PACCAR FINANCIAL CORP.
Medium-Term Notes, Series H
UNDERWRITING AGREEMENT
To each of the Underwriters March __, 1996
who are signatories hereto
Dear Sirs:
PACCAR Financial Corp., a Washington corporation (the "Company"),
proposes to sell its Medium-Term Notes, Series H (the "Securities") to each
of you acting severally as an underwriter (each of you being referred to
herein as an "Underwriter") in such principal amount or amounts as the
Company and the purchasing Underwriter may agree upon from time to time. The
Securities are to be issued pursuant to the indenture, dated as of December
1, 1983, as amended by the first supplemental indenture dated as of June 19,
1989 (the "Indenture"), between the Company and Citibank, N.A., as trustee
(the "Trustee").
SECTION 1. REPRESENTATIONS AND WARRANTIES. (a) The Company
represents and warrants as of the date hereof, as of the date of each
applicable Schedule hereinafter referred to and as of each applicable Closing
Date hereinafter referred to, and as of the times referred to in Sections
6(e), 6(f) and 6(g) hereof (in each case a "Representation Date"), as follows:
(i) A registration statement on Form S-3 with
respect to the Securities has been prepared and filed
by the Company under the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations (the
"Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder, and has
become effective. The Indenture has been qualified
under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"). As used in this Agreement,
(A) "Preliminary Prospectus" means each prospectus and
amendments or supplements thereof (including all
documents incorporated therein by reference) included
in such registration statement before it became
effective under the Act, including any prospectus filed
with the Commission pursuant to Rule 424(a) of the
Rules and Regulations; (B) "Registration Statement"
means such registration statement when it became
effective under the Act, as from time to time amended
or supplemented (including all documents incorporated
therein by reference); (C) "Basic Prospectus" means the
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prospectus (including all documents incorporated
therein by reference) included in the Registration
Statement; and (D) "Prospectus" means the Basic
Prospectus, together with any prospectus amendments or
supplements (including in each case all documents
incorporated therein by reference) but excluding any
amended or supplemented prospectus with respect to the
offer and sale of debt securities other than the
Securities, as filed with, or mailed for filing to, the
Commission pursuant to paragraph (b) of Rule 424 of the
Rules and Regulations.
(ii) The Registration Statement (including all
exhibits thereto) and each Prospectus conform, and will
conform as of each applicable Representation Date, in
all material respects with the applicable requirements
of the Act, the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Trust Indenture Act,
and the rules and regulations of the Commission under
such Acts; the Indenture, including any amendments and
supplements thereto, conforms, and will conform as of
the applicable Representation Date, in all material
respects with the requirements of the Trust Indenture
Act and the rules and regulations of the Commission
thereunder; and the Registration Statement does not as
of the date hereof, and will not as of each applicable
Representation Date, contain any untrue statement of a
material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading and the Prospectus
does not as of the date hereof, and will not as of each
applicable Representation Date, contain an untrue
statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading; PROVIDED, HOWEVER, that
the Company makes no representation or warranty to any
Underwriter as to information contained in or omitted
from the Registration Statement or any Prospectus in
reliance upon and in conformity with written
information furnished to the Company by such
Underwriter specifically for inclusion therein.
(iii) The Company is not in violation of its
corporate charter or by-laws or in default in the
observance or performance of any agreement, indenture
or instrument, the effect of which violation or default
would be material to the Company; the execution,
delivery and performance of this Agreement, the
Indenture and the Securities, and compliance by the
Company with the provisions of the Securities and the
Indenture, have been duly authorized by all necessary
corporate action and will not conflict with, result in
the creation or imposition of any lien, charge or
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encumbrance upon any of the assets of the Company
pursuant to the terms of, or constitute a default in
the observance or performance of, any agreement,
indenture or instrument, or result in a violation of
the corporate charter or by-laws of the Company or any
order, rule or regulation of any court or governmental
agency having jurisdiction over the Company or its
properties, the effect of which conflict, lien, charge,
encumbrance, default or violation would be material to
the Company; and except as required by the Act, the
Trust Indenture Act, the Exchange Act and applicable
state securities laws, no consent, authorization or
order of, or filing or registration with, any court or
governmental agency is required for the execution,
delivery and performance of this Agreement and the
Indenture or in connection with the sale of the
Securities hereunder, the failure to obtain which
consent, authorization or order or make which filing or
registration would be material to the Company. The
Company has no subsidiaries within the meaning of Rule
405 of the Rules and Regulations.
(iv) From the dates as of which information is
given in the Registration Statement and each
Prospectus, and except as described therein or in any
amendment or supplement thereto (A) there has not been
any material adverse change in the business,
properties, financial condition, results of operations
or prospects of the Company, (B) there has been no
material transaction entered into by the Company other
than those in the ordinary course of business, and
(C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on its
capital stock, and (D) there has been no amendment to
the support agreement between the Company and
PACCAR Inc ("PACCAR") as amended and restated under
date of June 19, 1989.
