1
EXHIBIT 1
XTRA, INC.
$800,000,000
Series C Medium-Term Notes
Guaranteed as to Payment of Principal,
Premium (if any) and Interest by
XTRA CORPORATION
AND
XTRA MISSOURI, INC.
DISTRIBUTION AGREEMENT
----------------------
December , 1995
--
Xxxxxxx, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Xxxxx Xxxxxx Inc.,
000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Xxxxxxxx Xxxxxxxx & Co.
Incorporated,
Equitable Center,
000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Dear Sirs:
XTRA, Inc., a Maine corporation (the "Company"), proposes to issue and
sell from time to time its Series C Medium-Term Notes, each of which shall
have the benefit of unconditional guarantees (the "Guarantees") of payment of
principal, premium, if any, and interest from XTRA Corporation, a Delaware
corporation ("XTRA"), and XTRA Missouri, Inc., a Delaware Corporation ("XTRA
Missouri", and together with XTRA, the "Guarantors") (the Guarantees, together
with the Series C Medium-Term Notes, the "Securities"), in an aggregate
principal amount up to $800,000,000 and agrees with each of you (individually
an "Agent" and collectively the "Agents") as set forth in this Agreement.
2
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell Securities directly on its own
behalf as provided in Section 2(a) hereof, the Company and the Guarantors
hereby (i) appoint each Agent as an agent of the Company and the Guarantors
for the purpose of soliciting and receiving offers to purchase Securities from
the Company and the Guarantors pursuant to Section 2(a) hereof and (ii) agree
that, except as otherwise contemplated herein, whenever they determine to sell
Securities directly to any Agent as principal, they will enter into a separate
agreement (each a "Terms Agreement"), substantially in the form of Annex I
hereto, relating to such sale in accordance with Section 2(b) hereof.
The Securities will be issued under an indenture, dated as of August 15,
1994 (the "Original Indenture"), as amended and supplemented by the First
Supplemental Indenture, dated as of September 30, 1994 (the "First Supplemental
Indenture", and together with the Original Indenture, the "Indenture"), between
the Company, XTRA and The First National Bank of Boston, as Trustee (the "Bank
of Boston") and, in the case of the First Supplemental Indenture, XTRA Missouri.
On October 2, 0000, Xxxxx Xxxxxx Bank and Trust Company (the "Trustee")
succeeded to all or substantially all of the corporate trust business of the
Bank of Boston, thereby becoming the successor Trustee purusant to the terms of
the Indenture. The Securities shall have the maturity ranges, annual interest
rates, if any, redemption provisions and other terms set forth in the Prospectus
referred to below as it may be amended or supplemented from time to time. The
Securities will be issued, and the terms and rights thereof established, from
time to time by the Company and the Guarantors in accor- dance with the
Indenture and the Administrative Procedure attached hereto as Annex II as it may
be amended from time to time by written agreement between the Agents and the
Company and the Guarantors (the "Procedure") and, if applicable, will be
specified in a related Terms Agreement.
1. The Company and the Guarantors represent and warrant to, and agree
with, each Agent that:
(a) Two registration statements on Form S-3 (Registration No. 33-54747
and No. 33-________) have been filed with the Securities and Exchange
Commission (the "Commission"); such registration statements and any
post-effective amendment thereto, each in the form heretofore delivered or
to be delivered to such Agent, excluding exhibits to such registration
statements but including all documents incorporated by reference in the
prospectus included in the later registration statement, have been declared
effective by the Commission in such form; no other document with respect
to such registration statements or document incorporated by reference
therein has heretofore been filed or transmitted for filing with the
Commission (other than the prospectuses filed pursuant to Rule 424(b) of
the rules and regulations of the Commission under the Securities Act of
1933, as amended (the "Act"), each in the form heretofore delivered to the
Agents); and no stop order suspending the effectiveness of such
registration statements has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in the later of such registration statements or filed
with the Commission pursuant to Rule 424(a) of the rules and regulations
of the Commission under the Act, being hereinafter called a "Preliminary
Prospectus"; the various parts of the later of such registration
statements, including all exhibits thereto and the documents incorporated
by reference in the prospectus contained in such registration statement at
the time such part of such registration statement became effective but
excluding Form T-1 and, if applicable, including the information contained
in the form of final prospectus filed with the Commission pursuant to Rule
-2-
3
424(b) under the Act, each as amended at the time such part of such
registration statement became effective, being hereinafter collectively
called the "Registration Statement"; the prospectus (including, if
applicable, any prospectus supplement) relating to the Securities, in the
form in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus, including any supplement to the
Prospectus that sets forth only the terms of a particular issue of the
Securities (a "Pricing Supplement"), shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated therein by reference; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement that
is incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed to
refer to and include the Prospectus as amended or supplemented (including
by the applicable Pricing Supplement filed in accordance with Section 4(a)
hereof) in relation to Securities sold pursuant to this Agreement, in the
form in which it is filed with the Commission pursuant to Rule 424(b)
under the Act and in accordance with Section 4(a) hereof, including any
documents incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus when such documents become effective or are
filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Guarantors and the Company by any Agent
expressly for use in the Prospectus as amended or supplemented to relate
to a particular issuance of Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
-3-
4
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Guarantors and the Company by any Agent expressly for use in the
Prospectus as amended or supplemented to relate to a particular issuance
of Securities;
(d) None of the Guarantors, the Company, nor any of their subsidiaries
has sustained since the date of the latest audited financial statements
included or incorporated - by reference in the Prospectus any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, except as otherwise disclosed therein there has not been any
change in the capital stock (other than issuances of capital stock
pursuant to the provisions of employee or director benefit or stock option
plans or agreements of XTRA) or any increase in excess of $50 million in
the consolidated long-term debt of the Guarantors or the Company or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Guarantors or the Company and their respective subsidiaries, otherwise
than as set forth or contemplated in the Prospectus;
(e) The Guarantors and the Company and their respective subsidiaries
have good and marketable title to all personal property owned by any of
them, in each case free and clear of all liens, encumbrances and defects
except such as are described or referred to in the Prospectus or such as
do not materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the Company
or the Guarantors and their respective subsidiaries; and any real property
and buildings held under lease by the Guarantors or the Company and their
respective subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property by
the Guarantors, the Company and their respective subsidiaries;
(f) Each of the Guarantors has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware and the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Maine, in each case, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus, and
none of them is required to be qualified as a foreign corporation for the
transaction of business under the laws of any jurisdictions in which the
consequences of a failure to qualify, individually or in the aggregate,
would have a material adverse effect on the business of the Guarantors,
the Company and their respective subsidiaries (taken as a whole); and each
subsidiary of the Guarantors and the Company has been duly incorporated
and is validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation and has been duly qualified as a foreign
corporation for
-4-
5
the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification and in which the
consequences of a failure to so qualify would have a material adverse
effect on the business of the Guarantors, the Company and their respective
subsidiaries (taken as a whole);
(g) The Guarantors and the Company each has an authorized
capitalization as set forth for it in the Prospectus, and all of the
issued and outstanding shares of capital stock of XTRA have been duly and
validly authorized and issued and are fully paid and non-assessable; all
of the issued shares of capital stock of the Company, XTRA Missouri and of
each other direct and indirect subsidiary of XTRA have been duly and
validly authorized and issued, are fully paid and nonassessable and
(except for directors' qualifying shares and except as set forth in the
Prospectus) are owned directly by XTRA or indirectly through one or more
of its subsidiaries, free and clear of all liens, encumbrances, equities
or claims;
(h) The Securities have been duly authorized, and, when issued and
delivered pursuant to the Indenture and this Agreement and any Terms
Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture enforceable in
accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; the Indenture has been duly authorized and duly qualified
under the Trust Indenture Act and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and the Indenture (including the forms of the
Guarantees) conforms and the Securities of any particular issuance of
Securities will conform to the descriptions thereof contained in the
Prospectus as amended or supplemented to relate to such issuance of
Securities;
(i) The issue and sale of the Securities, the compliance by the
Guarantors and the Company with, as applicable, all of the provisions of
the Securities, the Indenture, the Guarantees, this Agreement and any
Terms Agreement, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in (x) a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which one or both of the Guarantors or any of
their subsidiaries, including the Company, is a party or by which one or
both of the Guarantors or any of their subsidiaries, including the
Company, is bound, nor (y) will such action result in any breach or
violation of the terms or provisions of the Guarantors' Certificates of
Incorporation, as amended, the Company's Articles of Incorporation, as
amended, the Guarantors' or the Company's By-Laws or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over either or both of the Guarantors or any of their
subsidiaries, including the Company, or any of their properties, in each
case in provision (x) above the consequences of which would in any way
affect the issuance and sale of the Securities, the performance of the
Guarantees, the performance of this Agreement or the transactions
contemplated hereby or the performance of the provisions of the
-5-
6
Indenture, or otherwise have, individually or in the aggregate, a
material adverse effect on the business of the Guarantors and their
subsidiaries, including the Company (taken as a whole); and no consent,
approval, authorization, order, registration or qualification of or with
any court or governmental agency or body is required for the solicitation
of offers to purchase Securities and the issue and sale of the Securities,
the consummation by the Guarantors or the Company of the other
transactions contemplated by this Agreement, any Terms Agreement, the
Indenture or the Guarantees, except such as have been, or will have been
prior to the Commencement Date (as defined in Section 3 hereof), obtained
under the Act or the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the solicitation by
the Agents of offers to purchase Securities from the Company and the
Guarantors and with purchases of Securities by the Agents as principal, as
the case may be, in each case in the manner contemplated hereby;
(j) There are no legal or governmental proceedings pending to which
the Guarantors or any of their subsidiaries, including the Company, is a
party or to which any property of the Guarantors or any of their
subsidiaries, including the Company, is subject (other than as set forth
or contemplated in the Prospectus and other than litigation incident to the
kind of business conducted by the Guarantors and their subsidiaries,
including the Company), which, if determined adversely to the Guarantors
or their subsidiaries, including the Company, would individually or in the
aggregate have a material adverse effect on the consolidated financial
position, stockholders' equity or annual results of operations of the
Guarantors and their subsidiaries, including the Company (taken as a
whole); and, to the best of the Guarantors' knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened
by others;
(k) The accountants who have certified the financial statements of the
Guarantors and their subsidiaries, including the Company, included in the
Registration Statement are independent public accountants as required by
the Act and the rules and regulations of the Commission thereunder; and
(l) Immediately after the settlement of any sale of Securities by the
Company and the Guarantors resulting from solicitation by the Agents
hereunder and immediately after any Time of Delivery, as defined in
Section 2(b), relating to a sale under a Terms Agreement, the aggregate
amount of Securities which shall have been issued and sold by the Company
and the Guarantors hereunder or under any Terms Agreement and of any debt
securities of the Company or guarantees of the Guarantors (other than such
Securities) that shall have been issued and sold pursuant to the
Registration Statement will not exceed the amount of debt securities or
guarantees, as the case may be, registered under the Registration
Statement or registered under the earlier registration statement
(Registration No. 33-54747) referred to in paragraph (a) of this Section to
which the Prospectus also relates pursuant to Rule 429 under the Act.
2. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, each of
the Agents hereby severally and not jointly agrees, as agent of the Company
and the Guarantors, to use its reasonable efforts when requested by the
Company to solicit and receive offers to purchase the Securities from
-6-
7
the Company upon the terms and conditions set forth in the Prospectus
as amended or supplemented from time to time. So long as this Agreement shall
remain in effect, neither the Company nor the Guarantors shall, without the
consent of the Agents, solicit or accept offers to purchase, or sell or
guarantee, any debt securities with a maturity at the time of original issuance
greater than or equal to 9 months and less than or equal to 30 years, except as
contemplated hereby or in any Terms Agreement. The Guarantors and the Company
may, subject to Section 1(d), enter into any revolving credit and/or term loan
agreements with commercial banking institutions and loans from insurance
companies (provided that such loans shall not consist of Securities). The
Company reserves the right to sell, and may solicit and accept offers to
purchase, Securities directly on its own behalf; provided, however, that if at
the time of any such sales the Agents are posting terms and conditions for the
purchase and sale of the Securities, such sales shall be on substantially the
same terms and conditions as then posted by the Agents; provided further, that
in the case of any such sales not resulting from a solicitation made by any
Agent, no commission shall be payable with respect to such sales. Each Agent
also acknowledges and agrees that the Company may accept (but not solicit)
offers to purchase Securities through additional agents, and may appoint
another agent, or agents, to solicit offers to purchase the Notes, provided
that such additional agent or agents shall be engaged on terms substantially
similar to the applicable terms of this Agreement (except that commissions
payable to such agent or agents shall be identical to those set forth in the
commission schedule in this Section 2(a)).
The Company and the Guarantors reserve the right, in their sole
discretion, to instruct the Agents to suspend at any time, for any period of
time or permanently, the solicitation of offers to purchase the Securities.
As soon as practicable, but in any event not later than one business day in
New York City after receipt of notice from the Company and the Guarantors, the
Agents will suspend solicitation of offers to purchase Securities from the
Company and the Guarantors until such time as the Company and the Guarantors
have advised the Agents that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Company and the Guarantors as a
result of a solicitation made by such Agent, in an amount equal to the
following applicable percentage of the principal amount of such Security sold:
Commission (percentage of
aggregate principal amount
of Securities sold)
---------------------------
Range of Maturities Split Rated Investment Grade
------------------- ----------- ----------------
From 9 months to less than 1 year .150% .125%
From 1 year to less than 18 months .200% .150%
From 18 months to less than 2 years .250% .200%
From 2 years to less than 3 years .350% .250%
From 3 years to less than 4 years .450% .350%
-7-
8
Commission (percentage of
aggregate principal amount
of Securities sold)
---------------------------
Range of Maturities Split Rated Investment Grade
------------------- ----------- ----------------
From 4 years to less than 5 years .550% .450%
From 5 years to less than 6 years .600% .500%
From 6 years to less than 7 years .600% .550%
From 7 years to less than 10 years .700% .600%
From 10 years to less than 15 years .800% .625%
From 15 years to less than 20 years .875% .675%
From 20 years to 30 years 1.000% .750%
For purposes of the foregoing, the "Investment Grade" commission
schedule applies if the Notes are rated BBB- or better by Standard & Poor's
Corporation and Baa3 or better by Moody's Investors Corporation; the "Split
Rated" commission schedule applies if the Notes are so rated by one, but not
both, of such rating agencies.
Each of the Agents is authorized to solicit offers to purchase the
Securities only in denominations of $100,000 or any amount in excess thereof
that is an integral multiple of $1,000 at a purchase price equal to 100% of
their principal amount. Each Agent shall communicate to the Company, orally
or in writing, each reasonable offer to purchase Securities received by it as
Agent other than those rejected by such Agent. The Company shall have the sole
right to accept offers to purchase Securities and may reject any proposed
purchase of Securities as a whole or in part. Each Agent shall have the right,
in its discretion reasonably exercised, to reject any offer received by it to
purchase Securities, as a whole or in part, and any such rejection by it shall
not be deemed a breach of its agreements contained herein.
(b) Each sale of Securities to any Agent as principal shall be made in
accordance with the terms of this Agreement and (unless the Company and such
Agent shall otherwise agree) a Terms Agreement which will provide for the sale
of such Securities to, and the purchase thereof by, such Agent. A Terms
Agreement may also specify certain provisions relating to the reoffering of
such Securities by such Agent. The commitment of any Agent to purchase
Securities pursuant to any Terms Agreement shall be deemed to have been made on
the basis of the representations and warranties of the Company and the
Guarantors herein contained and shall be subject to the terms and conditions
herein set forth. Each Terms Agreement shall specify the principal amount of
Securities to be purchased by any Agent pursuant thereto, the price to be paid
to the Company for such Securities, any provisions relating to rights of, and
default by, underwriters acting together with such Agent in the reoffering of
the Securities and the time and date and place of delivery of and payment for
such Securities. Such Terms Agreement shall also specify any requirements for
opinions of counsel, accountants' letters and officers' certificates pursuant
to Section 4 hereof.
-8-
9
For each sale of Securities to an Agent as principal that is not made
pursuant to a Terms Agreement, the Company agrees to pay such Agent a
commission (or grant an equivalent discount) as provided in Section 2(a)
hereof and in accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities to be
purchased by an Agent as principal, whether set forth in a Terms Agreement or
in accordance with the Procedure, is referred to herein as a "Time of
Delivery".
(c) Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase Securities and the payment
in each case therefor shall be as set forth in the Procedure. The provisions
of the Procedure shall apply to all transactions contemplated hereunder other
than those made pursuant to a Terms Agreement. Each Agent, the Guarantors and
the Company agree to perform the respective duties and obligations
specifically provided to be performed by each of them in the Procedure. The
Company and the Guarantors will furnish to the Trustee a copy of the Procedure
as from time to time in effect.
3. The documents required to be delivered pursuant to Section 6 hereof
on the Commencement Date (as defined below) shall be delivered to the Agents
at the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at
2:00 p.m., New York City time, on the date of this Agreement, which date and
time of such delivery may be postponed by agreement between the Agents and the
Company and XTRA but in no event shall be later than the day prior to the date
on which solicitation of offers to purchase Securities is commenced or on
which any Terms Agreement is executed (such time and date being referred to
herein as the "Commencement Date").
4. The Company and the Guarantors covenant and agree with each Agent:
(a) (i) To prepare the Prospectus, as amended and supplemented, in a
form approved by such Agent and (A) to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's close of business on the
second business day following the acceptance of an offer to purchase a
Security (as described in the Procedure pursuant to Section 2(c) of this
Agreement) or (B) to file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission's close of business on the second business
day following the execution and delivery of the Terms Agreement relating to
the Purchased Securities (as defined therein); (ii) to make no amendment or
supplement to the Registration Statement or the Prospectus (A) prior to the
Commencement Date which shall be disapproved by any Agent promptly after
reasonable notice thereof or (B) after the date of any Terms Agreement or
other agreement by an Agent to purchase Securities as principal and prior to
the related Time of Delivery which shall be disapproved by any Agent party to
such Terms Agreement or so purchasing as principal promptly after reasonable
notice thereof, in each case such approval not to be unreasonably withheld or
delayed; (iii) to make no such amendment or supplement, other than a Pricing
Supplement, at any other time prior to having afforded each Agent a reasonable
opportunity to review and comment thereon; (iv) to file promptly all reports
and any definitive proxy or information statements required to be filed by one
or both of the Guarantors or the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or sale
of the Securities, and during such same period to advise such
-9-
10
Agent, promptly after one or both of the Guarantors or the Company
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or has become effective or any supplement to the
Prospectus or any amended Prospectus (other than any Pricing Supplement that
relates to Securities not purchased through or by such Agent) has been filed
with the Commission, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating to the
Securities, of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for the
amendment or supplement of the Registration Statement or Prospectus or for
additional information; and (v) in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of any such
prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as such Agent may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as such Agent may request and to comply
with such laws so as to permit the continuance of sales and dealings therein
for as long as may be necessary to complete the distribution or sale of the
Securities; provided, however, that in connection therewith none of the
Company, XTRA or XTRA Missouri shall be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) To furnish each Agent with copies of the Registration Statement
and each amendment thereto, and with copies of the Prospectus as each time
amended or supplemented, other than any Pricing Supplement (except as
provided in the Procedure), in the form in which it is filed with the
Commission pursuant to Rule 424 under the Act, both in such quantities as such
Agent may reasonably request from time to time; and, if the delivery of a
prospectus is required at any time in connection with the offering or sale of
the Securities (including Securities purchased from the Company and the
Guarantors by such Agent as principal) and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to file under
the Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act, to
notify such Agent and request such Agent, in its capacity as agent of the
Company and the Guarantors, to suspend solicitation of offers to purchase
Securities from the Company and the Guarantors and, if so notified, such Agent
shall cease such solicitations as soon as practicable, but in any event not
later than one business day later; and if the Company or the Guarantors shall
decide to amend or supplement the Registration Statement or the Prospectus as
then amended or supplemented, to so advise such Agent promptly by telephone
(with confirmation in writing) and to prepare and cause to be filed promptly
with the Commission an amendment or supplement to the Registration Statement
or the Prospectus as then amended or supplemented that will correct such
statement or omission or effect such compliance; provided, however, that if
during such same period such Agent continues to own Securities purchased from
the Company and the Guarantors by such Agent as principal, the Company and the
Guarantors shall promptly prepare and file with the Commission such an
amendment or supplement;
-10-
11
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of XTRA and its subsidiaries, including the
Company and XTRA Missouri (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) So long as any Securities are outstanding, to furnish to such
Agent copies of all reports or other communications (financial or other)
furnished to stockholders, and deliver to such Agent (i) as soon as they are
available, copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange on which any
class of securities of the Guarantors or the Company is listed; and (ii) such
additional information concerning the business and financial condition of the
Guarantors and the Company as such Agent may from time to time reasonably
request (such financial statements to be on a consolidated basis to the extent
the accounts of the Guarantors and their subsidiaries, including the Company,
are consolidated in reports furnished to their stockholders generally or to
the Commission but including such detail concerning the business and financial
condition of the Company and its subsidiaries as the Agents may reasonably
request);
(f) That, from the date of any Terms Agreement and continuing to and
including the earlier of (i) the termination of the trading restrictions for the
Securities purchased thereunder, as notified to the Company or XTRA by the
Agents and (ii) the related Time of Delivery, none of the Company or the
Guarantors will, without the prior written consent of such Agent, offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company or
either of the Guarantors which mature more than nine months after such Time of
Delivery and which are substantially similar to the Securities;
(g) That each acceptance by the Company and the Guarantors of an offer
to purchase Securities hereunder, and each execution and delivery by the Company
and the Guarantors of a Terms Agreement with such Agent, shall be deemed to be
an affirmation to such Agent that the representations and warranties of the
Company and the Guarantors contained in or made pursuant to this Agreement are
true and correct as of the date of such acceptance or of such Terms Agreement,
as the case may be, as though made at and as of such date, and an undertaking
that such representations and warranties will be true and correct as of the
settlement date for the Securities relating to such acceptance or as of the Time
of Delivery relating to such sale, as the case may be, as though made at and as
of such date (except that such representations and warranties shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented relating to such Securities);
(h) That reasonably in advance of each time the Registration Statement
or the Prospectus shall be amended or supplemented (other than by a Pricing
Supplement) and each time a document filed under the Act or the Exchange Act
is incorporated by reference into the Prospectus, and each time the Company
and the Guarantors sell Securities to such Agent as principal pursuant to a
Terms Agreement and such Terms Agreement specifies the delivery of an opinion
or opinions by Xxxxxxxx & Xxxxxxxx, counsel to the Agents, as a condition to
the purchase of Securities pursuant to such Terms Agreement, the Company and
the Guarantors shall furnish to such counsel such papers and information as
they may reasonably request to
-11-
12
enable them to furnish to such Agent the opinion or opinions referred to in
