the Company.
SECTION 10.6 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 shall be bound thereby.
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provisions shall control.
SECTION 11.2 NOTICES.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
or first class mail, postage prepaid (except that any notice by the Trustee to
the Company of a default or an Event of Default under this Indenture shall be by
registered or certified mail, postage prepaid, return receipt requested), or by
a nationally-recognized overnight express courier service (which notices or
communications shall be deemed received the Business Day after the receipt
thereof by such service), addressed as follows:
if to the Company:
Interpool, Inc.
211 College Road East
Princeton, New Jersey 08540
Attention: Chief Financial Officer
if to the Trustee:
United States Trust Company of New York
114 West 47th Street
New York, New York 10036
Attention: Corporate Trust
The Company or the Trustee by notice to the other may designate additional or
different addresses as shall be furnished in writing by either party. Any notice
or communication to the Company or the Trustee shall be deemed to have been
given or made as of the date so delivered if personally delivered, and five (5)
calendar days after mailing if sent by registered or certified mail (except that
a notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication mailed to a Securityholder shall be
mailed to the address of such Securityholder as it appears on the registration
books of the Registrar and shall be sufficiently given if so mailed within the
time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice, as
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of such
notice.
If the Company mails any notice or communication to Securityholders,
it shall mail a copy to the Trustee and all Agents at the same time.
SECTION 11.3 COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
SECTION 11.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 11.5) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 11.5) stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
<PAGE>
SECTION 11.5 STATEMENTS REQUIRED IN CERTIFICATE AND OPINION.
Each Certificate and Opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(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 such Person, 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 or not, in the opinion of such
Person, such covenant or condition has been complied with.
SECTION 11.6 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Registrar or Paying Agent may make reasonable rules for its
functions.
SECTION 11.7 RECORD DATE.
Whenever the Company or the Trustee solicits an act of
Securityholders, the Company or the Trustee may fix in advance of the
solicitation of such act a date as the record date for determining
Securityholders entitled to perform said act. The record date shall be not more
than 15 days prior to the date fixed for the solicitation of said act.
<PAGE>
SECTION 11.8 BUSINESS DAYS.
If a payment date is not a Business Day, payment may be made on the
next succeeding day that is a Business Day, and no interest shall accrue for the
intervening period.
SECTION 11.9 GOVERNING LAW.
The laws of the State of New York shall govern this Indenture and the
Securities without regard to principles of conflicts of law.
SECTION 11.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary thereof. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.
SECTION 11.11 NO RECOURSE AGAINST OTHERS.
No shareholder, director or officer, as such, past, present or future,
of the Company or of any successor corporation or trust shall have any liability
for any obligation of the Company under the Securities or the Indenture or for
any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of a Security by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for the
issuance of the Securities.
SECTION 11.12 SUCCESSORS.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 11.13 MULTIPLE COUNTERPARTS.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent the same agreement.
SECTION 11.14 TABLE OF CONTENTS, HEADINGS, ETC.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 11.15 SEVERABILITY.
In case any provision in this Indenture or in the Securities 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, and a Holder shall have no claim therefor against any party hereto.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
INTERPOOL, INC.
By: /s/ Richard W. Gross
------------------------
Name: Richard W. Gross
Title: Senior Vice President
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
By: /s/ Gerard F. Ganey
--------------------
Authorized Officer
<PAGE>
EXHIBIT A
(FORM OF FACE OF ORIGINAL SECURITY)
[IF THE SECURITY IS A GLOBAL SECURITY, INSERT: - 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 OF A DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF
THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY
A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
"AFFILIATE" OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
THIS SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) IN A MINIMUM PRINCIPAL
AMOUNT OF $100,000 TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE
COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D),
(E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS
AND/OR OTHER INFORMATION SATISFACTORY TO THE COMPANY, AND (ii) PURSUANT TO
CLAUSE (E), TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE COMPANY A LETTER FROM
THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING MEMORANDUM
DATED JULY 31, 1997. SUCH HOLDER FURTHER AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND.
<PAGE>
INTERPOOL, INC.
7.20% Notes due 2007
CUSIP No. _________ $__________
No. __
Interpool, Inc., a Delaware corporation (the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _____________ or registered assigns,
the principal sum of $___________ on August 1, 2007 (the "Maturity Date"), and
to pay interest on the outstanding principal amount hereof from August 5, 1997,
or from the most recent interest payment date (each such date, an "Interest
Payment Date") to which interest has been paid or duly provided for,
semi-annually (subject to deferral as set forth herein) in arrears on February 1
and August 1 of each year, commencing February 1, 1998 at the rate of 7.20% per
annum until the principal hereof shall have become due and payable, and at the
same rate per annum on any overdue principal and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum compounded
semi-annually; PROVIDED, HOWEVER, that if a Ratings Decision (as defined in the
Indenture) shall not have occurred by the 90th day after the Issue Date, the
rate per annum set forth above shall automatically and irrevocably increase to
7.45% per annum effective retroactively from the Issue Date. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year of twelve 30-day months and, for any period less than a full
calendar month, the number of days elapsed in such month. In the event that any
date on which the principal of or interest on this Security is payable is not a
Business Day, then the payment payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), with the same force and effect as if made on such
date. Pursuant to the Registration Rights Agreement, in certain limited circum-
stances the Company will be required to pay Liquidated Damages (as defined in
the Registration Rights Agreement) with respect to this Security.
The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the person in whose name this Security (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of business
on the regular record date for such interest installment, which shall be the
January 15 or July 15 immediately preceding the relevant interest payment date.
Any such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the holders on such regular record date and may
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 to
be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the holders of Securities not less than 10 days
prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture.
The principal of and interest on this Security shall be payable at the
office or agency of the Company maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; PROVIDED, HOWEVER, that, payment
of interest may be made at the option of the Company by (i) check mailed to the
holder at such address as shall appear in the Security Register or (ii) by
transfer to an account maintained by the Person entitled thereto, provided that
proper written transfer instructions have been received by the relevant record
date.
This Security shall not be entitled to any benefit under the Indenture
hereinafter referred to, or be valid or become obligatory for any purpose until
the Certificate of Authentication hereon shall have been signed by or on behalf
of the Trustee.
The provisions of this Security are continued on the reverse side
hereof and such provisions shall for all purposes have the same effect as though
fully set forth at this place.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Interpool, Inc.
By: ______________________
Name:
Title:
Attest:
By: ______________________
Name:
Title:
<PAGE>
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
By: ______________________
Authorized Officer
<PAGE>
(FORM OF REVERSE OF SECURITY)
INTERPOOL, INC.
7.20% Notes due 2007
1. INTEREST. Interpool, Inc., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Security at the rate
per annum shown above; PROVIDED, HOWEVER, that such rate per annum shall
increase to 7.45% per annum, effective retroactively from the Issue Date, if a
Ratings Decision (as defined in the Indenture) shall not have occurred by the
90th day after the Issue Date. The Company will pay interest semiannually on
February 1 and August 1 of each year, beginning February 1, 1998. Interest on
the Securities will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of initial issuance of the
Securities; provided, that, if there is no existing Default in the payment of
interest, and if this Security is authenticated between a record date referred
to on the face hereof and the next succeeding interest payment date, interest
shall accrue from such interest payment date. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
Pursuant to the Registration Rights Agreement, in certain limited
circumstances the Company will be required to pay Liquidated Damages (as defined
in the Registration Rights Agreement) with respect to this Security.
2. METHOD OF PAYMENT. The Company will pay interest on the Securities
(except defaulted interest) to the Persons who are the registered Holders of the
Securities at the close of business on the January 15 or July 15 next
preceding the interest payment date. The Company will pay principal, premium, if
any, and interest in money of the United States that at the time of payment is
legal tender for payment of public and private debts. The Company, however, may
pay principal, premium, if any, and interest by its check payable in such money.
The principal of and interest on this Security shall be payable at the
office or agency of the Company maintained for that purpose; PROVIDED, HOWEVER,
that, payment of interest may be made at the option of the Company by (i) check
mailed to the holder at such address as shall appear in the Security Register or
(ii) by transfer to an account maintained by the Person entitled thereto,
provided that proper written transfer instructions have been received by the
relevant record date.
The foregoing notwithstanding, principal of and premium, if any, and
interest on Securities which are represented by Global Securities held of record
by the Depositary will be payable in same-day funds.
3. REGISTRAR AND AGENTS. Initially, United States Trust Company of New
York will act as Registrar, Paying Agent and agent for service of notices and
demands. The Company or any of its subsidiaries may act as Paying Agent. The
address of United States Trust Company of New York is 114 West 47th Street, New
York, New York 10036, Attention: Corporate Trust and Agency Division.
4. INDENTURE; LIMITATIONS. The Company issued the Securities under an
Indenture dated as of August 5, 1997 (the "Indenture"), between the Company and
United States Trust Company of New York, as trustee (in such capacity, the
"Trustee"). Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code 77aaa-77bbbb) as in effect on the date of
the Indenture. The Securities are subject to all such terms, and the Holders of
the Securities are referred to the Indenture and said Act for a statement of
them.
The Securities are general unsecured obligations of the Company
limited to $75,000,000 aggregate principal amount. The Indenture imposes certain
limitations on the ability of the Company to, among other things, incur liens,
make payments in respect of its Capital Stock, merge or consolidate with any
other Person and sell, lease, transfer or otherwise dispose of its properties or
assets.
5. OPTIONAL REDEMPTION BY THE COMPANY. The Company may redeem the
Securities, at any time, in whole or from time to time in part, at the election
of the Company, at a Redemption Price equal to the sum of (i) the principal
amount of the Securities being redeemed plus accrued interest thereon to the
Redemption Date and (ii) the Make-Whole Amount, if any, with respect to such
Securities. "Make-Whole Amount" means, in connection with any optional
redemption of any Security, the excess, if any of (i) the aggregate present
value as of the date of such redemption of each dollar of principal being
redeemed and the amount of interest (exclusive of any interest accrued to the
date of redemption) that would have been payable in respect of such dollar if
such redemption had not been made, determined by discounting, on a semi-annual
basis, such principal and interest at the Reinvestment Rate (as defined in the
Indenture) (which rate shall be determined as of the third Business Day
preceding the date such notice of redemption is given) from the respective dates
on which such principal and interest would have been payable if such redemption
had not been made, over (ii) the aggregate principal amount of the Securities
being redeemed.
6. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 days but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at his registered address. Securities in
denominations larger than $1,000 principal amount may be redeemed in part, but
only in whole multiples thereof. On and after the Redemption Date interest will
cease to accrue on Securities or portions thereof called for redemption.
7. DENOMINATIONS, TRANSFER, EXCHANGE. This Security is one of a duly
authorized issue of Securities of the Company designated as its 7.20% Notes due
2007, limited in aggregate principal amount to $75,000,000. The Securities are
issuable in registered form without coupons in denominations of $1,000 principal
amount and integral multiples thereof. A Holder may register the transfer of or
exchange Securities in accordance with the Indenture and subject to the transfer
restrictions as may be contained herein and therein from time to time. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the
transfer of or exchange any Securities selected for redemption or register the
transfer of or exchange any Securities for a period of 15 days before a
selection of Securities to be redeemed.
8. PERSONS DEEMED OWNERS. The registered Holder of a Security may be
treated as its owner for all purposes.
9. UNCLAIMED MONEY. If money for the payment of principal, premium, if
any, or interest on any Securities remains unclaimed for two years, the
Trustee and the Paying Agent will pay the money back to the Company at its
written request. After that, Holders may look only to the Company for payment.
10. DISCHARGE PRIOR TO REDEMPTION OR Maturity. Except as set forth in
the Indenture, if the Company irrevocably deposits with the Trustee, in trust,
for the benefit of the Holders, cash, U.S. Government Obligations or a
combination thereof, in such amounts as will be sufficient in the opinion of a
nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any and interest on the Securities to redemption or
maturity and comply with the other provisions of the Indenture relating thereto,
the Company will be discharged from certain provisions of the Indenture and the
Securities (including the restrictive covenants described in paragraph 4 above,
but excluding its obligation to pay the principal of and interest on the
Securities).
11. AMENDMENT AND WAIVER. Subject to certain exceptions, without
notice to the Holders of the Securities, the Indenture or the Securities may be
amended with the consent of the Holders of at least a majority in principal
amount of the Securities then outstanding and any existing default or compliance
with any provision may be waived with the consent of the Holders of a majority
in principal amount of the Securities then outstanding. Without the consent of
or notice to any Holder of Securities, the Company may amend the Indenture or
the Securities to, among other things, cure any ambiguity, defect or
inconsistency or make any other change that does not adversely affect the rights
of any Securityholder.
12. SUCCESSORS. When a successor assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor will be
released from those obligations.
13. DEFAULTS AND REMEDIES. If an Event of Default, as defined in the
Indenture, occurs and is continuing, the Trustee or the Holders of a majority in
principal amount of Securities may declare all the Securities to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Securities may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it,
subject to the provisions of the TIA, before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in principal
amount of the Securities then outstanding may direct the Trustee in writing in
its exercise of any trust or power with respect to the Securities. The Company
is required to file periodic reports with the Trustee as to the absence of any
Default or Event of Default.
14. TRUSTEE DEALINGS WITH THE COMPANY. United States Trust Company of
New York, the Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not Trustee.
15. NO RECOURSE AGAINST OTHERS. No stockholder, director, officer or
incorporator, as such, past, present or future, of the Company or any successor
corporation or trust shall have any liability for any obligation of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder of a Security
by accepting a Security waives and releases all such liability. This waiver and
release are part of the consideration for the issuance of the Securities.
16. AUTHENTICATION. This Security shall not be valid until the Trustee
or any authenticating agent appointed by the Trustee signs the certificate of
authentication on the other side of this Security.
17. REGISTRATION RIGHTS. Pursuant to the Registration Rights Agreement
between the Company and the Initial Purchaser for itself and on behalf of the
Holders of the Original Securities, the Company will be obligated to consummate
an exchange offer pursuant to which the Holder of this Security shall have the
right to exchange this Security for the Company's 7.20% Notes due 2007, which
will have been registered under the Securities Act, in like principal amount and
having terms identical in all material respects as the Original Securities. The
Holders of the Original Securities shall be entitled to receive certain
liquidated damages in the event such exchange offer is not consummated and
upon certain other conditions, all pursuant to and in accordance with the terms
of the Registration Rights Agreement.
18. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with rights of
survivorship and not as tenants in common), CUST (= Custodian), AND U/G/M/A (=
Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO: INTERPOOL,
INC., 211 COLLEGE ROAD EAST, PRINCETON, NEW JERSEY, ATTENTION: INVESTOR
RELATIONS.
<PAGE>
ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to
_______________________________________________________________
(Insert assignee's social security or tax ID number)
______________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for such agent.
Date: Your signature:
(Sign exactly as
your name appears on the
other side of this
Security)
By:
NOTICE: To be executed by
an executive officer
NOTICE: Signature(s) must be guaranteed by an institution which is a
participant in the Securities Transfer Agent Medallion Program ("STAMP") or
similar program.
<PAGE>
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES1
<TABLE>
<CAPTION>
The following exchanges of a part of this Global Security for
Definitive Securities have been made:
Amount of Amount of Principal Signature of
decrease in increase in Amount of this authorized
Principal Principal Global Security officer of
Amount of Amount of following such Trustee or
Date of this Global this Global decrease (or Securities
Exchange Security Security increase) Custodian
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- --------
1 This schedule should only be added if the Security is issued in global form.
</TABLE>
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
SECURITIES
Re: 7.20% NOTES DUE 2007 OF INTERPOOL, INC.
This Certificate relates to $______ principal amount of Securities
held in (check applicable box) _____ book-entry or ______ definitive form by
_____ (the "Transferor").
The Transferor (check applicable box):
|_| has requested the Registrar by written order to deliver in
exchange for its beneficial interest in the Global Security held by the
Depositary a Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial interest
in such Global Security (or the portion thereof indicated above); or
|_| has requested the Registrar by written order to exchange or
register the transfer of a Security or Securities.
In connection with such request and in respect of each such Security,
the Transferor does hereby certify that Transferor is familiar with the
Indenture relating to the above-captioned Securities and as provided in Section
2.9 of such Indenture, the transfer of this Security does not require
registration under the Securities Act (as defined below) because (check
applicable box):
|_| Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.9(c)(2)(A) or Section
2.9(f)(1)(A) of the Indenture).
|_| Such Security is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of 1933, as amended
(the "Securities Act")) in reliance on Rule 144A (in satisfaction of Section
2.9(c)(2)(B) or Section 2.9(f)(1)(B) of the Indenture) or pursuant to an
effective registration statement under the Securities Act (in satisfaction of
Section 2.9(c)(2)(C) or Section 2.9(f)(1)(C) of the Indenture).
