Exhibit 1
XTRA, Inc.
$604,000,000
Series C Medium-Term Notes
Guaranteed as to Payment of Principal,
Premium (if any) and Interest by
XTRA Corporation
Distribution Agreement
, 1997
-------- ---
Xxxxxxx, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Xxxxx Xxxxxx Inc.,
000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
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 an unconditional guarantee (the "Guarantee") of
payment of principal, premium, if any, and interest from XTRA Corporation, a
Delaware corporation ("XTRA" or the "Guarantor") (the Guarantee, together
with the Series C Medium-Term Notes, the "Securities"), in an aggregate
principal amount up to $604,000,000 and agrees with each of you (individually
an "Agent" and collectively the "Agents") as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell Securities directly on its
own behalf as provided in Section 2(a) hereof, the Company and XTRA hereby
(i) appoint each Agent as an agent of the Company and XTRA for the purpose of
soliciting and receiving offers to purchase Securities from the Company and
XTRA pursuant to Section 2(a) hereof and (ii) agree that, except as otherwise
contemplated herein, whenever they determine to sell Securities directly to
any Agent as principal, they will enter into a separate agreement (each a
"Terms Agreement"), substantially in the form of Annex I hereto, relating to
such sale in accordance with Section 2(b) hereof.
The Securities will be issued under an indenture, dated as of
August 15, 1994 (the "Original Indenture"), between the Company, XTRA and The
First National Bank of Boston, as Trustee (the "Bank of Boston"), as amended
and supplemented by (i) the First Supplemental Indenture, dated as of
September 30, 1994 (the "First Supplemental Indenture"), between the Company,
XTRA, XTRA Missouri, Inc., a Delaware corporation ("XTRA Missouri"), and the
Bank of Boston, as Trustee, and (ii) the Second Supplemental Indenture, dated
as of ______ __, 1997 (the "Second Supplemental Indenture" and together with
the Original Indenture and the First Supplemental Indenture, the
"Indenture"), between the Company, XTRA and State Street Bank and Trust
Company, as Trustee. On October 2, 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
pursuant to the terms of the Indenture. The Securities shall have the
maturity ranges, annual interest rates, if any, redemption provisions and
other terms set forth in the Prospectus referred to below as it may be
amended or supplemented from time to time. The Securities will be issued, and
the terms and rights thereof established, from time to time by the Company
and the XTRA in accordance with the Indenture and the Administrative
Procedure attached hereto as Annex II as it may be amended from time to time
by written agreement between the Agents and the Company and XTRA (the
"Procedure") and, if applicable, will be specified in a related Terms
Agreement.
1. The Company and XTRA represent and warrant to, and agree with,
each Agent that:
(a) A registration statement on Form S-3 (Registration No.
33-65293) has been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective amendments
thereto, each in the form heretofore delivered or to be delivered to such
Agent, excluding exhibits to such registration statement but including all
documents incorporated by reference in the prospectus included in such
registration statement, have been declared effective by the Commission in
such form; no other document with respect to such registration statement or
document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than the prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the Commission under
the Securities Act of 1933, as amended (the "Act"), each in the form
heretofore delivered to the Agents); and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included such registration statement
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act, being
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hereinafter called a "Preliminary Prospectus"; the various parts of such
registration statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in such registration
statement at the time such part of such registration statement became
effective but excluding Form T-1 and, if applicable, including the
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act, each as amended at the time
such part of such registration statement became effective, being hereinafter
collectively called the "Registration Statement"; the prospectus (including,
if applicable, any prospectus supplement) relating to the Securities, in the
form in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus, including any supplement to the Prospectus that
sets forth only the terms of a particular issue of the Securities (a "Pricing
Supplement"), shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or Prospectus,
as the case may be, under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and incorporated therein by reference; any reference to
any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement;
and any reference to the Prospectus as amended or supplemented shall be
deemed to refer to and include the Prospectus as amended or supplemented
(including by the applicable Pricing Supplement filed in accordance with
Section 4(a) hereof) in relation to Securities sold pursuant to this
Agreement, in the form in which it is filed with the Commission pursuant to
Rule 424(b) under the Act and in accordance with Section 4(a) hereof,
including any documents incorporated by reference therein as of the date of
such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus
when such documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished
in writing
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to XTRA and the Company by any Agent expressly for use in the Prospectus as
amended or supplemented to relate to a particular issuance of Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the
Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing date as
to the Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to XTRA and the Company by any Agent
expressly for use in the Prospectus as amended or supplemented to relate to a
particular issuance of Securities;
(d) None of XTRA, the Company, or any of their subsidiaries has
sustained since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus, except
as otherwise disclosed therein there has not been any change in the capital
stock (other than issuances of capital stock pursuant to the provisions of
employee or director benefit or stock option plans or agreements of XTRA) or
any increase in excess of $50 million in the consolidated long-term debt of
XTRA or the Company or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of XTRA or the Company and their respective subsidiaries,
otherwise than as set forth or contemplated in the Prospectus;
(e) XTRA and the Company and their respective subsidiaries have
good and marketable title to all personal property owned by any of them, in
each case free and clear of all liens, encumbrances and defects except such
as are described or referred to in the Prospectus or such as do not
materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Company or XTRA and
their respective subsidiaries; and any real property and buildings held under
lease by XTRA or the Company and their respective subsidiaries are held by
them under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed to be
made of such property by XTRA, the Company and their respective subsidiaries;
(f) XTRA has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware and the
Company has been duly
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incorporated and is validly existing as a corporation in good standing under
the laws of the State of Maine, in each case, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus, and none of them is required to be qualified as
a foreign corporation for the transaction of business under the laws of any
jurisdictions in which the consequences of a failure to qualify, individually
or in the aggregate, would have a material adverse effect on the business of
XTRA, the Company and their respective subsidiaries (taken as a whole); and
each subsidiary of XTRA and the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification and in which the
consequences of a failure to so qualify would have a material adverse effect
on the business of XTRA, the Company and their respective subsidiaries (taken
as a whole);
(g) XTRA and the Company each has an authorized capitalization as
set forth for it in the Prospectus, and all of the issued and outstanding
shares of capital stock of XTRA have been duly and validly authorized and
issued and are fully paid and non-assessable; all of the issued shares of
capital stock of the Company and of each other direct and indirect subsidiary
of XTRA have been duly and validly authorized and issued, are fully paid and
nonassessable and (except for directors' qualifying shares and except as set
forth in the Prospectus) are owned directly by XTRA or indirectly through one
or more of its subsidiaries, free and clear of all liens, encumbrances,
equities or claims;
(h) The Securities have been duly authorized, and, when issued and
delivered pursuant to the Indenture and this Agreement and any Terms
Agreement, will have been duly executed, authenticated, issued and delivered
and will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture enforceable in accordance
with their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; the Indenture
has been duly authorized and duly qualified under the Trust Indenture Act and
constitutes a valid and legally binding instrument, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture (including the form of the Guarantee) conforms and the Securities
of any particular issuance of Securities will conform to the descriptions
thereof contained in the Prospectus as amended or supplemented to relate to
such issuance of Securities;
(i) The issue and sale of the Securities, the compliance by XTRA
and the Company with, as applicable, all of the provisions of the Securities,
the Indenture, the Guarantee, this Agreement and any Terms Agreement, and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in (x) a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which XTRA or
any of its
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subsidiaries, including the Company, is a party or by which XTRA or any of
its subsidiaries, including the Company, is bound, nor (y) will such action
result in any breach or violation of the terms or provisions of XTRA's
Certificate of Incorporation, as amended, the Company's Articles of
Incorporation, as amended, XTRA's or the Company's By-Laws or any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over XTRA or any of its subsidiaries, including the
Company, or any of their properties, in each case in provision (x) above the
consequences of which would in any way affect the issuance and sale of the
Securities, the performance of the Guarantee, the performance of this
Agreement or the transactions contemplated hereby or the performance of the
provisions of the Indenture, or otherwise have, individually or in the
aggregate, a material adverse effect on the business of XTRA and its
subsidiaries, including the Company (taken as a whole); and no consent,
approval, authorization, order, registration or qualification of or with any
court or governmental agency or body is required for the solicitation of
offers to purchase Securities and the issue and sale of the Securities, the
consummation by XTRA or the Company of the other transactions contemplated by
this Agreement, any Terms Agreement, the Indenture or the Guarantee, except
such as have been, or will have been prior to the Commencement Date (as
defined in Section 3 hereof), obtained under the Act or the Trust Indenture
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the solicitation by the Agents of offers to purchase
Securities from the Company and XTRA and with purchases of Securities by the
Agents as principal, as the case may be, in each case in the manner
contemplated hereby;
(j) There are no legal or governmental proceedings pending to
which XTRA or any of its subsidiaries, including the Company, is a party or
to which any property of XTRA or any of its subsidiaries, including the
Company, is subject (other than as set forth or contemplated in the
Prospectus and other than litigation incident to the kind of business
conducted by XTRA and its subsidiaries, including the Company), which, if
determined adversely to XTRA or its subsidiaries, including the Company,
would individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or annual results of
operations of XTRA and its subsidiaries, including the Company (taken as a
whole); and, to the best of XTRA's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(k) The accountants who have certified the financial statements of
XTRA and its subsidiaries, including the Company, included in the
Registration Statement are independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder; and
(l) Immediately after the settlement of any sale of Securities by
the Company and XTRA resulting from solicitation by the Agents hereunder and
immediately after any Time of Delivery, as defined in Section 2(b), relating
to a sale under a Terms Agreement, the aggregate amount of Securities which
shall have been issued
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and sold by the Company and XTRA hereunder or under any Terms Agreement and
of any debt securities of the Company or guarantees of XTRA (other than such
Securities) that shall have been issued and sold pursuant to the Registration
Statement will not exceed the amount of debt securities or guarantees, as the
case may be, registered under the Registration Statement.
2. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, each of
the Agents hereby severally and not jointly agrees, as agent of the Company
and XTRA, to use its reasonable efforts when requested by the Company and
XTRA to solicit and receive offers to purchase the Securities from the
Company upon the terms and conditions set forth in the Prospectus as amended
or supplemented from time to time. So long as this Agreement shall remain in
effect, neither the Company nor XTRA shall, without the consent of the
Agents, solicit or accept offers to purchase, or sell or guarantee, any debt
securities with a maturity at the time of original issuance greater than or
equal to 9 months and less than or equal to 30 years, except as contemplated
hereby or in any Terms Agreement. XTRA and the Company may, subject to
Section 1(d), enter into any revolving credit and/or term loan agreements
with commercial banking institutions and loans from insurance companies
(provided that such loans shall not consist of Securities). The Company
reserves the right to sell, and may solicit and accept offers to purchase,
Securities directly on its own behalf; provided, however, that if at the time
of any such sales the Agents are posting terms and conditions for the
purchase and sale of the Securities, such sales shall be on substantially the
same terms and conditions as then posted by the Agents; provided further,
that in the case of any such sales not resulting from a solicitation made by
any Agent, no commission shall be payable with respect to such sales. Each
Agent also acknowledges and agrees that the Company may accept (but not
solicit) offers to purchase Securities through additional agents, and may
appoint another agent, or agents, to solicit offers to purchase the Notes,
provided that such additional agent or agents shall be engaged on terms
substantially similar to the applicable terms of this Agreement (except that
commissions payable to such agent or agents shall be identical to those set
forth in the commission schedule in this Section 2(a)).
The Company and XTRA reserve the right, in their sole discretion,
to instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Securities. As soon
as practicable, but in any event not later than one business day in New York
City after receipt of notice from the Company and XTRA, the Agents will
suspend solicitation of offers to purchase Securities from the Company and
XTRA until such time as the Company and XTRA have advised the Agents that
such solicitation may be resumed.
The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Company and XTRA as a result of a
solicitation made by such Agent, in an amount equal to the following
applicable percentage of the principal amount of such Security sold:
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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%
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
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Securities pursuant to any Terms Agreement shall be deemed to have been made
on the basis of the representations and warranties of the Company and XTRA
herein contained and shall be subject to the terms and conditions herein set
forth. Each Terms Agreement shall specify the principal amount of Securities
to be purchased by any Agent pursuant thereto, the price to be paid to the
Company for such Securities, any provisions relating to rights of, and
default by, underwriters acting together with such Agent in the reoffering of
the Securities and the time and date and place of delivery of and payment for
such Securities. Such Terms Agreement shall also specify any requirements for
opinions of counsel, accountants' letters and officers' certificates pursuant
to Section 4 hereof.
For each sale of Securities to an Agent as principal that is not
made pursuant to a Terms Agreement, the Company agrees to pay such Agent a
commission (or grant an equivalent discount) as provided in Section 2(a)
hereof and in accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities to be
purchased by an Agent as principal, whether set forth in a Terms Agreement or
in accordance with the Procedure, is referred to herein as a "Time of
Delivery".
(c) Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase Securities and the payment
in each case therefor shall be as set forth in the Procedure. The provisions
of the Procedure shall apply to all transactions contemplated hereunder other
than those made pursuant to a Terms Agreement. Each Agent, XTRA and the
Company agree to perform the respective duties and obligations specifically
provided to be performed by each of them in the Procedure. The Company and
XTRA will furnish to the Trustee a copy of the Procedure as from time to time
in effect.
3. The documents required to be delivered pursuant to Section 6
hereof on the Commencement Date (as defined below) shall be delivered to the
Agents at the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, at 2:00 p.m., New York City time, on the date of this Agreement,
which date and time of such delivery may be postponed by agreement between
the Agents and the Company and XTRA but in no event shall be later than the
day prior to the date on which solicitation of offers to purchase Securities
is commenced or on which any Terms Agreement is executed (such time and date
being referred to herein as the "Commencement Date").
4. The Company and XTRA covenant and agree with each Agent:
(a) (i) To prepare the Prospectus, as amended and supplemented, in
a form approved by such Agent and (A) to file such Prospectus pursuant to
Rule 424(b) under the Act not later than the Commission's close of business
on the second business day following the acceptance of an offer to purchase a
Security (as described in the Procedure pursuant to Section 2(c) of this
Agreement) or (B) to file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission's close of business on the second business
day following the execution and delivery of the Terms Agreement relating to
the Purchased Securities (as defined therein); (ii) to make no amendment or
supplement to the Registration Statement or the Prospectus (A)
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prior to the Commencement Date which shall be disapproved by any Agent
promptly after reasonable notice thereof or (B) after the date of any Terms
Agreement or other agreement by an Agent to purchase Securities as principal
and prior to the related Time of Delivery which shall be disapproved by any
Agent party to such Terms Agreement or so purchasing as principal promptly
after reasonable notice thereof, in each case such approval not to be
unreasonably withheld or delayed; (iii) to make no such amendment or
supplement, other than a Pricing Supplement, at any other time prior to
having afforded each Agent a reasonable opportunity to review and comment
thereon; (iv) to file promptly all reports and any definitive proxy or
information statements required to be filed by XTRA or the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
for so long as the delivery of a prospectus is required in connection with
the offering or sale of the Securities, and during such same period to advise
such Agent, promptly after XTRA or the Company receives notice thereof, of
the time when any amendment to the Registration Statement has been filed or
has become effective or any supplement to the Prospectus or any amended
Prospectus (other than any Pricing Supplement that relates to Securities not
purchased through or by such Agent) has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amendment or supplement
of the Registration Statement or Prospectus or for additional information;
and (v) in the event of the issuance of any such stop order or of any such
order preventing or suspending the use of any such prospectus or suspending
any such qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as such Agent
may reasonably request to qualify the Securities for offering and sale under
the securities laws of such jurisdictions as such Agent may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein for as long as may be necessary to complete the distribution or sale
of the Securities; provided, however, that in connection therewith neither
the Company nor XTRA shall be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
(c) To furnish each Agent with copies of the Registration
Statement and each amendment thereto, and with copies of the Prospectus as
each time amended or supplemented, other than any Pricing Supplement (except
as provided in the Procedure), in the form in which it is filed with the
Commission pursuant to Rule 424 under the Act, both in such quantities as
such Agent may reasonably request from time to time; and, if the delivery of
a prospectus is required at any time in connection with the offering or sale
of the Securities (including Securities purchased from the Company and XTRA
by such Agent as principal) and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust
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Indenture Act, to notify such Agent and request such Agent, in its capacity
as agent of the Company and XTRA, to suspend solicitation of offers to
purchase Securities from the Company and XTRA and, if so notified, such Agent
shall cease such solicitations as soon as practicable, but in any event not
later than one business day later; and if the Company or XTRA shall decide to
amend or supplement the Registration Statement or the Prospectus as then
amended or supplemented, to so advise such Agent promptly by telephone (with
confirmation in writing) and to prepare and cause to be filed promptly with
the Commission an amendment or supplement to the Registration Statement or
the Prospectus as then amended or supplemented that will correct such
statement or omission or effect such compliance; provided, however, that if
during such same period such Agent continues to own Securities purchased from
the Company and XTRA by such Agent as principal, the Company and XTRA shall
promptly prepare and file with the Commission such an amendment or supplement;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of XTRA and its subsidiaries, including the
Company (which need not be audited), complying with Section 11(a) of the Act
and the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) So long as any Securities are outstanding, to furnish to such
Agent copies of all reports or other communications (financial or other)
furnished to stockholders, and deliver to such Agent (i) as soon as they are
available, copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange on which any
class of securities of XTRA or the Company is listed; and (ii) such
additional information concerning the business and financial condition of
XTRA and the Company as such Agent may from time to time reasonably request
(such financial statements to be on a consolidated basis to the extent the
accounts of XTRA and its subsidiaries, including the Company, are
consolidated in reports furnished to their stockholders generally or to the
Commission but including such detail concerning the business and financial
condition of the Company and its subsidiaries as the Agents may reasonably
request);
(f) That, from the date of any Terms Agreement and continuing to
and including the earlier of (i) the termination of the trading restrictions
for the Securities purchased thereunder, as notified to the Company or XTRA
by the Agents and (ii) the related Time of Delivery, neither the Company nor
XTRA will, without the prior written consent of such Agent, offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
or XTRA which mature more than nine months after such Time of Delivery and
which are substantially similar to the Securities;
(g) That each acceptance by the Company and XTRA of an offer to
purchase Securities hereunder, and each execution and delivery by the Company
and XTRA of a Terms Agreement with such Agent, shall be deemed to be an
affirmation to such Agent that the representations and warranties of the
Company and XTRA contained in or made pursuant to this Agreement are true and
correct as of the date of such acceptance or of such Terms
-11-
Agreement, as the case may be, as though made at and as of such date, and an
undertaking that such representations and warranties will be true and correct
as of the settlement date for the Securities relating to such acceptance or
as of the Time of Delivery relating to such sale, as the case may be, as
though made at and as of such date (except that such representations and
warranties shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented relating to such Securities);
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented (other than by a
Pricing Supplement) and each time a document filed under the Act or the
Exchange Act is incorporated by reference into the Prospectus, and each time
the Company and XTRA sell Securities to such Agent as principal pursuant to a
Terms Agreement and such Terms Agreement specifies the delivery of an opinion
or opinions by Xxxxxxxx & Xxxxxxxx, counsel to the Agents, as a condition to
the purchase of Securities pursuant to such Terms Agreement, the Company and
XTRA shall furnish to such counsel such papers and information as they may
reasonably request to enable them to furnish to such Agent the opinion or
opinions referred to in Section 6(b) hereof;
(i) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement), each
time a document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus, and each time the Company and XTRA sell
Securities to such Agent as principal pursuant to a Terms Agreement and such
Terms Agreement specifies the delivery of an opinion under this Section 4(i)
as a condition to the purchase of Securities pursuant to such Terms
Agreement, the Company and XTRA shall furnish or cause to be furnished
forthwith to such Agent a written opinion of Ropes & Xxxx, counsel for the
Company and XTRA, or other counsel for the Company and XTRA satisfactory to
such Agent, and of Xxxxx X. Xxxxxx, general counsel for the Company and XTRA,
respectively, dated the date of such amendment, supplement, incorporation or
Time of Delivery relating to such sale, as the case may be, in form
satisfactory to such Agent, in each case to the effect that such Agent may
rely on the opinion of such counsel referred to in Section 6(c) and Section
6(d), respectively, hereof which was last furnished to the Agents to the same
extent as though it were dated the date of such letter authorizing reliance
(except that the statements in such last opinion shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented to
such date) or, in lieu of such opinion, an opinion of the same tenor as the
opinion referred to in Section 6(c) and Section 6(d), respectively, hereof
but modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date;
(j) That each time the Registration Statement or the Prospectus
shall be amended or supplemented and each time that a document filed under
the Act or the Exchange Act is incorporated by reference into the Prospectus,
in either case to set forth financial information included in or derived from
XTRA's consolidated financial statements or one of XTRA's or the Company's
accounting records, and each time the Company and XTRA sell Securities to an
Agent as principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of a letter under this Section 4(j) as a condition to
the purchase of Securities pursuant to such Terms Agreement, the Company and
XTRA shall cause the independent certified public accountants who have
certified the financial statements of XTRA and its direct and indirect
-12-
subsidiaries, including the Company, included or incorporated by reference in
the Registration Statement forthwith to furnish such Agent a letter, dated
the date of such amendment, supplement, incorporation or Time of Delivery
relating to such sale, as the case may be, in form satisfactory to such
Agent, of the same tenor as the letter referred to in Section 6(e)(i) hereof
but modified to relate to the Registration Statement and the Prospectus as
amended or supplemented to the date of such letter, with such changes as may
be necessary to reflect changes in the financial statements and other
information derived from the accounting records of XTRA and the Company, to
the extent such financial statements and other information are available as
of a date not more than five business days prior to the date of such letter;
provided, however, that, with respect to any financial information or other
matter, such letter may reconfirm as true and correct at such date as though
made at and as of such date, rather than repeat, statements with respect to
such financial information or other matter made in the letter referred to in
Section 6(e)(i) hereof which was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement), each
time a document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus and each time the Company and XTRA sell
Securities to such Agent as principal pursuant to a Terms Agreement and such
Terms Agreement specifies the delivery of a certificate under this Section
4(k) as a condition to the purchase of Securities pursuant to such Terms
Agreement, the Company and XTRA shall furnish or cause to be furnished
forthwith to such Agent a certificate or certificates, dated the date of such
supplement, amendment, incorporation or Time of Delivery relating to such
sale, as the case may be, in such form and executed by such officers of the
Company and XTRA as shall be satisfactory to such Agent, to the effect that
the statements contained in the certificate or certificates referred to in
Section 6(h) hereof which was last furnished to such Agent are true and
correct at such date as though made at and as of such date (except that such
statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in lieu of such
certificate, certificates of the same tenor as the certificates referred to
in said Section 6(h) but modified to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date; and
(l) To offer to any person who has agreed to purchase Securities
as the result of an offer to purchase solicited by the Agents the right to
refuse to purchase and pay for such Securities if, on the related settlement
date fixed pursuant to the Procedure, any condition set forth in any of
Section 6(a)(i), 6(f)(x) and (z) or 6(g) hereof shall not have been satisfied
(it being understood that the judgment of such person with respect to the
impracticability or inadvisability of such purchase of Securities shall be
substituted, for purposes of this Section 4(l), for the respective judgments
referred to therein of such Agent with respect to certain matters referred to
in such Sections 6(a)(i), 6(f)(x) and (z) and 6(g), and that such Agent shall
have no duty or obligation whatsoever to exercise the judgment permitted
under such Sections 6(a)(i), 6(f)(x) and (z) and 6(g) on behalf of any such
person).