(v) Ernst & Young, whose report appears in the
Company's Annual Report on Form 10-K which is
incorporated by reference in the Prospectus, are
independent public accountants as required by the Act
and the Rules and Regulations.
(vi) (A) The Indenture has been validly
authorized, duly executed and delivered by the Company
and constitutes the legally binding obligation of the
Company enforceable in accordance with its terms
(except as enforcement thereof may be limited by
bankruptcy, insolvency, other laws relating to
creditor's rights generally or by general equity
principles), (B) when Securities are sold pursuant
hereto, they will have been validly authorized for
issuance and sale pursuant to this Agreement and, upon
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delivery and payment therefor as provided in this
Agreement and the Indenture, will be validly issued and
outstanding, and will constitute legally binding
obligations of the Company enforceable in accordance
with their terms (except as enforcement thereof may be
limited by bankruptcy, insolvency, or other laws
relating to creditors' rights generally or by general
equity principles) and entitled to the benefits of the
Indenture, and (C) the descriptions of the Securities
and the Indenture contained in the Prospectus fairly
present the information required with respect thereto
in all material respects.
(vii) PACCAR has been duly incorporated and is
validly existing and in good standing under the laws of
the State of Delaware; and the Company has been duly
incorporated, is validly existing and in good standing
under the laws of the State of Washington, is duly
qualified to do business and in good standing as a
foreign corporation in each jurisdiction in which the
failure to so qualify and be in good standing would
materially adversely affect its business or financial
condition, and has the power and authority necessary to
own or hold its properties and to conduct the business
in which it is presently engaged.
(viii) Except as described in the Prospectus,
there is no material litigation or governmental
proceeding pending or, to the knowledge of the Company,
threatened against the Company which might result in
any material adverse change in the financial condition,
results of operations, business, property or prospects
of the Company or which is required to be disclosed in
the Registration Statement.
(ix) The financial statements filed as part of
the Registration Statement or included in any
Preliminary Prospectus or Prospectus present, and will
present as of each applicable Representation Date,
fairly, the financial condition and results of
operations of the Company, at the dates and for the
periods indicated therein, and have been, and will be
as of each applicable Representation Date, prepared in
conformity with generally accepted accounting
principles applied on a consistent basis throughout the
periods involved; and the supporting schedules included
or incorporated in the Registration Statement present
fairly the information required to be stated therein.
(x) The documents incorporated by reference into
any Preliminary Prospectus or Prospectus have been, and
will be as of each applicable Representation Date,
prepared by the Company in conformity in all material
respects with the applicable requirements of the Act
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and the Rules and Regulations and the Exchange Act and
the rules and regulations of the Commission thereunder;
and such documents have been, or will be as of each
applicable Representation Date, timely filed as
required thereby.
(xi) There are no contracts or other documents
which are required to be filed as exhibits to the
Registration Statement by the Act or by the Rules and
Regulations, or which were required to be filed as
exhibits to any document incorporated by reference in
any Prospectus by the Exchange Act or the rules and
regulations of the Commission thereunder, which have
not been filed as exhibits to the Registration
Statement or to such document or incorporated therein
by reference as permitted by the Rules and Regulations
or the rules and regulations of the Commission under
the Exchange Act, as the case may be.
(xii) All the authorized, issued and outstanding
capital stock of the Company has been duly authorized,
is validly issued, fully paid and nonassessable and is
owned, of record and beneficially, by PACCAR, free and
clear of any mortgage, pledge, lien, claim or
encumbrance, except as described in the Prospectus.
(xiii) The Company has all licenses for the
conduct of its business, the failure to have which
would have a material adverse effect on the Company.
(xiv) The Company has complied and will comply
with all of the provisions of Section 517.075, Florida
Statutes (Chapter 92-198, Laws of Florida), and all
regulations promulgated thereunder relating to issuers
doing business with Cuba.
(b) Any certificate signed by any officer of the
Company and delivered to an Underwriter or to its counsel in
connection with a sale of Securities to it shall be deemed a
representation and warranty by the Company to such Underwriter as
to the matters covered thereby.
SECTION 2. PURCHASE AND SALE. Subject to the terms
and conditions and in reliance upon the representations and
warranties herein set forth, from time to time the Company may
agree to sell Securities to an Underwriter, and such Underwriter
may agree to purchase Securities from the Company. Each such
agreement shall incorporate the terms of this Agreement and shall
be evidenced by the execution and delivery by the Company and the
Underwriter of a schedule in the form of Exhibit A hereto
appropriately completed to set forth the principal amount,
interest rate(s) or manner of determining the interest rate(s),
interest payment dates, purchase price of the Securities to be
purchased and any other terms of the Securities and the purchase
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thereof (a "Schedule"). Such execution and delivery may be
accomplished by exchange of telecopied facsimiles, by telex or by
other mutually agreed means. Securities to be purchased by an
Underwriter are herein sometimes called the "Purchased
Securities." Purchased Securities will be represented by a
global certificate (the "Book-Entry Securities) registered in the
name of the depositary (the "Depositary") specified in the
Prospectus or by certificates issued in definitive form (the
"Certificated Securities").