<PAGE>
|_| Such Security is being transferred in accordance with Rule 144
under the Securities Act, or pursuant to an exemption from registration in
accordance with Regulation S under the Securities Act or to an institutional
"accredited investor" within the meaning of Rule 501(A)(1), (2), (3) or (7)
under the Securities Act that is acquiring the Security for its own account, or
for the account of such an institutional accredited investor, in each case in a
minimum principal amount of $100,000, not with a view to or for distribution
in violation of the Securities Act (in satisfaction of Section 2.9(c)(2)(C) or
Section 2.9(f)(1)(C) of the Indenture).
|_| Such Security is being transferred in reliance on and in
compliance with an exemption from the registration requirements of the
Securities Act, other than Rule 144A, in accordance with Rule 144 under the
Securities Act, or to an institutional "accredited investor" within the meaning
of Rule 501(A)(1), (2), (3) or (7) under the Securities Act that is acquiring
the Security for its own account, or for the account of such an institutional
accredited investor, in each case in a minimum principal amount of $100,000, not
with a view to or for distribution in violation of the Securities Act, and an
Opinion of Counsel to the effect that such transfer does not require
registration under the Securities Act accompanies this Certificate (in
satisfaction of Section 2.9(c)(2)(C) or Section 2.9(f)(1)(C) of the Indenture).
____________________________
[INSERT NAME OF TRANSFEROR]
By:
Date:
EXHIBIT B
(FORM OF FACE OF EXCHANGE SECURITY)1
[IF THE SECURITY IS A GLOBAL SECURITY, INSERT: 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 OF A DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF
THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY
A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
- --------
1 Except as provided in Section 2.4(b) of the Indenture.
<PAGE>
INTERPOOL, INC.
7.20% Notes due 2007
CUSIP No. _________ $__________
No. __
Interpool, Inc., a Delaware corporation (the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ____________, or registered assigns,
the principal sum of (__________) on August 1, 2007 (the "Maturity Date"), and
to pay interest on the outstanding principal amount hereof from August 5, 1997,
or from the most recent interest payment date (each such date, an "Interest
Payment Date") to which interest has been paid or duly provided for,
semi-annually (subject to deferral as set forth herein) in arrears on February 1
and August 1 of each year, commencing February 1, 1998 at the rate of 7.20% per
annum until the principal hereof shall have become due and payable, and at the
same rate per annum on any overdue principal and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum compounded
semi-annually; PROVIDED, HOWEVER, that if a Ratings Decision (as defined in the
Indenture) shall not have occurred by the 90th day after the Issue Date, the
rate per annum set forth above shall automatically and irrevocably increase to
7.45% per annum effective retroactively from the Issue Date. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year of twelve 30-day months and, for any period less than a full
calendar month, the number of days elapsed in such month. In the event that any
date on which the principal of or interest on this Security is payable is not a
Business Day, then the payment payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), with the same force and effect as if made on such
date.
The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the person in whose name this Security (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of business
on the regular record date for such interest installment, which shall be the
January 15 or July 15 immediately preceding the relevant interest payment date.
Any such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the holders on such regular record date and may
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 to
be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the holders of Securities not less than 10 days prior
to such special record date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture.
The principal of and interest on this Security shall be payable at the
office or agency of the Company maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; PROVIDED, HOWEVER, that, payment
of interest may be made at the option of the Company by (i) check mailed to the
holder at such address as shall appear in the Security Register or (ii) by
transfer to an account maintained by the Person entitled thereto, provided that
proper written transfer instructions have been received by the relevant record
date.
This Security shall not be entitled to any benefit under the Indenture
hereinafter referred to, or be valid or become obligatory for any purpose until
the Certificate of Authentication hereon shall have been signed by or on behalf
of the Trustee.
The provisions of this Security are continued on the reverse side
hereof and such provisions shall for all purposes have the same effect as though
fully set forth at this place.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Interpool, Inc.
By: _____________________
Name:
Title:
Attest:
By: ______________________
Name:
Title:
<PAGE>
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
By________________________
Authorized Officer
<PAGE>
(FORM OF REVERSE OF SECURITY)
INTERPOOL, INC.
7.20% Notes due 2007
1. INTEREST. Interpool, Inc., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Security at the rate
per annum shown above; PROVIDED, HOWEVER, that such rate per annum shall
increase to 7.45% per annum, effective retroactively from the Issue Date, if a
Ratings Decision (as defined in the Indenture) shall not have occurred by the
90th day after the Issue Date. The Company will pay interest semiannually on
February 1 and August 1 of each year, beginning February 1, 1998. Interest on
the Securities will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of initial issuance of the
Securities; provided, that, if there is no existing Default in the payment of
interest, and if this Security is authenticated between a record date referred
to on the face hereof and the next succeeding interest payment date, interest
shall accrue from such interest payment date. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Securities
(except defaulted interest) to the Persons who are the registered Holders of the
Securities at the close of business on the January 15 or July 15 next preceding
the interest payment date. The Company will pay principal, premium, if any, and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company, however, may pay
principal, premium, if any, and interest by its check payable in such money.
The principal of and interest on this Security shall be payable at the
office or agency of the Company maintained for that purpose; PROVIDED, HOWEVER,
that, payment of interest may be made at the option of the Company by (i) check
mailed to the holder at such address as shall appear in the Security Register or
(ii) by transfer to an account maintained by the Person entitled thereto,
provided that proper written transfer instructions have been received by the
relevant record date.
The foregoing notwithstanding, principal of and premium, if any, and
interest on Securities which are represented by Global Securities held of record
by the Depositary will be payable in same-day funds.
3. REGISTRAR AND AGENTS. Initially, United States Trust Company of New
York will act as Registrar, Paying Agent and agent for service of notices and
demands. The Company or any of its subsidiaries may act as Paying Agent. The
address of United States Trust Company of New York is 114 West 47th Street, New
York, New York 10036, Attention: Corporate Trust and Agency Division.
4. INDENTURE; LIMITATIONS. The Company issued the Securities under an
Indenture dated as of August 5, 1997 (the "Indenture"), between the Company and
United States Trust Company of New York, as trustee (in such capacity, the
"Trustee"). Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code 77aaa-77bbbb) as in effect on the date of
the Indenture. The Securities are subject to all such terms, and the Holders of
the Securities are referred to the Indenture and said Act for a statement of
them.
The Securities are general unsecured obligations of the Company
limited to $75,000,000 aggregate principal amount. The Indenture imposes certain
limitations on the ability of the Company to, among other things, incur liens,
make payments in respect of its Capital Stock, merge or consolidate with any
other Person and sell, lease, transfer or otherwise dispose of its properties or
assets.
5. OPTIONAL REDEMPTION BY THE COMPANY. The Company may redeem the
Securities, at any time, in whole or from time to time in part, at the election
of the Company, at a Redemption Price equal to the sum of (i) the principal
amount of the Securities being redeemed plus accrued interest thereon to the
Redemption Date and (ii) the Make-Whole Amount, if any, with respect to such
Securities. "Make-Whole Amount" means, in connection with any optional
redemption of any Security, the excess, if any of (i) the aggregate present
value as of the date of such redemption of each dollar of principal being
redeemed and the amount of interest (exclusive of any interest accrued to the
date of redemption) that would have been payable in respect of such dollar if
such redemption had not been made, determined by discounting, on a semi-annual
basis, such principal and interest at the Reinvestment Rate (as defined in the
Indenture) (which rate shall be determined as of the third Business Day
preceding the date such notice of redemption is given) from the respective dates
on which such principal and interest would have been payable if such redemption
had not been made, over (ii) the aggregate principal amount of the Securities
being redeemed.
6. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 days but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at his registered address. Securities in denominations
larger than $1,000 principal amount may be redeemed in part, but only in whole
multiples thereof. On and after the Redemption Date interest will cease to
accrue on Securities or portions thereof called for redemption.
7. DENOMINATIONS, TRANSFER, EXCHANGE. This Security is one of a duly
authorized issue of Securities of the Company designated as its 7.20% Notes due
2007, limited in aggregate principal amount to $75,000,000. The Securities are
issuable in registered form without coupons in denominations of $1,000 principal
amount and integral multiples thereof. A Holder may register the transfer of or
exchange Securities in accordance with the Indenture. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any
Securities selected for redemption or register the transfer of or exchange any
Securities for a period of 15 days before a selection of Securities to be
redeemed.
8. PERSONS DEEMED OWNERS. The registered Holder of a Security may be
treated as its owner for all purposes.
9. UNCLAIMED MONEY. If money for the payment of principal, premium, if
any, or interest on any Securities remains unclaimed for two years, the Trustee
and the Paying Agent will pay the money back to the Company at its written
request. After that, Holders may look only to the Company for payment.
10. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. Except as set forth in
the Indenture, if the Company irrevocably deposits with the Trustee, in trust,
for the benefit of the Holders, cash, U.S. Government Obligations or a
combination thereof, in such amounts as will be sufficient in the opinion of a
nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any and interest on the Securities to redemption or
maturity and comply with the other provisions of the Indenture relating thereto,
the Company will be discharged from certain provisions of the Indenture and the
Securities (including the restrictive covenants described in paragraph 4 above,
but excluding its obligation to pay the principal of and interest on the
Securities).
11. AMENDMENT AND WAIVER. Subject to certain exceptions, without
notice to the Holders of the Securities, the Indenture or the Securities may
be amended with the consent of the Holders of at least a majority in principal
amount of the Securities then outstanding and any existing default or compliance
with any provision may be waived with the consent of the Holders of a majority
in principal amount of the Securities then outstanding. Without the consent of
or notice to any Holder of Securities, the Company may amend the Indenture or
the Securities to, among other things, cure any ambiguity, defect or
inconsistency or make any other change that does not adversely affect the rights
of any Securityholder.
12. SUCCESSORS. When a successor assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor will be
released from those obligations.
13. DEFAULTS AND REMEDIES. If an Event of Default, as defined in the
Indenture, occurs and is continuing, the Trustee or the Holders of a majority in
principal amount of Securities may declare all the Securities to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Securities may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it,
subject to the provisions of the TIA, before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in principal
amount of the Securities then outstanding may direct the Trustee in writing in
its exercise of any trust or power with respect to the Securities. The Company
is required to file periodic reports with the Trustee as to the absence of any
Default or Event of Default.
14. TRUSTEE DEALINGS WITH THE COMPANY. United States Trust Company of
New York, the Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not Trustee.
15. NO RECOURSE AGAINST OTHERS. No stockholder, director, officer or
incorporator, as such, past, present or future, of the Company or any successor
corporation or trust shall have any liability for any obligation of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder of a Security
by accepting a Security waives and releases all such liability. This waiver and
release are part of the consideration for the issuance of the Securities.
16. AUTHENTICATION. This Security shall not be valid until the Trustee
or any authenticating agent appointed by the Trustee signs the certificate of
authentication on the other side of this Security.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with rights of
survivorship and not as tenants in common), CUST (= Custodian), AND U/G/M/A (=
Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO: INTERPOOL,
INC., 211 COLLEGE ROAD EAST, PRINCETON, NEW JERSEY, ATTENTION: INVESTOR
RELATIONS.
Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
DATED AUGUST 5, 1997
BETWEEN
INTERPOOL, INC.
AND
SMITH BARNEY INC.
----------
as Initial Purchaser
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and
entered into as of August 5, 1997, between INTERPOOL, INC., a Delaware
corporation (the "COMPANY"), and SMITH BARNEY INC. (the "INITIAL PURCHASER").
This Agreement is made pursuant to the Purchase Agreement dated July
31, 1997 (the "PURCHASE AGREEMENT"), between the Company, as issuer of the 7.20%
Notes due 2007 (the "NOTES"), and the Initial Purchaser, which provides for,
among other things, the sale by the Company to the Initial Purchaser of
$75,000,000 aggregate principal amount of the Company's Notes. In order to
induce the Initial Purchaser to enter into the Purchase Agreement, the Company
has agreed to provide to the Initial Purchaser and its direct and indirect
transferees the registration rights set forth in this Agreement. The execution
and delivery of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. DEFINITIONS. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"ADVICE" shall have the meaning set forth in the last paragraph of
Section 3 hereof.
"AFFILIATE" shall have the meaning given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"APPLICABLE PERIOD" shall have the meaning set forth in Section 3(t)
hereof.
"BUSINESS DAY" means each day, other than a Saturday or Sunday, which
is not a day on which banking institutions in the City of New York are
authorized or obligated by law or executive order to close.
"CLOSING TIME" shall mean the Closing Time as defined in the Purchase
Agreement.
"COMPANY" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"DEPOSITARY" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; PROVIDED, however, that such depositary
must have an address in the Borough of Manhattan, in The City of New York.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in Section
2(b) hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"EXCHANGE NOTES" shall mean securities issued by the Company under an
Indenture and containing terms substantially identical to the Notes (except that
they will not contain terms with respect to the transfer restrictions under the
Securities Act, will not require transfers thereof to be in minimum blocks of
$100,000 aggregate principal amount and will not provide for any Liquidated
Damages thereon).
"EXCHANGE OFFER" shall mean the offer by the Company to the Holders to
exchange all of the Registrable Notes for an equal principal amount of Exchange
Notes pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"EXCHANGE PERIOD" shall have the meaning set forth in Section 2(a)
hereof.
"HOLDER" shall mean the Initial Purchaser, for so long as it owns any
Registrable Notes, and each of its respective successors, assigns and direct and
indirect transferees who become registered owners of Registrable Notes under the
Indenture.
"INDENTURE" shall mean the Indenture relating to the Notes dated as of
August 5, 1997, between the Company, as issuer, and United States Trust Company
of New York, as trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"INITIAL PURCHASER" shall have the meaning set forth in the preamble
to this Agreement.
"INSPECTORS" shall have the meaning set forth in Section 3(n) hereof.
"ISSUE DATE" shall mean the date of original issuance of the Notes.
"LIQUIDATED DAMAGES" shall have the meaning set forth in Section 2(e)
hereof.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Notes.
"NOTES" shall have the meaning set forth in the preamble to this
Agreement.
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth in
Section 3(t) hereof.
"PERSON" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability company, or a government or
agency or political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Notes covered by a Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble
to this Agreement.
"RECORDS" shall have the meaning set forth in Section 3(n) hereof.
"REGISTRABLE NOTES" shall mean the Notes; PROVIDED, however, that the
Notes shall cease to be Registrable Notes when (i) a Registration Statement with
respect to such Notes for the exchange or resale thereof, as the case may be,
shall have been declared effective under the Securities Act and such Notes shall
have been exchanged or disposed of pursuant to such Registration Statement, (ii)
such Notes shall have been sold or are eligible to be sold to the public
pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the Securities Act, (iii) such Notes shall have ceased to be
outstanding or (iv) such Notes shall have been exchanged for Exchange Notes upon
consummation of the Exchange Offer and are thereafter freely tradeable by the
holder thereof (other than an Affiliate of the Company).
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any Holder of Registrable Notes in accordance
with the rules and regulations of the NASD, (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of counsel for any underwriters or Holders in
connection with blue sky qualification of any of the Exchange Notes or
Registrable Notes) and compliance with the rules of the NASD, (iii) all expenses
of any Persons in preparing or assisting in preparing, word processing, printing
and distributing any Registration Statement, any Prospectus and any amendments
or supplements thereto, and in preparing or assisting in preparing, printing and
distributing any underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this Agreement,
(iv) all rating agency fees, (v) the fees and disbursements of counsel for the
Company and of the independent certified public accountants of the Company,
including the expenses of any "cold comfort" letters required by or incident to
such performance and compliance, (vi) the fees and expenses of the Trustee and
its counsel, and any exchange agent or custodian, (vii) all fees and expenses
incurred in connection with the listing, if any, of any of the Exchange Notes or
the Registrable Notes on any securities exchange or exchanges, and (viii) the
reasonable fees and expenses of any special experts retained by the Company in
connection with any Registration Statement.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company which covers any of the Exchange Notes or Registrable Notes pursuant to
the provisions of this Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended
from time to time.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 2(b) hereof.
"SHELF REGISTRATION EVENT" shall have the meaning set forth in Section
2(b) hereof.
"SHELF REGISTRATION EVENT DATE" shall have the meaning set forth in
Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) hereof which
covers all of the Registrable Notes on an appropriate form under Rule 415 under
the Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"TRUSTEES" shall mean any and all trustees with respect to the Notes.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) EXCHANGE OFFER. To the extent not prohibited by any applicable law
or applicable interpretation of the staff of the SEC, the Company shall, for the
benefit of the Holders, at the Company's cost, use its best efforts to (i) cause
to be filed with the SEC within 90 days after the Issue Date an Exchange Offer
Registration Statement on an appropriate form under the Securities Act covering
the Exchange Offer, (ii) cause such Exchange Offer Registration Statement to be
declared effective under the Securities Act within 120 days after the Issue Date
and (iii) keep such Exchange Offer Registration Statement effective for not less
than 30 calendar days (or longer if required by applicable law) after the date
notice of the Exchange Offer has been mailed to the Holders. Upon the
effectiveness of the Exchange Offer Registration Statement, the Company shall
promptly commence the Exchange Offer, it being the objective of such Exchange
Offer to enable each Holder eligible and electing to exchange Registrable Notes
for an equal principal amount of Exchange Notes (assuming that such Holder
represents that the Holder (i) is not an Affiliate of the Company, (ii) acquired
the Exchange Notes in the ordinary course of such Holder's business and (iii)
has no arrangements or understandings with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange Notes)
to transfer such Exchange Notes from and after their receipt without any
limitations or restrictions under the Securities Act and under state securities
or blue sky laws.