5. The Company and XTRA covenant and agree with each Agent that
the Company and XTRA will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Company's and XTRA's counsel and
accountants in connection with the registration of
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the Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus, the Prospectus and any Pricing Supplements and all
other amendments and supplements thereto and the mailing and delivering of
copies thereof to such Agent; (ii) the fees and expenses of counsel for the
Agents in connection with the establishment of the program contemplated
hereby and the transactions contemplated hereunder; (iii) the out-of- pocket
expenses of the Agents; (iv) the cost of printing, producing or reproducing
this Agreement, any Terms Agreement, any Indenture (including any supplement
thereto), any Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the
Securities; (v) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 4(b) hereof, including the fees and disbursements of counsel for the
Agents in connection with such qualification and in connection with the Blue
Sky and legal investment surveys; (vi) any fees charged by securities rating
services for rating the Securities; (vii) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities; (viii) the cost of preparing the
Securities; (ix) the fees and expenses of any Trustee and any agent of any
Trustee and any transfer or paying agent of the Company and the fees and
disbursements of counsel for any Trustee or such agent in connection with any
Indenture and the Securities; (x) any advertising expenses connected with the
solicitation of offers to purchase and the sale of Securities so long as such
advertising expenses have been approved by the Company or XTRA; and (xi) all
other costs and expenses incident to the performance of the Company's or
XTRA's obligations hereunder which are not otherwise specifically provided
for in this Section. It is understood, however, that except as provided in
this Section and Sections 7 and 8 hereof, each Agent will pay all other costs
and expenses it incurs.
6. The obligation of any Agent, as agent of the Company and XTRA,
at any time ("Solicitation Time") to solicit offers to purchase the
Securities and the obligation of such Agent to purchase Securities as
principal pursuant to any Terms Agreement shall in each case be subject, in
such Agent's discretion, (i) to the condition that all representations and
warranties and other statements of the Company and XTRA herein (and, in the
case of an obligation of an Agent under a Terms Agreement, in or incorporated
by reference in such Terms Agreement) are true and correct (a) at and as of
the Commencement Date and (b) any applicable date referred to in Section 4(k)
hereof that is after such Commencement Date and prior to such Solicitation
Time or Time of Delivery, as the case may be, and (c) at and as of such
Solicitation Time or Time of Delivery, as the case may be, and (ii) the
condition that at or prior to such Solicitation Time or Time of Delivery, as
the case may be, the Company and XTRA shall have performed all of their
obligations hereunder theretofore to be performed and the following
additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the Prospectus as
amended or supplemented (including the Pricing Supplement) with respect to
such Securities shall have been filed with the Commission pursuant to Rule
424(b) under the Act within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with
Section 4(a) hereof; (ii) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the
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Commission; and (iii) all requests for additional information on the part of
the Commission shall have been complied with to the reasonable satisfaction
of such Agent;
(b) 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 XTRA, the validity
of the Indenture, the Securities, the Registration Statement, the Prospectus
as amended or supplemented and other related matters as such Agent may
reasonably request, and (ii) if and to the extent requested by such Agent,
with respect to each applicable date referred to in Section 4(h) hereof that
is on or prior to such Solicitation Time or Time of Delivery, as the case may
be, an opinion or opinions, dated such applicable date, to the effect that
such Agent may rely on the opinion or opinions which were last furnished to
such Agent pursuant to this Section 6(b) to the same extent as though it or
they were dated the date of such letter authorizing reliance (except that the
statements in such last opinion or opinions shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date) or, in any case, in lieu of such an opinion or opinions, an opinion or
opinions of the same tenor as the opinion or opinions referred to in clause
(i) but modified to relate to the Registration Statement and the Prospectus
as amended and supplemented to such date; and in each case such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters (including an opinion of Xxxxxx Xxxxxx
or other counsel satisfactory to the Agents in respect of matters of Maine
law);
(c) Ropes & Xxxx, counsel for the Company and XTRA, or other
counsel for the Company and XTRA satisfactory to such Agent, shall have
furnished to such Agent their written opinions, dated the Commencement Date
and each applicable date referred to in Section 4(i) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may be, in
form and substance satisfactory to such Agent to the effect that:
(i) XTRA has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware and
the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maine, in
each case, with corporate power to own its properties and conduct its
business as described in the Prospectus (such counsel being entitled to
rely upon an opinion of Xxxxxx Xxxxxx or other counsel satisfactory to
the Agents in respect of matters of Maine law, provided such counsel
shall state that he believes both the Agents and such counsel are
justified in relying upon such opinion);
(ii) XTRA has an authorized capitalization as set forth for it in
the Prospectus as amended or supplemented and all of the issued and
outstanding shares of capital stock of XTRA have been duly authorized and
validly issued and are fully paid and non-assessable;
(iii) This Agreement and any applicable Terms Agreement have been
duly authorized, executed and delivered by the Company;
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(iv) The Securities have been duly authorized and, when duly
executed, authenticated, and issued in accordance with the
Indenture and delivered by the Company and paid for in accordance with
the terms hereof, will constitute valid and legally binding
obligations of the Company and XTRA, enforceable in
accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles, entitled to the benefits
provided by the Indenture and the Guarantee;
(v) The Original Indenture and the Second Supplemental Indenture
have been duly authorized, executed and delivered by the Company and
XTRA and the First Supplemental Indenture has been duly
authorized, executed and delivered by the Company, XTRA and
XTRA Missouri, and the Indenture constitutes a valid and
legally binding instrument of the Company and XTRA,
enforceable against each of them in accordance with its
terms, subject to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the
Indenture has been duly qualified under the Trust Indenture
Act;
(vi) Each Guarantee, when executed and delivered pursuant to the
Indenture, will have been duly authorized, executed and
delivered by the Guarantor and will constitute a valid and
legally binding instrument of the Guarantor, enforceable in
accordance with its terms, subject to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles;
(vii) The Indenture, the Securities and the form of the Guarantee
conform to the descriptions thereof in the Prospectus as amended or
supplemented;
(viii) The issue and sale of the Securities, the compliance by the
Company and XTRA with, as applicable, all of the provisions of the
Securities, the Indenture, the Guarantee, this Agreement and
any applicable Terms Agreement, and the consummation of the
transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of
the terms or provisions of any statutes, the Company's
Articles of Incorporation, as amended, XTRA's Certificate of
Incorporation, as amended, or the By-Laws or any order, rule
or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the
Company or XTRA or any of their properties (it being
understood that counsel's opinion need only cover federal,
Massachusetts and the Delaware business corporation law);
(ix) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body is required for the solicitation of offers to purchase
Securities and the issue and sale of the Securities, the
consummation by the Company or XTRA of the other
transactions contemplated by this Agreement, any applicable
Terms Agreement, or the Indenture or the Guarantee, except
such as have been obtained under the Act and the Trust
Indenture Act and such as may be required under state
securities or Blue Sky laws in connection with the
solicitation by the Agents of offers to purchase Securities
from the Company and XTRA and with purchases of Securities
by the Agents as principal, as the case may be, in each case
in the manner
-16-
contemplated hereby (it being understood that
counsel's opinion need only cover federal, Massachusetts and
the Delaware business corporation law);
(x) The Registration Statement and the Prospectus and any amendments
and supplements thereto made by XTRA or the Company prior to the
date of such opinion (other than the financial statements
including the notes and schedules thereto, any financial
data set forth or referred to in the Registration Statement
or the Prospectus or any statements or omissions made by
XTRA and the Company in reliance upon information furnished
in writing to XTRA and the Company by the Agents in
connection with the Registration Statement or Prospectus, as
to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the
Act and the Trust Indenture Act and the rules and
regulations thereunder; such counsel do not know of any
legal or governmental proceedings to which XTRA or any of
its subsidiaries, including the Company, is a party or of
which any of their property is the subject required to be
described in the Prospectus which are not described as
required therein; such counsel have no reason to believe
that, as of the effective date of the Registration
Statement, either the Registration Statement or the
Prospectus (or, as of its date, any amendment or supplement
thereto made by XTRA or the Company prior to the date of
such opinion) (other than the financial statements including
the notes and schedules thereto, any financial data set
forth or referred to in the Registration Statement or the
Prospectus or any statements or omissions made by XTRA and
the Company in reliance upon information furnished in
writing to XTRA and the Company by the Agents in connection
with the Registration Statement or Prospectus, as to which
such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of the date of
such opinion, either the Registration Statement or the
Prospectus (or any such amendment or supplement thereto)
contained as of its date or contains an untrue statement of
a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading (in the case of any such opinion as
of such date, in light of the circumstances under which they
were made, and in each case excluding any statement in any
such document which does not constitute part of the
Registration Statement or the Prospectus pursuant to Rule
412 of Regulation C under the Act), or that as of the date
of such opinion it is necessary to amend or supplement the
Registration Statement or Prospectus, except to file Pricing
Supplements pursuant to Rule 424(b) under the Act; and they
do not know of any contracts or other documents of a
character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or
required to be described in the Registration Statement or
the Prospectus as amended or supplemented which are not
filed or incorporated by reference or described as required;
(d) Xxxxx X. Xxxxxx, general counsel for XTRA and the Company,
shall have furnished to the Agents his written opinions, dated the
Commencement Date and each applicable date referred to in Section 4(i) that
is on or prior to such Solicitation Time or Time of Delivery, as the case may