Each delivery of and payment for Purchased Securities
shall be made at the location, on the date and at the time
specified in the applicable Schedule, which date and time may be
postponed by agreement between the purchasing Underwriter and the
Company (each such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of
Certificated Securities shall be made to the Underwriter and
delivery of Book-Entry Securities shall be made to the Trustee as
agent for the Depositary for the account of the Underwriter, in
either case against payment by the Underwriter of the purchase
price to or upon the order of the Company in immediately
available funds, unless otherwise specified in the applicable
Schedule. Certificated Securities shall be registered in such
names and in such denominations as the Underwriter may request at
least one full business day prior to the applicable Closing Date.
The Company will have Certificated Securities available for
inspection, checking and packaging by the Underwriter in the city
in which delivery and payment is to occur, not later than 2 p.m.
Eastern Time, on the business day prior to the applicable Closing
Date.
SECTION 3. COVENANTS OF THE COMPANY. The Company
covenants and agrees:
(a) To furnish promptly to each Underwriter a signed
copy of the Registration Statement as originally filed and each
amendment or supplement thereto, and a copy of each Prospectus
with respect to the Securities filed with the Commission,
including all supplements thereto and all documents incorporated
therein by reference, and all consents and exhibits filed
therewith;
(b) To deliver promptly to each Underwriter such
number of the following documents as each Underwriter may
reasonably request: (i) conformed copies of the Registration
Statement (excluding exhibits other than the computation of the
ratios of earnings to fixed charges, the Indenture and this
Agreement), (ii) each Preliminary Prospectus, Basic Prospectus
and Prospectus with respect to the Securities, and (iii) any
documents incorporated by reference in any Prospectus with
respect to the Securities (excluding exhibits).
(c) To file with the Commission, during any period in
which any Prospectus is required by law to be delivered in
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connection with sales of the Securities, any amendment or
supplement to the Registration Statement or any Prospectus that
is required by the Act or the Rules and Regulations, and all
documents, and any amendments to previously filed documents,
required to be filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act;
(d) Prior to filing with the Commission during any
period in which the Prospectus is required by law to be delivered
in connection with sales of Securities (i) any amendment or
supplement to the Registration Statement, (ii) any Prospectus or
any amendment or supplement thereto, or (iii) any document
incorporated by reference in any of the foregoing or any
amendment of or supplement to any such incorporated document, to
furnish a copy thereof to each Underwriter and its counsel and,
between the date of delivery of any Schedule and prior to the
applicable Closing Date, not to file any such document to which
the purchasing Underwriter reasonably objects;
(e) To advise each Underwriter promptly (i) when any
post-effective amendment to the Registration Statement relating
to or covering the Securities becomes effective, (ii) of any
request by the Commission for an amendment or supplement to the
Registration Statement, to any Prospectus, to any document
incorporated by reference in any of the foregoing or for any
additional information, (iii) of the issuance by the Commission
of any stop order suspending the effectiveness of the
Registration Statement or any order directed to any Prospectus or
any document incorporated therein by reference or the initiation
or threat of any stop order proceeding or of any challenge by the
Commission to the accuracy or adequacy of any document
incorporated by reference in any Prospectus, (iv) of receipt by
the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction
or the initiation or threat of any proceeding for that purpose,
and (v) of the occurrence of any event which causes the
Registration Statement or any Prospectus to contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading;
(f) If, during any period in which the Prospectus is
required by law to be delivered in connection with sales of the
Securities, the Commission shall issue a stop order suspending
the effectiveness of the Registration Statement, to make every
reasonable effort to obtain the lifting of that order at the
earliest possible time;
(g) To make generally available to its security
holders, as soon as practicable but in no event later than
90 days after the end of the twelve-month period identified
below, an earnings statement (in form complying with the
provisions of Section 11(a) of the Act, which need not be
certified by independent certified public accountants unless
required by the Act or the Rules and Regulations) covering the
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twelve-month period beginning not later than the first day of the
fiscal quarter next following the latest date which (i) under
Section 11(a) of the Act and the Rules and Regulations is an
effective date of the Registration Statement for purposes of said
Section 11(a), and (ii) is not later than the sale of all the
Securities;
(h) So long as any of the Securities are outstanding,
to furnish to each Underwriter not later than the time the
Company makes the same generally available to others, copies of
all reports and financial statements furnished by the Company to
any securities exchange on which the Securities are listed
pursuant to requirements of or agreements with such exchange or
to the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder; and
(i) To endeavor, in cooperation with the Underwriters,
to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions
of the United States as we may agree upon and to maintain such
qualifications in effect for as long as may be reasonably
required for the distribution of the Securities. The Company
will file such statements and reports as may be required by the
laws of each jurisdiction in which the Securities have been
qualified as above provided.