In connection with the Exchange Offer, the Company shall:
(i) mail or cause to be mailed to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not
less than 30 days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law) (such period referred to herein as the
"EXCHANGE PERIOD");
(iii) utilize the services of the Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York time, on the last Business Day of the Exchange
Period, by sending to the institution specified in the notice, a telegram,
telex, facsimile transmission or letter setting forth the name of such Holder,
the principal amount of Notes delivered for exchange, and a statement that such
Holder is withdrawing its election to have such Notes exchanged;
(v) notify each Holder that any Note not tendered by such Holder in
the Exchange Offer will remain outstanding and continue to accrue interest or
accumulate distributions, as the case may be, but will not retain any rights
under this Agreement (except in the case of the Initial Purchaser and
Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Notes or portions thereof tendered and not
validly withdrawn pursuant to the Exchange Offer;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for exchange by the
Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly
authenticate and deliver to each Holder, new Exchange Notes equal in principal
amount to the principal amount of the Notes as are surrendered by such Holder.
Interest on each Exchange Note issued pursuant to the Exchange Offer
will accrue from the last date on which interest was paid on the Notes
surrendered in exchange therefor or, if no interest has been paid on such Note,
from the Issue Date. To the extent not prohibited by any law or applicable
interpretation of the staff of the SEC, the Company shall use its efforts to
complete the Exchange Offer as provided above, and shall comply with the
applicable requirements of the Securities Act, the Exchange Act and other
applicable laws in connection with the Exchange Offer. Except as provided
herein, the Exchange Offer shall not be subject to any conditions, other than
that the Exchange Offer does not violate applicable law or any applicable
interpretation of the staff of the SEC. Each Holder of Registrable Notes who
wishes to exchange such Registrable Notes for Exchange Notes in the Exchange
Offer will be required to make certain customary representations in connection
therewith, including, in the case of any Holder, representations that (i) the
Holder is not an Affiliate of the Company, (ii) the Exchange Notes to be
received by it were acquired in the ordinary course of its business and (iii) at
the time of the Exchange Offer, it has no arrangement with any person to
participate in the distribution (within the meaning of the Securities Act) of
the Exchange Notes. The Company shall inform the Initial Purchaser, after
consultation with the Trustee, of the names and addresses of the Holders to
whom the Exchange Offer is made, and the Initial Purchaser shall have the right
to contact such Holders and otherwise facilitate the tender of Registrable Notes
in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this
Section 2(a), the provisions of this Agreement shall continue to apply, MUTATIS
MUTANDIS, solely with respect to Registrable Notes that are Exchange Notes held
by Participating Broker-Dealers, and the Company shall have no further
obligation to register the Registrable Notes pursuant to Section 2(b) of this
Agreement.
(b) SHELF REGISTRATION. If prior to the expiration of the Exchange
Offer: (i) the Company or the Majority Holders reasonably determine, after
conferring with counsel (which may be in-house counsel), that the Exchange Offer
Registration provided in Section 2(a) above is not available under applicable
law and regulations and currently prevailing interpretations of the staff of the
SEC, (ii) for any reason the Exchange Offer Registration Statement is not
declared effective within 120 days after the Issue Date or (iii) upon the
request of the Initial Purchaser with respect to any Registrable Notes held by
it, if, in the reasonable opinion of Skadden, Arps, Slate, Meagher & Flom LLP or
other counsel experienced in such matters, the Initial Purchaser is not
permitted pursuant to applicable law or applicable interpretations of the staff
of the SEC, to participate in the Exchange Offer and thereby receive securities
that are freely tradeable without restriction under the Securities Act and
applicable blue sky or state securities laws (any of the events specified in
(i)-(iii) being a "SHELF REGISTRATION EVENT" and the date of occurrence thereof,
the "SHELF REGISTRATION EVENT DATE"), then in addition to or in lieu of
effecting the registration of the Exchange Notes pursuant to the Exchange Offer
Registration Statement, the Company will (y) promptly deliver to the Holders
written notice thereof and (z) at the Company's sole expense: (a) as promptly as
practicable after such Shelf Registration Event Date file a Shelf Registration
covering resales of the Notes and (b) use its best efforts to cause the Shelf
Registration Statement to be declared effective under the Securities Act. No
Holder of Registrable Notes shall be entitled to include any of its Registrable
Notes in any Shelf Registration pursuant to this Agreement unless and until such
Holder agrees in writing to be bound by all of the provisions of this Agreement
applicable to such Holder and furnishes to the Company in writing, within 15
days after receipt of a request therefor, such information as the Company may,
after conferring with counsel with regard to information relating to Holders
that would be required by the SEC to be included in such Shelf Registration
Statement or Prospectus included therein, reasonably request for inclusion in
any Shelf Registration Statement or Prospectus included therein. Each Holder as
to which any Shelf Registration is being effected agrees to furnish to the
Company all information with respect to such Holder necessary to make the
information previously furnished to the Company by such Holder not materially
misleading.
The Company agrees to use its best efforts to keep effective the Shelf
Registration Statement until the earlier of two years after the Issue Date
(six months in the case of a Shelf Registration Statement filed at the request
of the Initial Purchaser under Section 2(b)(iii) hereof) or such time as all of
the applicable Notes have been sold thereunder or otherwise cease to be
Registrable Notes within the meaning of this Agreement (the "EFFECTIVENESS
PERIOD"). The Company shall not permit any securities other than Registrable
Notes to be included in the Shelf Registration. The Company will, in the event a
Shelf Registration Statement is filed, provide to each Holder copies of the
Prospectus that is a part of the Shelf Registration Statement, notify each such
Holder when the Shelf Registration Statement for the Notes has become effective
and take certain other actions as are required to permit unrestricted resales of
the Notes. The Company further agrees, if necessary, to supplement or amend the
Shelf Registration Statement, if required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registrations, and the Company agrees to
furnish to the Holders of Registrable Notes copies of any such supplement or
amendment promptly after its being used or filed with the SEC.
(c) EXPENSES. The Company, as issuer of the Notes, shall pay all
Registration Expenses in connection with the registration pursuant to Section
2(a) and/or 2(b) hereof and will reimburse the Initial Purchaser for the
reasonable fees and disbursements of Skadden, Arps, Slate, Meagher & Flom LLP,
counsel for the Initial Purchaser, incurred in connection with the Exchange
Offer and either Skadden, Arps, Slate, Meagher & Flom LLP or any one other
counsel designated in writing by the Majority Holders to act as counsel for the
Holders of the Registrable Notes in connection with a Shelf Registration
Statement, which other counsel shall be reasonably satisfactory to the Company.
Except as provided herein, each Holder shall pay all expenses of its counsel,
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Registrable Notes pursuant to the Shelf
Registration Statement.
(d) EFFECTIVE REGISTRATION STATEMENT. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; PROVIDED, HOWEVER, that if,
after it has been declared effective, the offering of Registrable Notes pursuant
to such Exchange Offer Registration Statement or Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement
will be deemed not to have been effective during the period of such
interference, until the offering of Registrable Notes pursuant to such
Registration Statement may legally resume. The Company will be deemed not to
have used its best efforts to cause the Exchange Offer Registration Statement or
the Shelf Registration Statement, as the case may be, to become, or to remain,
effective during the requisite period if it voluntarily takes any action that
would result in any such Registration Statement not being declared effective or
that would result in the Holders of Registrable Notes covered thereby not being
able to exchange or offer and sell such Registrable Notes during that period
unless such action is required by applicable law.
(e) LIQUIDATED DAMAGES. If the Company fails to comply with this
Agreement or if the Exchange Offer Registration Statement or the Shelf
Registration Statement fails to become effective, then, Liquidated Damages shall
become payable in respect of the Notes as follows:
(i) if (A) neither the Exchange Offer Registration Statement
nor a Shelf Registration Statement is filed with the SEC on or prior to
the 90th day after the Issue Date or (B) notwithstanding that the
Company has consummated or will consummate an Exchange Offer, the
Company is required to file a Shelf Registration Statement and such
Shelf Registration Statement is not filed on or prior to the date
required by the Registration Rights Agreement, then commencing on the
day after either such required filing date, Liquidated Damages shall be
payable on the principal amount of the Notes at the rate of 0.25% per
annum; or
(ii) if (A) neither the Exchange Offer Registration Statement
nor a Shelf Registration Statement is declared effective by the SEC on
or prior to the 30th day after the applicable required filing date or
(B) notwithstanding that the Company has consummated or will consummate
an Exchange Offer, the Company is required to file a Shelf Registration
Statement and such Shelf Registration Statement is not declared
effective by the SEC on or prior to the later of the 30th day after the
date such Shelf Registration Statement was required to be filed and the
120th day after the Issue Date then, commencing on (y) the 31st day
after the applicable required filing date in the case of (A) above, or
(z) the later of the 31st day after the date such Shelf Registration
Statement was required to be filed and the 121st day after the Issue
Date in the case of (B) above, Liquidated Damages shall be payable on
the principal amount of the Notes at the rate of 0.25% per annum; or
(iii) if (A) the Company has not exchanged Exchange Notes for
all Notes validly tendered, in accordance with the terms of the
Exchange Offer on or prior to the 45th day after the date on which the
Exchange Offer Registration Statement was declared effective or (B) if
applicable, the Shelf Registration Statement has been declared
effective and such Shelf Registration Statement ceases to be available
for use by Holders at any time prior to (y) the second anniversary of
the Issue Date or (z) the expiration of 90 days from the effective date
of Registration Statement filed at the request of the Initial Purchaser
(other than after such time as all Notes have been disposed of
thereunder or otherwise cease to be Registrable Notes within the
meaning of this Agreement), and such event continues for a period
exceeding 30 consecutive days or 90 days (whether or not consecutive)
in any 360-day period, then Liquidated Damages shall be payable on the
principal amount of Notes at a rate of 0.25% per annum commencing on
(x) the 46th day after such effective date, in the case of (A) above,
or (y) the 30th consecutive day or 91st day in any 360-day period
following the day such Shelf Registration Statement ceases to be
available in the case of (B) above;
PROVIDED, HOWEVER, that the Liquidated Damages on the Notes may not exceed in
the aggregate 0.25% per annum; PROVIDED, FURTHER, HOWEVER, that (1) upon the
filing of the Exchange Offer Registration Statement or a Shelf Registration
Statement (in the case of clause (i) above), (2) upon the effectiveness of the
Exchange Offer Registration Statement or a Shelf Registration Statement (in the
case of clause (ii) above), or (3) upon the exchange of Exchange Notes for all
Notes tendered (in the case of clause (iii)(A) above), or upon the availability
of the Shelf Registration Statement which had ceased to be available (in the
case of clause (iii)(B) above), Liquidated Damages on the Notes shall cease to
be payable.
Any amounts of Liquidated Damages due pursuant to clause (i), (ii) or
(iii) above will be payable in cash on the next succeeding February 1 and August
1, as the case may be, to the Holders of record at the close of business on the
January 15 or July 15 immediately preceding such date.
(f) SPECIFIC ENFORCEMENT. Without limiting the remedies available to
the Holders, the Company acknowledges that any failure by the Company to comply
with its obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to the Holders for which there is no adequate remedy
at law, that it would not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, any Holder may obtain such
relief as may be required to specifically enforce the Company's obligations
under Section 2(a) and Section 2(b) hereof.
3. REGISTRATION PROCEDURES. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall use its best efforts to:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof
within the relevant time period specified in Section 2 hereof on the
appropriate form under the Securities Act, which form (i) shall be
selected by the Company, (ii) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Notes by the
selling Holders thereof and, in the case of an Exchange Offer, be
available for the exchange of Registrable Notes, and (iii) shall comply
as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the
SEC to be filed therewith or incorporated therein by reference, if
applicable; and use its best efforts to cause such Registration
Statement to become effective and remain effective (and, in the case of
a Shelf Registration Statement, available for use) in accordance with
Section 2 hereof; PROVIDED, HOWEVER, that if (1) such filing is
pursuant to Section 2(b), or (2) a Prospectus contained in an Exchange
Offer Registration Statement filed pursuant to Section 2(a) is
required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Company shall furnish to and afford the Holders of the
Registrable Notes and each such Participating Broker-Dealer, as the
case may be, covered by such Registration Statement, their counsel and
the managing underwriters, if any, a reasonable opportunity to review
copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to
be filed. The Company shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto in respect of which
the Holders must be afforded an opportunity to review prior to the
filing of such document if the Majority Holders or such Participating
Broker-Dealer, as the case may be, their counsel or the managing
underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
Effectiveness Period or the Applicable Period, as the case may be; and
cause each Prospectus to be supplemented, if so determined by the
Company or requested by the SEC, by any required prospectus supplement
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provision then in force) under the Securities Act, and comply with the
provisions of the Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder applicable to it with respect to the
disposition of all securities covered by each Registration Statement
during the Effectiveness Period or the Applicable Period, as the case
may be, in accordance with the intended method or methods of
distribution by the selling Holders thereof described in this Agreement
(including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Notes included in the Shelf Registration
Statement, at least three Business Days prior to filing, that a Shelf
Registration Statement with respect to the Registrable Notes is being
filed and advise such Holder that the distribution of Registrable Notes
will be made in accordance with the method selected by the Majority
Holders; and (ii) furnish to each Holder of Registrable Notes included
in the Shelf Registration Statement and to each underwriter of an
underwritten offering of Registrable Notes, if any, without charge, as
many copies of each Prospectus, including each preliminary Prospectus,
and any amendment or supplement thereto and such other documents as
such Holder or underwriter may reasonably request, in order to
facilitate the public sale or other disposition of the Registrable
Notes; and (iii) consent to the use of the Prospectus or any amendment
or supplement thereto by each of the selling Holders of Registrable
Notes included in the Shelf Registration Statement in connection with
the offering and sale of the Registrable Notes covered by the
Prospectus or any amendment or supplement thereto;
(d) in the case of a Shelf Registration, use its best efforts
to register or qualify the Registrable Notes under all applicable state
securities or "blue sky" laws of such jurisdictions by the time the
applicable Registration Statement is declared effective by the SEC as
any Holder of Registrable Notes covered by a Registration Statement and
each underwriter of an underwritten offering of Registrable Notes shall
reasonably request in writing in advance of such date of effectiveness,
and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Holder and underwriter to
consummate the disposition in each such jurisdiction of such
Registrable Notes owned by such Holder; PROVIDED, HOWEVER, that the
Company shall not be required to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (ii) file
any general consent to service of process in any jurisdiction where
it would not otherwise be subject to such service of process or (iii)
subject itself to taxation in any such jurisdiction if it is not then
so subject;
(e) (1) in the case of a Shelf Registration or (2) if
Participating Broker-Dealers from whom the Company has received prior
written notice that they will be utilizing the Prospectus contained in
the Exchange Offer Registration Statement as provided in Section 3(t)
hereof, are seeking to sell Exchange Notes and are required to deliver
Prospectuses, promptly notify each Holder of Registrable Notes, or such
Participating Broker-Dealers, as the case may be, their counsel and the
managing underwriters, if any, and promptly confirm such notice in
writing (i) when a Registration Statement has become effective and when
any post-effective amendments and supplements thereto become effective,
(ii) of any request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement or Prospectus or
for additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a
Registration Statement or the qualification of the Registrable Notes or
the Exchange Notes to be offered or sold by any Participating
Broker-Dealer in any jurisdiction described in paragraph 3(d) hereof or
the initiation of any proceedings for that purpose, (iv) in the case of
a Shelf Registration, if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Notes covered
thereby, the representations and warranties of the Company contained in
any purchase agreement, securities sales agreement or other similar
agreement, cease to be true and correct in all material respects, (v)
of the happening of any event or the failure of any event to occur or
the discovery of any facts or otherwise, during the Effectiveness
Period which makes any statement made in such Registration Statement or
the related Prospectus untrue in any material respect or which causes
such Registration Statement or Prospectus to omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (vi) the
Company's reasonable determination that a post-effective amendment to
the Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at
the earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each
Holder of Registrable Notes included within the coverage of such Shelf
Registration Statement, without charge, at least one conformed copy of
each Registration Statement relating to such Shelf Registration and any
post-effective amendment thereto (without documents incorporated
therein by reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Notes to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
to be sold and not bearing any restrictive legends and in such
denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holders or the underwriters may
reasonably request at least two Business Days prior to the closing of
any sale of Registrable Notes pursuant to such Shelf Registration
Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, upon the occurrence of any circumstance contemplated by
Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, use its best
efforts to prepare a supplement or post-effective amendment to such
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Notes, such Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and to notify each Holder to suspend use of
the Prospectus as promptly as practicable after the occurrence of such
an event, and each Holder hereby agrees to suspend the sale of Notes
pursuant to such Prospectus until the Company has amended or
supplemented such Prospectus to correct such misstatement or omission
and has furnished copies of the amended or supplemented prospectus to
such holder (or Participating Broker-Dealer, as the case may be) or the
Company has given notice that the sale of the Notes may be resumed, as
the case may be;
(j) in the case of a Shelf Registration, a reasonable time
prior to the filing of any document which is to be incorporated by
reference into a Registration Statement or a Prospectus after the
initial filing of a Registration Statement, provide a reasonable
number of copies of such document to the Holders; and make such of the
representatives of the Company as shall be reasonably requested by the
Holders of Registrable Notes or an Initial Purchaser on behalf of such
Holders available for discussion of such document;
(k) obtain a CUSIP number for all Exchange Notes not later
than the effective date of a Registration Statement, and provide the
Trustee with printed certificates for the Exchange Notes or the
Registrable Notes, as the case may be, in a form eligible for deposit
with the Depositary;
(l) cause the Indenture to be qualified under the Trust
Indenture Act of 1939 (the "TIA") in connection with the registration
of the Exchange Notes or Registrable Notes, as the case may be, and
effect such changes to such documents as may be required for them to be
so qualified in accordance with the terms of the TIA and execute, and
use its best efforts to cause the Trustee to execute, all documents as
may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable such documents to
be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such
agreements (including underwriting agreements) as are customary in
underwritten offerings and take all such other appropriate actions as
are reasonably requested in order to expedite or facilitate the
registration or the disposition of such Registrable Notes, and in such
connection, whether or not an underwriting agreement is entered into
and whether or not the registration is an underwritten registration, if
requested by (x) the Initial Purchaser, in the case where the Initial
Purchaser holds Notes acquired by it as part of its initial allotment
and (y) other Holders of the Registrable Notes covered thereby: (i)
make such representations and warranties to Holders of such Registrable
Notes and the underwriters (if any), with respect to the business of
the Company and its subsidiaries as then conducted and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to
be incorporated by reference therein, in each case, as are customarily
made by issuers to underwriters in underwritten offerings, and confirm
the same if and when requested; (ii) obtain opinions of counsel to the
Company and updates thereof (which may be in the form of a reliance
letter) in form and substance reasonably satisfactory to the managing
underwriters (if any) and the Holders of a majority in principal amount
of the Registrable Notes being sold, addressed to each selling Holder
and the underwriters (if any) covering the matters customarily covered
in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by such underwriters (it being agreed
that the matters to be covered by such opinion may be subject to
customary qualifications and exceptions); (iii) obtain "cold comfort"
letters and updates thereof in form and substance reasonably
satisfactory to the managing underwriters from the independent
certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in
the Registration Statement), addressed to each of the underwriters,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings and such other matters as reasonably requested
by such underwriters in accordance with Statement on Auditing Standards
No. 72; and (iv) if an underwriting agreement is entered into, the same
shall contain indemnification provisions and procedures no less
favorable to the underwriters and the Holders of Registrable Notes than
those set forth in Section 4 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal
amount or liquidation amount, as the case may be, of Registrable Notes
covered by such Registration Statement and the managing underwriters
and agents) customary for such agreements with respect to all parties
to be indemnified pursuant to said Section (including, without
limitation, such underwriters and selling Holders). The above shall be
done at each closing under such underwriting agreement, or as and to
the extent required thereunder;
(n) if (1) a Shelf Registration is filed pursuant to Section
2(b) or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2(a) is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, make reasonably
available for inspection by any selling Holder of such Registrable
Notes being sold, or each such Participating Broker-Dealer, as the case
may be, any underwriter participating in any such disposition of
Registrable Notes, if any, and any attorney, accountant or other agent
retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"INSPECTORS"), at the offices where normally kept, during reasonable
business hours, all financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries
(collectively, the "RECORDS") as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the Company and its
subsidiaries to supply all relevant information in each case reasonably
requested by any such Inspector in connection with such Registration
Statement; PROVIDED, HOWEVER, that the foregoing inspection and
information gathering shall be coordinated on behalf of any
Participating Broker-Dealer by the Initial Purchaser and on behalf of
the other parties by one counsel designated by the Majority Holders on
behalf of such other parties as described in Section 2(c) hereof.