be, in form and substance satisfactory to the Agents, to the effect set forth
in subsection (x) of Section 6(c) above and, additionally, as follows:
-17-
(i) Neither XTRA nor the Company is required to be qualified as a
foreign corporation under the laws of any jurisdictions in which the
consequences of a failure to so qualify, individually or in
the aggregate, would have a material adverse effect on the
business of XTRA or the Company and their respective
subsidiaries (in each case taken as a whole);
(ii) Each of X-L-Co., Inc., Distribution International Corporation,
Xxxxxx Canada Limited, XTRA Intermodal, Inc., XTRA
International Ltd., XLI, Inc. and XTRA Lease, Inc. has been
duly incorporated and is validly existing as a corporation
in good standing under the laws of its jurisdiction of
incorporation and has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so
as to require such qualification and in which the
consequences of a failure to so qualify would have a
material adverse effect on the business of XTRA or the
Company and their respective subsidiaries (in each case
taken as a whole); and all of the issued shares of capital
stock of the Company and of each of its subsidiaries have
been duly and validly authorized and issued, are fully paid
and non-assessable, and (except for directors' qualifying
shares and except as otherwise set forth in the Prospectus)
are owned directly by XTRA (in the case of the Company) or
the Company or indirectly through one or more subsidiaries,
free and clear, to the best of such counsel's knowledge, of
all liens, encumbrances, equities or claims (such counsel
being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of XTRA or its
direct or indirect subsidiaries, including the Company,
provided that such counsel shall state that he believes that
both you and he are justified in relying upon such opinions
and certificates);
(iii) To the best of such counsel's knowledge there are no legal or
governmental proceedings pending to which XTRA or any of its
subsidiaries, including the Company, is a party or of which
any property of XTRA or any of its subsidiaries, including
the Company, is the subject, other than as set forth in the
Prospectus and other than litigation incident to the kind of
business conducted by XTRA and its subsidiaries, including
the Company, which individually and in the aggregate is not
material to XTRA and its subsidiaries, including the
Company; and to the best of such counsel's knowledge no such
proceedings are threatened by governmental authorities or
others;
(iv) The issue and sale of the Securities, the compliance by XTRA
and the Company with, as applicable, all of the provisions of the
Securities, the Indenture, the Guarantee, this Agreement and
any applicable Terms Agreement, and consummation of the
transactions herein and therein contemplated will not result
in (x) a breach or violation of any of the terms or
provisions of any statute, XTRA's Certificate of
Incorporation, the Company's Articles of Incorporation, the
Company's or XTRA's By-laws, or any order, rule or
regulation known to such counsel of any court or
governmental agency or body having jurisdiction over XTRA or
the Company or any of their respective subsidiaries or any
of their properties or (y) a breach or violation of any of
the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which
XTRA or any of its
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subsidiaries, including the Company, is a
party or by which XTRA or any of its subsidiaries, including
the Company, is bound, in each case in this provision (y)
the consequences of which would in any way affect the
issuance and sale of the Securities (including the
Guarantee), the performance of this Agreement or the
transactions contemplated hereby or the Guarantee, or
otherwise, individually or in the aggregate, have a material
adverse effect on the business of XTRA or the Company and
their respective subsidiaries (in each case taken as a
whole);
(v) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body is required for the solicitation of offers to purchase
Securities, the issue and sale of the Securities, the
compliance by XTRA or the Company with all the provisions of
the Securities, the consummation by XTRA or the Company of
the transactions contemplated by this Agreement, any
applicable Terms Agreement or the Indenture or the
Guarantee, except such as have been obtained under the Act
and such as may be required under state securities or Blue
Sky laws in connection with the solicitation by the Agents
of offers to purchase securities from the Company and with
purchases of Securities by the Agents as principal, as the
case may be, in each case in the manner contemplated hereby;
(vi) The documents incorporated by reference in the Prospectus
(other than the financial statements, including the notes and schedules
thereto, or any financial data set forth or referred to
therein, as to which such counsel need express no opinion),
when they became effective or were filed with the
Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or
Exchange Act, as applicable, and the published rules and
regulations of the Commission thereunder; and such counsel
has no reason to believe that any of such documents (other
than the financial statements, including the notes thereto
or any financial data set forth or referred to therein, as
to which such counsel need express no opinion), when they
became effective or were so filed, contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to
make the statements therein, in the light of the
circumstances under which they were made when such documents
were so filed, not misleading;
(e) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section 4(j)
hereof that is on or prior to such Solicitation Time or Time of Delivery, as
the case may be, the independent certified public accountants who have
certified the financial statements of XTRA and its direct and indirect
subsidiaries, including the Company, included or incorporated by reference in
the Registration Statement shall have furnished to such Agent a letter, dated
the Commencement Date or such applicable date, as the case may be, in form
and substance satisfactory to such Agent, to the effect set forth in Annex
III hereto;
(f) (i) Neither XTRA nor any of its subsidiaries, including the
Company, shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as amended
or supplemented any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
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or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented and (ii) since the respective dates as of which such information
is given in the Prospectus as amended or supplemented there shall not have
been (x) any change in the capital stock (other than issuances of capital
stock pursuant to the provisions of employee or director benefit or stock
option plans or agreements of XTRA) or (y) any increase in excess of $50
million in the long-term debt of XTRA or any of its subsidiaries, including
the Company, or (z) any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of XTRA and its subsidiaries,
including the Company, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Agents so material
and adverse as to make it impracticable or inadvisable to proceed with the
solicitation by the Agents of offers to purchase Securities from XTRA and the
Company or the purchase by the Agents of Securities from XTRA and the Company
as principal, as the case may be;
(g) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the
New York Stock Exchange; (ii) a general moratorium on commercial banking
activities in New York declared by either federal or New York State
authorities; (iii) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency
or war if the effect of any such event specified in this clause (iii) in the
judgment of the Agents makes it impracticable or inadvisable to proceed with
the solicitation of offers to purchase Securities or the purchase of
Securities from XTRA and the Company as principal pursuant to the applicable
Terms Agreement, as the case may be; or (iv) any downgrading in the rating
accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Act; or (v) any such "nationally
recognized statistical rating organization" shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities; and
(h) XTRA and the Company shall have furnished or caused to be
furnished to such Agent certificates of officers of XTRA and the Company
dated the Commencement Date and each applicable date referred to in Section
4(k) that is on or prior to such Solicitation Time or Time of Delivery, as
the case may be, in such form and executed by such officers of XTRA and the
Company as shall be satisfactory to such Agent, as to the accuracy of the
representations and warranties of XTRA and the Company herein at and as of
the Commencement Date or such applicable date, as the case may be, as to the
performance by XTRA and the Company of all of its obligations hereunder to be
performed at or prior to the Commencement Date or such applicable date, as
the case may be, as to the matters set forth in subsections (a) and (f) of
this Section 6, and as to such other matters as such Agent may reasonably
request.
7. (a) XTRA and the Company will, jointly and severally,
indemnify and hold harmless each Agent against any losses, claims, damages or
liabilities, joint or several, to which such Agent may become subject, under
the Act or otherwise, insofar as such losses,
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claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented or any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse such Agent
for any legal or other expenses reasonably incurred by it in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that XTRA and Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the Securities, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to XTRA and Company by any such Agent expressly for use
in the Prospectus as amended or supplemented.
(b) Each Agent will indemnify and hold harmless XTRA and the
Company against any losses, claims, damages or liabilities to which XTRA and
the Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented or any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the Prospectus as
amended or supplemented or any other prospectus relating to the Securities,
or any such amendment or supplement, in reliance upon and in conformity with
written information furnished to XTRA and the Company by such Agent expressly
for use therein; and will reimburse XTRA and the Company for any legal or
other expenses reasonably incurred by XTRA and the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from
-21-
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by XTRA and the Company on the one
hand and each Agent on the other from the offering of the Securities to which
such loss, claim, damage or liability (or action in respect thereof) relates.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each indemnifying party
shall contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of XTRA and the Company on the one hand and each
Agent on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by XTRA and the Company on the one hand and each
Agent on the other shall be deemed to be in the same proportion as the total
net proceeds from the sale of Securities (before deducting expenses) received
by the Company bear to the total commissions or discounts received by such
Agent in respect thereof. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading relates to information supplied by XTRA or the Company
on the one hand or by any Agent on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. XTRA and the Company and each Agent
agrees that it would not be just and equitable if contribution pursuant to
this subsection (d) were determined by per capita allocation (even if the
Agents were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above in this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), an
Agent shall not be required to contribute any amount in excess of the amount
by which the total public offering price of the Securities purchased by or
through it exceeds the amount of any damages which such Agent has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of each of the Agents under
this subsection (d) to
-22-
contribute are several in proportion to the respective purchases made by or
through it to which such loss, claim, damage or liability (or action in
respect thereof) relates and are not joint.