(j) If provided in the Schedule, between the date of
such Schedule and the Settlement Date with respect to such
Schedule, the Company will not offer or sell, or enter into any
agreement to sell, any debt securities of the Company (other than
the Securities that are to be sold pursuant to such Schedule and
commercial paper for other short-term debt with an original
maturity of 270 days or less in the ordinary course of business)
without such Underwriter's prior consent.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay
(i) the costs incident to its authorization, issuance, sale and
delivery of the Securities and any taxes payable in that
connection, (ii) the costs incident to the preparation, printing
and filing under the Act of the Registration Statement and any
amendments and exhibits thereto, (iii) the costs incident to the
preparation, printing and filing of any document and any
amendments and exhibits thereto required to be filed by the
Company under the Exchange Act, (iv) the costs of furnishing to
the Underwriters copies of the Registration Statement as
originally filed and each amendment and post-effective amendment
thereof (including exhibits), any Preliminary Prospectus, Basic
Prospectus or Prospectus, any supplement to the Prospectus and
any documents incorporated by reference in any of the foregoing
documents, (v) the fees and disbursements of the Trustee and its
counsel, (vi) the cost of any filings with the National
Association of Securities Dealers, Inc., in respect of the
Securities, (vii) the fees and disbursements of counsel to the
Company, (viii) any fees payable to rating agencies in connection
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with the rating of the Securities, (ix) the fees and expenses of
qualifying the Securities under the securities laws of the
several jurisdictions as provided in this Agreement and of
preparing and printing a Blue Sky Memorandum and a memorandum
concerning the legality of the Securities as an investment
(including reasonable fees and expenses of counsel for the
Underwriters in connection therewith), and (x) all other costs
and expenses incident to the Company's performance of its
obligations under this Agreement.
In addition, the Company agrees to pay the reasonable
fees and disbursements of Xxxxx & Xxxx, counsel for the
Underwriters in connection with the sale of the Securities.
SECTION 5. CONDITIONS OF OBLIGATIONS. The obligations
of an Underwriter to purchase the Securities identified on a
Schedule will be subject to the continued accuracy of the
representations and warranties of the Company contained herein,
to the accuracy of the statements of the Company's officers made
in any certificate furnished pursuant to the provisions hereof,
to the performance and observance by the Company of all covenants
and agreements contained herein and to the following additional
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no order shall
have been issued by the Commission suspending or preventing the
use of any Prospectus, and no proceedings for such purpose shall
be pending before or threatened by the Commission.
(b) On or prior to the applicable Closing Date, the
purchasing Underwriter shall have been furnished such documents,
certificates, accountants' letters and opinions as it may
reasonably request for the purpose of enabling it or its counsel
to determine the accuracy, completeness or satisfaction of any of
the representations, warranties or conditions herein contained.
(c) At each Closing Date, the purchasing Underwriter
shall have received a certificate, dated such Closing Date, of
the President, a Vice President, the General Manager, the
Treasurer or the Controller of the Company to the effect that, to
the best of such officer's knowledge, the conditions set forth in
subsections (a) and (d) of this Section 5 have been satisfied,
and as to the continued accuracy of the representations and
warranties of the Company set forth herein.
(d) No order suspending the sale of the Securities in
any jurisdiction designated pursuant to subsection 3(i) hereof
shall have been issued, and no proceeding for that purpose shall
have been instituted or, to the knowledge of the purchasing
Underwriter or the Company, shall be contemplated.
(e) Subsequent to the date of the applicable Schedule
and on or prior to the applicable Closing Date, there shall not
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have occurred (i) since the date of such Schedule or since the
respective dates as of which information is given in the
Registration Statement, any material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there shall have occurred
any material adverse change in the financial markets in the
United States or any outbreak or escalation of hostilities or
other national or international calamity or crisis which, in the
reasonable judgement of such Underwriter, would have a material
adverse effect on the ability of such Underwriter to market the
Securities or enforce contracts for the sale of the Securities,
or (iii) any suspension by the Commission or a national
securities exchange of trading in any securities of the Company,
or suspension of trading generally on either the American Stock
Exchange or the New York Stock Exchange, or the fixing of minimum
or maximum prices for trading, or the requirement of maximum
ranges for prices for securities by either of said exchanges or
by order of the Commission or any other governmental authority,
or a banking moratorium declared by either Federal or New York
authorities, or a declaration of a banking moratorium by the
relevant authorities in the country or countries of origin of any
foreign currency or currencies in which the Securities are
denominated or payable, or (iv) a lowering of the rating assigned
by any nationally recognized securities rating agency to any debt
securities of the Company as of the date of any applicable
Schedule since that date, or a public announcement by any such
rating agency that it has under surveillance or review, with
possible negative implications, its rating of any debt securities
of the Company, or (v) any facts coming to such Underwriter's
attention that would cause such Underwriter to believe that the
Prospectus, at the time it was required to be delivered to a
purchaser of Securities, contained an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the
circumstances existing at the time of such delivery, not
misleading.
(f) At the applicable Closing Date, the purchasing
Underwriter shall have received an opinion of counsel, dated such
Closing Date, to the effect specified in Section 6(f) hereof.
SECTION 6. EVIDENCE OF COMPLIANCE.