Records which the Company determines, in good faith, to be confidential
and any records which it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless (i) the disclosure of
such Records is necessary to avoid or correct a material misstatement
or omission in such Registration Statement, (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction or is necessary in connection with any
action, suit or proceeding or (iii) the information in such Records has
been made generally available to the public. Each selling Holder of
such Registrable Notes and each such Participating Broker-Dealer will
be required to agree in writing that information obtained by it as a
result of such inspections shall be deemed confidential and shall not
be used by it as the basis for any market transactions in the
securities of the Company unless and until such is made generally
available to the public. Each selling Holder of such Registrable Notes
and each such Participating Broker-Dealer will be required to further
agree in writing that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to
the Company and allow the Company at its expense to undertake
appropriate action to prevent disclosure of the Records deemed
confidential;
(o) comply with all applicable rules and regulations of the
SEC so long as any provision of this Agreement shall be applicable and
make generally available to its securityholders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Notes are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods;
(p) upon consummation of an Exchange Offer, if requested by a
Trustee, obtain an opinion of counsel to the Company addressed to the
Trustee for the benefit of all Holders of Registrable Notes
participating in the Exchange Offer substantially to the effect that
(i) the Company has duly authorized, executed and delivered the
Exchange Notes and (ii) the Exchange Notes constitute legal, valid and
binding obligations of the Company, enforceable against the Company, in
accordance with its respective terms (in each case, with customary
exceptions);
(q) if an Exchange Offer is to be consummated, upon delivery
of the Registrable Notes by Holders to the Company (or to such other
Person as directed by the Company), in exchange for the Exchange Notes,
the Company shall mark, or cause to be marked, on such Registrable
Notes delivered by such Holders that such Registrable Notes are being
cancelled in exchange for the Exchange Notes; in no event shall such
Registrable Notes be marked as paid or otherwise satisfied;
(r) cooperate with each seller of Registrable Notes covered by
any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Notes and their
respective counsel in connection with any filings required to be made
with the NASD;
(s) use its best efforts to take all other steps necessary to
effect the registration of the Registrable Notes covered by a
Registration Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution," which section shall be
reasonably acceptable to the Initial Purchaser or another
representative of the Participating Broker-Dealers, and which shall
contain a summary statement of the positions taken or policies made by
the staff of the SEC with respect to the potential "underwriter" status
of any broker-dealer (a "PARTICIPATING BROKER-DEALER") that holds
Registrable Notes acquired for its own account as a result of
market-making activities or other trading activities and that will be
the beneficial owner (as defined in Rule 13d-3 under the Exchange Act)
of Exchange Notes to be received by such broker-dealer in the Exchange
Offer, whether such positions or policies have been publicly
disseminated by the staff of the SEC or such positions or policies, in
the reasonable judgment of the Initial Purchaser or such other
representative, represent the prevailing views of the staff of the
SEC, including a statement that any such broker-dealer who receives
Exchange Notes for Registrable Notes pursuant to the Exchange Offer may
be deemed a statutory underwriter and must deliver a prospectus meeting
the requirements of the Securities Act in connection with any resale of
such Exchange Notes, (ii) furnish to each Participating Broker-Dealer
who has delivered to the Company the notice referred to in Section
3(e), without charge, as many copies of each Prospectus included in the
Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request (the Company hereby
consents to the use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or supplement thereto by
any Person subject to the prospectus delivery requirements of the
Securities Act, including all Participating Broker-Dealers, in
connection with the sale or transfer of the Exchange Notes covered by
the Prospectus or any amendment or supplement thereto), (iii) use its
best efforts to keep the Exchange Offer Registration Statement
effective and to amend and supplement the Prospectus contained therein
in order to permit such Prospectus to be lawfully delivered by all
Persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such Persons must comply with
such requirements under the Securities Act and applicable rules and
regulations in order to resell the Exchange Notes; PROVIDED, HOWEVER,
that such period shall not be required to exceed 180 days (or such
longer period if extended pursuant to the last sentence of Section 3
hereof) (the "APPLICABLE PERIOD"), and (iv) include in the transmittal
letter or similar documentation to be executed by an exchange offeree
in order to participate in the Exchange Offer (x) the following
provision:
"If the exchange offeree is a broker-dealer holding
Registrable Notes acquired for its own account as a result of
market-making activities or other trading activities, it will
deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of Exchange Notes
received in respect of such Registrable Notes pursuant to the
Exchange Offer";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Notes, the broker-dealer will not be
deemed to admit that it is an underwriter within the meaning of the Securities
Act; and
(B) in the case of any Exchange Offer Registration Statement,
the Company agrees to deliver to the Initial Purchaser or to another
representative of the Participating Broker-Dealers, if requested by
the Initial Purchaser or such other representative of the
Participating Broker-Dealers, on behalf of the Participating
Broker-Dealers upon consummation of the Exchange Offer (i) an opinion
of counsel in form and substance reasonably satisfactory to the Initial
Purchaser or such other representative of the Participating
Broker-Dealers, covering the matters customarily covered in opinions
requested in connection with Exchange Offer Registration Statements and
such other matters as may be reasonably requested (it being agreed that
the matters to be covered by such opinion may be subject to customary
qualifications and exceptions), (ii) an officers' certificate
containing certifications substantially similar to those set forth in
Section 5(h) of the Purchase Agreement and such additional
certifications as are customarily delivered in a public offering of
debt securities and (iii) as well as upon the effectiveness of the
Exchange Offer Registration Statement, a comfort letter, in each
case, in customary form if permitted by Statement on Auditing Standards
No. 72.
The Company may require each seller of Registrable Notes as to which
any registration is being effected to furnish to the Company, such information
regarding such seller as may be required by the staff of the SEC to be included
in a Registration Statement. The Company may exclude from such registration the
Registrable Notes of any seller who unreasonably fails to furnish such
information within a reasonable time after receiving such request. The Company
shall have no obligation to register under the Securities Act the Registrable
Notes of a seller who so fails to furnish such information.
In the case of a Shelf Registration Statement, or if Participating
Broker-Dealers who have notified the Company that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as provided
in Section 3(t) hereof are seeking to sell Exchange Notes and are required to
deliver Prospectuses, each Holder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such Holder will forthwith
discontinue disposition of Registrable Notes pursuant to a Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(i) hereof or until it is advised in
writing (the "ADVICE") by the Company that the use of the applicable Prospectus
may be resumed, and, if so directed by the Company, such Holder will deliver to
the Company (at the Company's expense, as the case requires) all copies in such
Holder's possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Notes or Exchange Notes,
as the case may be, current at the time of receipt of such notice. If the
Company shall give any such notice to suspend the disposition of Registrable
Notes or Exchange Notes, as the case may be, pursuant to a Registration
Statement, the Company shall use its best efforts to file and have declared
effective (if an amendment) as soon as practicable an amendment or supplement to
the Registration Statement and shall extend the period during which such
Registration Statement shall be maintained effective pursuant to this Agreement
by the number of days in the period from and including the date of the giving of
such notice to and including the date when the Company shall have made available
to the Holders (x) copies of the supplemented or amended Prospectus necessary to
resume such dispositions or (y) the Advice.
4. INDEMNIFICATION AND CONTRIBUTION. (a) In connection with any
Registration Statement, the Company agrees, jointly and severally, to
indemnify and hold harmless the Initial Purchaser, each Holder, each underwriter
who participates in an offering of the Registrable Notes, each Participating
Broker-Dealer, each agent, employee, officer and director of any of the
foregoing parties and each person that controls each of the foregoing parties
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, and agents, employees, officers and directors of any such
controlling person (each, a "SECTION 4(A) INDEMNIFIED PARTY") from and against
any and all losses, claims, damages, judgments, liabilities and expenses
(including the reasonable fees and expenses of counsel and other expenses in
connection with investigating, defending or settling any such action or claim)
as they are incurred which arise out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement covering Registrable Notes or Exchange Notes or any amendment or
supplement thereto or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except (i) the Company
shall not be liable to any Section 4(a) Indemnified Party in any such case
insofar as such losses, claims, damages, judgments, liabilities or expenses
arise out of, or are based upon, any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished in writing
by such Holder, Initial Purchaser, Participating Broker-Dealer or any
underwriter to the Company expressly for use therein and (ii) the Company shall
not be liable to any Section 4(a) Indemnified Party under the indemnity
agreement in this Section 4(a) with respect to any untrue statement or alleged
untrue statement or omission or alleged omission in any preliminary Prospectus
to the extent that any such loss, claim, damage, judgment, liability or expense
of any Holder, Initial Purchaser, Participating Broker-Dealer, any underwriter
or controlling person results from the fact that such Holder, Initial Purchaser,
any underwriter or Participating Broker-Dealer sold Notes to a person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the final Prospectus as then amended or supplemented if the
Company had previously furnished copies thereof to such Holder, Initial
Purchaser, underwriter or Participating Broker-Dealer and the loss, claim,
damage, judgment, liability or expense of such Holder, Initial Purchaser,
underwriter, Participating Broker-Dealer or controlling person results from an
untrue statement or omission of a material fact contained in the preliminary
Prospectus which was corrected in the final Prospectus. Any amounts advanced by
the Company to a Section 4(a) Indemnified Party as a result of such losses shall
be returned to the Company if it shall be finally determined by a court in a
judgment not subject to appeal or final review that such indemnified party was
not entitled to indemnification by the Company.
(b) If any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
Section 4(a) Indemnified Party with respect to which indemnity may be sought
against the Company pursuant to this Section 4, such Section 4(a) Indemnified
Party shall promptly notify the Company in writing, and the Company shall have
the right to assume the defense thereof, including the employment of counsel
reasonably satisfactory to such Section 4(a) Indemnified Party and payment of
all fees and expenses; PROVIDED, HOWEVER, that the omission so to notify the
Company shall not relieve the Company from any liability that they may have to
any Section 4(a) Indemnified Party (except to the extent that the Company is
materially prejudiced or otherwise forfeit substantive rights or defenses by
reason of such failure). A Section 4(a) Indemnified Party shall have the right
to employ separate counsel in any such action or proceeding and to participate
in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such Section 4(a) Indemnified Party unless (i) the Company
agrees in writing to pay such fees and expenses, (ii) the Company has failed
promptly to assume the defense and employ counsel satisfactory to the Section
4(a) Indemnified Party or (iii) the named parties to any such action or
proceeding (including any unpleaded parties) include the Section 4(a)
Indemnified Party and the Company and such Section 4(a) Indemnified Party shall
have been advised in writing by its counsel that representation of them and the
Company by the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation has been proposed) due
to actual or potential differing interests between them (in which case the
Company shall not have the right to assume the defense of such action on behalf
of such Section 4(a) Indemnified Party). It is understood that the Company shall
not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) at
any time for such Section 4(a) Indemnified Party, and that all such fees and
expenses shall be reimbursed as they are incurred. The Company shall not be
liable for any settlement of any such action effected without the written
consent of the Company, but if settled with the written consent of the Company,
or if there is a final judgment with respect thereto, the Company agrees to
indemnify and hold harmless each Section 4(a) Indemnified Party from and against
any loss or liability by reason of such settlement or judgment. The Company
shall not, without the prior written consent of each Section 4(a) Indemnified
Party affected thereby, effect any settlement of any pending or threatened
proceeding in which such Section 4(a) Indemnified Party has sought indemnity
hereunder, unless such settlement includes an unconditional release of such
Section 4(a) Indemnified Party from all liability arising out of such action,
claim, litigation or proceeding.
(c) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, any underwriter and the other selling Holders and
each of their respective directors, officers (including each officer of the
Company who signed the Registration Statement) and any person controlling the
Company, any underwriter or any other selling Holder within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act (each such party, a
"SECTION 4(C) INDEMNIFIED PARTY") to the same extent as the foregoing indemnity
from the Company to any Section 4(a) Indemnified Party, but only with respect to
information furnished to the Company in writing by such Holder, expressly for
use in the Registration Statement, Prospectus (or any amendment or supplement
thereto), or any preliminary Prospectus, PROVIDED, HOWEVER, that, in the case of
a Shelf Registration Statement, no such Holder shall be liable for any amount
hereunder in excess of the amount by which the net proceeds received by such
Holder from the sale of Registrable Notes pursuant to such Shelf Registration
Statement exceeds the amount of any damages which such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. In case any action shall be brought against any Section
4(c) Indemnified Party based on the Registration Statement, Prospectus (or any
amendment or supplement thereto), or any preliminary Prospectus and in respect
of which indemnification may be sought against each Holder pursuant to this
Section 4(c), each Holder shall have the rights and duties given to the Company
by Section 4(a) (except that if the Company shall have assumed the defense
thereof, each Holder may, but shall not be required to, employ separate counsel
therein and participate in the defense thereof and the fees and expenses of such
counsel shall be at the expense of the Holder) and the Section 4(c) Indemnified
Parties shall have the rights and duties given to the Section 4(a) Indemnified
Parties by Section 4(b).
(d) If the indemnification provided for in this Section 4 is
unavailable to any party entitled to indemnification pursuant to Section 4(a) or
4(c), then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, judgments, liabilities and expenses
in such proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and each Holder, on the other, in connection with the
statements or omissions which resulted in such losses, claims, damages,
judgments, liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and each
Holder, on the other, 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 relates to information
supplied by the Company, on the one hand, or by each Holder, on the other, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(e) The Company, and each Holder agree that it would not be just and
equitable if contribution pursuant to Section 4(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 4(d). No person found 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 found guilty of
such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 4 are in addition to any liability that any indemnifying party may
otherwise have to any indemnified party.