(e) The obligations of XTRA and the Company under this Section 7
shall be in addition to any liability which XTRA and the Company may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Agent within the meaning of the Act; and the
obligations of each Agent under this Section 7 shall be in addition to any
liability which such Agent may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of XTRA and the Company
and to each person, if any, who controls XTRA or the Company within the
meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from
the Company and XTRA and in performing the other obligations of such Agent
hereunder (other than in respect of any Terms Agreement), is acting solely as
agent for the Company and XTRA and not as principal. Each Agent will make
reasonable efforts to assist the Company and XTRA in obtaining performance by
each purchaser whose offer to purchase Securities from the Company and XTRA
was solicited by such Agent and has been accepted by the Company and XTRA,
but such Agent shall not have any liability to the Company and XTRA in the
event such purchase is not consummated for any reason. If the Company or XTRA
shall default on its obligation to deliver Securities to a purchaser whose
offer it has accepted, the Company and XTRA shall (i) hold each Agent
harmless against any loss, claim or damage arising from or as a result of
such default by the Company and XTRA and (ii) notwithstanding such default,
pay to the Agent that solicited such offer any commission to which it would
be entitled in connection with such sale. The Company and XTRA shall not be
required to pay any Agent a commission in connection with any purchase of a
Security which is not consummated other than as a result of a default by the
Company or XTRA of its obligations hereunder, including their obligation to
deliver Securities to a purchaser whose offer has been accepted.
9. The respective indemnities, agreements, representations,
warranties and other statements by any Agent and XTRA and the Company set
forth in or made pursuant to this Agreement shall remain in full force and
effect regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Agent or any controlling person of any
Agent or either of XTRA or the Company, or any officer or director or any
controlling person of either of XTRA or the Company, and shall survive each
delivery of and payment for any of the Securities.
10. The provisions of this Agreement relating to the solicitation
of offers to purchase Securities from the Company and XTRA may be suspended
or terminated at any time by the Company and XTRA as to any Agent or by any
Agent as to such Agent upon the giving of written notice of such suspension
or termination to such Agent or the Company or XTRA, as the case may be. In
the event of such suspension or termination with respect to any Agent, (x)
this Agreement shall remain in full force and effect with respect to any
Agent as to which such suspension or termination has not occurred, (y) this
Agreement shall remain in full force and effect with respect to the rights
and obligations of any party which have previously accrued or which relate to
Securities which are already issued, agreed to be issued or the subject of a
pending offer at the time of such suspension or termination and (z) in any
event,
-23-
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 be delivered or sent by facsimile
transmission or registered mail to Brooklyn Army Terminal, 000 00xx Xxxxxx,
0xx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000, Facsimile Transmission No. (718)
921-8472, Attention: Xxxxxx Xxxxxxxx, if to Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation shall be sufficient in all respects when delivered or
sent by telex, facsimile transmission or registered mail to 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Facsimile Transmission No. (000) 000-0000,
Attention: Xxxxxx XxXxxxx, if to Xxxxxx Xxxxxxx & Co. Incorporated shall be
sufficient in all respects when delivered or sent by telex, facsimile
transmission or registered mail to 0000 Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Facsimile Transmission No. (000) 000-0000, Attention: Manager
--Continuously Offered Products, with a copy to 0000 Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000, Facsimile Transmission No. (000) 000-0000, Attention:
Xxxxx Xxxxxx, Investment Banking Information Center, except that any Pricing
Supplements should also be delivered or sent by facsimile transmission or
registered mail to 0000 Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Facsimile
Transmission No. (000) 000-0000, Attention: Medium-Term Note Trading Desk,
Xxxxxx Xxxxxxx, 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. (000) 000-0000, Attention:
General Counsel.
12. This Agreement and any Terms Agreement shall be binding upon,
and inure solely to the benefit of, each Agent and the Company and XTRA, and
to the extent provided in Section 7, Section 8 and Section 9 hereof, the
officers and directors of the Company and XTRA and any person who controls
any Agent or the Company or XTRA, and their respective personal
representatives, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any Terms Agreement.
No purchaser of any of the Securities through or from any Agent hereunder
shall be deemed a successor or assign by reason merely of such purchase.
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
-24-
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.
-25-
If the foregoing is in accordance with your understanding, please
sign and return to us eight counterparts hereof, whereupon this letter and
the acceptance by each of you thereof shall constitute a binding agreement
between the Company and you in accordance with its terms.
Very truly yours,
XTRA, INC.
By:_____________________
Name: Xxxxxxx X. Xxxx
Title:Vice President
and Chief Financial Officer
XTRA CORPORATION
By:_____________________
Name: Xxxxxxx X. Xxxx
Title:Vice President
and Chief Financial Officer
Accepted in New York, New York,
as of the date hereof:
___________________________
(XXXXXXX, SACHS & CO.)
XXXXX XXXXXX INC.
By:________________________
Name:
Title:
-00-
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
By:________________________
Name:
Title:
Xxxxxx Xxxxxxx & Co. Incorporated
By:________________________
Name:
Title:
-27-
ANNEX I
XTRA, Inc.
Series C Medium-Term Notes
Guaranteed as to Payment of Principal,
Premium (if any) and Interest by
XTRA Corporation
TERMS AGREEMENT
___________, 19__
[Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
[Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
[Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
[Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
Dear Sirs:
XTRA, Inc. (the "Company") and XTRA Corporation
("XTRA") propose, subject to the terms and conditions stated
herein and in the Distribution Agreement, dated February 9, 1996
(the "Distribution Agreement"), between the Company and XTRA on
the one hand and Xxxxxxx, Sachs & Co., Xxxxx Xxxxxx Inc. ("Xxxxx
Xxxxxx"), Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
("Xxxxxxxxx, Lufkin & Xxxxxxxx") and Xxxxxx Xxxxxxx & Co.
Incorporated ("Xxxxxx Xxxxxxx") on the other, to issue and sell
to [Xxxxxxx, Sachs & Co.], [Xxxxx Xxxxxx], [Xxxxxxxxx, Xxxxxx &
Xxxxxxxx] and [Xxxxxx Xxxxxxx] the securities specified in the
Schedule hereto (the "Purchased Securities"). Each of the
provisions of the Distribution Agreement not specifically related
to the solicitation by the Agents, as agents of the Company and
XTRA, of offers to purchase Securities is incorporated herein by
reference in its entirety, and shall be deemed to be part of this
Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Nothing contained herein or in the
Distribution Agreement shall make any
I-1
party hereto an agent of the Company or XTRA or make such party subject to
the provisions therein relating to the solicitation of offers to purchase
securities from the Company and XTRA, solely by virtue of its execution of
this Terms Agreement. Each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Terms
Agreement, except that each representation and warranty in Section 1 of the
Distribution Agreement which makes reference to the Prospectus shall be
deemed to be a representation and warranty as of the date of the Distribution
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Terms Agreement in
relation to the Prospectus as amended and supplemented to relate to the
Purchased Securities.
An amendment to the Registration Statement, or a
supplement to the Prospectus, as the case may be, relating to the
Purchased Securities, in the form heretofore delivered to you is
now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein
and in the Distribution Agreement incorporated herein by
reference, the Company and XTRA agree to issue and sell to
[Xxxxxxx, Sachs & Co.] [Xxxxx Xxxxxx] [Xxxxxxxxx, Xxxxxx &
Xxxxxxxx] and [Xxxxxx Xxxxxxx] and [Xxxxxxx, Xxxxx & Co.] [Xxxxx
Xxxxxx] [Xxxxxxxxx, Xxxxxx & Xxxxxxxx] and [Xxxxxx Xxxxxxx]
agree[s] to purchase from the Company the Purchased Securities,
at the time and place, in the principal amount and at the
purchase price set forth in the Schedule hereto.
If the foregoing is in accordance with your
understanding, please sign and return to us _______ counterparts
hereof, and upon acceptance hereof by you this letter and such
acceptance hereof, including those provisions of the Distribution
Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company and XTRA.
XTRA, INC.
By:_____________________
Name:
Title:
XTRA CORPORATION
By:_____________________
Name:
Title:
Accepted:
I-2
___________________________
[(XXXXXXX, SACHS & CO.)]
[XXXXX XXXXXX INC.]
By:________________________
Name:
Title:
[Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation]
By:________________________
Name:
Title:
[Xxxxxx Xxxxxxx & Co. Incorporated]
By:________________________
Name:
Title:
I-3
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, Sachs & Co.] [Xxxxx Xxxxxx]
[Xxxxxxxxx, Xxxxxx & Xxxxxxxx] and [Xxxxxx Xxxxxxx]:
% of the principal amount of the Purchased
Securities, plus accrued interest from to
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to
the order of the Company, in [[New York] Clearing House]
[immediately available] funds]
[By wire transfer to a bank account specified by the Company
in [next day] [immediately available] funds]
Indenture:
Indenture, dated as of August 15, 1994, between the Company,
XTRA and State Street Bank and Trust Company, as Trustee, as
amended and supplemented.
Time of Delivery:
Closing Location:
Maturity:
Interest Rate:
[ %]
I-4
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] [Xxxxxxxxx, Xxxxxx &
Xxxxxxxx] and [Xxxxxx Xxxxxxx]
I-5
ANNEX II
XTRA, Inc.
Issuer
XTRA Corporation
Guarantor
ADMINISTRATIVE PROCEDURE
MEDIUM-TERM NOTES
SERIES C
Medium-term notes, each of which has the benefit of an
unconditional guarantee (the "Guarantee") of payment of
principal, premium (if any) and interest from XTRA Corporation
(the medium-term notes, together with the Guarantee being
referred to herein as the "Securities") in the aggregate
principal amount of up to $604,000,000 are to be offered from
time to time by XTRA, Inc. (the "Company") and XTRA Corporation
("XTRA"), through Xxxxxxx, Sachs & Co., Xxxxx Xxxxxx Inc.,
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and Xxxxxx
Xxxxxxx & Co. Incorporated as agents of the Company and XTRA (in
such capacity, individually an "Agent" and collectively the
"Agents"). Each Agent has agreed to use its reasonable efforts to
solicit offers to purchase Securities directly from the Company
and XTRA, and each such Agent may also purchase Securities from
the Company and XTRA as principal. The Securities are being sold
pursuant to a Distribution Agreement, dated February 9, 1996 (the
"Distribution Agreement").
The Securities will be issued pursuant to an indenture,
dated as of August 15, 1994 (the "Original Indenture"), between
the Company, XTRA and The First National Bank of Boston, as
Trustee (the "Bank of Boston"), as amended and supplemented by
(i) the First Supplemental Indenture, dated as of September 30,
1994 (the "First Supplemental Indenture"), between the Company,
XTRA, XTRA Missouri, Inc., a Delaware corporation, and the Bank
of Boston, as Trustee, and (ii) the Second Supplemental
Indenture, dated as of ______ __, 1997 (the "Second Supplemental
Indenture" and together with the Original Indenture and the First
Supplemental Indenture, the "Indenture"), between the Company,
XTRA and State Street Bank and Trust Company, as successor
Trustee. The Securities will have been registered with the
Securities and Exchange Commission (the "Commission").