(a) On the date of its execution of this Agreement,
each Underwriter has received the opinion, dated as of the
delivery date thereof, of Xxxxx X. Xxxxxxxx, Assistant General
Counsel of PACCAR and counsel for the Company, in form and
substance reasonably satisfactory to such Underwriter and its
counsel, to the effect that:
(i) PACCAR has been duly incorporated and is
validly existing as a corporation in good standing
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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 Washington.
(ii) The Company has corporate power and
authority to own, lease and operate its properties and
conduct its business as described in the Registration
Statement.
(iii) The Company is duly qualified and in good
standing as a foreign corporation to transact business
in each jurisdiction in which the failure so to qualify
and be in good standing would materially adversely
affect its business or financial condition.
(iv) The authorized, issued and outstanding
capital stock of the Company is as set forth in the
Prospectus and the shares of issued and outstanding
capital stock set forth therein have been duly
authorized and validly issued and are fully paid and
non-assessable and are owned, of record and
beneficially, by PACCAR, free and clear of any
mortgage, pledge, lien, claim or encumbrance except as
described in the Prospectus.
(v) This Agreement has been duly authorized,
executed and delivered by the Company and constitutes
the valid and binding agreement of the Company.
(vi) The Indenture has been duly and validly
authorized, executed and delivered by the Company and
constitutes the legal, valid and binding agreement of
the Company enforceable in accordance with its terms
(except as enforcement thereof may be limited by
bankruptcy, insolvency, other laws relating to
creditor's rights generally or by general equity
principles).
(vii) The Securities are in a form contemplated
by the Indenture and have been duly and validly
authorized by all necessary corporate action and, when
executed and authenticated as specified in the
Indenture and delivered against payment therefor in
accordance with this Agreement, will be legal, valid
and binding obligations of the Company enforceable in
accordance with their terms (except as enforcement
thereof may be limited by bankruptcy, insolvency, other
laws relating to creditor's rights generally or by
general equity principles).
(viii) Such counsel does not know of any
litigation or any governmental proceeding pending or
threatened against the Company which would affect the
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subject matter of this Agreement or which is required
to be disclosed in the Prospectus and is not disclosed
and correctly summarized therein.
(ix) Such counsel does not know of any contracts
or other documents which are required to be filed as
exhibits to the Registration Statement by the Act or by
the Rules and Regulations, or which are required to be
filed by the Exchange Act or the rules and regulations
of the Commission thereunder as exhibits to any
document incorporated by reference in the Prospectus,
which have not been filed as exhibits to the
Registration Statement or to such document or
incorporated therein by reference as permitted by the
Rules and Regulations or the rules and regulations of
the Commission under the Exchange Act.
(x) To the best of such counsel's knowledge after
due inquiry, the Company is not in violation of its
corporate charter or bylaws, or in default under any
material agreement, indenture or instrument, the effect
of which violation or default would be material to the
Company.
(xi) The execution, delivery and performance of
this Agreement, and compliance by the Company with the
provisions of the Securities and the Indenture, will
not conflict with, or result in the creation or
imposition of any lien, charge or encumbrance upon any
of the assets of the Company pursuant to the terms of,
or constitute a default under, any agreement, indenture
or instrument known to such counsel, after due inquiry,
or result in a violation of the corporate charter or
bylaws of the Company or any order, rule or regulation
of any court or governmental agency having jurisdiction
over the Company, or its properties, the effect of
which conflict, lien, charge, encumbrance, default or
violation would be material to the Company; and, except
as may be required by the Act, the Trust Indenture Act,
the Exchange Act or state securities laws, no consent,
authorization or order of, or filing or registration
with, any court or governmental agency is required for
the execution, delivery and performance by the Company
of this Agreement, the failure to obtain which consent,
authorization or order or make which filing or
registration would be material to the Company.
(xii) The Registration Statement and the
Prospectus (except that no opinion need be expressed as
to the financial statements and other financial data
contained therein) comply as to form in all material
respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations of the
Commission under said Acts, and the documents
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incorporated by reference in the Prospectus (except
that no opinion need be expressed as to the financial
statements and other financial data contained therein)
comply as to form in all material respects with the
applicable requirements of the Exchange Act and the
rules and regulations of the Commission thereunder;
and, to the knowledge of such counsel after due
inquiry, the Registration Statement does not contain
any 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
and the Prospectus does not contain an untrue statement
of a material fact or omit to state a material fact
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not misleading;
(b) At the date of its execution of this Agreement,
each Underwriter has received the opinion, dated as of the date
of delivery thereof, of Xxxxxxx Coie, counsel for the Company (or
at the option of the Company, of Xxxxx X. Xxxxxxxx), in form and
substance reasonably satisfactory to such Underwriter and its
counsel, to the effect that:
(i) The descriptions of the Securities and the
Indenture in the Registration Statement and each
Prospectus fairly present the information required with
respect thereto by Form S-3 in all material respects.
(ii) The Indenture is qualified under, and
complies in all material respects as to form with, the
Trust Indenture Act.