5. MISCELLANEOUS.
(a) RULE 144 AND RULE 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Notes remain outstanding, the Company will use its best efforts to
file the reports required to be filed by it under the Securities Act and Section
13(a) or 15(d) of the Exchange Act and the rules and regulations adopted by the
SEC thereunder, or, if it ceases to be so required to file such reports, it
will, upon the request of any Holder of Registrable Notes (a) make publicly
available such information as is necessary to permit sales of its securities
pursuant to Rule 144 under the Securities Act, (b) deliver such information to a
prospective purchaser as is necessary to permit sales of its securities pursuant
to Rule 144A under the Securities Act and it will take such further action as
any Holder of Registrable Notes may reasonably request, and (c) take such
further action that is reasonable in the circumstances, in each case, to the
extent required from time to time to enable such Holder to sell its Registrable
Notes without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such rule may
be amended from time to time, (ii) Rule 144A under the Securities Act, as such
rule may be amended from time to time, or (iii) any similar rules or regulations
hereafter adopted by the SEC. Upon the request of any Holder of Registrable
Notes, the Company will deliver to such Holder a written statement as to whether
it has complied with such requirements.
(b) NO INCONSISTENT AGREEMENTS. The Company has not entered into, nor
will the Company on or after the date of this Agreement enter into, any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the provisions
hereof. The rights granted to the Holders hereunder do not in any way conflict
with and are not inconsistent with the rights granted to the holders of the
Company's other issued and outstanding securities under any such agreements.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Notes affected by such amendment, modification, supplement, waiver
or departure; PROVIDED that no amendment, modification or supplement or waiver
or consent to the departure with respect to the provisions of Section 4 hereof
shall be effective as against any Holder of Registrable Notes unless consented
to in writing by such Holder of Registrable Notes. Notwithstanding the foregoing
sentence, (i) this Agreement may be amended, without the consent of any Holder
of Registrable Notes, by written agreement signed by the Company and the Initial
Purchaser, to cure any ambiguity, correct or supplement any provision of this
Agreement that may be inconsistent with any other provision of this Agreement or
to make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with other provisions of this
Agreement, (ii) this Agreement may be amended, modified or supplemented, and
waivers and consents to departures from the provisions hereof may be given by
written agreement signed by the Company and the Initial Purchaser to the extent
that any such amendment, modification, supplement, waiver or consent is, in
their reasonable judgment, necessary or appropriate to comply with applicable
law (including any interpretation of the Staff of the SEC) or any change therein
and (iii) to the extent any provision of this Agreement relates to an Initial
Purchaser, such provision may be amended, modified or supplemented, and waivers
or consents to departures from such provisions may be given, by written
agreement signed by the Company and the Initial Purchaser.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 7(d), which address initially is, with respect to the Initial Purchaser,
the address set forth in the Purchase Agreement; and (ii) if to the Company,
initially at the Company's address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the respective successors, assigns and transferees of the
Initial Purchaser, including, without limitation and without the need for an
express assignment, subsequent Holders; PROVIDED, HOWEVER, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Notes in violation of the terms of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Registrable Notes, in
any manner, whether by operation of law or otherwise, such Registrable Notes
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Notes, such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and such Person shall be entitled to receive the benefits hereof.
(f) THIRD PARTY BENEFICIARY. The Initial Purchaser shall be a third
party beneficiary of the agreements made hereunder between the Company, on the
one hand, and the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN
THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND
THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY
PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(j) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability
of any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) SECURITIES HELD BY THE COMPANY OR ITS Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company or its Affiliates
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
INTERPOOL, INC.
By:/s/ Richard W. Gross
-------------------------
Name: Richard W. Gross
Title: Senior Vice President
Confirmed and accepted as of
the date first above
written:
SMITH BARNEY INC.
By: /s/ Kenneth J. Nicholson
- -------------------------------
Name: Kenneth J. Nicholson
Title: Associate
EXHIBIT 5.1
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038
October 24, 1997
Interpool, Inc.
211 College Road East
Princeton, New Jersey 08540
Re: Registration Statement on Form S-4
Ladies and Gentlemen:
We have acted as special counsel to Interpool, Inc., a Delaware corporation (the
"Company"), in connection with the preparation and filing with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), of a Registration Statement on Form S-4 (the "Registration
Statement") relating to the offer (the "Exchange Offer") by the Company to
exchange $1,000 principal amount of its 7.20% Notes due 2007 (the "Exchange
Notes") for each $1,000 principal amount of its outstanding 7.20% Notes due 2007
(the "Private Notes"), of which $75,000,000 aggregate principal amount was
issued and sold on August 5, 1997 in a transaction exempt from registration
under the Act and is outstanding on the date hereof. The Private Notes were
issued under, and the Exchange Notes are to be issued under, the Indenture dated
as of August 5, 1997 between the Company and United States Trust Company of New
York, as trustee (the "Trustee").
As such counsel, we have examined originals or copies of (i) the Certificate of
Incorporation and By-Laws of the Company, each as amended to date, (ii) the
Indenture and (iii) the Registration Statement. We have also examined original,
reproduced or certified copies of all such records of the Company, such other
agreements and such certificates of officers and representatives of the Company
and others, and such statutes and authorities, as we have deemed relevant and
necessary to form the basis of the opinions hereinafter expressed. In such
examinations, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to
original documents of the copies of documents supplied to us as copies thereof.
As to various matters of fact material to the opinions hereinafter expressed, we
have relied on representations, statements and certificates of officers and
representatives of the Company and others.
For purposes of the opinions hereinafter expressed, we have assumed that (a)
each party (other than the Company) to any document, including, without
limitation, the Indenture, has the power to enter into and perform all its
obligations thereunder, (b) each such party (other than the Company) has taken
all necessary actions to authorize the due execution, delivery and performance
of such document by it, and (c) each such document is the legal, valid and
binding obligation of each such party (other than the Company) thereto.
Attorneys involved in the preparation of this opinion are admitted to practice
law in the State of New York and we do not purport to express any opinion herein
concerning, any laws other than the laws of the State of New York, the federal
laws of the United States of America and the Delaware General Corporation Law.
Based upon and subject to the foregoing, we are of the opinion that:
1. The execution and delivery of the Indenture have been duly authorized
by the Company and the Indenture constitutes a valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, except that we express no opinion as to the
validity or enforceability of rights of indemnity or contribution, or
both. Our opinion in this paragraph is subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization or
similar laws affecting the rights of creditors generally and to
general principles of equity.
2. The Exchange Notes have been duly and validly authorized and, when
duly executed by the proper officers of the Company, duly
authenticated by the Trustee and issued by the Company in accordance
with the terms of the Indenture and the Exchange Offer, will
constitute the legal, valid and binding obligations of the Company and
will be entitled to the benefits of the Indenture, except that we
express no opinion as to the validity or enforceability of rights of
indemnity or contribution, or both. Our opinion in this paragraph is
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or similar laws affecting the rights of creditors
generally and to general principles of equity.
<PAGE>
Interpool, Inc.
October 24, 1997
Page 2
We consent to being named in the Registration Statement and related prospectus
as counsel who are passing upon the legality of the Exchange Notes for the
Company and to the reference to our name under the caption "Legal Matters" in
such prospectus. We also consent to the filing of this opinion as an exhibit to
the Registration Statement or any amendment thereto. In giving such consents, we
do not admit hereby that we come within the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Commission thereunder.
Very truly yours,
/s/ Stroock & Stroock & Lavan LLP
STROOCK & STROOCK & LAVAN LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Interpool, Inc.
As independent public accountants, we hereby consent to the
incorporation by reference in this Form S-4 Registration Statement of our report
dated February 18, 1997 (except for the matters described in Note 13 to the
consolidated financial statements, as to which the date is March 27, 1997)
included in Interpool, Inc.'s Form 10-K for the year ended December 31, 1996,
and to all references to our firm included in or made a part of this
registration statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Roseland, New Jersey
October 24, 1997
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
--------------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF
1939 OFA CORPORATION DESIGNATED TO ACT AS TRUSTEE
--------------------------
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) _______
--------------------------
UNITED STATES TRUST COMPANY OF NEW YORK (Exact
name of trustee as specified in its charter)
NEW YORK 13-3818954
(Jurisdiction of incorporation (I. R. S. Employer
if not a U. S. national bank) Identification No.)
114 WEST 47TH STREET 10036-1532
NEW YORK, NEW YORK (Zip Code)
(Address of principal
executive offices)
NONE
(Name, address and telephone number of agent for service)
--------------------------
INTERPOOL, INC.
(Exact name of obligor as specified in its charter)
NEW JERSEY 13-3467669
(State or other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
211 COLLEGE ROAD EAST
PRINCETON, NEW JERSEY 08540
(Address of principal executive offices) ( Zip Code)
7.20% NOTES DUE 2007
(Title of the indenture securities)
T-STD. 1
T-1, KDI11
<PAGE>
GENERAL
1. GENERAL INFORMATION
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
FEDERAL RESERVE BANK OF NEW YORK (2ND DISTRICT), NEW
YORK, NEW YORK
(BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM)
FEDERAL DEPOSIT INSURANCE CORPORATION, WASHINGTON, D.C.
NEW YORK STATE BANKING DEPARTMENT, ALBANY, NEW YORK
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
THE TRUSTEE IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
2. AFFILIATIONS WITH THE OBLIGOR
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
NONE
3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 AND 15:
THE OBLIGOR IS CURRENTLY NOT IN DEFAULT UNDER ANY OF ITS OUTSTANDING
SECURITIES FOR WHICH UNITED STATES TRUST COMPANY OF NEW YORK IS TRUSTEE.
ACCORDINGLY, RESPONSES TO ITEMS 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 AND
15 OF FORM T-1 ARE NOT REQUIRED UNDER GENERAL INSTRUCTION B.
16. LIST OF EXHIBITS
T-1.1 -- ORGANIZATION CERTIFICATE, AS AMENDED, ISSUED
BY THE STATE OF NEW YORK BANKING DEPARTMENT
TO TRANSACT BUSINESS AS A TRUST COMPANY, IS
INCORPORATED BY REFERENCE TO EXHIBIT T-1.1
TO FORM T-1 FILED ON SEPTEMBER 15, 1995
WITH THE COMMISSION PURSUANT TO THE TRUST
INDENTURE ACT OF 1939, AS AMENDED BY THE
TRUST INDENTURE REFORM ACT OF 1990
(REGISTRATION NO. 33-97056).
T-1.2 -- INCLUDED IN EXHIBIT T-1.1.
T-1.3 -- INCLUDED IN EXHIBIT T-1.1.
T-STD. 2
T-1, KDI11
<PAGE>
16. LIST OF EXHIBITS
(CONT'D)
T-1.4 -- THE BY-LAWS OF UNITED STATES TRUST COMPANY
OF NEW YORK, AS AMENDED, IS INCORPORATED BY
REFERENCE TO EXHIBIT T-1.4 TO FORM T-1
FILED ON SEPTEMBER 15, 1995 WITH THE
COMMISSION PURSUANT TO THE TRUST INDENTURE
ACT OF 1939, AS AMENDED BY THE TRUST
INDENTURE REFORM ACT OF 1990 (REGISTRATION
NO. 33-97056).
T-1.6 -- THE CONSENT OF THE TRUSTEE REQUIRED BY
SECTION 321(B) OF THE TRUST INDENTURE ACT
OF 1939, AS AMENDED BY THE TRUST INDENTURE
REFORM ACT OF 1990.
T-1.7 -- A COPY OF THE LATEST REPORT OF CONDITION OF
THE TRUSTEE PURSUANT TO LAW OR THE REQUIREMENTS OF
ITS SUPERVISING OR EXAMINING AUTHORITY.
NOTE
AS OF AUGUST 22, 1997, THE TRUSTEE HAD 2,999,020 SHARES OF COMMON
STOCK OUTSTANDING, ALL OF WHICH ARE OWNED BY ITS PARENT COMPANY, U.S. TRUST
CORPORATION. THE TERM "TRUSTEE" IN ITEM 2, REFERS TO EACH OF UNITED STATES TRUST
COMPANY OF NEW YORK AND ITS PARENT COMPANY, U. S. TRUST CORPORATION.
IN ANSWERING ITEM 2 IN THIS STATEMENT OF ELIGIBILITY AS TO MATTERS PECULIARLY
WITHIN THE KNOWLEDGE OF THE OBLIGOR OR ITS DIRECTORS, THE TRUSTEE HAS RELIED
UPON INFORMATION FURNISHED TO IT BY THE OBLIGOR AND WILL RELY ON INFORMATION TO
BE FURNISHED BY THE OBLIGOR AND THE TRUSTEE DISCLAIMS RESPONSIBILITY FOR THE
ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
------------------
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939, THE TRUSTEE,
UNITED STATES TRUST COMPANY OF NEW YORK, A CORPORATION ORGANIZED AND EXISTING
UNDER THE LAWS OF THE STATE OF NEW YORK, HAS DULY CAUSED THIS STATEMENT OF
ELIGIBILITY TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, ALL IN THE CITY OF NEW YORK, AND STATE OF NEW YORK, ON THE 22ND OF
OCTOBER 1997.
UNITED STATES TRUST COMPANY
OF NEW YORK, TRUSTEE
BY: /s/ Gerard F. Ganey
-------------------
GERARD F. GANEY
SENIOR VICE PRESIDENT
T-STD. 3
T-1, KDI11
<PAGE>
EXHIBIT T-1.6
THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(B) OF THE ACT.
UNITED STATES TRUST COMPANY OF NEW YORK
114 WEST 47TH STREET
NEW YORK, NY 10036
October 22, 1997
Securities and Exchange Commission
450 5th Street, N.W.
Washington, DC 20549
Gentlemen:
Pursuant to the provisions of Section 321(b) of the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, and subject to the
limitations set forth therein, United States Trust Company of New York ("U.S.
Trust") hereby consents that reports of examinations of U.S. Trust by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
Very truly yours,
UNITED STATES TRUST COMPANY
OF NEW YORK
BY: /S/Gerard F. Ganey
- -------------------------
Senior Vice President
T-STD. 4
T-1, KDI11
<PAGE>
EXHIBIT T-1.7
<TABLE>
<CAPTION>
UNITED STATES TRUST COMPANY OF NEW YORK
CONSOLIDATED STATEMENT OF CONDITION
JUNE 30, 1997
(IN THOUSANDS)
ASSETS
<S> <C>
Cash and Due from Banks $ 83,529
Short-term Investments 259,746
Securities, Available for Sale 924,165
Loans 1,437,342
Less: Allowance for Credit Losses 13,779
------------
Net Loans 1,423,563
Premises and Equipment 61,515
Other Assets 122,696
-----------
Total Assets $2,875,214
============
LIABILITIES
Deposits:
Non-Interest Bearing $ 763,075
Interest Bearing 1,409,017
-------------
Total Deposits 2,172,092
Short-Term Credit Facilities 404,212
Accounts Payable and Accrued Liabilities 132,213
-------------
Total Liabilities $2,708,517
STOCKHOLDER'S EQUITY
Common Stock 14,995
Capital Surplus 49,541
Retained Earnings 100,930
Unrealized Gains (Losses) on Securities
Available For Sale, Net of Taxes 1,231
------------
Total Stockholder's Equity 166,697
------------
Total Liabilities and Stockholder's Equity $2,875,214
============
</TABLE>
I, RICHARD E. BRINKMANN, SENIOR VICE PRESIDENT & COMPTROLLER OF THE
NAMED BANK DO HEREBY DECLARE THAT THIS STATEMENT OF CONDITION HAS BEEN PREPARED
IN CONFORMANCE WITH THE INSTRUCTIONS ISSUED BY THE APPROPRIATE REGULATORY
AUTHORITY AND IS TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF.
RICHARD E. BRINKMANN, SVP & CONTROLLER
AUGUST 7, 1997
T1-EDGAR.
T-1,KDI11
EXHIBIT 99.1
LETTER OF TRANSMITTAL
TO TENDER FOR EXCHANGE
7.20% NOTES DUE 2007
OF
INTERPOOL, INC.
PURSUANT TO THE PROSPECTUS DATED ___________, 1997
=============================================================================
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON _______, 1997 (THE "EXPIRATION DATE"), UNLESS THE EXCHANGE OFFER IS
EXTENDED, IN WHICH CASE THE TERM "EXPIRATION DATE" SHALL MEAN THE LATEST DATE
AND TIME TO WHICH THE EXCHANGE OFFER IS EXTENDED. TENDERS MAY BE WITHDRAWN AT
ANY TIME PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
=============================================================================
THE EXCHANGE AGENT IS:
UNITED STATES TRUST COMPANY OF NEW YORK
By Registered or By Hand: By Overnight Courier:
Certified Mail:
United States Trust United States Trust United States Trust
Company of New York Company of New York Company of New York
P.O. Box 844 111 Broadway 770 Broadway, 13th Floor
Attn: Corporate Trust Lower Level New York, New York 10003
Services Attn: Corporate Trust Attn: Corporate Trust
Cooper Station Services Services
New York, New York New York, New York 10006
10276-0844
CONFIRM BY TELEPHONE:
1-800-548-6565
FACSIMILE TRANSMISSIONS:
(ELIGIBLE INSTITUTIONS ONLY)
United States Trust Company of New York
(212) 420-6152
Attn: Corporate Trust Services
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE
OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER THAN THE
ONE LISTED ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS SET FORTH IN THIS LETTER OF TRANSMITTAL SHOULD BE
READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
THIS LETTER OF TRANSMITTAL SHOULD ONLY BE USED TO TENDER 7.20% NOTES. Holders of
the Company's 7.35% Notes due 2007 (the "7.35% Notes") wishing to tender 7.35%
Notes pursuant to the Company's exchange offer for the 7.35% Notes should use
the Letter of Transmittal relating to such Exchange Offer.