In the case of purchases of Securities by any Agent as
principal, the relevant terms and settlement details related
thereto, including the Time of Delivery referred to in
Section 2(b), will be set forth in a Terms Agreement entered into
between such Agent and the Company and XTRA pursuant to the
Distribution Agreement, unless the Company and such Agent
otherwise agree as provided in Section 2(b) of the Distribution
Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below.
The procedures to be followed during, and the specific
terms of, the solicitation of offers by the Agents and the sale
as a result thereof by the Company are explained below. The
following summaries of certain provisions of the Distribution
Agreement and the Indenture do not purport to be complete and are
subject, and are qualified in their entirety by reference, to all
of the respective provisions of the Distribution Agreement and
the Indenture.
II-1
Administrative and record-keeping responsibilities will
be handled for the Company by its Treasurers Department. The
Company will advise the Agents in writing of those persons
handling administrative responsibilities ("Designated Persons")
with whom the Agents are to communicate regarding offers to
purchase Securities and the details of their delivery.
Maturities: Each Security will mature on a date,
selected by the purchaser and
agreed to by the Company, which
will be at least nine months but
not more than thirty years from the
date of issuance.
Guarantee: Each Security will have the benefit of
the Guarantee.
Price to Public: Each Security will be issued at 100% of
its principal amount.
Denominations: The denominations will be $100,000 and any
integral multiple of $1,000 in excess
thereof. Global Securities (as defined
below) will be denominated in principal
amounts not in excess of $200,000,000.
If one or more Book-Entry Notes having
an aggregate principal amount in excess
of $200,000,000 would, but for the
preceding sentence, be represented by a
single Global Security, then one Global
Security will be authenticated and
issued to represent each $200,000,000
principal amount of such Book-Entry Note
or Notes and an additional Global
Security will be authenticated and
issued to represent any remaining
principal amount of such Book-Entry Note
or Notes. In such a case, each of the
Global Securities representing such
Book-Entry Note or Notes shall be
assigned the same CUSIP number.
Registration: Each Security will be issued only in
fully registered form and will be
represented by either a global
security (a "Global Security")
delivered to the Trustee, as agent
for The Depository Trust Company
(the "Depository") and recorded in
the book-entry system maintained by
the Depository (a "Book-Entry
Security") or a certificate issued
in definitive form (a "Certificated
Security") delivered to a person
designated by an Agent, as set
forth in the applicable Pricing
Supplement. An owner of a
Book-Entry Security will not be
entitled to receive a certificate
representing such a Security,
except as provided in the
Indenture.
Each Global Security will be registered in
the name of CEDE & Co., as nominee for
DTC, on the Security Register. The
beneficial owner of a Book-Entry Note
(or one or more indirect participants in
DTC designated by such owner) will
designate one or
II-2
more direct
participants in DTC (with respect to
such Note, the "Participants") to act as
agent or agents for such owner in
connection with the book-entry system
maintained by DTC, and DTC will record
in book-entry form, in accordance with
instructions provided by such
Participants, a credit balance with
respect to such beneficial owner in such
Note in the account of such
Participants. The ownership interest of
such beneficial owner in such Note will
be recorded through the records of such
Participants or through the separate
records of such Participants and one or
more indirect participants in DTC.
Identification The Company has arranged with the CUSIP
Service Bureau of
Numbers: Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the
reservation of a series of CUSIP
numbers (including tranche numbers)
for the Registered Notes. Such
series consists of approximately
900 CUSIP numbers and relates to
Global Securities representing
Book-Entry Notes and book- entry
medium-term notes issued by the
Company with other series
designations. The Company has
obtained from the CUSIP Service
Bureau written lists of such
reserved CUSIP numbers, and caused
such lists to be delivered to the
DTC Agent and to DTC. The Company
will assign CUSIP numbers to Global
Securities as described below under
Settlement Procedure "A". DTC will
notify the CUSIP Service Bureau
periodically of the CUSIP numbers
that the Company has assigned to
Global securities. The DTC Agent
will notify the Company at any time
when fewer than 100 of the reserved
CUSIP numbers remain unassigned to
Global Securities, and, if it deems
necessary, the Company will reserve
additional CUSIP numbers for
assignment to Global Securities.
Upon obtaining such additional
CUSIP numbers, the Company shall
deliver a list of such additional
CUSIP numbers to the DTC Agent and
to DTC.
Interest Payments: Interest payments will be made, with
respect to fixed-rate Securities,
unless otherwise stated in the
applicable Pricing Supplement, on
each January 15 and July 15 in each
year and, with respect to
floating-rate Securities, on the
dates specified therein (in each
case, the "Interest Payment
Dates"), commencing on the first
Interest Payment Date after the
Settlement Date (as defined below
under "Settlement"), and at
maturity. Interest payments will be
made on the Interest Payment Dates
to the registered owners of
fixed-rate Securities, at the close
of business on the immediately
preceding January 1 and July 1,
respectively; interest payments
will be made on the Interest
Payment Dates to the registered
owners of floating-rate Securities
on the record dates occurring 15
days prior to each Interest Payment
Date. Interest will begin
II-3
to accrue
on the Settlement Date, as
hereafter defined, and not from the
immediately previous Interest
Payment Date. Interest payable at
maturity (other than on a date
which is an Interest Payment Date)
will be paid to the same person to
whom the principal is payable.
Interest (including payments for
partial periods) will be calculated
on the basis of a 360-day year of
twelve 30-day months. Unless
special arrangements have been
made, all interest payments (other
than interest due at maturity) will
be made by check, drawn on The
First National Bank of Boston.
On the fifth business day immediately
preceding each Interest Payment Date,
the Trustee will advise the Company of
the aggregate amount of interest to be
paid on the Securities on such Interest
Payment Date. The Trustee will provide
monthly to XTRA's and the Company's
Treasurer or Assistant Treasurer a list
of the principal and interest to be paid
on Securities maturing in the next
succeeding month. The Trustee will
assume responsibility for withholding
taxes on interest paid as required by
law.
Acceptance of The Agents will promptly advise the Company
Offers: by telephone or
other appropriate means of all
reasonable offers to purchase
securities, other than those rejected by
the Agents. The Company shall inform
XTRA of any such offers. The Agents may,
in their discretion reasonably
exercised, reject any offer received by
them in whole or in part. The Company
and XTRA will have the sole right to
accept offers to purchase Securities and
may reject any such offer in whole or in
part.
If the Company and XTRA accept an offer to
purchase Securities, they will confirm
such acceptance in writing to the Agents
and the Trustee or its agent. If the
Company and XTRA reject an offer, they
will promptly notify the Agents.
If the Company and XTRA accept an offer to
purchase a Security (as described below
under "Procedure for Posting"), but the
Company has not "posted" rates, the
Company will prepare a pricing sticker
reflecting the terms of such Security
and will arrange to have ten stickered
Prospectus Supplements filed with the
Commission not later than the
Commission's close of business on the
second business day following such
acceptance of an offer to purchase a
Security and will supply at least ten
stickered Prospectus Supplements to the
Agents. The Agents will cause a
Prospectus Supplement with such pricing
sticker to be delivered to the purchaser
of the Security.
II-4
If the Company and XTRA accept an offer to
purchase a Security and the Company has
"posted" rates, the Agents will cause a
Prospectus Supplement with a "posted"
rates sticker to be delivered to the
purchaser of such Security.
Delivery of With respect to each Security sold
Prospectus: pursuant to the Distribution
Agreement, the Agents shall send a
copy of the Prospectus Supplement
(together with either a specially
prepared pricing sticker relating
to such Security or a "posted"
rates sticker), to the customer or
its agent prior to or together with
the earlier of delivery of (a) the
written confirmation of sale sent
to such customer or agent or
(b) the Security or due 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
Settlement: made, prior to 3:00 p.m.,
New York City time, on the day
prior to the Settlement Date, the
Company will instruct the Trustee
or its agent by facsimile
transmission or other acceptable
written means to authenticate and
deliver the Securities no later
than 11:00 a.m., New York City
time, on the Settlement Date.
Details for The Agents must communicate the
Settlement: following information (the
"Sale Information"), in each case
if applicable, from the purchaser
to a Designated Person by facsimile
transmission or other acceptable
written means:
(1) Name of the registered owner,
(2) Address of the registered owner,
(3) Taxpayer identification number of
the registered owner,
(4) Principal amount of the purchase,
(5) Date of Security,
(6) Interest rate or method for
determining and resetting interest
rate, as the case may be,
(7) Spread,
(8) Spread multiplier,
(9) Redemption,
II-5
(10) Redemption price,
(11) Prepayment date,
(12) Original Issue Discount,
(13) Settlement Date,
(14) Maturity date,
(15) Denominations of certificate(s),
(16) Agents' commission (to be paid as a
discount from gross proceeds of sale),
(17) Net proceeds to the Company, and
(18) Book-Entry Security or Certificated
Security.
After receiving the Sale Information from the
Agents, and, after recording the Sale
Information and any necessary
calculations, the Company will
communicate such Sale Information by
telephone (confirmed in writing),
facsimile transmission or other
acceptable written means, to the Trustee
or its agent. Prior to preparing the
Securities for delivery, the Trustee or
its agent will promptly confirm the Sale
Information by telephone with the
Agents. The Trustee or its agent will
assign to and enter on each Security a
transaction number.
Delivery of The Trustee or its agent will prepare
each Security and four
Certificated receipts that will serve as the
documentary control of the
Securities: transaction. One receipt will be
distributed to the Agents and one
to the Company's and XTRA's
Controllers Department. The Trustee
or its agent will retain the other
two receipts for record-keeping
purposes and to implement payment
of interest.
In the case of a sale of a Security to a
purchaser solicited by the Agents, the
Trustee will, by 2:15 p.m., New York
City time, on the Settlement Date,
deliver the Security to the Agents for
the benefit of the purchaser of such
Security against delivery by the Agents
of a receipt therefor. On the Settlement
Date the Agents will deliver payment for
such Security in immediately available
funds to the Company in an amount equal
to the issue price of the Security less
the Agents' commission; provided that
the Agents reserve the right to withhold
payment for which they have not received
funds from the purchaser. The Company
shall not use any proceeds advanced by
the Agents to acquire securities. The
Agents will obtain a written
acknowledgment from the purchaser of the
receipt of such security.