Section 6(b) hereof;
(i) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), each time a
document filed under the Act or the Exchange Act is incorporated by reference
into the Prospectus, and each time the Company and the Guarantors sell
Securities to such Agent as principal pursuant to a Terms Agreement and such
Terms Agreement specifies the delivery of an opinion under this Section 4(i)
as a condition to the purchase of Securities pursuant to such Terms Agreement,
the Company and the Guarantors shall furnish or cause to be furnished
forthwith to such Agent a written opinion of Ropes & Xxxx, counsel for the
Company and the Guarantors, or other counsel for the Company and the
Guarantors satisfactory to such Agent, and of Xxxxx X. Xxxxxx, general counsel
for the Company and the Guarantors, respectively dated the date of such
amendment, supplement, incorporation or Time of Delivery relating to such sale,
as the case may be, in form satisfactory to such Agent, in each case to the
effect that such Agent may rely on the opinion of such counsel referred to in
Section 6(c) and Section 6(d), respectively, hereof which was last furnished
to the Agents to the same extent as though it were dated the date of such
letter authorizing reliance (except that the statements in such last opinion
shall be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date) or, in lieu of such opinion, an opinion
of the same tenor as the opinion referred to in Section 6(c) and Section 6(d),
respectively, hereof but modified to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date;
(j) That each time the Registration Statement or the Prospectus shall
be amended or supplemented and each time that a document filed under the Act or
the Exchange Act is incorporated by reference into the Prospectus, in either
case to set forth financial information included in or derived from XTRA's
consolidated financial statements or one of the Guarantors' or the Company's
accounting records, and each time the Company and the Guarantors sell Securities
to an Agent as principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of a letter under this Section 4(j) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the Company and the
Guarantors shall cause the independent certified public accountants who have
certified the financial statements of XTRA and its direct and indirect
subsidiaries, including XTRA Missouri and the Company, included or incorporated
by reference in the Registration Statement forthwith to furnish such Agent a
letter dated the date of such amendment, supplement, incorporation or Time of
Delivery relating to such sale, as the case may be, in form satisfactory to such
Agent, of the same tenor as the letter referred to in Section 6(e)(i) hereof but
modified to relate to the Registration Statement and the Prospectus as amended
or supplemented to the date of such letter, with such changes as may be
necessary to reflect changes in the financial statements and other information
derived from the accounting records of the Guarantors and the Company, to the
extent such financial statements and other information are available as of a
date not more than five business days prior to the date of such letter;
provided, however, that, with respect to any financial information or other
matter, such letter may reconfirm as true and correct at such date as though
made at and as of such date, rather than repeat, statements with respect to such
financial information or other matter made in the letter referred to in Section
6(e)(i) hereof which was last furnished to such Agent; provided further, that,
as long as the financial statements of Xxxxxx Leasing Company, Inc. and its
subsidiaries are required to be incorporated by reference in the Registration
Statement, each time XTRA shall file an annual report on Form 10-K under the
Exchange Act, the Company and the Guarantors shall also cause the independent
public accountants who have certified the financial statements of Xxxxxx Leasing
Company, Inc. and its subsidiaries incorporated by reference in the Registration
Statement forthwith to furnish to the Agents a letter, dated the date of such
filing, in form satisfactory to the Agents, of the same tenor as the letter
referred to in Section 6(e)(ii) hereof but modified to relate to the
Registration Statement and the Prospectus as amended or supplemented to the date
of such letter;
-12-
13
(k) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), each time a
document filed under the Act or the Exchange Act is incorporated by reference
into the Prospectus and each time the Company and the Guarantors sell
Securities to such Agent as principal pursuant to a Terms Agreement and such
Terms Agreement specifies the delivery of a certificate under this Section
4(k) as a condition to the purchase of Securities pursuant to such Terms
Agreement, the Company and the Guarantors shall furnish or cause to be
furnished forthwith to such Agent a certificate or certificates, dated the
date of such supplement, amendment, incorporation or Time of Delivery
relating to such sale, as the case may be, in such form and executed by such
officers of the Company and the Guarantors as shall be satisfactory to such
Agent, to the effect that the statements contained in the certificate or
certificates referred to in Section 6(h) hereof which was last furnished to
such Agent are true and correct at such date as though made at and as of such
date (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date) or, in lieu of such certificate, certificates of the same tenor as the
certificates referred to in said Section 6(h) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date; and
(l) To offer to any person who has agreed to purchase Securities as
the result of an offer to purchase solicited by the Agents the right to refuse
to purchase and pay for such Securities if, on the related settlement date
fixed pursuant to the Procedure, any condition set forth in any of Section
6(a)(i), 6(f)(x) and (z) or 6(g) hereof shall not have been satisfied (it
being understood that the judgment of such person with respect to the
impracticability or inadvisability of such purchase of Securities shall be
substituted, for purposes of this Section 4(l), for the respective judgments
referred to therein of such Agent with respect to certain matters referred to
in such Sections 6(a)(i), 6(f)(x) and (z) and 6(g), and that such Agent shall
have no duty or obligation whatsoever to exercise the judgment permitted under
such Sections 6(a)(i), 6(f)(x) and (z) and 6(g) on behalf of any such person).
5. The Company and the Guarantors covenant and agree with each Agent
that the Company and the Guarantors will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's and
Guarantors' counsel and accountants in connection with the registration of the
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus, the Prospectus and any Pricing Supplements and all
other amendments and supplements thereto and the mailing and delivering of
copies thereof to such Agent; (ii) the fees and expenses of counsel for the
Agents in connection with the establishment of the program contemplated hereby
and the transactions contemplated hereunder; (iii) the out-of-pocket expenses
of the Agents; (iv) the cost of printing, producing or reproducing this
Agreement, any Terms Agreement, any Indenture (including any supplement
thereto), any Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(v) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 4(b)
hereof, including the fees and disbursements of counsel for the Agents in
connection with such qualification and in
-13-
14
connection with the Blue Sky and legal investment surveys; (vi) any fees
charged by securities rating services for rating the Securities; (vii) any
filing fees incident to any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities; (viii)
the cost of preparing the Securities; (ix) the fees and expenses of any Trustee
and any agent of any Trustee and any transfer or paying agent of the Company
and the fees and disbursements of counsel for any Trustee or such agent in
connection with any Indenture and the Securities; (x) any advertising expenses
connected with the solicitation of offers to purchase and the sale of
Securities so long as such advertising expenses have been approved by the
Company or the Guarantors; and (xi) all other costs and expenses incident to
the performance of the Company's or the Guarantors' obligations hereunder which
are not otherwise specifically provided for in this Section. It is understood,
however, that except as provided in this Section and Sections 7 and 8 hereof,
each Agent will pay all other costs and expenses it incurs.
6. The obligation of any Agent, as agent of the Company and the
Guarantors, at any time ("Solicitation Time") to solicit offers to purchase
the Securities and the obligation of such Agent to purchase Securities as
principal pursuant to any Terms Agreement shall in each case be subject, in
such Agent's discretion, (i) to the condition that all representations and
warranties and other statements of the Company and the Guarantors herein
(and, in the case of an obligation of an Agent under a Terms Agreement, in or
incorporated by reference in such Terms Agreement) are true and correct (a) at
and as of the Commencement Date and (b) any applicable date referred to in
Section 4(k) hereof that is after such Commencement Date and prior to such
Solicitation Time or Time of Delivery, as the case may be, and (c) at and as of
such Solicitation Time or Time of Delivery, as the case may be, and (ii) the
condition that at or prior to such Solicitation Time or Time of Delivery, as
the case may be, the Company and the Guarantors shall have performed all of
their obligations hereunder theretofore to be performed and the following
additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the Prospectus as
amended or supplemented (including the Pricing Supplement) with respect to
such Securities shall have been filed with the Commission pursuant to Rule
424(b) under the Act within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Sec-
tion 4(a) hereof; (ii) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and (iii)
all requests for additional information on the part of the Commission shall
have been complied with to the reasonable satisfaction of such Agent;
(b) Xxxxxxxx & Xxxxxxxx, counsel to the Agents, shall have furnished
to such Agent (i) such opinion or opinions, dated the Commencement Date, with
respect to the incorporation of the Company and the Guarantors, the validity
of the Indenture, the Securities, the Registration Statement, the Prospectus
as amended or supplemented and other related matters as such Agent may
reasonably request, and (ii) if and to the extent requested by such Agent,
with respect to each applicable date referred to in Section 4(h) hereof that is
on or prior to such Solicitation Time or Time of Delivery, as the case may be,
an opinion or opinions, dated such applicable date, to the effect that such
Agent may rely on the opinion or opinions which were last furnished to such
Agent pursuant to this Section 6(b) to the same extent as though it or they
were dated the date of such letter authorizing reliance (except that the
statements
-14-
15
in such last opinion or opinions shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date) or, in any case, in lieu of such an opinion or opinions, an opinion or
opinions of the same tenor as the opinion or opinions referred to in clause
(i) but modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date; and in each case such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters (including an opinion of Pierce, Atwood,
Scribner, Allen, Xxxxx & Lancaster or other counsel satisfactory to the Agents
in respect of matters of Maine law);
(c) Ropes & Xxxx, counsel for the Company and the Guarantors, or other
counsel for the Company and the Guarantors satisfactory to such Agent, shall
have furnished to such Agent their written opinions, dated the Commencement
Date and each applicable date referred to in Section 4(i) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may be, in
form and substance satisfactory to such Agent to the effect that:
(i) Each of the Guarantors has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware and the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Maine, in each case, with corporate power to own its properties and
conduct its business as described in the Prospectus (such counsel being
entitled to rely upon an opinion of Pierce, Atwood, Scribner, Allen, Xxxxx
& Lancaster or other counsel satisfactory to the Agents in respect of
matters of Maine law, provided such counsel shall state that he believes
both the Agents and such counsel are justified in relying upon such
opinion);
(ii) XTRA has an authorized capitalization as set forth for it in the
Prospectus as amended or supplemented and all of the issued and
outstanding shares of capital stock of XTRA have been duly authorized and
validly issued and are fully paid and non-assessable;
(iii) This Agreement and any applicable Terms Agreement have been duly
authorized, executed and delivered by the Company;
(iv) The Securities have been duly authorized and, when duly executed,
authenticated, and issued in accordance with the Indenture and delivered
by the Company and paid for in accordance with the terms hereof, will
constitute valid and legally binding obligations of the Company and the
Guarantors, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles, entitled to the benefits provided by the Indenture and
the Guarantees;
(v) The Original Indenture has been duly authorized, executed and
delivered by the Company and XTRA and the First Supplemental Indenture has
been duly authorized, executed and delivered by the Company and the
Guarantors, and the Indenture constitutes a valid and legally binding
instrument of the Company and the Guarantors, enforceable against each of
them in accordance with its terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting
-15-
16
creditors' rights and to general equity principles; and the Indenture has
been duly qualified under the Trust Indenture Act;
(vi) Each Guarantee, when executed and delivered pursuant to the
Indenture, will have been duly authorized, executed and delivered by the
applicable Guarantor and will constitute a valid and legally binding
instrument of such Guarantor, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
(vii) The Indenture, the Securities and the forms of the Guarantees
conform to the descriptions thereof in the Prospectus as amended or
supplemented;
(viii) The issue and sale of the Securities, the compliance by the
Company and the Guarantors with, as applicable, all of the provisions of
the Securities, the Indenture, the Guarantees, this Agreement and any
applicable Terms Agreement, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of any statutes, the
Company's Articles of Incorporation, as amended, the Guarantors'
Certificates of Incorporation, as amended, or the By-Laws or any order,
rule or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or one or both of the
Guarantors or any of their properties (it being understood that counsel's
opinion need only cover federal, Massachusetts and the Delaware business
corporation law);
(ix) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the solicitation of offers to purchase Securities and the
issue and sale of the Securities, the consummation by the Company or the
Guarantors of the other transactions contemplated by this Agreement, any
applicable Terms Agreement, or the Indenture or the Guarantees, except such
as have been obtained under the Act and the Trust Indenture Act and such
as may be required under state securities or Blue Sky laws in connection