(iii) The Registration Statement has become
effective under the Act; and, to the knowledge of such
counsel no stop order suspending its effectiveness has
been issued, and no proceeding for that purpose is
pending or threatened by the Commission, no order of
the Commission directed to any document incorporated by
reference in any Prospectus has been issued and there
are no proceedings of the Commission pending or
threatened challenging the accuracy or adequacy of any
such document.
(iv) The Registration Statement and the
Prospectus (except that no opinion need be expressed as
to the financial statements and other financial data
contained therein) comply as to form in all material
respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations of the
Commission under said Acts, and the documents
incorporated by reference in the Prospectus (except
that no opinion need be expressed as to the financial
statements and other financial data contained therein)
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comply as to form in all material respects with the
applicable requirements of the Exchange Act and the
rules and regulations of the Commission thereunder;
and, to the knowledge of such counsel after due
inquiry, the Registration Statement does not contain
any 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
and the Prospectus does not contain an untrue statement
of a material fact or omit to state a material fact
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not misleading.
(c) The Company has furnished to each Underwriter a
letter of Ernst & Young, addressed to the Underwriters and dated
the date hereof, confirming that they are independent public
accountants within the meaning of the Act and are in compliance
with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission,
and stating certain conclusions and findings with respect to
financial information concerning the Company, all as more fully
set forth in the letter, as of the date of the letter, or as to
certain items specified therein as of a date not more than five
days prior to such date.
(d) Each execution and delivery by the Company of a
Schedule for the purchase of Purchased Securities shall be deemed
to be an affirmation to the purchasing Underwriter that the
representations and warranties of the Company contained in this
Agreement and in any certificate theretofore delivered to such
Underwriter pursuant hereto are true and correct at the date of
such Schedule as though made at and as of each such time (it
being understood that such representations and warranties shall
relate to the Registration Statement and the Prospectus as
amended or supplemented to each such time).
(e) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an
amendment or supplement providing solely for a change in the
interest rates, manner of determining interest rates, interest
payment dates or maturities of the Securities or a change in the
principal amount of Securities remaining to be sold or a
supplement in the form previously furnished to the Underwriters
reflecting the price and underwriting discount applicable to a
particular issue of Securities or similar changes) or the Company
files with the Commission any document incorporated by reference
into the Prospectus, the Company shall furnish or cause to be
furnished to each Underwriter promptly a certificate of the
President, a Vice President, the General Manager, the Treasurer
or the Controller of the Company to the effect that the
representations and warranties of the Company herein are true and
correct at the time of such amendment or supplement or filing, as
the case may be, as though made at and as of such time (except
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that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to such time).
(f) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented or the Company files
with the Commission any document incorporated by reference into
the Prospectus (other than by an amendment or supplement
providing solely for a change in the interest rates, manner of
determining interest rates, interest payment dates or maturities
of the Securities or a change in the principal amount of
Securities remaining to be sold or a supplement in the form
previously furnished to the Underwriters reflecting the price and
underwriting discount applicable to a particular issue of
securities or similar changes), the Company shall cause to be
furnished promptly to each Underwriter and its counsel the
written opinion or opinions of Xxxxx X. Xxxxxxxx, and/or, at the
option of the Company, of Xxxxxxx Coie, dated the date of
delivery of such opinion or opinions, of the same tenor as the
opinions referred to in Sections 6(a) and 6(b) hereof, but
modified as necessary, to relate to the Registration Statement
and the Prospectus as amended or supplemented to the time of
delivery of such opinion or opinions; PROVIDED, HOWEVER, that in
lieu of such opinion or opinions, counsel may furnish the
Underwriters with a letter to the effect that they may rely on a
prior opinion of such counsel which was to the same effect as the
opinion in lieu of which such letter is given to the same extent
as though it was dated the date of such letter authorizing
reliance (except that statements in such prior opinion shall be
deemed to relate to the Registration Statement and the Prospectus
as amended or supplemented to the time of delivery of such letter
authorizing reliance).
(g) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented to include additional
financial information or the Company files with the Commission
any document incorporated by reference into the Prospectus which
contains additional financial information, the Company shall
cause Ernst & Young promptly to furnish each Underwriter a
letter, dated the date of filing of such amendment, supplement or
document with the Commission, in form satisfactory to each
Underwriter, of the same tenor as the letter referred to in
Section 6(c) hereof but modified to relate to the Registration
Statement and Prospectus, as amended and supplemented to the date
of such letter, with such changes as may be necessary to reflect
changes in the financial statements and other information derived
from the accounting records of the Company; PROVIDED, HOWEVER,
that if the Registration Statement or the Prospectus is amended
or supplemented solely to include financial information as of and
for a fiscal quarter, Ernst & Young may limit the scope of such
letter to the unaudited financial statements included in such
amendment or supplement unless there is contained therein any
other accounting, financial or statistical information that, in
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the reasonable judgment of an Underwriter, should be covered by
such letter.
All opinions, letters, evidences and certificates
mentioned above or elsewhere in this Agreement shall be deemed to
be in compliance with the provisions hereof only if they are in
form and substance reasonably satisfactory to Xxxxx & Xxxx,
counsel to the Underwriters. Any opinion, certificate,
accountants' letter or other document to be delivered to an
Underwriter hereunder may be addressed and delivered in multiple
counterparts to the several Underwriters appointed by the Company
in connection with the offering of the Securities.