<PAGE>
The undersigned acknowledges receipt of the Prospectus dated
__________, 1997 (the "Prospectus"), of Interpool, Inc., a Delaware corporation
(the "Company"), and this Letter of Transmittal (the "Letter of Transmittal"),
which together with the Prospectus constitutes the Company's offer (the
"Exchange Offer") to exchange $1,000 principal amount of its 7.20% Notes due
2007 (the "Exchange Notes") for each $1,000 principal amount of its 7.20% Notes
due 2007 (the "Private Notes"). Recipients of the Prospectus should read the
requirements described in such Prospectus with respect to eligibility to
participate in the Exchange Offer. Capitalized terms used but not defined herein
have the meaning given to them in the Prospectus.
The undersigned hereby tenders the Private Notes described in the box
entitled "Description of Private Notes" below pursuant to the terms and
conditions described in the Prospectus and this Letter of Transmittal. The
undersigned is the registered owner of all the Private Notes and the undersigned
represents that it has received from each beneficial owner of Private Notes
("Beneficial Owners") a duly completed and executed form of "Instruction to
Registered Holder from Beneficial Owner" accompanying this Letter of
Transmittal, instructing the undersigned to take the action described in this
Letter of Transmittal.
This Letter of Transmittal is to be used only by a holder of Private
Notes (i) if certificates representing Private Notes are to be forwarded
herewith or (ii) if delivery of Private Notes is to be made by book-entry
transfer to the Exchange Agent's account at The Depository Trust Company (the
"Depositary"), pursuant to the procedures set forth in the section of the
Prospectus entitled "The Exchange Offer -- Procedures for Tendering." If
delivery of the Private Notes is to be made by book-entry transfer to the
account maintained by the Exchange Agent at the Depositary, this Letter of
Transmittal need not be manually executed; PROVIDED, HOWEVER, that tenders of
the Private Notes must be effected in accordance with the procedures mandated by
the Depositary's Automated Tender Offer Program and the procedures set forth in
the Prospectus under the caption "The Exchange Offer -- Book-Entry Transfer."
Any beneficial owner whose Private Notes are registered in the name of
a broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender should contact such registered holder of Private Notes promptly and
instruct such registered holder of Private Notes to tender on behalf of the
beneficial owner. If such beneficial owner wishes to tender on its own behalf,
such beneficial owner must, prior to completing and executing this Letter of
Transmittal and delivering its Private Notes, either make appropriate
arrangements to register ownership of the Private Notes in such beneficial
owner's name or obtain a properly completed bond power from the registered
holder of Private Notes. The transfer of record ownership may take considerable
time.
In order to properly complete this Letter of Transmittal, a holder of
Private Notes must (i) complete the box entitled "Description of Private Notes,"
(ii) if appropriate, check and complete the boxes relating to book-entry
transfer, guaranteed delivery, Special Issuance Instructions and Special
Delivery Instructions, (iii) sign the Letter of Transmittal by completing the
box entitled "Sign Here" and (iv) complete the Substitute Form W-9. Each holder
of Private Notes should carefully read the detailed instructions below prior to
completing the Letter of Transmittal.
Holders of Private Notes who desire to tender their Private Notes for
exchange and (i) whose Private Notes are not immediately available, (ii) who
cannot deliver their Private Notes and all other documents required hereby to
the Exchange Agent on or prior to the Expiration Date or (iii) who are unable to
complete the procedure for book-entry transfer on a timely basis, must tender
the Private Notes pursuant to the guaranteed delivery procedures set forth in
the section of the Prospectus entitled "The Exchange Offer -- Guaranteed
Delivery Procedures." See Instruction 2 of the Instructions beginning on page 9
hereof.
Holders of Private Notes who wish to tender their Private Notes for
exchange must, at a minimum, complete columns (1), (2), if applicable (see
footnote 1 below), and (3) in the box below entitled "Description of Private
Notes" and sign the box on page 8 under the words "Sign Here." If only those
columns are completed, such holder of Private Notes will have tendered for
exchange all Private Notes listed in column (3) below. If the holder of Private
Notes wishes to tender for exchange less than all of such Private Notes, column
(4) must be completed in full. In such case, such holder of Private Notes should
refer to Instruction 5 on page 10.
<PAGE>
<TABLE>
<CAPTION>
============================================================================================================================
DESCRIPTION OF PRIVATE NOTES
- ----------------------------------------------------------------------------------------------------------------------------
(1) (2) (3) (4)
<S> <C> <C> <C>
Name(s) and Principal
Address(es) of Private Note Amount
Registered Holder(s) Number(s) Tendered For
of Private Note(s), (1) Aggregate Exchange
exactly as name(s) (Attach Principal (only if
appear(s) on Private signed Amount different
Note Certificate(s) List if amount from
(Please fill in, if necessary) column (3))
blank) (must be in
integral
multiples of
$1,000) (2)
- -----------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
(1) Column (2) need not be completed by holders of Private Notes tendering
Private Notes for exchange by book-entry transfer. Please check the
appropriate box on the next page and provide the requested information.
(2) Column (4) need not be completed by holders of Private
Notes who wish to tender for exchange the principal amount
of Private Notes listed in Column (3). Completion of column
(4) ill indicate that the holder of Private Notes wishes to
tender for exchange only the principal amount of Private Notes indicated
in column (4).
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
|_| CHECK HERE IF TENDERED PRIVATE NOTES ARE ENCLOSED HEREWITH.
|_| CHECK HERE IF TENDERED PRIVATE NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE
DEPOSITORY AND COMPLETE THE FOLLOWING (FOR USE BY ELIGIBLE INSTITUTIONS
(AS HEREINAFTER DEFINED) ONLY):
Name of Tendering Institution:____________________
Account Number:___________________________________
Transaction Code Number:__________________________
|_| CHECK HERE IF TENDERED PRIVATE NOTES ARE BEING DELIVERED
PURSUANT TO A NOTICE OF GUARANTEED DELIVERY ENCLOSED
HEREWITH AND COMPLETE THE FOLLOWING (FOR USE BY ELIGIBLE
INSTITUTIONS ONLY):
Name of Registered Holder of Private Note(s):___________________
Date of Execution of Notice of Guaranteed Delivery:_____________
Window Ticket Number (if available):____________________________
Name of Institution with Guaranteed Delivery:___________________
Account Number (if delivered by book-entry transfer):___________
|_| CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:__________________________________
Address:_______________________________
<PAGE>
=============================== =============================================
SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 6, 7 and 8) (See Instructions 1, 6, 7 and 8)
To be completed ONLY (i) if To be completed ONLY (i) if
the Exchange Notes issued the Exchange Notes issued
in exchange for Private in exchange for Private
Notes, certificates for Notes, certificates for
Private Notes in a principal Private Notes in a
amount not exchanged for principal amount not
Exchange Notes or Private exchanged for Exchange
Notes (if any) not tendered Notes or Private Notes (if
for exchange, are to be any) not tendered for
issued in the name of exchange, are to be mailed
someone other than the or delivered to someone
undersigned or (ii) if other than the undersigned,
Private Notes tendered by or (ii) to the undersigned
book-entry transfer which at an address other than
are not exchanged are to be the address shown below
returned by credit to an the undersigned's signature.
account maintained at the
Depositary.
Issue to: Mail or deliver to:
Name:____________________ Name________________________
(Please Print) (Please Print)
Address__________________ Address_____________________
_________________________ ____________________________
(Include Zip Code) (Include Zip Code)
_________________________ ____________________________
(Tax Identification or (Tax Identification or
Social Security No.) Social Security No.)
|_| Credit Private Notes not exchanged and delivered by
book-entry transfer to the Depositary account set forth below:
_________________________
(Account Number)
=============================== ==========================================
If delivery of Private Notes is to be made by book-entry transfer to
the account maintained by the Exchange Agent at the Depositary, then tenders of
Private Notes must be effected in accordance with the procedures mandated by the
Depositary's Automated Tender Offer Program and the procedures set forth in the
Prospectus under the caption "The Exchange Offer -- Book-Entry Transfer."
<PAGE>
SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
LADIES AND GENTLEMEN:
Pursuant to the offer by Interpool, Inc., a Delaware corporation (the
"Company"), upon the terms and subject to the conditions set forth in the
Prospectus dated , 1997 (the "Prospectus") and this Letter of Transmittal (the
"Letter of Transmittal"), which together with the Prospectus constitutes the
Company's offer (the "Exchange Offer") to exchange $1,000 principal amount of
its 7.20% Notes due 2007 (the "Exchange Notes") for each $1,000 principal amount
of its outstanding 7.20% Notes due 2007 (the "Private Notes"), the undersigned
hereby tenders to the Company for exchange the Private Notes.
By executing this Letter of Transmittal and subject to and effective
upon acceptance for exchange of the Private Notes tendered for exchange
herewith, the undersigned (A) acknowledges and agrees that, except as set forth
in the Prospectus under the caption "The Exchange Offer--Termination of Certain
Rights", all of the rights of such undersigned pursuant to that certain
Registration Rights Agreement, dated as of August 5, 1997 between Interpool,
Inc. and the Initial Purchaser (as defined in the Prospectus), will have been
satisfied and extinguished in all respects and (B) will have irrevocably sold,
assigned, transferred and exchanged, to the Company, all right, title and
interest in, to and under all of the Private Notes tendered for exchange hereby,
and hereby appoints the Exchange Agent as the true and lawful agent and
attorney-in-fact (with full knowledge that the Exchange Agent also acts as agent
of the Company) of such holder of Private Notes with respect to such Private
Notes, with full power of substitution to (i) deliver certificates representing
such Private Notes, or transfer ownership of such Private Notes on the account
books maintained by the Depositary (together, in any such case, with all
accompanying evidences of transfer and authenticity), to the Company, (ii)
present and deliver such Private Notes for transfer on the books of the Company
and (iii) receive all benefits and otherwise exercise all rights and incidents
of beneficial ownership with respect to such Private Notes, all in accordance
with the terms of the Exchange Offer. The power of attorney granted in this
paragraph shall be deemed to be irrevocable and coupled with an interest.
The undersigned hereby represents and warrants that (i) the
undersigned is the owner; (ii) has a net long position within the meaning of
Rule 14e-4 under the Securities Exchange Act of 1934, as amended ("Rule 14e-4")
equal to or greater than the principal amount of Private Notes tendered hereby;
(iii) the tender of such Private Notes complies with Rule 14e-4 (to the extent
that Rule 14e-4 is applicable to such exchange); (iv) the undersigned has full
power and authority to tender, exchange, assign and transfer the Private Notes;
and (v) that when such Private Notes are accepted for exchange by the Company,
the Company will acquire good and marketable title thereto, free and clear of
all liens, restrictions, charges and encumbrances and not subject to any adverse
claims. The undersigned will, upon receipt, execute and deliver any additional
documents deemed by the Exchange Agent or the Company to be necessary or
desirable to complete the exchange, assignment and transfer of the Private Notes
tendered for exchange hereby.
The undersigned hereby further represents to the Company that (i) the
Exchange Notes to be acquired by the undersigned in exchange for the Private
Notes tendered hereby and any beneficial owner(s) of such Private Notes in
connection with the Exchange Offer will be acquired by the undersigned and such
beneficial owner(s) in the ordinary course of business of the undersigned, (ii)
the undersigned (if not a broker-dealer referred to in the last sentence of this
paragraph) are not engaging and do not intend to engage in the distribution of
the Exchange Notes, (iii) the undersigned have no arrangement or understanding
with any person to participate in the distribution of the Exchange Notes, (iv)
the undersigned and each beneficial owner acknowledge and agree that any person
participating in the Exchange Offer for the purpose of distributing the Exchange
Notes must comply with the registration and prospectus delivery requirements of
the Securities Act in connection with a secondary resale transaction of the
Exchange Notes acquired by such person and cannot rely on the position of the
staff of the Commission set forth in certain no-action letters, (v) the
undersigned and each beneficial owner understand that a secondary resale
transaction described in clause (iv) above should be covered by an effective
registration statement containing the selling security holder information
required by Item 507 of Regulation S-K of the Commission and (vi) neither the
undersigned nor any beneficial owner is an "affiliate" of the Company, as
defined under Rule 405 under the Securities Act. If the undersigned is a
broker-dealer that will receive Exchange Notes for its own account in exchange
for Private Notes that were acquired as a result of market making activities or
other trading activities, it acknowledges that it will deliver a prospectus
meeting the requirements of the Securities Act in connection with any resale of
such Exchange Notes received in respect of such Private Notes pursuant to the
Exchange Offer; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For purposes of the Exchange Offer, the Company will be deemed to have
accepted for exchange, and to have exchanged, validly tendered Private Notes,
if, as and when the Company gives oral or written notice thereof to the Exchange
Agent. Tenders of Private Notes for exchange may be withdrawn at any time prior
to 5:00 p.m., New York City time, on the Expiration Date. See "The Exchange
Offer -- Withdrawal of Tenders" in the Prospectus. Any Private Notes tendered by
the undersigned and not accepted for exchange will be returned to the
undersigned at the address set forth above unless otherwise indicated in the box
above entitled "Special Delivery Instructions."
The undersigned acknowledges that the Company's acceptance of Private
Notes validly tendered for exchange pursuant to any one of the procedures
described in the section of the Prospectus entitled "The Exchange Offer" and in
the instructions hereto will constitute a binding agreement between the
undersigned and the Company upon the terms and subject to the conditions of the
Exchange Offer.
Unless otherwise indicated in the box entitled "Special Issuance
Instructions," please return any Private Notes not tendered for exchange in the
name(s) of the undersigned. Similarly, unless otherwise indicated in the box
entitled "Special Delivery Instructions," please mail any certificates for
Private Notes not tendered or exchanged (and accompanying documents, as
appropriate) to the undersigned at the address shown below the undersigned's
signature(s). In the event that both "Special Issuance Instructions" and
"Special Delivery Instructions" are completed, please issue the certificates
representing the Exchange Notes issued in exchange for the Private Notes
accepted for exchange in the name(s) of, and return any Private Notes not
tendered for exchange or not exchanged to, the person(s) so indicated. The
undersigned recognizes that the Company has no obligation pursuant to the
"Special Issuance Instructions" and "Special Delivery Instructions" to transfer
any Private Notes from the name of the holder of Private Note(s) thereof if the
Company does not accept for exchange any of the Private Notes so tendered for
exchange or if such transfer would not be in compliance with any transfer
restrictions applicable to such Private Note(s).
IN ORDER TO VALIDLY TENDER PRIVATE NOTES FOR EXCHANGE, HOLDERS OF
PRIVATE NOTES MUST COMPLETE, EXECUTE, AND DELIVER THIS LETTER OF TRANSMITTAL.
Except as stated in the Prospectus, all authority herein conferred or
agreed to be conferred shall survive the death or incapacity of the undersigned,
and any obligation of the undersigned hereunder shall be binding upon the heirs,
personal representatives, successors and assigns of the undersigned. Except as
otherwise stated in the Prospectus, this tender for exchange of Private Notes is
irrevocable.
<PAGE>
===============================================================================
SIGN HERE
____________________________________________________________________________
(Signature(s) of Owner(s))
Date: , 1997
Must be signed by the registered holder(s) of Private Notes exactly as name(s)
appear(s) on certificate(s) representing the Private Notes or on a security
position listing or by person(s) authorized to become registered Private Note
holder(s) by certificates and documents transmitted herewith. If signature is by
trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, please
provide the following information. (See Instruction 6).
Name(s):_____________________________________________________
_____________________________________________________________
_____________________________________________________________
(Please Print)
Capacity (full title):_______________________________________
_____________________________________________________________
_____________________________________________________________
Address:_____________________________________________________
_____________________________________________________________
(Include Zip Code)
Area Code and Telephone No. (__)_____________________________
Tax Identification or Social Security Nos.:__________________
Please complete Substitute Form W-9_________________________
GUARANTEE OF SIGNATURE(S)
(Signature(s) must be guaranteed if required by Instruction 1)
Authorized Signature:________________________________________
Dated:_______________________________________________________
Name and Title:______________________________________________
(Please Print)
Name of Firm:________________________________________________
=======================================================================
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. GUARANTEE OF SIGNATURES. Except as otherwise provided below, all
signatures on this Letter of Transmittal must be guaranteed by an institution
which is an "eligible guarantor institution" within the meaning of Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended, which is a member of one
of the following recognized Signature Guarantee Programs (an "Eligible
Institution"):
a. The Securities Transfer Agents Medallion Program (STAMP)
b. The New York Stock Exchange Medallion Signature Program (MSP)
c. The Stock Exchange Medallion Program (SEMP)
Signatures on this Letter of Transmittal need not be guaranteed (i) if this
Letter of Transmittal is signed by the registered holder(s) of the Private Notes
tendered herewith and such registered holder(s) have not completed the box
entitled "Special Issuance Instructions" or the box entitled "Special Delivery
Instructions" on this Letter of Transmittal or (ii) if such Private Notes are
tendered for the account of an Eligible Institution. IN ALL OTHER CASES, ALL
SIGNATURES MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION.