with the solicitation by the Agents of offers to purchase Securities from
the Company and the Guarantors and with purchases of Securities by the
Agents as principal, as the case may be, in each case in the manner
contemplated hereby (it being understood that counsel's opinion need only
cover federal, Massachusetts and the Delaware business corporation law);
(x) The Registration Statement and the Prospectus and any amendments
and supplements thereto made by one or both Guarantors or the Company
prior to the date of such opinion (other than the financial statements
including the notes and schedules thereto, any financial data set forth or
referred to in the Registration Statement or the Prospectus or any
statements or omissions made by the Guarantors and the Company in reliance
upon information furnished in writing to the Guarantors and the Company by
the Agents in connection with the Registration Statement or Prospectus, as
to which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the Trust Indenture
Act and the rules and regulations thereunder; such counsel do not know of
any legal or governmental proceedings to which the Guarantors or any of
their subsidiaries, including the Company, is a party or of which any
-16-
17
of their property is the subject required to be described in the Prospectus
which are not described as required therein; such counsel have no reason
to believe that, as of the effective date of the Registration Statement,
either the Registration Statement or the Prospectus (or, as of its date,
any amendment or supplement thereto made by the Guarantors or the Company
prior to the date of such opinion) (other than the financial statements
including the notes and schedules thereto, any financial data set forth or
referred to in the Registration Statement or the Prospectus or any
statements or omissions made by the Guarantors and the Company in
reliance upon information furnished in writing to the Guarantors and the
Company by the Agents in connection with the Registration Statement or
Prospectus, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that, as of the date of such opinion, either the
Registration Statement or the Prospectus (or any such amendment or
supplement thereto) contained as of its date or contains an untrue
statement of a material fact or omits to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading (in the case of any such opinion as of such date, in light of
the circumstances under which they were made, and in each case excluding
any statement in any such document which does not constitute part of the
Registration Statement or the Prospectus pursuant to Rule 412 of
Regulation C under the Act), or that as of the date of such opinion it is
necessary to amend or supplement the Registration Statement or Prospectus,
except to file Pricing Supplements pursuant to Rule 424(b) under the Act;
and they do not know of any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration Statement or
the Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required;
(d) Xxxxx X. Xxxxxx, general counsel for the Guarantors and the
Company, shall have furnished to the Agents his written opinions, dated the
Commencement Date and each applicable date referred to in Section 4(i) that
is on or prior to such Solicitation Time or Time of Delivery, as the case
may be, in form and substance satisfactory to the Agents, to the effect set
forth in subsection (x) of Section 6(c) above and, additionally, as
follows:
(i) None of the Guarantors or the Company is required to be qualified
as a foreign corporation under the laws of any jurisdictions in which the
consequences of a failure to so qualify, individually or in the aggregate,
would have a material adverse effect on the business of the Guarantors or
the Company and their respective subsidiaries (in each case taken as a
whole);
(ii) Each of X-L-Co., Inc., Distribution International Corporation,
Xxxxxx Canada Limited, XTRA Intermodal, Inc., XTRA International, Inc.,
XLI, Inc. and XTRA Lease, Inc. has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification and in which
the consequences of a failure to so qualify would have a material adverse
effect on the business of one or both of the Guarantors
-17-
18
or the Company and their respective subsidiaries (in each case taken as a
whole); and all of the issued shares of capital stock of the Company and
XTRA Missouri, and of each of their subsidiaries have been duly and
validly authorized and issued, are fully paid and non-assessable, and
(except for directors' qualifying shares and except as otherwise set forth
in the Prospectus) are owned directly by XTRA (in the case of XTRA
Missouri), XTRA Missouri (in the case of the Company) or the Company or
indirectly through one or more subsidiaries, free and clear, to the best
of such counsel's knowledge, of all liens, encumbrances, equities or
claims (such counsel being entitled to rely in respect of the opinion in
this clause upon opinions of local counsel and in respect of matters of
fact upon certificates of officers of XTRA or its direct or indirect
subsidiaries, including XTRA Missouri and the Company, provided that such
counsel shall state that he believes that both you and he are justified in
relying upon such opinions and certificates);
(iii) To the best of such counsel's knowledge there are no legal or
governmental proceedings pending to which the Guarantors or any of their
subsidiaries, including the Company, is a party or of which any property
of the Guarantors or any of their subsidiaries, including the Company, is
the subject, other than as set forth in the Prospectus and other than
litigation incident to the kind of business conducted by the Guarantors
and their subsidiaries, including the Company, which individually and in
the aggregate is not material to the Guarantors and their subsidiaries,
including the Company; and to the best of such counsel's knowledge no such
proceedings are threatened by governmental authorities or others;
(iv) The issue and sale of the Securities, the compliance by the
Guarantors and the Company with, as applicable, all of the provisions of
the Securities, the Indenture, the Guarantees, this Agreement and any
applicable Terms Agreement, and consummation of the transactions herein
and therein contemplated will not result in (x) a breach or violation of
any of the terms or provisions of any statute, the Guarantors' Certificates
of Incorporation, the Company's Articles of Incorporation, the Company's or
the Guarantors' By-laws, or any order, rule or regulation known to such
counsel of any court or governmental agency or body having jurisdiction
over either of the Guarantors or the Company or any of their respective
subsidiaries or any of their properties or (y) a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Guarantors or any of their
subsidiaries, including the Company, is a party or by which the Guarantors
or any of their subsidiaries, including the Company, is bound, in each
case in this provision (y) the consequences of which would in any way
affect the issuance and sale of the Securities (including the Guarantees),
the performance of this Agreement or the transactions contemplated hereby
or the Guarantees, or otherwise, individually or in the aggregate, have a
material adverse effect on the business of the Guarantors or the Company
and their respective subsidiaries (in each case taken as a whole);
(v) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the solicitation of offers to purchase Securities, the issue
and sale of the Securities, the compliance by the Guarantors or the
Company with all the provisions of the Securities, the consummation by the
Guarantors or the Company of the transactions contemplated by this
Agreement,
-18-
19
any applicable Terms Agreement or the Indenture or the Guarantees, except
such as have been obtained under the Act and such as may be required under
state securities or Blue Sky laws in connection with the solicitation by
the Agents of offers to purchase securities from the Company and with
purchases of Securities by the Agents as principal, as the case may be, in
each case in the manner contemplated hereby;
(vi) The documents incorporated by reference in the Prospectus (other
than the financial statements, including the notes and schedules thereto,
or any financial data set forth or referred to therein, as to which such
counsel need express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or Exchange Act, as
applicable, and the published rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that any of such
documents (other than the financial statements, including the notes
thereto or any financial data set forth or referred to therein, as to
which such counsel need express no opinion), when they became effective or
were so filed, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed, not
misleading;
(e) Not later than 10:00 a.m., New York City time, (i) on the
Commencement Date and on each applicable date referred to in Section 4(j)
hereof that is on or prior to such Solicitation Time or Time of Delivery, as
the case may be, the independent certified public accountants who have
certified the financial statements of XTRA and its direct and indirect
subsidiaries, including XTRA Missouri and the Company, included or incorporated
by reference in the Registration Statement shall have furnished to such Agent a
letter, dated the Commencement Date or such applicable date, as the case may
be, in form and substance satisfactory to such Agent, to the effect set forth
in Annex III hereto and (iii) on the Commencement Date and on each applicable
date on which the letter referred to in this clause (ii) is specifically
required by Section 4(j) hereof, that is on or prior to such Solicitation Time
or Time of Delivery, as the case may be, the independent certified public
accountants who have certified the financial statements of Xxxxxx Leasing
Company, Inc., incorporated by reference in the Registration Statement shall
have furnished to such Agent a letter dated the Commencement Date, or such
applicable date, as the case may be, in form and substance satisfactory to such
Agent, to the effect set forth in Annex IV hereto;
(f) (i) Neither the Guarantors nor any of their subsidiaries,
including the Company, shall have sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus as amended or supplemented any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented and (ii) since the respective dates as of which such
information is given in the Prospectus as amended or supplemented there shall
not have been (x) any change in the capital stock (other than issuances of
capital stock pursuant to the provisions of employee or director benefit or
stock option plans or agreements of XTRA) or (y) any increase in excess of $50
million in the long-term debt of the Guarantors or any of their subsidiaries,
including the Company, or (z) any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Guarantors and
their subsidiaries, including the Company, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented the effect of
-19-
20
which, in any such case described in clause (i) or (ii), is in the
judgment of the Agents so material and adverse as to make it impracticable or
inadvisable to proceed with the solicitation by the Agents of offers to
purchase Securities from the Guarantors and the Company or the purchase by the
Agents of Securities from the Guarantors and the Company as principal, as the
case may be;
(g) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the
New York Stock Exchange; (ii) a general moratorium on commercial banking
activities in New York declared by either federal or New York State
authorities; (iii) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency
or war if the effect of any such event specified in this clause (iii) in the
judgment of the Agents makes it impracticable or inadvisable to proceed with
the solicitation of offers to purchase Securities or the purchase of
Securities from the Guarantors and the Company as principal pursuant to the
applicable Terms Agreement, as the case may be; or (iv) any downgrading in the
rating accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act; or (v) any such "nationally
recognized statistical rating organization" shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities; and
(h) The Guarantors and the Company shall have furnished or caused to
be furnished to such Agent certificates of officers of the Guarantors and the
Company dated the Commencement Date and each applicable date referred to in
Section 4(k) that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, in such form and executed by such officers of
the Guarantors and the Company as shall be satisfactory to such Agent, as to
the accuracy of the representations and warranties of the Guarantors and the
Company herein at and as of the Commencement Date or such applicable date, as
the case may be, as to the performance by the Guarantors and the Company of
all of its obligations hereunder to be performed at or prior to the
Commencement Date or such applicable date, as the case may be, as to the
matters set forth in subsections (a) and (f) of this Section 6, and as to such
other matters as such Agent may reasonably request.
7. (a) The Guarantors and the Company will, jointly and severally,
indemnify and hold harmless each Agent against any losses, claims, damages or
liabilities, joint or several, to which such Agent may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse such Agent for any legal or other expenses
reasonably incurred by it in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that
the Guarantors and Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the
-20-
21
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Guarantors and Company by
any such Agent expressly for use in the Prospectus as amended or supplemented.
(b) Each Agent will indemnify and hold harmless the Guarantors and the
Company against any losses, claims, damages or liabilities to which the
Guarantors and the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Guarantors and the Company
by such Agent expressly for use therein; and will reimburse the Guarantors and
the Company for any legal or other expenses reasonably incurred by the
Guarantors and the Company in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Guarantors and the Company on
the one hand and each Agent on the other from the offering of the
-21-
22
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Guarantors and the
Company on the one hand and each Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Guarantors and
the Company on the one hand and each Agent on the other shall be deemed to be
in the same proportion as the total net proceeds from the sale of Securities
(before deducting expenses) received by the Company bear to the total
commissions or discounts received by such Agent in respect thereof. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading
relates to information supplied by the Guarantors or the Company on the one
hand or by any Agent on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Guarantors and the Company and each Agent agrees that it would
not be just and equitable if contribution pursuant to this subsection (d) were
determined by per capita allocation (even if the Agents were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), an Agent shall not be required to
contribute any amount in excess of the amount by which the total public
offering price of the Securities purchased by or through it exceeds the amount
of any damages which such Agent has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligations of each of
the Agents under this subsection (d) to contribute are several in proportion to
the respective purchases made by or through it to which such loss, claim,
damage or liability (or action in respect thereof) relates and are not joint.