In the case of a sale of a Security to the
Agents acting as principal, the Trustee
will, by 2:15 p.m., New York City time,
on the Settlement Date, deliver the
Security to the Agents against delivery
II-6
of payment for such Security in
immediately available funds to the
Company in an amount equal to the issue
price of the Security less the Agents'
discount.
Failures in In the event that a purchaser (other
Respect of than the Agents acting as
Certificated principal) shall fail to accept
Securities: delivery of and make payment for
any Security, the Agents will
forthwith notify the Company's
Treasurer by telephone (confirmed
in writing) or by facsimile
transmission. If the Security has
been delivered to the Agents on
behalf of the purchaser, the Agents
will immediately return the
Security to the Company or its
agent. If funds have been advanced
by the Trustee or the Agents, as
the case may be, for the purchase
of such Security, the Trustee or
its agent will immediately upon
receipt of the Security debit the
account of the Company in an amount
equal to the amount previously
credited thereto in respect of the
Security and will either credit the
account of or return such funds to
the Agents, or the Company will
return to the Agents directly an
amount equal to the amount
previously paid by the Agents to
the company in respect of such
Security. Such debits and credits
or returns will be made on the
Settlement Date if possible and, in
any event, not later than the
business day following the
Settlement Date. If such failure
shall have occurred for any reason
other than default by the Agents in
the performance of its obligations
under the Distribution Agreement,
the Company will reimburse the
Agents on an equitable basis for
its loss of the use of the funds
during the period when they were
credited to the account of the
Company.
Immediately upon receipt of the certificate
representing the Security in respect of
which the failure occurred, the Trustee
or its agent will cancel the Security,
make appropriate entries in its records
and, unless otherwise instructed by the
Company, destroy the certificate.
Procedures Applicable
only to Book-Entry
securities
Delivery of A. The Company will assign a
Global CUSIP number to the
previously delivered Security from a list of CUSIP numbers
Book-Entry
to the Trustee by the Company
representing such Book-Entry
Securities: Security and then advise the
Company and the Selling Agent or
Purchasing Agent, as the case may
be, of such CUSIP number.
B. The Trustee will enter a
pending deposit message through the
Depository's Participant Terminal
System, providing the following
settlement information to the
Depository, and the
II-7
Depository shall
forward such information to such Agent
and Standard & Poor's Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security
representing such Book-Entry
Security;
(3) Whether such Global Security will
represent any other Book-Entry
Security (to the extent known at
such time);
(4) Number of the Participant account
maintained by the Depository on
behalf of the Selling Agent or
Purchasing Agent, as the case may
be;
(5) The interest payment period;
(6) Initial Interest Payment Date for
such Book-Entry Security, number of
days by which such date succeeds
the record date for the
Depository's purposes (which, in
the case of Floating Rate
Securities which reset weekly shall
be the date five calendar days
immediately preceding the
applicable Interest Payment Date
and in the case of all other
Book-Entry Securities shall be the
Regular Record Date, as defined in
the Security) and, if calculable at
that time, the amount of interest
payable on such Interest Payment
Date.
C. The Trustee will complete and
authenticate the Global Security
previously delivered by the Company
representing such Book-Entry Security.
D. The Depository will credit such
Book-Entry Security to the Trustee's
participant account at the Depository.
E. The Trustee will enter an SDFS
deliver order through the Depository's
Participant Terminal System instructing
the Depository to (i) debit such
Book-Entry Security to the Trustee's
participant account and credit such
Book-Entry Security to such Agent's
participant account and (ii) debit such
Agent's settlement account and credit
the Trustee's settlement account for an
amount equal to the price of such
Book-Entry Security less such Agent's
commission. The entry of such a deliver
order shall constitute a representation
and warranty by the Trustee to the
Depository that (a) the Global Security
representing such Book-Entry Security
has been issued and authenticated and
(b) the Trustee is holding such Global
Security pursuant to the Certificate
Agreement.
Each such communication by the Company
shall constitute a representation and
warranty by the Company to the DTC
Agent, the Trustee and such Agent that
(i) such Note is then, and at the time
of issuance and sale thereof will be,
duly authorized for issuance and sale by
the Company, (ii) such
II-8
Note, and the
Global Security representing such Note,
will conform with the terms of the
Indenture and (iii) upon authentication
and delivery of such Global Security,
the aggregate initial public offering
price or purchase price of all Notes
issued under the Indenture will not
exceed $1,115,000,000 (except for
Book-Entry Notes represented by Global
Securities authenticated and delivered
in exchange for or in lieu of Global
securities pursuant to the Indenture and
except for Certificated Notes
authenticated and delivered upon
registration or transfer of, in exchange
for, or in lieu of Certificated Notes
pursuant to the Indenture).
F. Such Agent will enter an SDFS
deliver order through the Depository's
Participant Terminal System instructing
the Depository (i) to debit such
Book-Entry Security to such Agent's
participant account and credit such
Book-Entry Security to the participant
accounts of the Participants with
respect to such Book-Entry Security and
(ii) to debit the settlement accounts of
such Participants and credit the
settlement account of such Agent for an
amount equal to the price of such
Book-Entry Security.
G. Transfers of funds in
accordance with SDFS deliver orders
described in Settlement Procedures "E"
and "F" will be settled in accordance
with SDFS operating procedures in effect
on the settlement date.
H. Upon confirmation of receipt of
funds, the Trustee will transfer to the
account of the Company maintained at
State Street Bank and Trust Company, or
such other account as the Company may
have previously specified to the
Trustee, in funds available for
immediate use in the amount transferred
to the Trustee in accordance with
Settlement Procedure "E".
I. Upon request, the Trustee will
send to the Company a statement setting
forth the principal amount of Book-Entry
Securities outstanding as of that date
under the Indenture.
J. Such Agent will confirm the
purchase of such Book-Entry Security to
the purchaser either by transmitting to
the Participants with respect to such
Book-Entry Security a confirmation order
or orders through the Depository's
institutional delivery system or by
mailing a written confirmation to such
purchaser.
K. The Depository will at any
time, upon request of the Company or the
Trustee, promptly furnish to the Company
or
II-9
the Trustee a list of the names and
addresses of the participants for whom
the Depository has credited Book-Entry
Securities.
Preparation of If the Company accepts an offer to purchase a
Pricing Book-Entry
Supplement: Security, it will prepare a Pricing
Supplement reflecting the
terms of such Book-Entry Security and
arrange to have delivered to the Selling
Agent or Purchasing Agent, as the case
may be, at least ten copies of such
Pricing Supplement, not later than 5:00
p.m., New York City time, on the
Business Day following the receipt of
the Sale Information, or if the Company
and the purchaser agree to settlement on
the Business Day following the date of
acceptance, not later than noon, New
York City time, on such date. The
Company will arrange to have ten Pricing
Supplements filed with the Commission
not later than the close of business of
the Commission on the fifth Business Day
following the date on which such Pricing
Supplement is first used.
Delivery of The Selling Agent will deliver to the
Confirmation purchaser of a Book-Entry
and Prospectus Security a written confirmation of the
to Purchaser sale and delivery and
by Selling Agent: payment instructions. In addition,
the Selling Agent will
deliver to such purchaser or its agent
the Prospectus as
amended or supplemented (including
the Pricing Supplement)
in relation to such Book-Entry Security
prior to or together with the earlier of
the delivery to such purchaser or its
agent of (a) the confirmation of sale or
(b) the Book-Entry Security.
Date of The receipt by the Company of
Settlement: immediately available funds in
payment for a Book-Entry Security
and the authentication and issuance
of the Global Security representing
such Book-Entry Security shall
constitute "settlement" with
respect to such Book-Entry
Security. All orders accepted by
the Company will be settled on the
third Business Day pursuant to the
timetable for settlement set forth
below unless the Company and the
purchaser agree to settlement on
another day which shall be no
earlier than the next Business Day.
II-10
Settlement For orders of Book-Entry Securities
Procedure solicited by an Agent, as
Timetable: agent, and accepted by the Company
for settlement on the
first Business Day after the sale
date, Settlement Procedures set
forth above shall be completed as
soon as possible but not later than
the respective times (New York City
time) set forth below:
II-11
Settlement
Procedure Time
Sale 5:00 p.m. on the Business Day following the
acceptance of an offer
Information by the Company or 10:00 a.m.
on the Business Day prior
Communicated to the settlement date, whichever is earlier
A 12:00 noon on the sale date
B 2:00 p.m. on the sale date
C 5:00 p.m. on settlement date
D 10:00 a.m. on settlement date
E-F 2:00 p.m. on settlement date
G 4:45 p.m. on settlement date
H 5:00 p.m. on settlement date
If a sale is to be settled more than one
Business Day after the sale date,
Settlement Procedures "A" and "B" shall
be completed as soon as practicable but
not later than 2:00 p.m. on the first
Business Day after the sale date. If the
initial interest rate for a Floating
Rate Book-Entry Security has not been
determined at the time that the Sale
Information is communicated, Settlement
Procedures "A" and "B" shall be
completed as soon as such rate has been
determined but no later than 2:00 p.m.
on the second Business Day before the
settlement date. Settlement Procedure
"G" is subject to extension in
accordance with any extension of Fedwire
closing deadlines and in the other
events specified in the SDFS operating
procedures in effect on the settlement
date.
If settlement of a Book-Entry Security is
rescheduled or canceled, the Trustee,
upon obtaining knowledge thereof, will
deliver to the Depository, through the
Depository's Participation Terminal
System, a cancellation message to such
effect by no later than 2:00 p.m. on the
Business Day immediately preceding the
scheduled settlement date.
Failures in If the Trustee fails to enter an SDFS
Respect deliver order with respect to
of Book-Entry Book-Entry Security pursuant to
Securities: Settlement Procedure "E",
the Trustee may deliver to the
Depository, through the Deposi-
II-12
tory's Participant Terminal System, as
soon as practicable a withdrawal message
instructing the Depository to debit such
Book-Entry Security to the Trustee's
participant account, provided that the
Trustee's participant account contains a
principal amount of the Global Security
representing such Book-Entry Security
that is at least equal to the principal
amount to be debited. If a withdrawal
message is processed with respect to all
the Book-Entry Securities represented by
a Global Security, the Trustee will xxxx
such Global Security "canceled", make
appropriate entries in the Trustee's
records and send such canceled Global
Security to the Company. The CUSIP
number assigned to such Global Security
shall, in accordance with CUSIP Service
Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal
message is processed with respect to one
or more, but not all, of the Book-Entry
Securities represented by a Global
Security, the Trustee will exchange such
Global Security for two Global
Securities, one of which shall represent
such Book-Entry Security or Securities
and shall be canceled immediately after
issuance and the other of which shall
represent the remaining Book-Entry
securities previously represented by the
surrendered Global Security and shall
bear the CUSIP number of the surrendered
Global Security.