2. DELIVERY OF THIS LETTER OF TRANSMITTAL AND PRIVATE NOTES;
GUARANTEED DELIVERY PROCEDURE. This Letter of Transmittal is to be completed by
holders of Private Notes (i) if certificates are to be forwarded herewith or
(ii) if tenders are to be made pursuant to the procedures for tender by
book-entry transfer or guaranteed delivery set forth in the section of the
Prospectus entitled "The Exchange Offer." Certificates for all physically
tendered Private Notes or any confirmation of a book-entry transfer (a
"Book-Entry Confirmation"), as well as a properly completed and duly executed
copy of this Letter of Transmittal or facsimile hereof, and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
at its address set forth on the cover of this Letter of Transmittal prior to
5:00 p.m., New York City time, on the Expiration Date. Holders of Private Notes
who elect to tender Private Notes and (i) whose Private Notes are not
immediately available, (ii) who cannot deliver the Private Notes or other
required documents to the Exchange Agent prior to 5:00 p.m., New York City time
on the Expiration Date or (iii) who are unable to complete the procedure for
book-entry transfer on a timely basis, may have such tender effected if: (a)
such tender is made by or through an Eligible Institution; (b) prior to 5:00
p.m., New York time, on the Expiration Date, the Exchange Agent has received
from such Eligible Institution a properly completed and duly executed Letter of
Transmittal (or a facsimile hereof) and Notice of Guaranteed Delivery (by
telegram, telex, facsimile transmission, mail or hand delivery) setting forth
the name and address of the holder of such Private Notes, the certificate
number(s) of such Private Notes and the principal amount of Private Notes
tendered for exchange, stating that tender is being made thereby and
guaranteeing that, within five New York Stock Exchange trading days after the
Expiration Date, the certificates representing such Private Notes (or a
Book-Entry Confirmation), in proper form for transfer, and any other documents
required by this Letter of Transmittal, will be deposited by such Eligible
Institution with the Exchange Agent; and (c) certificates for all tendered
Private Notes, or a Book-Entry Confirmation, together with a copy of the
previously executed Letter of Transmittal (or facsimile thereof) and any other
documents required by this Letter of Transmittal are received by the Exchange
Agent within five New York Stock Exchange trading days after the Expiration
Date.
THE METHOD OF DELIVERY OF PRIVATE NOTES, THIS LETTER OF TRANSMITTAL
AND ALL OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE TENDERING
HOLDER OF PRIVATE NOTES. EXCEPT AS OTHERWISE PROVIDED BELOW, THE DELIVERY WILL
BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED OR CONFIRMED BY THE EXCHANGE AGENT.
IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. NEITHER THIS LETTER OF TRANSMITTAL NOR ANY PRIVATE
NOTES SHOULD BE SENT TO THE COMPANY.
No alternative, conditional or contingent tenders will be accepted.
All tendering holders of Private Notes, by execution of this Letter of
Transmittal (or facsimile hereof, if applicable), waive any right to receive
notice of the acceptance of their Private Notes for exchange.
3. INADEQUATE SPACE. If the space provided in the box entitled
"Description of Private Notes" above is inadequate, the certificate numbers and
principal amounts of the Private Notes being tendered should be listed on a
separate signed schedule affixed hereto.
4. WITHDRAWALS. A tender of Private Notes may be withdrawn at any time
prior to 5:00 p.m., New York City time, on the Expiration Date by delivery of
written notice of withdrawal to the Exchange Agent at the address set forth on
the cover of this Letter of Transmittal. To be effective, a notice of withdrawal
of Private Notes must (i) specify the name of the person who tendered the
Private Notes to be withdrawn (the "Depositor"), (ii) identify the Private Notes
to be withdrawn (including the certificate number or numbers and aggregate
principal amount of such Private Notes), (iii) be signed by the holder of
Private Notes in the same manner as the original signature on the Letter of
Transmittal by which such Private Notes were tendered (including any required
signature guarantees) or be accompanied by documents of transfer sufficient to
have the applicable transfer agent register the transfer of such Private Notes
into the name of the person withdrawing the tender. Withdrawals of tenders of
Private Notes may not be rescinded, and any Private Notes withdrawn will
thereafter be deemed not validly tendered for purposes of the Exchange Offer and
no Exchange Notes will be issued with respect thereto unless the Private Notes
so withdrawn are validly retendered. Properly withdrawn Private Notes may be
retendered by following one of the procedures described in the section of the
Prospectus entitled "The Exchange Offer -- Procedures for Tendering" at any time
prior to 5:00 p.m., New York City time, on the Expiration Date.
5. PARTIAL TENDERS. (Not applicable to holders of Private Notes who
tender Private Notes by book-entry transfer). Tenders of Private Notes will be
accepted only in integral multiples of $1,000 principal amount. If a tender for
exchange is to be made with respect to less than the entire principal amount of
any Private Notes, fill in the principal amount of Private Notes which are
tendered for exchange in column (4) of the box entitled "Description of Private
Notes" on page 3, as more fully described in the footnotes thereto. In case of a
partial tender for exchange, a new certificate, in fully registered form, for
the remainder of the principal amount of the Private Notes, will be sent to the
holders of Private Notes unless otherwise indicated in the appropriate box on
this Letter of Transmittal as promptly as practicable after the expiration or
termination of the Exchange Offer.
6. SIGNATURES ON THIS LETTER OF TRANSMITTAL, POWERS OF ATTORNEY AND
ENDORSEMENTS.
(a) The signature(s) of the holder of Private Notes on this Letter of
Transmittal must correspond with the name(s) as written on the face of the
Private Notes without alternation, enlargement or any change whatsoever.
(b) If tendered Private Notes are owned of record by two or more joint
owners, all such owners must sign this Letter of Transmittal.
(c) If any tendered Private Notes are registered in different names on
several certificates, it will be necessary to complete, sign and submit as many
separate copies of this Letter of Transmittal and any necessary or required
documents as there are different registrations or certificates.
(d) When this Letter of Transmittal is signed by the holder of the
Private Notes listed and transmitted hereby, no endorsements of Private Notes or
separate powers of attorney are required. If, however, Private Notes not
tendered or not accepted, are to be issued or returned in the name of a person
other than the holder of Private Notes, then the Private Notes transmitted
hereby must be endorsed or accompanied by appropriate powers of attorney in a
form satisfactory to the Company, in either case signed exactly as the name(s)
of the holder of Private Notes appear(s) on the Private Notes. Signatures on
such Private Notes or powers of attorney must be guaranteed by an Eligible
Institution (unless signed by an Eligible Institution).
(e) If this Letter of Transmittal or Private Notes or powers of
attorney are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing, and
proper evidence satisfactory to the Company of their authority so to act must be
submitted.
(f) If this Letter of Transmittal is signed by a person other than the
registered holder of Private Notes listed, the Private Notes must be endorsed or
accompanied by appropriate powers of attorney, in either case signed exactly as
the name(s) of the registered holder of Private Notes appear(s) on the
certificates. Signatures on such Private Notes or powers of attorney must be
guaranteed by an Eligible Institution (unless signed by an Eligible
Institution).
7. TRANSFER TAXES. Except as set forth in this Instruction 7, the
Company will pay all transfer taxes, if any, applicable to the transfer and
exchange of Private Notes pursuant to the Exchange Offer. If, however, issuance
of Exchange Notes is to be made to, or Private Notes not tendered for exchange
are to be issued or returned in the name of, any person other than the holder of
Private Notes, and satisfactory evidence of payment of such taxes or exemptions
from taxes therefrom is not submitted with this Letter of Transmittal, the
amount of any transfer taxes payable on account of the transfer to such person
will be imposed on and payable by the holder of Private Notes tendering Private
Notes for exchange prior to the issuance of the Exchange Notes.
8. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If the Exchange Notes
are to be issued, or if any Private Notes not tendered for exchange are to be
issued or sent to someone other than the holder of Private Notes or to an
address other than that shown above, the appropriate boxes on this Letter of
Transmittal should be completed. Holders of Private Notes tendering Private
Notes by book-entry transfer may request that Private Notes not accepted be
credited to such account maintained at the Depository as such holder of Private
Notes may designate.
9. IRREGULARITIES. All questions as to the form of documents and the
validity, eligibility (including time of receipt), acceptance and withdrawal of
Private Notes will be determined by the Company, in its sole discretion, whose
determination shall be final and binding. The Company reserves the absolute
right to reject any or all tenders for exchange of any particular Private Notes
that are not in proper form, or the acceptance of which would, in the opinion of
the Company or its counsel, be unlawful. The Company reserves the absolute right
to waive any defect, irregularity or condition of tender for exchange with
regard to any particular Private Notes. The Company's interpretation of the term
of, and conditions to, the Exchange Offer (including the instructions herein)
will be final and binding. Unless waived, any defects or irregularities in
connection with the Exchange Offer must be cured within such time as the Company
shall determine. Neither the Company, the Exchange Agent nor any other person
shall be under any duty to give notice of any defects or irregularities in
Private Notes tendered for exchange, nor shall any of them incur any liability
for failure to give such notice. A tender of Private Notes will not be deemed to
have been made until all defects and irregularities with respect to such tender
have been cured or waived. Any Private Notes received by the Exchange Agent that
are not properly tendered and as to which the defects or irregularities have not
been cured or waived will be returned by the Exchange Agent to the tendering
holders, unless otherwise provided in this Letter of Transmittal, as soon as
practicable following the Expiration Date.
10. WAIVER OF CONDITIONS. The Company reserves the absolute right to
waive, amend or modify certain of the specified conditions as described under
"The Exchange Offer -- Conditions of the Exchange Offer" in the Prospectus in
the case of any Private Notes tendered (except as otherwise provided in the
Prospectus).
11. MUTILATED, LOST, STOLEN OR DESTROYED PRIVATE NOTES. If a holder of
Private Notes desires to tender Private Notes pursuant to the Exchange Offer,
but any of such Private Notes has been mutilated, lost, stolen or destroyed,
such holder of Private Notes should write to or telephone the Trustee at the
address listed below, concerning the procedures for obtaining replacement
certificates for such Private Notes, arranging for indemnification or any other
matter that requires handling by the Trustee:
United States Trust Company of New York
P.O. Box 844
Attn: Corporate Trust Services
Cooper Station
New York, New York 10276-0844
1-800-548-6565
12. REQUESTS FOR INFORMATION OR ADDITIONAL COPIES. Requests for
information or for additional copies of the Prospectus and this Letter of
Transmittal may be directed to the Exchange Agent at the address or telephone
number set forth on the cover of this Letter of Transmittal.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE THEREOF, IF
APPLICABLE) TOGETHER WITH CERTIFICATES, OR CONFIRMATION OF BOOK-ENTRY OR THE
NOTICE OF GUARANTEED DELIVERY, AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED
BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION
DATE.
<PAGE>
IMPORTANT TAX INFORMATION
Under certain federal income tax law, a holder of Private Notes whose
tendered Private Notes are accepted for exchange may be subject to backup
withholding unless the holder provides the Company (as payor), through the
Exchange Agent, with either (i) such holder's correct taxpayer identification
number ("TIN") on Substitute Form W-9 attached hereto, certifying that the TIN
provided on Substitute Form W-9 is correct (or that such holder of Private Notes
is awaiting a TIN) and that (A) the holder of Private Notes has not been
notified by the Internal Revenue Service that he or she is subject to backup
withholding as a result of a failure to report all interest or dividends or (B)
the Internal Revenue Service has notified the holder of Private Notes that he or
she is no longer subject to backup withholding; or (ii) an adequate basis for
exemption from backup withholding. If such holder of Private Notes is an
individual, the TIN is such holder's social security number. If the Exchange
Agent is not provided with the correct taxpayer identification number, the
holder of Private Notes may be subject to certain penalties imposed by the
Internal Revenue Service.
Certain holders of Private Notes (including, among others, all
corporations and certain foreign individuals) are not subject to these backup
withholding and reporting requirements. Exempt holders of Private Notes should
indicate their exempt status on Substitute Form W-9. A foreign individual may
qualify as an exempt recipient by submitting to the Exchange Agent a properly
completed Internal Revenue Service Form W-8 (the terms of which the Exchange
Agent will provide upon request) signed under penalty of perjury, attesting to
the holder's exempt status. See the enclosed Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9 (the "Guidelines") for
additional instructions.
If backup withholding applies, the Company is required to withhold 31%
of any payment made to the holder of Private Notes or other payee. Backup
withholding is not an additional federal income tax. Rather, the federal income
tax liability of persons subject to backup withholding will be reduced by the
amount of tax withheld. If withholding results in an overpayment of taxes, a
refund may be obtained from the Internal Revenue Service.
The holder of Private Notes is required to give the Exchange Agent the
TIN (e.g., social security number or employer identification number) of the
record owner of the Private Notes. If the Private Notes are held in more than
one name or are not held in the name of the actual owner, consult the enclosed
Guidelines for additional guidance regarding which number to report.
<PAGE>
- -------------------------------------------------------------------------------
PAYER'S NAME:____________________________________
- -------------------------------------------------------------------------------
SUBSTITUTE Part 1 - PLEASE PROVIDE
Form W-9 YOUR TIN IN THE BOX AT ______________________
Department of RIGHT AND CERTIFY BY Social Security Number
the Treasury SIGNING AND DATING BELOW
Internal OR
Revenue Service ______________________
Payer's Request Employer Identification
for Taxpayer Number
Identification
Number (TIN)
-------------------------------------------------------------------
Part 2 - Part 3 -
Certification Under Awaiting
Penalties of Perjury, I TIN
certify that:
(1) The number shown on this form is
my current taxpayer identification
number (or I am waiting for
a number to be issued to me) and
(2) I am not subject to backup withholding
either because I have not been notified
by the Internal Revenue Service (the
"IRS") that I am subject to backup
withholding as a result of a failure to
report all interest or dividends, or
the IRS has notified me that I am no
longer subject to backup withholding.
-------------------------------------------------------------------
Certificate instructions - You must cross out item (2) in
Part 2 above if you have been notified by the IRS that you
are subject to backup withholding because of underreporting
interest or dividends on your tax return. However, if
after being notified by the IRS that you are subject to
backup withholding you receive another notification from
the IRS stating that you are no longer subject to backup
withholding, do not cross out item (2).
- -------------------------------------------------------------------------------
SIGNATURE______________________________________________DATE________________
NAME________________________________________________________________________
ADDRESS_____________________________________________________________________
CITY__________________________ STATE_________________ ZIP CODE______________
- ------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENT MADE TO YOU PURSUANT TO THE EXCHANGE OFFER.
PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
<PAGE>
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU
CHECK THE BOX IN PART 3 OF SUBSTITUTE FORM W-9
==============================================================================
PAYOR'S NAME:
- -------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (b)
I intend to mail or deliver such an application in the near future. I understand
that if I do not provide a taxpayer identification number with sixty (60) days,
31% of all reportable payments made to me thereafter will be withheld until I
provide such a number.
- -------------------------------------------------------------------------------
Signature Date
===============================================================================
EXHIBIT 99.2
INTERPOOL, INC.
EXCHANGE OFFER
TO HOLDERS OF ITS
7.20% NOTES DUE 2007
NOTICE OF GUARANTEED DELIVERY
This form or one substantially equivalent hereto must be used to
accept the Exchange Offer of Interpool, Inc. (the "Company") made pursuant to
the Prospectus dated __________________, 1997 (the "Prospectus") and the
accompanying Letter of Transmittal, if certificates for the above-referenced
Notes (the "Private Notes") are not immediately available or time will not
permit all required documents to reach the Exchange Agent (as defined below)
prior to the Expiration Date (as defined in the Prospectus) of the Exchange
Offer (as defined below) or if the procedures for book-entry transfer cannot be
completed on a timely basis. Such form may be delivered by hand or transmitted
by telegram, facsimile transmission or mail to the Exchange Agent.
To: UNITED STATES TRUST COMPANY OF NEW YORK (THE "EXCHANGE AGENT")
BY REGISTERED OR BY HAND: BY OVERNIGHT COURIER:
CERTIFIED MAIL:
United States Trust United States Trust United States Trust
Company Company Company
of New York of New York of New York
P.O. Box 844 111 Broadway 770 Broadway, 13th Floor
Attn: Corporate Trust Lower Level New York, New York 10003
Services Attn: Corporate Trust Attn: Corporate Trust
Cooper Station Services Services
New York, New York New York, New York
10276-0844 10006
CONFIRM BY TELEPHONE:
1-800-548-6565
FACSIMILE TRANSMISSIONS:
(ELIGIBLE INSTITUTIONS ONLY)
United States Trust Company of New York
(212) 420-6152
Attn: Corporate Trust Services
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE
TRANSMISSION TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL
NOT CONSTITUTE A VALID DELIVERY.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to the Company upon the terms and
conditions set forth in the Prospectus and the Letter of Transmittal (which
together constitute the "Exchange Offer"), receipt of which is hereby
acknowledged, the principal amount of Private Notes set forth below, pursuant to
the guaranteed delivery procedure described in the Prospectus and the Letter of
Transmittal.