(e) The obligations of the Guarantors and the Company under this
Section 7 shall be in addition to any liability which the Guarantors and the
Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Agent within the meaning
of the Act; and the obligations of each Agent under this Section 7 shall be in
addition to any liability which such Agent may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the
Guarantors and the Company and to each person, if any, who controls the
Guarantors or the Company within the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the
Company and the Guarantors and in performing the other obligations of such
Agent hereunder (other than in
-22-
23
respect of any Terms Agreement), is acting solely as agent for the
Company and the Guarantors and not as principal. Each Agent will make
reasonable efforts to assist the Company and the Guarantors in obtaining
performance by each purchaser whose offer to purchase Securities from the
Company and the Guarantors was solicited by such Agent and has been accepted
by the Company and the Guarantors, but such Agent shall not have any liability
to the Company and the Guarantors in the event such purchase is not consummated
for any reason. If the Company or the Guarantors shall default on its
obligation to deliver Securities to a purchaser whose offer it has accepted,
the Company and the Guarantors shall (i) hold each Agent harmless against any
loss, claim or damage arising from or as a result of such default by the
Company and the Guarantors and (ii) notwithstanding such default, pay to the
Agent that solicited such offer any commission to which it would be entitled in
connection with such sale. The Company and the Guarantors shall not be
required to pay any Agent a commission in connection with any purchase of a
Security which is not consummated other than as a result of a default by the
Company or the Guarantors of its obligations hereunder, including their
obligation to deliver Securities to a purchaser whose offer has been accepted.
9. The respective indemnities, agreements, representations, warranties
and other statements by any Agent and the Guarantors and the Company set forth
in or made pursuant to this Agreement shall remain in full force and effect
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Agent or any controlling person of any Agent or
either of the Guarantors or the Company, or any officer or director or any
controlling person of either of the Guarantors or the Company, and shall
survive each delivery of and payment for any of the Securities.
10. The provisions of this Agreement relating to the solicitation of
offers to purchase Securities from the Company and the Guarantors may be
suspended or terminated at any time by the Company and XTRA as to any Agent or
by any Agent as to such Agent upon the giving of written notice of such
suspension or termination to such Agent or the Company or XTRA, as the case
may be. In the event of such suspension or termination with respect to any
Agent, (x) this Agreement shall remain in full force and effect with respect to
any Agent as to which such suspension or termination has not occurred, (y) this
Agreement shall remain in full force and effect with respect to the rights and
obligations of any party which have previously accrued or which relate to
Securities which are already issued, agreed to be issued or the subject of a
pending offer at the time of such suspension or termination and (z) in any
event, this Agreement shall remain in full force and effect insofar as the
third paragraph of Section 2(a) (with respect to solicitations made prior to
such suspension or termination), Section 4(d), Section 4(e), Section 5 (with
respect to solicitations made prior to such suspension or termination),
Section 7, Section 8 and Section 9 are concerned.
11. Except as otherwise specifically provided herein or in the
Procedure, all statements, requests, notices and advices hereunder shall be
in writing, or by telephone if promptly confirmed in writing, and if to
Xxxxxxx, Xxxxx & Co. shall be sufficient in all respects when delivered or
sent by facsimile transmission or registered mail to 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Facsimile Transmission No. (000) 000-0000, Attention:
Registration Department, if to Xxxxx Xxxxxx Inc. shall be sufficient in all
respects when delivered or sent by telex, facsimile transmission or registered
mail to 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile Transmission
No. (000) 000-0000, Attention: MTN Product Manager, except that any Pricing
Supplements should also delivered or sent by facsimile transmission
-23-
24
or registered mail to 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Facsimile Transmission No. (000) 000-0000, Attention: Xxxxxxxx Xxxxxxxx, if to
Xxxxxxxx Wertheim & Co. Incorporated shall be sufficient in all respects when
delivered or sent by telex, facsimile transmission or registered mail to 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile Transmission No. (212)
492-7194, Attention: Fixed Income Department, if to the Company or XTRA shall
be sufficient in all respects when delivered or sent by facsimile transmission
or registered mail to XTRA Corporation or XTRA, Inc., c/o X-L-Co., Inc., 00
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Facsimile Transmission No. (617)
227-2190, Attention: General Counsel, and if to XTRA Missouri shall be
sufficient in all respects when delivered or sent by facsimile transmission or
registered mail to XTRA Missouri, Inc., 0 Xxxx Xxxxx Xxxxxxxx, 0 Xxxxxxx Xxxx,
Xxxxxxx, Xxxxxxxx 00000, Facsimile Transmission No. (000) 000-0000, Attention:
President.
12. This Agreement and any Terms Agreement shall be binding upon, and
inure solely to the benefit of, each Agent and the Company and the Guarantors,
and to the extent provided in Section 7, Section 8 and Section 9 hereof, the
officers and directors of the Company and the Guarantors and any person who
controls any Agent or the Company or either Guarantor, and their respective
personal representatives, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement or any Terms
Agreement. No purchaser of any of the Securities through or from any Agent
hereunder shall be deemed a successor or assign by reason merely of such
purchase.
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement and any Terms Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each
of which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument.
-24-
25
If the foregoing is in accordance with your understanding, please sign
and return to us two counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Company and you in accordance with its terms.
Very truly yours,
XTRA, INC.
By:
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
and Chief Financial Officer
XTRA CORPORATION
By:
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President and
Chief Financial Officer
XTRA MISSOURI, INC.
By:
------------------------------
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
--------------------------------
(XXXXXXX, XXXXX & CO.)
XXXXX XXXXXX INC.
By:
-----------------------------
Name:
Title:
-25-
26
XXXXXXXX XXXXXXXX & CO. INCORPORATED
By:
------------------------
Name:
Title:
-26-
27
ANNEX I
XTRA, INC.
Series C Medium-Term Notes
Guaranteed as to Payment of Principal,
Premium (if any) and Interest by
XTRA CORPORATION
AND
XTRA MISSOURI, INC.
TERMS AGREEMENT
,19
----------- --
[Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
[Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
[Xxxxxxxx Wertheim & Co.
Incorporated
Equitable Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
Dear Sirs:
XTRA, Inc. (the "Company"), XTRA Corporation ("XTRA") and XTRA
Missouri, Inc. ("XTRA Missouri," and together with XTRA, the "Guarantors")
propose, subject to the terms and conditions stated herein and in the
Distribution Agreement, dated ___________ __, 1995 (the "Distribution
Agreement"), between the Company and the Guarantors on the one hand and
Xxxxxxx, Xxxxx & Co., Xxxxx Xxxxxx Inc. ("Xxxxx Xxxxxx") and Xxxxxxxx Xxxxxxxx
& Co. Incorporated ("Xxxxxxxx Wertheim") on the other, to issue and sell to
[Xxxxxxx, Xxxxx & Co.] [Xxxxx Xxxxxx] [Xxxxxxxx Xxxxxxxx] the securities
specified in the Schedule hereto (the "Purchased Securities"). Each of the
provisions of the Distribution Agreement not specifically related to the
solicitation by the Agents, as agents of the Company and the Guarantors, of
offers to purchase Securities is incorporated herein by reference in its
entirety, and shall be deemed to be part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Nothing
contained herein or in the Distribution Agreement shall make any party hereto
an agent of the Company or the Guarantors or make such party subject to the
I-1
28
provisions therein relating to the solicitation of offers to purchase
securities from the Company and the Guarantors, solely by virtue of its
execution of this Terms Agreement. Each of the representations and warranties
set forth therein shall be deemed to have been made at and as of the date of
this Terms Agreement, except that each representation and warranty in Section
1 of the Distribution Agreement which makes reference to the Prospectus shall
be deemed to be a representation and warranty as of the date of the
Distribution Agreement in relation to the Prospectus (as therein defined), and
also a representation and warranty as of the date of this Terms Agreement in
relation to the Prospectus as amended and supplemented to relate to the
Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company and the
Guarantors agree to issue and sell to [Xxxxxxx, Xxxxx & Co.] [Xxxxx Xxxxxx]
[Xxxxxxxx Xxxxxxxx] and [Xxxxxxx, Xxxxx & Co.] [Xxxxx Xxxxxx] [Xxxxxxxx
Xxxxxxxx] agree[s] to purchase from the Company the Purchased Securities, at
the time and place, in the principal amount and at the purchase price set
forth in the Schedule hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us _______ counterparts hereof, and upon acceptance hereof by
you this letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company and the Guarantors.
XTRA, INC.
By:
---------------------
Name:
Title:
XTRA CORPORATION
By:
---------------------
Name:
Title:
XTRA MISSOURI, INC.
By:
----------------------
Name:
Title:
I-2
29
Accepted:
-------------------------
[(XXXXXXX, SACHS & CO.)]
[XXXXX XXXXXX INC.]
By:
-----------------------
Name:
Title:
[XXXXXXXX WERTHEIM & CO. INCORPORATED]
By:
-----------------------
Name:
Title:
I-3
30
SCHEDULE TO ANNEX I
Title of Purchased Securities:
Series C Medium-Term Notes ("Purchased Securities")
Aggregate Principal Amount:
$
[Price to Public:]
Purchase Price by [Xxxxxxx, Xxxxx & Co.] [Xxxxx Xxxxxx] [Xxxxxxxx Xxxxxxxx]:
% of the principal amount of the Purchased Securities, plus accrued
interest from to
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the order of
the Company, in [[New York] Clearing House] [immediately available]
funds]
[By wire transfer to a bank account specified by the Company in [next
day] [immediately available] funds]
Indenture:
Indenture, dated as of August 15, 1994, between the Company, the
Guarantors and State Street Bank and Trust Company, as Trustee, as
amended.
Time of Delivery:
Closing Location:
Maturity:
Interest Rate:
[ %]
I-4
31
Interest Payment Dates:
[months and dates]
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall
be delivered as a condition to the Closing:
[(1)The opinion or opinions of counsel to the Agents referred
to in Section 4(h).]
[(2)The opinion or opinions of counsel to the Company referred
to in Section 4(i).]
[(3)The accountants' letter referred to in Section 4(j).]
[(4)The officers' certificate referred to in Section 4(k).]
Other Provisions (including Syndicate Provisions, if applicable):
[Set forth any provisions relating to underwriters' default and
step-up of amounts to be purchased by underwriters acting with
[Xxxxxxx, Sachs & Co.] [Xxxxx Xxxxxx] [Xxxxxxxx Xxxxxxxx]]
I-5
32
ANNEX II
XTRA, INC.
ISSUER
XTRA CORPORATION
XTRA MISSOURI, INC.
GUARANTORS
ADMINISTRATIVE PROCEDURE
MEDIUM-TERM NOTES
SERIES C
Medium-term notes, each of which has the benefit of unconditional
guarantees (the "Guarantees") of payment of principal, premium (if any) and
interest from XTRA Corporation and XTRA Missouri, Inc. (the medium-term notes,
together with the Guarantees being referred to herein as the "Securities") in
the aggregate principal amount of up to $800,000,000 are to be offered from
time to time by XTRA, Inc. (the "Company"), XTRA Corporation ("XTRA") and XTRA
Missouri, Inc. ("XTRA Missouri", and together with XTRA, the "Guarantors"),
through Xxxxxxx, Sachs & Co., Xxxxx Xxxxxx Inc. and Xxxxxxxx Wertheim & Co.