SECTION 7. INDEMNIFICATION AND CONTRIBUTION. (a) The
Company shall indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the
meaning of the Act from and against any loss, claim, damage or
liability, joint or several, and any action in respect thereof,
to which such Underwriter or controlling person may become
subject, under the Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration
Statement, or any Prospectus, or arises out of, or is 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 shall reimburse such Underwriter and
each such controlling person for any legal and other expenses
reasonably incurred, as they are incurred, by such Underwriter or
controlling person in investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action;
PROVIDED, HOWEVER, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration
Statement or any Prospectus in reliance upon and in conformity
with written information furnished to the Company by such
Underwriter specifically for inclusion therein; and PROVIDED,
FURTHER, that as to any Preliminary Prospectus or Prospectus,
this indemnity agreement shall not inure to the benefit of any
Underwriter, or any person controlling such Underwriter, on
account of any loss, claim, damage, liability or action arising
from the sale of Securities to any person by such Underwriter if
such Underwriter failed to send or give a copy of any later
Prospectus, as the same may be amended or supplemented, to that
person within the time required by the Act, and the untrue
statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact in such
earlier Preliminary Prospectus or Prospectus was corrected in
such later Prospectus, unless such failure resulted from non-
compliance by the Company with Section 3(b) or 3(d) hereof. For
purposes of the second proviso to the immediately preceding
sentence, no Underwriter shall be obligated to send or give any
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document incorporated by reference or any supplement or amendment
to any document incorporated by reference in any Preliminary
Prospectus or any Prospectus to any person. The foregoing
indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or any controlling
person.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement and any person who
controls the Company within the meaning of the Act from and
against any loss, claim, damage or liability, joint or several,
and any action in respect thereof, to which the Company or any
such director, officer or controlling person may become subject,
under the Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration
Statement, or any Prospectus, or arises out of, or is 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, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such Underwriter
specifically for inclusion therein, and shall reimburse the
Company for any legal and other expenses reasonably incurred, as
they are incurred, by the Company or any such director, officer
or controlling person in investigating or defending or preparing
to defend against such loss, claim, damage, liability or action.
The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Company or any of
its directors, officers or controlling persons.
(c) Promptly after receipt by an indemnified party
under this Section of notice of any claim or the commencement of
any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party in writing of the claim or
the commencement of that action; PROVIDED, HOWEVER, that the
failure to notify the indemnifying party shall not relieve it
from any liability which it may have to an indemnified party
otherwise than under this Section. If any such claim or action
shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party
shall be entitled to participate therein, and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this
Section for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof
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other than reasonable costs of investigation; PROVIDED, HOWEVER,
that the indemnified party shall have the right to employ a
separate counsel and one local counsel to represent such
indemnified party who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by the
indemnified party against the indemnifying party under this
Section if, in the reasonable judgment of the indemnified party,
it is advisable for such indemnified party to be represented by
separate counsel, but the fees and expenses of such counsel or
such local counsel shall be at the expense of such indemnified
party unless (i) the employment of counsel by such indemnified
party has been authorized by the indemnifying party, (ii) the
indemnified party shall have reasonably concluded that there is a
conflict of interest between the indemnifying party and the
indemnified party in the conduct of the defense of such action or
additional or different defenses such that the counsel retained
by the indemnifying party to defend the indemnified party in such
action cannot adequately represent the interests of the
indemnified party (in which case the indemnifying party shall not
have the right to direct the defense of such action on behalf of
the indemnified party), or (iii) the indemnifying party shall not
in fact have employed counsel to assume the defense of such
action, in each of which cases the fees and expense of such
separate counsel shall be paid by the indemnifying party. An
indemnifying party shall not be liable for any claim or action
settled without its consent.
(d) If the indemnification provided for in this
Section shall for any reason (other than as specified herein) be
unavailable to an indemnified party under Section 7(a) or 7(b) in
respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or
action in respect thereof, in such proportion as shall be
appropriate to reflect the relative benefits received by the
indemnified party and the indemnifying party from the offering of
the Securities, the relative fault of the indemnified party and
the indemnifying party with respect to the statements or
omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and an Underwriter on the
other with respect to an offering shall be determined in light of
the relation of the total net proceeds from the offering of the
Securities (before deducting expenses) received by the Company to
the total commissions received by such Underwriter with respect
to such offering. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or by such
Underwriter, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or
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prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 7(d) were to be determined
by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as
a result of the loss, claim, damage or liability, or action in
respect thereof, referred to above in this Section 7(d) shall be
deemed to include, for purposes of this Section 7(d), 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 Section 7(d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Purchased
Securities were offered by it to the public exceeds the amount of
any damages which it shall have otherwise paid or become liable
to pay by reason of any 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.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS
TO SURVIVE DELIVERY. All representations and warranties of the
Company and the Underwriters contained in this Agreement, or
contained in certificates of officers submitted pursuant hereto,
shall remain operative and in full force and effect, regardless
of the termination of this Agreement or any investigation made by
or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, and shall survive
each delivery of and payment for any of Purchased Securities.