If the purchase price for any Book-Entry
Security is not timely paid to the
participants with respect to such
Book-Entry Security by the beneficial
purchaser thereof (or a person including
an indirect participant in the
Depository, acting on behalf of such
purchaser), such participants and, in
turn, the Agent for such Book-Entry
Security may enter deliver orders
through the Depository's Participant
Terminal System debiting such Book-Entry
Security to such participant's account
and crediting such Book-Entry Security
to such Agent's account and then
debiting such Book-Entry Security to
such Agent's participant account and
crediting such Book-Entry Security to
the Trustee's participant account and
shall notify the Company and the Trustee
thereof. Thereafter, the Trustee will
(i) immediately notify the Company of
such order and the Company shall
transfer to such Agent funds available
for immediate use in an amount equal to
the price of such Book-Entry Security
which was credited to the account of the
company maintained at the Trustee in
accordance with Settlement Procedure I,
and (ii) deliver the withdrawal message
and take the related actions described
in the preceding paragraph. If such
failure shall have occurred for any
reason other than default by the
applicable Agent to perform its
obligations hereunder or under the
Distribution Agreement, the Company will
reimburse such Agent on an equitable
II-13
basis for the loss of its use of funds
during the period when the funds were
credited to the account of the Company.
Notwithstanding the foregoing, upon any
failure to settle with respect to a
Book-Entry Security, the Depository may
take any actions in accordance with its
SDFS operating procedures then in
effect. In the event of a failure to
settle with respect to one or more, but
not all, of the Book-Entry Securities to
have been represented by a Global
Security, the Trustee will provide, in
accordance with Settlement Procedure "D"
for the authentication and issuance of a
Global Security representing the other
Book-Entry Securities to have been
represented by such Global Security and
will make appropriate entries in its
records. The Company will, from time to
time, furnish the Trustee with a
sufficient quantity of Securities.
Procedures Generally
Applicable
Payment at Upon presentation of each Security at
Maturity: maturity, the Trustee or its
agent will pay the principal amount
of such Security, together with
accrued interest due at maturity
(except when maturity occurs on
April 1 or October 1), in
immediately available funds by wire
transfer except as provided in the
Indenture. The Trustee or its agent
will cancel Securities presented at
maturity as provided in the
Indenture, and, unless otherwise
instructed by the Company, forward
them directly to the Company's
Controllers Department with an
appropriate debit advice.
Procedure for If the Company and XTRA decide to "post"
Posting: rates, the
Company, XTRA and the Agents will
discuss from time to time the rates of
interest per annum to be borne by and
the maturity of Securities that may be
sold as a result of the solicitation of
offers by the Agents. Once a decision
has been reached to set initially the
"posted" rates or to change already
"posted" rates, the Company or XTRA will
promptly advise the Agents to suspend
solicitation of offers until the initial
or changed "posted" rates have been
established. When such rates have been
established, the Company will then
promptly prepare "posted" rates stickers
reflecting such posted rates and
maturities. The Company will then
promptly arrange to have ten Prospectus
Supplements so stickered filed with the
Commission not later than the
Commissioner's close of business on the
second business day after such "posted"
rates have been established and to have
copies of such stickered Prospectus
Supplements delivered to the Agents.
II-14
"Posting" rates shall mean establishing a
fixed set of interest rates and
maturities for an offering period, which
rates and maturities are to be set forth
on "posted" rates stickers attached to
Prospectus Supplements distributed to
potential purchasers.
The Agents and the Company and XTRA shall
destroy outdated "posted" rates stickers
and the Prospectus Supplements to which
they are attached (other than those
retained for files).
Suspension of Subject to its representations, warranties and covenants
Solicitation; contained in the Distribution
Agreement, the Company or XTRA
Amendment or may instruct the Agents to suspend
solicitation of offers to
Supplement: purchase Securities at any time. As
soon as practicable, but in any
event not later than one business
day after, the Agents will suspend
solicitation until such time as the
Company has advised the Agents that
solicitation of offers to purchase
Securities may be resumed. Except
as otherwise provided for in the
Distribution Agreement, the Company
and XTRA have discretion regarding
whether to amend or supplement the
Registration Statement or
Prospectus. If the Company or XTRA
propose so to amend or supplement,
they will promptly advise the
Agents and will furnish the Agents
such proposed amendment or
supplement and, after the Agents
has been afforded a reasonable
opportunity to review such
amendment or supplement, will cause
such amendment or supplement
promptly to be filed with, or
mailed for filing to, the
Commission. The Company will
promptly provide the Agents with
copies of any such amendment or
supplement and confirm to the
Agents that such amendment or
supplement has been filed with the
Commission.
In the event that at the time the Agents
suspend solicitation of offers to
purchase Securities there shall be any
orders for delayed settlement
out-standing, the Company and XTRA,
consistent with their obligations under
the Distribution Agreement, promptly
will advise the Agents whether such
orders may be settled and whether copies
of the Prospectus as in effect at the
time of the suspension may be delivered
in connection with the settlement of
such orders. The Company and XTRA will
have the sole responsibility for such
decision and for any arrangements which
may be made in the event that the
Company or XTRA determine that such
orders may not be settled or that copies
of such Prospectus may not be so
delivered.
Authenticity The Company will cause the Trustee to
of Signatures: furnish the Agents from
time to time with the specimen
signatures of each of the Trustee's
officers, employees or agents who
have been
II-15
authorized by the Trustee
to authenticate Securities, but the
Agents will have no obligation or
liability to the Company or the
Trustee or its agent in respect of
the authenticity of the signature
of any officer, employee or agent
of the Company, XTRA or the Trustee
or its agent on any Security.
Advertising The Company and XTRA will determine upon
consultation with the Agents the
amount of advertising that may be
appropriate in the solicitation of
offers to purchase the Securities.
Advertising expenses will be paid
by the Company and XTRA.
II-16
ANNEX III
Pursuant to Section 4(j) and Section 6(e)(i), as the
case may be, of the Distribution Agreement, XTRA's independent
certified public accountants shall furnish letters to the effect
that:
(i) They are independent certified public accountants with respect to
XTRA
and its direct and indirect subsidiaries, including the
Company, within the meaning of the Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the financial statements and financial
statement
schedules audited by them and included or incorporated by
reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the
applicable accounting requirements of the Act or the
Exchange Act, as applicable, and the related published rules
and regulations thereunder;
(iii) They have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71 on
the unaudited financial statements included in XTRA's
Quarterly Report on Form 10-Q, incorporated by reference
into the Prospectus, and inquired of certain officials of
XTRA who have responsibility for financial and accounting
matters as to whether the unaudited financial statements
comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act as it
applies to Form 10-Q and the related published rules and
regulations, and based on the foregoing procedures, nothing
came to their attention that caused them to believe that any
material modifications should be made to the unaudited
financial statements for them to be in conformity with
generally accepted accounting principles, or that the
unaudited condensed consolidated financial statements do not
comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and
the related published rules and regulations;
(iv) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial
statements, a reading of the latest available interim
financial statements of XTRA and its direct and indirect
subsidiaries, including the Company, inspection of the
minute books of XTRA and its direct and indirect
subsidiaries, including the Company, since the date of the
latest audited financial statements included or incorporated
by reference in the Prospectus, inquiries of officials of
XTRA and its direct and indirect subsidiaries, including the
Company, responsible for financial and accounting matters,
nothing came to their attention that caused them to believe
that:
(A) as of a specified date not more than five
days prior to the date of such letter, there has been
any increase in the consolidated long-term debt of XTRA
and its direct and indirect subsidiaries, including the
Company, or any decrease in the amount of XTRA's
retained earnings, or any decreases in common stock,
consolidated net property and equipment or lease
contracts receivable in each case as compared with
amounts shown on the most recently filed Form 10-Q,
except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(B) for the period from the date of the latest
financial statements included or incorporated by
reference in the Prospectus to the specified date
referred to in Clause (A) there were any decreases, as
compared with the corresponding period in the preceding
year, in the amount of XTRA's consolidated revenues, or
income from operations before provision for income
taxes or any decreases in the ratio of income from
operations before provision for income taxes to
revenues, or any increases in the ratios of
depreciation on rental equipment, rental equipment
operating expense (which includes repair, and
maintenance, tires and tubes, transportation and
storage, facilities and other expense), selling and
administrative expense or interest expense to revenues,
except in each case for increases or decreases which
the Prospectus discloses have occurred or may occur or
which are described in such letter;
(v) In addition to the audit referred to in their report
(s) included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (iv) above,
they have carried out certain specified procedures, not
constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts,
percentages and financial information specified by the
Agents which are derived from the general accounting records
of XTRA and its direct and indirect subsidiaries, including
the Company, which appear in the Prospectus (including
documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement
specified by the Agents or in documents incorporated by
reference in the Prospectus specified by the Agents, and
have compared certain of such amounts, percentages and
financial information with the accounting records of XTRA
and its direct and indirect subsidiaries, including the
Company, and have found them to be in agreement;
(vi) They compared the amounts included in the Selected
Financial Data to the appropriate annual reports on Form 10-K
and found them to be in agreement. They have also compared the
amounts included in the selected quarterly financial data to the
Company's accounting records, the appropriate Quarterly
Report on Form 10-Q or the appropriate Form 10-K, and found
them to be in agreement. They compared the information
included in the Selected Financial Data, the Selected
Quarterly Financial Data and the Ratios of Earnings to Fixed
Charges and Earnings to Combined Fixed Charges and Preferred
Stock Dividends tables with the requirements of Items 301 or
302 or 503, respectively, of Regulation S-K. They also
inquired of certain officials of XTRA who have
responsibility for financial and accounting matters whether
this information conforms in all material respects with the
disclosure requirements of Items 301 or 302 or 503,
respectively, of Regulation S-K. Nothing came to their
attention to cause them to believe that the Selected
Financial Data, the Selected Quarterly Financial Data and
Ratios of Earnings to Fixed Charges and Earnings to Combined
Fixed Charges and Preferred Stock Dividends did not conform
in all material respects to the disclosure requirements of
Rule 301 or 302 or 503, respectively, of Regulation S-K; and
(vii) If pro forma financial information is required to be
included in or incorporated by reference into the Registration
Statement or the Prospectus, they have
(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.