Incorporated as agents of the Company and the Guarantors (in such capacity,
individually an "Agent" and collectively the "Agents"). Each Agent has agreed
to use its reasonable efforts to solicit offers to purchase Securities
directly from the Company and the Guarantors, and each such Agent may also
purchase Securities from the Company and the Guarantors as principal. The
Securities are being sold pursuant to a Distribution Agreement, dated October
___, 1995 (the "Distribution Agreement").
The Securities will be issued pursuant to an Indenture, dated as of
August 15, 1994 (the "Original Indenture"), as amended and supplemented by the
First Supplemental Indenture, dated as of September 30, 1994 (the Original
Indenture, as so amended and supplemented, the "Indenture"), among the
Company, XTRA, The First National Bank of Boston, as Trustee (the "Trustee")
and, in the case of such First Supplemental Indenture, XTRA Missouri. The
Securities will have been registered with the Securities and Exchange
Commission (the "Commission").
In the case of purchases of Securities by any Agent as principal, the
relevant terms and settlement details related thereto, including the Time of
Delivery referred to in Section 2(b), will be set forth in a Terms Agreement
entered into between such Agent and the Company and the Guarantors pursuant to
the Distribution Agreement, unless the Company and such Agent otherwise agree
as provided in Section 2(b) of the Distribution Agreement, in which case the
procedures to be followed in respect of the settlement of such sale will be as
set forth below.
The procedures to be followed during, and the specific terms of, the
solicitation of offers by the Agents and the sale as a result thereof by the
Company are explained below. The following summaries of certain provisions of
the Distribution Agreement and the Indenture do not purport to be complete and
are subject, and are qualified in their entirety by reference, to all of the
respective provisions of the Distribution Agreement and the Indenture.
II-1
33
Administrative and record-keeping responsibilities will be handled for
the Company by its Controllers Department. The Company will advise the Agents
in writing of those persons handling administrative responsibilities
("Designated Persons") with whom the Agents are to communicate regarding
offers to purchase Securities and the details of their delivery.
Maturties: Each Security will mature on a date, selected
by the purchaser and agreed to by the Company, which
will be at least nine months but not more than thirty
years from the date of issuance.
Guarantee: Each Security will have the benefit of Guarantees.
Price to Public: Each Security will be issued at 100% of its principal
amount.
Denominations: The denominations will be $100,000 and any
integral multiple of $1,000 in excess thereof. Global
Securities (as defined below) will be denominated in
principal amounts not in excess of $150,000,000. If
one or more Book-Entry Notes having an aggregate
principal amount in excess of $150,000,000 would, but
for the preceding sentence, be represented by a single
Global Security, then one Global Security will be
authenticated and issued to represent each $150,000,000
principal amount of such Book-Entry Note or Notes and
an additional Global Security will be authenticated
and issued to represent any remaining principal amount
of such Book-Entry Note or Notes. In such a case, each
of the Global Securities representing such Book-Entry
Note or Notes shall be assigned the same CUSIP number.
Registration: Each Security will be issued only in fully
registered form and will be represented by either a
global security (a "Global Security") delivered to the
Trustee, as agent for The Depository Trust Company
(the "Depository") and recorded in the book-entry
system maintained by the Depository (a "Book-Entry
Security") or a certificate issued in definitive form
(a "Certificated Security") delivered to a person
designated by an Agent, as set forth in the applicable
Pricing Supplement. An owner of a Book-Entry Security
will not be entitled to receive a certificate
representing such a Security, except as provided in
the Indenture.
Each Global Security will be registered in the name of CEDE
& Co., as nominee for DTC, on the Security Register.
The beneficial owner of a Book-Entry Note (or one or
more indirect participants in DTC designated by such
owner) will designate one or more direct participants
in DTC (with respect to such Note, the "Participants")
to act as agent or agents for such owner in connection
with the book-entry system maintained
II-2
34
by DTC, and DTC will record in book-entry form, in
accordance with instructions provided by such
Participants, a credit balance with respect to such
beneficial owner in such Note in the account of such
Participants. The ownership interest of such
beneficial owner in such Note will be recorded through
the records of such Participants or through the
separate records of such Participants and one or more
indirect participants in DTC.
Identification The Company has arranged with the CUSIP Service
Numbers: Bureau of Standard & Poor's Corporation (the "CUSIP
Service Bureau") for the reservation of a series of
CUSIP numbers (including tranche numbers) for the
Registered Notes. Such series consists of
approximately 900 CUSIP numbers and relates to Global
Securities representing Book-Entry Notes and book-
entry medium-term notes issued by the Company with
other series designations. The Company has obtained
from the CUSIP Service Bureau written lists of such
reserved CUSIP numbers, and caused such lists to be
delivered to the DTC Agent and to DTC. The Company
will assign CUSIP numbers to Global Securities as
described below under Settlement Procedure "A". DTC
will notify the CUSIP Service Bureau periodically of
the CUSIP numbers that the Company has assigned to
Global securities. The DTC Agent will notify the
Company at any time when fewer than 100 of the reserved
CUSIP numbers remain unassigned to Global Securities,
and, if it deems necessary, the Company will reserve
additional CUSIP numbers for assignment to Global
Securities. Upon obtaining such additional CUSIP
numbers, the Company shall deliver a list of such
additional CUSIP numbers to the DTC Agent and to DTC.
Interest Payments: Interest payments will be made, with respect to
fixed-rate Securities, on each April 1 and October 1
in each year and, with respect to floating-rate
Securities, on the dates specified therein (in each
case, the "Interest Payment Dates"), commencing on
the first Interest Payment Date after the Settlement
Date (as defined below under "Settlement"), and at
maturity. Interest payments will be made on the
Interest Payment Dates to the registered owners of
fixed-rate Securities, at the close of business on the
immediately preceding March 15 and September 15
record dates, respectively; interest payments will be
made on the Interest Payment Dates to the registered
owners of floating-rate Securities on the record dates
occurring 15 days prior to each Interest Payment Date.
Interest will begin to accrue on the Settlement Date,
as hereafter defined, and not from the immediately
previous Interest Payment Date. Interest payable at
maturity (other than on a date which is an Interest
Payment Date) will be paid
II-3
35
to the same person to whom the principal is payable.
Interest (including payments for partial periods) will
be calculated on the basis of a 360-day year of twelve
30-day months. Unless special arrangements have been
made, all interest payments (other than interest due at
maturity) will be made by check, drawn on The First
National Bank of Boston.
On the fifth business day immediately preceding each
Interest Payment Date, the Trustee will advise the
Company of the aggregate amount of interest to be paid
on the Securities on such Interest Payment Date. The
Trustee will provide monthly to XTRA's and the
Company's Treasurer or Assistant Treasurer a list of
the principal and interest to be paid on Securities
maturing in the next succeeding month. The Trustee
will assume responsibility for withholding taxes on
interest paid as required by law.
Acceptance of The Agents will promptly advise the Company by
Offers: telephone or other appropriate means of all reasonable
offers to purchase securities, other than those
rejected by the Agents. The Company shall inform the
Guarantors of any such offers. The Agents may, in
their discretion reasonably exercised, reject any
offer received by them in whole or in part. The Company
and the Guarantors will have the sole right to accept
offers to purchase Securities and may reject any such
offer in whole or in part.
If the Company and the Guarantors accept an offer to
purchase Securities, they will confirm such acceptance
in writing to the Agents and the Trustee or its agent.
If the Company and the Guarantors reject an offer,
they will promptly notify the Agents.
If the Company and the Guarantors accept an offer to
purchase a Security (as described below under
"Procedure for Posting"), but the Company has not
"posted" rates, the Company will prepare a pricing
sticker reflecting the terms of such Security and will
arrange to have ten stickered Prospectus Supplements
filed with the Commission not later than the
Commission's close of business on the second business
day following such acceptance of an offer to purchase
a Security and will supply at least ten stickered
Prospectus Supplements to the Agents. The Agents will
cause a Prospectus Supplement with such pricing
sticker to be delivered to the purchaser of the
Security.
If the Company and the Guarantors accept an offer to
purchase a Security and the Company has "posted"
rates, the Agents
II-4
36
will cause a Prospectus Supplement with a "posted"
rates sticker to be delivered to the purchaser of such
Security.
Delivery of With respect to each Security sold pursuant to
Prospectus: the Distribution Agreement, the Agents shall send a
copy of the Prospectus Supplement (together with
either a specially prepared pricing sticker relating
to such Security or a "posted" rates sticker), to the
customer or its agent prior to or together with the
earlier of delivery of (a) the written confirmation of
sale sent to such customer or agent or (b) the
Security or due xxxx to such customer or agent.
Confirmation: The Agents will issue a written confirmation to
each purchaser containing the Sale Information (as
defined below), plus delivery and payment
instructions.
Settlement: Unless special arrangements have been made, all
offers solicited by the Agents and accepted by the
Company will be settled on the third business day
after the date of acceptance. At the request of the
purchaser, the Company may in its discretion allow for
settlement on any business day subsequent to the date
of acceptance. The day of settlement is referred to
herein as the "Settlement Date".
Details for Unless special arrangements have been made,
Settlement: prior to 3:00 p.m., New York City time, on the day
prior to the Settlement Date, the Company will
instruct the Trustee or its agent by facsimile
transmission or other acceptable written means to
authenticate and deliver the Securities no later than
11:00 a.m., New York City time, on the Settlement
Date.
Details for The Agents must communicate the following
Settlement: information (the "Sale Information"), in each case if
applicable, from the purchaser to a Designated Person
by facsimile transmission or other acceptable written
means:
(1) Name of the registered owner,
(2) Address of the registered owner,
(3) Taxpayer identification number of the registered
owner,
(4) Principal amount of the purchase,
(5) Date of Security,
(6) Interest rate or method for determining and
resetting interest rate, as the case may be,
(7) Spread,
(8) Spread multiplier,
(9) Redemption,
(10) Redemption price,
(11) Prepayment date,
(12) Original Issue Discount,
II-5
37
(13) Settlement Date,
(14) Maturity date,
(15) Denominations of certificate(s],
(16) Agents'commission (to be paid as a discount
from gross proceeds of sale),
(17) Net proceeds to the Company, and
(18) Book-Entry Security or Certificated Security.
After receiving the Sale Information from the Agents, and,
after recording the Sale Information and any necessary
calculations, the Company will communicate such Sale
Information by telephone (confirmed in writing),
facsimile transmission or other acceptable written
means, to the Trustee or its agent. Prior to
preparing the Securities for delivery, the Trustee or
its agent will promptly confirm the Sale Information
by telephone with the Agents. The Trustee or its agent
will assign to and enter on each Security a
transaction number.
Delivery of The Trustee or its agent will prepare each
Certificated Security and four receipts that will serve as the
Securities: documentary control of the transaction. One receipt
will be distributed to the Agents and one to the
Company's and XTRA's Controllers Department. The
Trustee or its agent will retain the other two receipts
for record-keeping purposes and to implement payment of
interest.
In the case of a sale of a Security to a purchaser
solicited by the Agents, the Trustee will, by 2:15
p.m., New York City time, on the Settlement Date,
deliver the Security to the Agents for the benefit of
the purchaser of such Security against delivery by the
Agents of a receipt therefor. On the Settlement Date
the Agents will deliver payment for such Security in
immediately available funds to the Company in an
amount equal to the issue price of the Security less
the Agents' commission; provided that the Agents
reserve the right to withhold payment for which they
have not received funds from the purchaser. The
Company shall not use any proceeds advanced by the
Agents to acquire securities. The Agents will obtain a
written acknowledgement from the purchaser of the
receipt of such security.
In the case of a sale of a Security to the Agents acting as
principal, the Trustee will, by 2:15 p.m., New York
City time, on the Settlement Date, deliver the
Security to the Agents against delivery of payment for
such Security in immediately available funds to the
Company in an amount equal to the issue price of the
Security less the Agents' discount.