SECTION 9. TERMINATION. If the Company shall fail to
tender the Purchased Securities for delivery to the purchasing
Underwriter for any reason permitted under this Agreement, or if
such Underwriter shall decline to purchase the Purchased
Securities for any reason permitted under this Agreement, the
Company shall reimburse such Underwriter for the reasonable fees
and expenses of its counsel and for such other out-of-pocket
expenses as shall have been incurred by it in connection with the
proposed purchase of Purchased Securities, and upon demand the
Company shall pay the full amount thereof to such Underwriter.
This Agreement shall terminate when all the Securities
have been sold and the purchase price therefor has been paid.
This Agreement may be terminated as to any Underwriter (except
with respect to Securities as to which a Schedule has been
executed) for any reason, at any time, by either the Company or
such Underwriter, upon the giving of one day's written or
telegraphic notice of such termination to the other. The
provisions of Sections 3(g), 4, 7, 8 and 13 shall survive any
such termination.
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SECTION 10. AGREEMENTS OF UNDERWRITERS. Each
Underwriter severally represents, warrants and agrees that:
(a) It has received a copy of the form of Prospectus
the Company proposes to mail for filing with the Commission with
respect to the Securities and it will be purchasing the
Securities (subject to the conditions hereof) for sale as
described therein.
(b) The Securities will not be offered or sold in the
State of Washington other than to an entity specified in
RCW 21.20.320(8) (i.e., a bank, savings institution, trust
company, insurance company, investment company as defined in the
Investment Company Act of 1940, pension or profit-sharing trust,
or other financial institution or institutional buyer, or a
broker-dealer, whether the entity is acting for itself or in some
fiduciary capacity) provided that any "other financial
institution or institutional buyer" not otherwise specified in
RCW 21.20.320(8) shall have net assets (i.e., the excess of total
assets over total liabilities) of at least $25,000,000.
SECTION 11. NOTICES. Except as otherwise provided
herein, all notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed
or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be directed as set forth below
their respective signatures hereto. Notices to the Company shall
be directed to it as follows: PACCAR Financial Corp., 000 000xx
Xxxxxx X.X., Xxxxxxxx, Xxxxxxxxxx 00000, attention: Treasurer.
SECTION 12. PARTIES. This Agreement shall inure to
the benefit of and be binding upon each Underwriter and the
Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties
hereto and their respective successors and the controlling
persons and officers and directors referred to in Section 7 and
their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or
any provision herein or therein contained. This Agreement and
all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the parties hereto and their
respective successors and said controlling persons and officers
and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No
purchaser of Securities shall be deemed to be a successor by
reason merely of such purchase.
SECTION 13. OTHER. The Company has reserved the right
to appoint one or more additional Underwriters with respect to
sale of Securities. The appointment of additional Underwriters
may be effected by the Company's addition of the name and address
of such Underwriter to the signature page of a counterpart of
this Agreement and the execution of such counterpart of this
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Agreement by such Underwriter. This Agreement shall be governed
by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in
such state. This Agreement may be executed in counterparts and
the executed counterparts shall together constitute a single
instrument. Additional terms and conditions may be set forth on
one or more Schedules.
Please indicate your acceptance hereof in the space
provided for that purpose below.
Very truly yours,
PACCAR Financial Corp.
By ___________________________
___________________________
By: _______________________
Title: ____________________
Dated: ____________________
Address: ___________________________
___________________________
Attention:__________________________
Telephone:__________________________
Fax: __________________________
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Exhibit A
SCHEDULE TO UNDERWRITING AGREEMENT OF PACCAR FINANCIAL CORP.
WITH RESPECT TO MEDIUM TERM NOTES, SERIES H ("SECURITIES")
Date of Schedule:
Name of Underwriter:
Securities to be purchased:
Maturity:
Principal amount:
Purchase price (include accrued
interest or amortization if
applicable):
Redemption/repayment terms and conditions, if any:
Price to public:
Interest:
Rate if fixed rate:
Terms if floating rate*:
Interest Rate Basis or Bases:
If LIBOR:
/ / LIBOR Reuters:
/ / LIBOR Telerate:
Index Currency:
If CMT Rate:
Designated CMT Telerate Page:
Designated CMT Maturity Index:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Period:
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Interest Determination Date:
Calculation Date:
Calculation Agent:
Specified currency, currency payment option and authorized
denominations, if other than U.S. dollars:
Exchange Rate Agent:
Closing Date, time and location:
ADDITIONAL TERMS AND CONDITIONS:
* The listed terms are as used in the most recent prospectus
supplement to the Basic Prospectus.
The terms of the Underwriting Agreement dated March __,
1996, between PACCAR Financial Corp. and the undersigned
Underwriter are incorporated herein by reference.
[NAME OF UNDERWRITER] PACCAR Financial Corp.
By ________________________ By ________________________