Signature(s) __________________________ Address ____________________________
______________________________________ ____________________________________
Name(s)______________________________ Area Code and Tel. No.(s)___________
_____________________________________ If Private Notes will be delivered by
Please Type or Print book-entry transfer, check box and
provide account number.
Certificate Nos. (if available)______ |_|The Depository Trust Company
Account Number:_________________
Principal Amount of Private Notes
Represented by Certificate(s)______________
GUARANTEE
The undersigned, member of a recognized signature guarantee medallion
program within the meaning of Rule 17Ad-15 under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), hereby guarantees (a) that the
above-named person(s) own(s) the above-described securities tendered hereby
within the meaning of Rule 10b-4 under the Exchange Act, (b) that such tender of
the above-described securities complies with Rule 10b-4 and (c) that delivery to
the Exchange Agent of certificates representing the principal amount of Private
Notes tendered hereby, in proper form for transfer, or timely confirmation of
the book-entry transfer of such Private Notes into the Exchange Agent's account
at the Depository Trust Company, in either case with a properly completed and
duly executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees and any other required documents, will be received by the
Exchange Agent at one of its addresses set forth above, no later than five New
York Stock Exchange trading days after the date of execution of this Notice of
Guaranteed Delivery.
____________________________________ _______________________________________
Name of Firm Authorized Signature
____________________________________ _______________________________________
Address Title
____________________________________
Zip Code Please Type or Print
Area Code and Tel. No. _____________ Dated _________________________________
EXHIBIT 99.3
INTERPOOL, INC.
OFFER TO EXCHANGE
7.20% NOTES DUE 2007
FOR ANY AND ALL OUTSTANDING
7.20% NOTES DUE 2007
__________ __, 1997
TO SECURITIES DEALERS, COMMERCIAL BANKS,
COMPANY COMPANIES AND OTHER NOMINEES:
Interpool, Inc. (the "Company") is offering (the "Exchange Offer"),
upon the terms and subject to the conditions of the enclosed Prospectus, dated
____________, 1997 (as the same may be amended or supplemented from time to
time, the "Prospectus"), and the enclosed Letter of Transmittal (the "Letter of
Transmittal"), to exchange $1,000 principal amount of its 7.20% Notes due 2007
(the "Exchange Notes"), which exchange has been registered under the Securities
Act of 1933, as amended (the "Securities Act"), for each $1,000 principal amount
of its outstanding 7.20% Notes due 2007 (the "Private Notes"), of which
$75,000,000 aggregate principal amount was issued and sold on August 5, 1997 in
a transaction exempt from registration under the Securities Act and is
outstanding on the date hereof. The Company will accept for exchange any and all
Private Notes properly tendered according to the terms of the Prospectus and the
Letter of Transmittal. Consummation of the Exchange Offer is subject to certain
conditions described in the Prospectus.
WE ARE ASKING YOU TO CONTACT YOUR CLIENTS FOR WHOM YOU HOLD PRIVATE
NOTES REGISTERED IN YOUR NAME OR IN THE NAME OF YOUR NOMINEE OR WHO HOLD PRIVATE
NOTES REGISTERED IN THEIR OWN NAMES.
The Company will not pay any fees or commissions to any broker or
dealer or other person for soliciting tenders of Private Notes pursuant to the
Exchange Offer. You will, however, be reimbursed by the Company for customary
mailing and handling expenses incurred by you in forwarding any of the enclosed
materials to your clients. The Company will pay all transfer taxes, if any,
applicable to the tender of Private Notes to it or its order, except as
otherwise provided in the Prospectus and the Letter of Transmittal.
Enclosed are copies of the following documents:
1. A form of letter which you may send, as a cover letter to
accompany the Prospectus and related materials, to your
clients for whose accounts you hold Private Notes registered
in your name or the name of your nominee, with space provided
for obtaining the clients' instructions with regard to the
Exchange Offer.
2. The Prospectus.
3. The Letter of Transmittal for your use in connection with the
tender of Private Notes and for the information of your
clients.
4. A form of Notice of Guaranteed Delivery.
5. Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.
Your prompt action is requested. The Exchange Offer will expire at
5:00 P.M., New York City time, on [DAY], [DATE], 1997, unless the Exchange Offer
is extended by the Company. The time at which the Exchange Offer expires is
referred to as the "Expiration Date." Tendered Private Notes may be withdrawn,
subject to the procedures described in the Prospectus, at any time prior to 5:00
P.M. on the Expiration Date.
To participate in the Exchange Offer, certificates for Private Notes,
or a timely confirmation of a book-entry transfer of such Private Notes into the
Exchange Agent's account at the Depository Trust Company, together with a duly
executed and properly completed Letter of Transmittal or facsimile thereof, with
any required signature guarantees, and any other required documents, must be
received by the Exchange Agent by the Expiration Date as indicated in the Letter
of Transmittal and the Prospectus.
If holders of the Private Notes wish to tender, but it is
impracticable for them to forward their Private Notes prior to the Expiration
Date or to comply with the book-entry transfer procedures on a timely basis, a
tender may be effected by following the guaranteed delivery procedures described
in the Prospectus under "The Exchange Offer -- Guaranteed Delivery Procedures"
and the Letter of Transmittal.
Additional copies of the enclosed material may be obtained from the
Exchange Agent, United States Trust Company of New York, by calling (800)
548-6565 directing your inquiries to Corporate Trust Services.
Very truly yours,
INTERPOOL, INC.
NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR
ANY PERSON AS AN AGENT OF THE COMPANY OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR
ANY OTHER PERSON TO MAKE ANY STATEMENTS ON BEHALF OF EITHER OF THEM WITH RESPECT
TO THE EXCHANGE OFFER, EXCEPT FOR STATEMENTS EXPRESSLY MADE IN THE PROSPECTUS
AND THE LETTER OF TRANSMITTAL.
EXHIBIT 99.4
INTERPOOL, INC.
OFFER TO EXCHANGE
7.20% NOTES DUE 2007
FOR ANY AND ALL OUTSTANDING
7.20% NOTES DUE 2007
__________ __, 1997
TO OUR CLIENTS:
Enclosed for your consideration is a Prospectus, dated ____________,
1997 (as the same may be amended or supplemented from time to time, the
"Prospectus"), and a Letter of Transmittal (the "Letter of Transmittal"),
relating to the offer (the "Exchange Offer") by Interpool, Inc. (the "Company")
to exchange $1,000 principal amount of its 7.20% Notes due 2007 (the "Exchange
Notes"), which exchange has been registered under the Securities Act of 1933, as
amended (the "Securities Act"), for each $1,000 principal amount of its
outstanding 7.20% Notes due 2007 (the "Private Notes"), of which $75,000,000
aggregate principal amount was issued and sold on August 5, 1997 in a
transaction exempt from registration under the Securities Act and is outstanding
on the date hereof. The Company will accept for exchange any and all Private
Notes properly tendered according to the terms of the Prospectus and the Letter
of Transmittal. Consummation of the Exchange Offer is subject to certain
conditions described in the Prospectus.
This material is being forwarded to you as the beneficial owner of
Private Notes carried by us for your account or benefit but not registered in
your name. A tender of such Private Notes may only be made by us as the
registered holder and pursuant to your instructions. Therefore, the Company
urges beneficial owners of Private Notes registered in the name of a broker,
dealer, commercial bank, trust company or other nominee to contact such
registered holder promptly if such beneficial owners wish to tender Private
Notes in the Exchange Offer.
Accordingly, we request instructions as to whether you wish us to
tender any or all such Private Notes held by us for your account, pursuant to
the terms and conditions set forth in the enclosed Prospectus and Letter of
Transmittal. However, we urge you to read the Prospectus carefully before
instructing us as to whether or not to tender your Private Notes.
Your instructions to us should be forwarded as promptly as possible in
order to permit us to tender Private Notes on your behalf in accordance with the
provisions of the Exchange Offer. The Exchange Offer will expire at 5:00 P.M.,
New York City Time, on [DAY], [DATE], 1997, unless the Exchange Offer is
extended by the Company. The time the Exchange Offer expires is referred to as
the "Expiration Date." Tenders of Private Notes may be withdrawn at any time
prior to the Expiration Date.
IF YOU WISH TO HAVE US TENDER ANY OR ALL OF YOUR PRIVATE NOTES, PLEASE
SO INSTRUCT US BY COMPLETING, EXECUTING AND RETURNING TO US THE INSTRUCTION FORM
ON THE REVERSE HEREOF. The accompanying Letter of Transmittal is furnished to
you for your information only and may not be used by you to tender Private Notes
held by us and registered in our name for your account or benefit.
If we do not receive written instructions in accordance with the
procedures presented in the Prospectus and the Letter of Transmittal, we will
not tender any of the Private Notes on your account.
Please carefully review the enclosed material as you consider the
Exchange Offer.
<PAGE>
INSTRUCTIONS
INSTRUCTION TO REGISTERED HOLDER
FROM BENEFICIAL OWNER
OF
7.20% NOTES DUE 2007
OF INTERPOOL, INC.
The undersigned hereby acknowledges receipt of the Prospectus dated
_________, 1997 (the "Prospectus") of Interpool, Inc., a Delaware corporation
(the "Company") and the accompanying Letter of Transmittal (the "Letter of
Transmittal"), that together constitute the exchange offer by the Company (the
"Exchange Offer"). Capitalized terms used but not defined herein have the
meanings ascribed to them in the Prospectus.
This will instruct you, the registered holder, as to the action to be
taken by you relating to the Exchange Offer with respect to the 7.20% Notes due
2007 (the "Private Notes") held by you for the account of the undersigned.
The aggregate face amount of the Private Notes held by you for the
account of the undersigned is (FILL IN AMOUNT):
$ of the Private Notes.
With respect to the Exchange Offer, the undersigned hereby instructs
you (CHECK APPROPRIATE BOX):
|_| To TENDER the following Private Notes held by you for the account of
the undersigned (INSERT PRINCIPAL AMOUNT OF PRIVATE NOTES TO BE
TENDERED, IF ANY):
$ of the Private Notes.
|_| NOT to TENDER any Private Notes held by you for the account of the
undersigned.
If the undersigned instructs you to tender the Private Notes held by
you for the account of the undersigned, it is understood that you are authorized
(a) to make, on behalf of the undersigned (and the undersigned, by its signature
below, hereby makes to you), the representations and warranties contained in the
Letter of Transmittal that are to be made with respect to the undersigned as a
beneficial owner of the Private Notes, including but not limited to the
representations that (i) the undersigned is acquiring the Exchange Notes in the
ordinary course of business of the undersigned, (ii) the undersigned is not
participating, does not intend to participate, and has no arrangement or
understanding with any person to participate, in the distribution of Exchange
Notes, (iii) the undersigned acknowledges that any person participating in the
Exchange Offer for the purpose of distributing the Exchange Notes must comply
with the registration and prospectus delivery requirements of the Securities Act
of 1933, as amended, in connection with any resale transaction of the Exchange
Notes acquired by such person and cannot rely on the position of the Staff of
the Securities and Exchange Commission set forth in certain no-action letters
(See the section of the Prospectus entitled "The Exchange Offer C Resale of the
Exchange Notes"), (iv) the undersigned understands that a secondary resale
transaction described in clause (iii) above should be covered by an effective
registration statement containing the selling securityholder information
required by Item 507 of Regulation S-K of the Commission, (v) the undersigned is
not an "affiliate," as defined in Rule 405 under the Securities Act, of the
Company, (vi) if the undersigned is not a broker-dealer, that it is not
participating in, does not intend to participate in, and has no arrangement or
understanding with any person to participate in, the distribution of Exchange
Notes and (vii) if the undersigned is a broker-dealer that will receive Exchange
Notes for its own account in exchange for Private Notes that were acquired as a
result of market-making activities or other trading activities, it acknowledges
that it will deliver a prospectus meeting the requirements of the Securities Act
in connection with any resale of such Exchange Notes received in respect of such
Private Notes pursuant to the Exchange Offer; however, by so acknowledging and
by delivering a prospectus, the undersigned will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act; (b) to agree, on
behalf of the undersigned, as set forth in the Letter of Transmittal; and (c) to
take such other action as necessary under the Prospectus or the Letter of
Transmittal to effect the valid tender of Private Notes.
SIGN HERE
Name of Beneficial
Owner(s):___________________________________________________________________
Signature(s):_______________________________________________________________
Name(s) (PLEASE
PRINT):_____________________________________________________________________
Address:____________________________________________________________________
Telephone Number:___________________________________________________________
Taxpayer Identification or Social Security Number:__________________________
Date:_______________________________________________________________________
EXHIBIT 99.5
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE
THE PAYER. -- Social Security numbers have nine digits separated by two hyphens:
i.e. 000-00-0000. Employee identification numbers have nine digits separated by
only one hyphen: i.e. 00-0000000. The table below will help determine the number
to give the payer.
GIVE THE SOCIAL SECURITY
FOR THIS TYPE OF ACCOUNT: NUMBER OF-
1. An individual The individual
2. Two or more individuals (joint The actual owner of the account
account) or, if combined funds, any one of
the individuals(1)
3. Husband and wife (joint account) The actual owner of the account or,
if joint funds, either person(1)
4. Custodian account of a minor The minor(2)
(Uniform Gift to Minors Act)
5. Adult and minor (joint account) The adult or, if the minor
is the only contributor, the
minor(1)
6. Account in the name of guardian The ward, minor, or incompetent
or committee for a designated person (3)
ward, minor, or incompetent person
7. a. The usual revocable savings The grantor-trustee
trust account (grantor is also
trustee)
b. So-called trust account that
is not a legal or valid trust
under State law
GIVE THE EMPLOYER
FOR THIS TYPE OF ACCOUNT: INDENTIFICATION NUMBER OF-
8. Sole proprietorship account The Owner(4)
9. A valid trust, estate, or The Legal entity (Do not
pension trust furnish the identifying
10.Corporate account number of the personal
11.Religious, charitable, or representative or trustee
educational organization account unless the legal entity
12.Partnership account held in the itself is not designated in
name of the business the account title.)(5)
13. Association, club, or other The corporation
tax-exempt organization The organization
14. A broker or registered nominee
15. Account with the Department of The partnership
Agriculture in the name of a
public entity (such as a State The organization
or local government, school
district, or prison) that The broker or nominee
receives agricultural program The public entity
payments
<PAGE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social
security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish
such person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension
trust.
NOTE: If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and
apply for a number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments
include the following:
- - A corporation
- - A financial institution
- - An organization exempt from tax under section 501(a) or an
individual retirement plan.
- - The United States or any agency or instrumentality thereof.
- - A State, the District of Columbia, a possession of the
United States, or any subdivision or instrumentality thereof.
- - A foreign government, a political subdivision of a foreign
government, or any agency or instrumentality thereof.
- - An international organization or any agency, or
instrumentality thereof.
- - A registered dealer in securities or commodities registered
in the U.S. or a possession of the U.S.
- - A real estate investment trust.
- - A common trust fund operated by a bank under section 584(a).
- - An exempt charitable remainder trust, or a nonexempt trust
describe in section 4947(a)(1).
- - An entity registered at all times under the Investment
Company Act of 1940.
- - A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to
backup withholding include the following:
- - Payments to nonresident aliens subject to withholding under
section 1441.
- - Payments to partnerships not engaged in a trade or business
in the U.S. and which have at least one nonresident partner.
- - Payments of patronage dividends where the amount received
is not paid in money.
- - Payments made by a certain foreign organizations.
- - Payments made to a nominee.
Payments of interest not generally subject to backup withholding
include the following:
- - Payments of Interest on obligations issued by individuals.
Note: You may be subject to backup withholding if this
interest is $600 or more and is paid in the course of the
payer's trade or business and you have not provided your
correct taxpayer identification number to the payer.
- - Payments of tax-exempt interest (including exempt-interest
dividends under section 852). Payments described in section
6049(b)(5) to non-resident aliens.
- - Payments on tax-free covenant bonds under section 1451
- - Payments made by certain foreign organizations.
- - Payments made to a nominee.
Exempt Payees described above should file form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT TO
THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO
SIGN AND DATE THE FORM.
Certain payments other than interest, dividends, and patronage
dividends, that are not subject to information reporting are also not subject to
backup withholding. For details, see the regulations under sections 6041,
6041(A)(a), 6045, and 6050A.
PRIVACY ACT NOTICE. -- Section 6109 requires most recipients of dividend,
interest or other payments to give taxpayer identification numbers to payers who
must report the payments to IRS. IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file tax returns. Beginning January 1, 1993, payers must generally
withhold 31% of taxable interest, dividend, and certain other payments to a
payee who does not furnish a taxpayer identification number to a payer. Certain
penalties may also apply.
PENALTIES
(1) PENALTIES FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. -- If you
fail to furnish your taxpayer identification number to a payer, you are subject
to a penalty of $50 for each such failure unless your failure is due to a
reasonable cause and not to willful neglect.
(2) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS. -- If you fail to
include any portion of an includible payment for interest, dividends, or
patronage dividends in gross income, such failure will be treated as being due
to negligence and will be subject to a penalty of 5% on any portion of an under-
payment attributable to that failure unless there is clear and convincing
evidence to the contrary.
(3) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING -- If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION. -- Falsifying certifications
or affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX
CONSULTANT OR THE INTERNAL REVENUE SERVICE.