II-6
38
Failures in In the event that a purchaser (other than the Agents acting
Respect of as principal) shall fail to accept delivery of and make
Certificated payment for any Security, the Agents will forthwith
Securities: notify the Company's Treasurer by telephone (confirmed
in writing) or by facsimile transmission. If the
Security has been delivered to the Agents on behalf of
the purchaser, the Agents will immediately return the
Security to the Company or its agent. If funds have
been advanced by the Trustee or the Agents, as the
case may be, for the purchase of such Security, the
Trustee or its agent will immediately upon receipt of
the Security debit the account of the Company in an
amount equal to the amount previously credited thereto
in respect of the Security and will either credit the
account of or return such funds to the Agents, or the
Company will return to the Agents directly an amount
equal to the amount previously paid by the Agents to
the company in respect of such Security. Such debits
and credits or returns will be made on the Settlement
Date if possible and, in any event, not later than the
business day following the Settlement Date. If such
failure shall have occurred for any reason other than
default by the Agents in the performance of its
obligations under the Distribution Agreement, the
Company will reimburse the Agents on an equitable basis
for its loss of the use of the funds during the period
when they were credited to the account of the Company.
Immediately upon receipt of the certificate representing
the Security in respect of which the failure occurred,
the Trustee or its agent will cancel the Security,
make appropriate entries in its records and, unless
otherwise instructed by the Company, destroy the
certificate.
PROCEDURES APPLICABLE
ONLY TO BOOK-ENTRY
SECURITIES
Delivery of A. The Company will assign a CUSIP number to
Global the Security from a list of CUSIP numbers previously
Book-Entry delivered to the Trustee by the Company representing
Securities: such Book-Entry Security and then advise the Company
and the Selling Agent or Purchasing Agent, as the case
may be, of such CUSIP number.
B. The Trustee will enter a pending deposit
message through the Depository's Participant Terminal
System, providing the following settlement
information to the Depository, and the Depository
shall forward such information to such Agent and
Standard & Poor's Corporation:
(1)The applicable Sale Information;
II-7
39
(2) CUSIP number of the Global Security representing
such Book-Entry Security;
(3) Whether such Global Security will represent any
other Book-Entry Security (to the extent known at
such time);
(4) Number of the Participant account maintained by the
Depository on behalf of the Selling Agent or
Purchasing Agent, as the case may be;
(5) The interest payment period;
(6) Initial Interest Payment Date for such Book-Entry
Security, number of days by which such date
succeeds the record date for the Depository's
purposes (which, in the case of Floating Rate
Securities which reset weekly shall be the date
five calendar days immediately preceding the
applicable Interest Payment Date and in the case of
all other Book-Entry Securities shall be the
Regular Record Date, as defined in the Security)
and, if calculable at that time, the amount of
interest payable on such Interest Payment Date.
C. The Trustee will complete and authenticate the
Global Security previously delivered by the Company
representing such Book-Entry Security.
D. The Depository will credit such Book-Entry
Security to the Trustee's participant account at the
Depository.
E. The Trustee will enter an SDFS deliver order
through the Depository's Participant Terminal System
instructing the Depository to (i) debit such
Book-Entry Security to the Trustee's participant
account and credit such Book-Entry Security to such
Agent's participant account and (ii) debit such
Agent's settlement account and credit the Trustee's
settlement account for an amount equal to the price of
such Book-Entry Security less such Agent's commission.
The entry of such a deliver order shall constitute a
representation and warranty by the Trustee to the
Depository that (a) the Global Security representing
such Book-Entry Security has been issued and
authenticated and (b) the Trustee is holding such
Global Security pursuant to the Certificate Agreement.
Each such communication by the Company shall constitute
a representation and warranty by the Company to the
DTC Agent, the Trustee and such Agent that (i) such
Note is then, and at the time of issuance and sale
thereof will be, duly authorized for issuance and sale
by the Company, (ii) such Note, and the Global
Security representing such Note, will conform with the
terms of the Indenture and (iii) upon authentication
and delivery of such Global Security, the aggregate
initial public offering price or purchase price of all
Notes
II-8
40
issued under the Indenture will not exceed $800,000,000
(except for Book-Entry Notes represented by Global
Securities authenticated and delivered in exchange for
or in lieu of Global securities pursuant to the
Indenture and except for Certificated Notes
authenticated and delivered upon registration or
transfer of, in exchange for, or in lieu of
Certificated Notes pursuant to the Indenture).
F. Such Agent will enter an SDFS deliver order
through the Depository's Participant Terminal System
instructing the Depository (i) to debit such
Book-Entry Security to such Agent's participant
account and credit such Book-Entry Security to the
participant accounts of the Participants with respect
to such Book-Entry Security and (ii) to debit the
settlement accounts of such Participants and credit
the settlement account of such Agent for an amount
equal to the price of such Book-Entry Security.
G. Transfers of funds in accordance with SDFS
deliver orders described in Settlement Procedures "E"
and "F" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
H. Upon confirmation of receipt of funds, the
Trustee will transfer to the account of the Company
maintained at The First National Bank of Boston, or
such other account as the Company may have previously
specified to the Trustee, in funds available for
immediate use in the amount transferred to the Trustee
in accordance with Settlement Procedure "E".
I. Upon request, the Trustee will send to the
Company a statement setting forth the principal amount
of Book-Entry Securities outstanding as of that date
under the Indenture.
J. Such Agent will confirm the purchase of such
Book-Entry Security to the purchaser either by
transmitting to the Participants with respect to such
Book-Entry Security a confirmation order or orders
through the Depository's institutional delivery
system or by mailing a written confirmation to such
purchaser.
K. The Depository will at any time, upon request
of the Company or the Trustee, promptly furnish to the
Company or the Trustee a list of the names and
addresses of the participants for whom the Depository
has credited Book-Entry Securities.
II-9
41
Preparation of If the Company accepts an offer to purchase a
Pricing Book-Entry Security, it will prepare a Pricing
Supplement: Supplement reflecting the terms of such Book-Entry
Security and arrange to have delivered to the Selling
Agent or Purchasing Agent, as the case may be, at
least ten copies of such Pricing Supplement, not later
than 5:00 p.m., New York City time, on the Business Day
following the receipt of the Sale Information, or if
the Company and the purchaser agree to settlement on
the Business Day following the date of acceptance,
not later than noon, New York City time, on such date.
The Company will arrange to have ten Pricing
Supplements filed with the Commission not later than
the close of business of the Commission on the fifth
Business Day following the date on which such Pricing
Supplement is first used.
Delivery of The Selling Agent will deliver to the purchaser
Confirmation of a Book-Entry Security a written confirmation of
and Prospectus the sale and delivery and payment instructions. In
to Purchaser addition, the Selling Agent will deliver to such
by Selling Agent: purchaser or its agent the Prospectus as amended or
supplemented (including the Pricing Supplement) in
relation to such Book-Entry Security prior to or
together with the earlier of the delivery to such
purchaser or its agent of (a) the confirmation of sale
or (b) the Book-Entry Security.
Date of Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry Security
and the authentication and issuance of the Global
Security representing such Book-Entry Security shall
constitute "settlement" with respect to such Book-Entry
Security. All orders accepted by the Company will be
settled on the third Business Day pursuant to the
timetable for settlement set forth below unless the
Company and the purchaser agree to settlement on
another day which shall be no earlier than the next
Business Day.
Settlement For orders of Book-Entry Securities solicited
Procedure by an Agent, as agent, and accepted by the Company for
Timetable: settlement on the first Business Day after the sale
date, Settlement Procedures set forth above shall be
completed as soon as possible but not later than the
respective times (New York City time) set forth below:
II-10
42
Settlement
Procedure Time
---------- ----
Sale 5:00 p.m. on the Business Day following the acceptance of an offer
Information by the Company or 10:00 a.m. on the Business Day prior
Communicated to the settlement date, whichever is earlier
A 12:00 noon on the sale date
B 2:00 p.m. on the sale date
C 5:00 p.m. on settlement date
D 10:00 a.m. on settlement date
E-F 2:00 p.m. on settlement date
G 4:45 p.m. on settlement date
H 5:00 p.m. on settlement date
If a sale is to be settled more than one Business Day after
the sale date, Settlement Procedures "A" and "B" shall
be completed as soon as practicable but not later than
2:00 p.m. on the first Business Day after the sale date.
If the initial interest rate for a Floating Rate
Book-Entry Security has not been determined at the time
that the Sale Information is communicated, Settlement
Procedures "A" and "B" shall be completed as soon as
such rate has been determined but no later than 2:00
p.m. on the second Business Day before the settlement
date. Settlement Procedure "G" is subject to extension
in accordance with any extension of Fedwire closing
deadlines and in the other events specified in the SDFS
operating procedures in effect on the settlement date.
If settlement of a Book-Entry Security is rescheduled or can-
celled, the Trustee, upon obtaining knowledge thereof,
will deliver to the Depository, through the Depository's
Participation Terminal System, a cancellation message
to such effect by no later than 2:00 p.m. on the
Business Day immediately preceding the scheduled
settlement date.
Failures in If the Trustee fails to enter an SDFS deliver order
Respect of Book- with respect to Security pursuant to Settlement Procedure
Entry Securities: "E", the Trustee may deliver to the Depository, through
the Depository's Participant Terminal System, as soon
as practicable a withdrawal message instructing the
Depository to debit such Book-Entry Security to the
Trustee's participant account, pro-
II-11
43
vided that the Trustee's participant account contains a
principal amount of the Global Security representing
such Book-Entry Security that is at least equal to the
principal amount to be debited. If a withdrawal
message is processed with respect to all the
Book-Entry Securities represented by a Global
Security, the Trustee will xxxx such Global Security
"cancelled", make appropriate entries in the Trustee's
records and send such cancelled Global Security to the
Company. The CUSIP number assigned to such Global
Security shall, in accordance with CUSIP Service
Bureau procedures, be cancelled and not immediately
reassigned. If a withdrawal message is processed with
respect to one or more, but not all, of the Book-Entry
Securities represented by a Global Security, the
Trustee will exchange such Global Security for two
Global Securities, one of which shall represent such
Book-Entry Security or Securities and shall be
cancelled immediately after issuance and the other of
which shall represent the remaining Book-Entry
securities previously represented by the surrendered
Global Security and shall bear the CUSIP number of the
surrendered Global Security.
If the purchase price for any Book-Entry Security is not
timely paid to the participants with respect to such
Book-Entry Security by the beneficial purchaser
thereof (or a person including an indirect participant
in the Depository, acting on behalf of such
purchaser), such participants and, in turn, the Agent
for such Book-Entry Security may enter deliver orders
through the Depository's Participant Terminal System
debiting such Book-Entry Security to such
participant's account and crediting such Book-Entry
Security to such Agent's account and then debiting
such Book-Entry Security to such Agent's participant
account and crediting such Book-Entry Security to the
Trustee's participant account and shall notify the
Company and the Trustee thereof. Thereafter, the
Trustee will (i) immediately notify the Company of
such order and the Company shall transfer to such
Agent funds available for immediate use in an amount
equal to the price of such Book-Entry Security which
was credited to the account of the company maintained
at the Trustee in accordance with Settlement Procedure
I, and (ii) deliver the withdrawal message and take
the related actions described in the preceding
paragraph. If such failure shall have occurred for any
reason other than default by the applicable Agent to
perform its obligations hereunder or under the
Distribution Agreement, the Company will reimburse
such Agent on an equitable basis for the loss of its
use of funds during the period when the funds were
credited to the account of the Company.
II-12
44
Notwithstanding the foregoing, upon any failure to settle
with respect to a Book-Entry Security, the Depository
may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a
failure to settle with respect to one or more, but not
all, of the Book-Entry Securities to have been
represented by a Global Security, the Trustee will
provide, in accordance with Settlement Procedure "D"
for the authentication and issuance of a Global
Security representing the other Book-Entry Securities
to have been represented by such Global Security and
will make appropriate entries in its records. The
Company will, from time to time, furnish the Trustee
with a sufficient quantity of Securities.
PROCEDURES GENERALLY
APPLICABLE
Payment at Upon presentation of each Security at maturity,
Maturity: the Trustee or its agent will pay the principal amount
of such Security, together with accrued interest due
at maturity (except when maturity occurs on April 1 or
October 1), in immediately available funds by wire
transfer except as provided in the Indenture. The
Trustee or its agent will cancel Securities presented
at maturity as provided in the Indenture, and, unless
otherwise instructed by the Company, forward them
directly to the Company's Controllers Department with
an appropriate debit advice.
Prcedure for If the Company and the Guarantors decide to
Posting: "post" rates, the Company, the Guarantors and the
Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of
Securities that may be sold as a result of the
solicitation of offers by the Agents. Once a decision
has been reached to set initially the "posted" rates
or to change already "posted" rates, the Company or
the Guarantors will promptly advise the Agents to
suspend solicitation of offers until the initial or
changed "posted" rates have been established. When
such rates have been established, the Company will
then promptly prepare "posted" rates stickers
reflecting such posted rates and maturities. The
Company will then promptly arrange to have ten
Prospectus Supplements so stickered filed with the
Commission not later than the Commissioner's close of
business on the second business day after such
"posted" rates have been established and to have copies
of such stickered Prospectus Supplements delivered to
the Agents.
"Posting" rates shall mean establishing a fixed set of
interest rates and maturities for an offering period,
which rates and maturities are to be set forth on
"posted" rates stickers
II-13
45
attached to Prospectus Supplements distributed to
potential purchasers.
The Agents and the Company and the Guarantors shall destroy
outdated "posted" rates stickers and the Prospectus
Supplements to which they are attached (other than
those retained for files).
Suspension of Subject to its representations, warranties and
Solicitation; covenants contained in the Distribution Agreement, the
Amendment or Company or the Guarantors may instruct the Agents to
Supplement suspend solicitation of offers to purchase Securities
at any time. As soon as practicable, but in any event
not later than one business day after, the Agents will
suspend solicitation until such time as the Company
has advised the Agents that solicitation of offers to
purchase Securities may be resumed. Except as otherwise
provided for in the Distribution Agreement, the Company
and the Guarantors have discretion regarding whether
to amend or supplement the Registration Statement or
Prospectus. If the Company or the Guarantors propose
so to amend or supplement, they will promptly advise
the Agents and will furnish the Agents such proposed
amendment or supplement and, after the Agents has been
afforded a reasonable opportunity to review such
amendment or supplement, will cause such amendment or
supplement promptly to be filed with, or mailed for
filing to, the Commission. The Company will promptly
provide the Agents with copies of any such amendment
or supplement and confirm to the Agents that such
amendment or supplement has been filed with the
Commission.
In the event that at the time the Agents suspend
solicitation of offers to purchase Securities there
shall be any orders for delayed settlement
outstanding, the Company and the Guarantors,
consistent with their obligations under the Distri-
bution Agreement, promptly will advise the Agents
whether such orders may be settled and whether copies
of the Prospectus as in effect at the time of the
suspension may be delivered in connection with the
settlement of such orders. The Company and the
Guarantors will have the sole responsibility for such
decision and for any arrangements which may be made in
the event that the Company or the Guarantors determine
that such orders may not be settled or that copies of
such Prospectus may not be so delivered.
Authenticity The Company will cause the Trustee to furnish
of Signatures: the Agents from time to time with the specimen
signatures of each of the Trustee's officers,
employees or agents who have been authorized by the
Trustee to authenticate Securities, but the
II-14
46
Agents will have no obligation or liability to the
Company or the Trustee or its agent in respect of the
authenticity of the signature of any officer, employee
or agent of the Company, the Guarantors or the Trustee
or its agent on any Security.
Advertising: The Company and the Guarantors will determine
upon consultation with the Agents the amount of
advertising that may be appropriate in the
solicitation of offers to purchase the Securities.
Advertising expenses will be paid by the Company and
the Guarantors.
II-15
47
ANNEX III
Pursuant to Section 4(j) and Section 6(e)(i), as the case may be, of
the Distribution Agreement, XTRA's independent certified public accountants
shall furnish letters to the effect that:
(i) They are independent certified public accountants with respect to
XTRA and its direct and indirect subsidiaries, including XTRA Missouri and
the Company, within the meaning of the Act and the applicable published
rules and regulations thereunder;
(ii) In their opinion, the financial statements and financial
statement schedules audited by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as to
form in all material respects with the applicable accounting requirements
of the Act or the Exchange Act, as applicable, and the related published
rules and regulations thereunder;
(iii) They have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71 on the unaudited
financial statements included in XTRA's Quarterly Report on Form 10-Q,
incorporated by reference into the Prospectus, and inquired of certain
officials of XTRA who have responsibility for financial and accounting
matters as to whether the unaudited financial statements comply as to form
in all material respects with the applicable accounting requirements of
the Exchange Act as it applies to Form 10-Q and the related published
rules and regulations, and based on the foregoing procedures, nothing came
to their attention that caused them to believe that any material
modifications should be made to the unaudited financial statements for them
to be in conformity with generally accepted accounting principles, or that
the unaudited condensed consolidated financial statements do not comply as
to form in all material respects with the applicable accounting
requirements of the Exchange Act and the related published rules and
regulations;
(iv) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements, a reading of the latest
available interim financial statements of XTRA and its direct and indirect
subsidiaries, including XTRA Missouri and the Company, inspection of the
minute books of XTRA and its direct and indirect subsidiaries, including
XTRA Missouri and the Company, since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of XTRA and its direct and indirect
subsidiaries, including XTRA Missouri and the Company, responsible for
financial and accounting matters, nothing came to their attention that
caused them to believe that:
(A) as of a specified date not more than five days prior to the date
of such letter, there has been any increase in the consolidated
long-term debt of XTRA and its direct and indirect subsidiaries,
including XTRA Missouri and the Company, or any decrease in the amount
of XTRA's retained earnings, or any decreases in common stock,
consolidated net property and equipment or lease contracts receivable
in each case as compared with amounts shown on the most recently filed
Form 10-Q, except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which are
described in such letter; and
III-1
48
(B) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the
specified date referred to in Clause (A) there were any decreases, as
compared with the corresponding period in the preceding year, in the
amount of XTRA's consolidated revenues, or income from operations
before provision for income taxes or any decreases in the ratio of
income from operations before provision for income taxes to revenues, or
any increases in the ratios of depreciation on rental equipment, rental
equipment operating expense (which includes repair, and maintenance,
tires and tubes, transportation and storage, facilities and other
expense), selling and administrative expense or interest expense to
revenues, except in each case for increases or decreases which the
Prospectus discloses have occurred or may occur or which are described
in such letter;
(v) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (iv) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages
and financial information specified by the Agents which are derived from
the general accounting records of XTRA and its direct and indirect
subsidiaries, including XTRA Missouri and the Company, which appear in the
Prospectus (including documents incorporated by reference), or in Part II
of, or in exhibits and schedules to, the Registration Statement specified
by the Agents or in documents incorporated by reference in the Prospectus
specified by the Agents, and have compared certain of such amounts,
percentages and financial information with the accounting records of XTRA
and its direct and indirect subsidiaries, including XTRA Missouri and the
Company, and have found them to be in agreement;
(vi) They compared the amounts included in the Selected Financial Data
to the appropriate annual reports on Form 10-K and found them to be in
agreement. They have also compared the amounts included in the selected
quarterly financial data to the Company's accounting records, the
appropriate Quarterly Report on Form 10-Q or the appropriate Form 10-K,
and found them to be in agreement. They compared the information included
in the Selected Financial Data, the Selected Quarterly Financial Data and
the Ratios of Earnings to Fixed Charges and Earnings to Combined Fixed
Charges and Preferred Stock Dividends tables with the requirements of
Items 301 or 302 or 503, respectively, of Regulation S-K. They also
inquired of certain officials of XTRA who have responsibility for
financial and accounting matters whether this information conforms in all
material respects with the disclosure requirements of Items 301 or 302 or
503, respectively, of Regulation S-K. Nothing came to their attention to
cause them to believe that the Selected Financial Data, the Selected
Quarterly Financial Data and Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges and Preferred Stock Dividends did not
conform in all material respects to the disclosure requirements of Rule
301 or 302 or 503, respectively, of Regulation S-K; and
(vii) If pro forma financial information is required to be included in
or incorporated by reference into the Registration Statement or the
Prospectus, they have
III-2
49
(A) read the unaudited pro forma balance sheet and the unaudited pro
forma statements of income included in or incorporated by reference
into the Registration Statement or Prospectus;
(B) inquired of certain officials of XTRA (and the company being
acquired) who have responsibility for financial and accounting matters
about (1) the basis for such officials' determination of the pro forma
adjustments; and (2) whether the unaudited pro forma financial
statements referred to above comply as to form in all material respects
with the applicable accounting requirements of Rule 11-02 of Regulation
S-X; and
(C) proved the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the unaudited pro forma
financial statements.
The foregoing procedures are substantially less in scope than an
examination, the object of which is the expression of an opinion on
management's assumptions, the pro forma adjustments and the application of
those adjustments to historical financial information. Accordingly, they make
no representation about the sufficiency of such procedures for each Agent's
purposes.
Nothing came to their attention as a result of the procedures specified
in the above paragraphs, however, that caused them to believe that the
unaudited pro forma financial statements referred to above included in or
incorporated by reference into the Registration Statement or the Prospectus do
not comply as to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X and that the pro forma adjustments
have not been properly applied to the historical amounts in the compilation of
those statements. Had they performed additional procedures or had they made an
examination of the pro forma financial statements, other matters might have
come to their attention that would have been reported to the Agents.
All references in this Annex III to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Distribution Agreement as of the Commencement Date
referred to in Section 6(e) thereof and to the Prospectus as amended or
supplemented (including the documents incorporated by reference therein) as of
the date of the amendment, supplement, incorporation or the Time of Delivery
relating to the Terms Agreement requiring the delivery of such letter under
Section 4(j) thereof.
III-3
50
ANNEX IV
Pursuant to Section 4(j) and Section 6(e)(ii), as the case may be, of
the Distribution Agreement, the independent certified public accountants of
Xxxxxx Leasing Company, Inc. ("Xxxxxx") shall furnish letters to the effect
that:
(i) They are independent certified public accountants with respect to
Xxxxxx and its subsidiaries, within the meaning of the Securities Act of
1933 (the "Act") and the applicable published rules and regulations
thereunder;
(ii) In their opinion, the financial statements and financial
statement schedules audited by them and appearing in XTRA's Current Report
on Form 8-K dated June 20, 1995 (the "Current Report"), and incorporated
by reference in the Registration Statement, comply as to form in all
material respects with the applicable accounting requirements of the Act
and the Securities Exchange Act of 1934 (the "Exchange Act") and the
related published rules and regulations thereunder; and
(iii) They have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71 on the unaudited
financial statements of Xxxxxx as of March 31, 1995, and for the three-
and six-month periods ended March 31, 1995, included in the Current Report,
incorporated by reference into the Prospectus, and inquired of certain
officials of Xxxxxx who have responsibility for financial and accounting
matters whether the unaudited financial statements comply as to form
in all material respects with the applicable accounting requirements of
the Exchange Act and the related published rules and regulations, and
based on the foregoing procedures, nothing came to their attention that
caused them to believe that any material modifications should be made to
the unaudited financial statements for them to be in conformity with
generally accepted accounting principles, or that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Exchange Act
and the related published rules and regulations.
