Exhibit 1.1
$1,000,000,000
PACCAR FINANCIAL CORP.
Medium-Term Notes, Series H
DISTRIBUTION AGREEMENT
______________________
To the several Agents March __, 1996
who are signatories hereto
Dear Sirs:
PACCAR Financial Corp., a Washington corporation (the
"Company"), confirms its agreement with you with respect to the
issue and sale by the Company of up to $1,000,000,000 (or the
equivalent based upon the applicable exchange rate at the time of
issuance in such foreign currency or composite currency units as
the Company shall designate), aggregate principal amount of its
Medium-Term Notes, Series H (the "Securities") 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").
This Distribution Agreement (the "Agreement") provides
both for the sale of Securities by the Company directly to
purchasers through the Agents, in which case the Agents will act
as agents of the Company in soliciting Security purchasers, and
(as may from time to time be agreed to by the Company and the
Agents) to the Agents as principals for resale to purchasers.
Additional terms of any sale of Securities to the Agents as
principals will be set out in a Terms Agreement (as hereinafter
defined) relating to such sale, all as more fully provided
herein.
Subject to the terms and conditions stated herein and
subject to the reservations by the Company of the right to sell
Securities directly to investors on its own behalf or to one or
more underwriters for resale to the public, the Company hereby
(i) appoints the Agents as agents of the Company for the purpose
of soliciting purchases of the Securities from the Company by
others, (ii) agrees that it will sell Securities only to or
through the Agents or other agents appointed from time to time by
the Company pursuant to agreements having terms not more
favorable to such agents or the Company than the terms and
conditions of this Agreement and (iii) agrees that whenever the
Company determines to sell Securities directly to the Agents as
principals for resale to others, it will enter into a Terms
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Agreement relating to such sale in accordance with the provisions
of Section 2(b) hereof. The Company shall give the Agents prior
notice of the appointment of any additional agents for the
purpose of soliciting purchasers of the Securities. The Company
will notify each Agent of the amount of Securities from time to
time remaining unsold and of such other information as may be
reasonably necessary to prevent inadvertent solicitations for
sales in excess of the amount of Securities then remaining
unsold.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants as of the date
hereof, as of the date of each acceptance by the Company of any
offer for the purchase of Securities, as of the date of each
delivery of the Securities (the date of each such delivery to an
Agent as principal being hereafter referred to as a "Settlement
Date"), as of the Closing Date hereinafter referred to, and as of
the times referred to in Sections 6(a), 6(b) and 6(c) 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
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), 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
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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,
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
Agent 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 Agent
specifically for inclusion therein.
(iii) The Company is not in violation of its
corporate charter or bylaws 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 and any
applicable Terms 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 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
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 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, any applicable Terms Agreement and the
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Indenture or in connection with the sale of 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,
(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 duly executed and
delivered by the Company, has been validly authorized
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 the Securities are offered for
sale pursuant hereto and to any applicable Terms
Agreement, they will have been validly authorized for
issuance and sale pursuant to this Agreement or such
Terms Agreement and, upon delivery and payment therefor
as provided in this Agreement, any applicable Terms
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.
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(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
the 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
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
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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 which the failure to have would
have a material adverse effect on the business of 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 Agent or to its counsel in connection
with an offering of Securities or the sale of Securities to an
Agent as principal shall be deemed a representation and warranty
by the Company to such Agent as to the matters covered thereby.
SECTION 2.
(a) SOLICITATIONS AS AGENT. On the basis of the
representations and warranties contained herein, but subject to
the terms and conditions herein set forth, each Agent agrees, as
agent of the Company, to use reasonable efforts to solicit offers
to purchase the Securities upon the terms and conditions set
forth in the Prospectus. The Agents shall not appoint sub-
agents. The Agents are authorized to engage the services of any
other broker or dealer in connection with the offer or sale of
the Notes purchased by the Agents as principal for resale to
others, and the Agents may allow any portion of the discount they
have received in connection with such purchases from the Company
to such brokers or dealers.
The Agents shall offer the Securities at such times, in
such amounts and maturities and at such rates of interest as the
Company shall authorize, but the Company shall not approve the
solicitation of purchases of Securities in excess of the amount
which shall be authorized by the Company from time to time or in
excess of the principal amount of Securities registered pursuant
to the Registration Statement. The Agent will have no
responsibility for maintaining records with respect to the
aggregate principal amount of Securities sold, or of otherwise
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monitoring the availability of Securities for sale under the
Registration Statement. The Agents shall furnish a copy of the
Prospectus to each offeree to the extent required by the Act.
The Agents shall not offer to sell or solicit offers to buy the
Securities 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. The
Agents shall not offer to sell to or solicit offers to buy from
any person in any state or jurisdiction otherwise than in
conformity with the Blue Sky Memorandum referred to in Section 4.
The Company reserves the right, in its sole discretion,
to suspend solicitation of purchases of the Securities,
commencing at any time, for a period of time or permanently.
Promptly after receipt of telephonic, telegraphic or written
notice from the Company, the Agents will suspend solicitation of
purchases of the Securities from the Company until such time as
the Company has advised them that such solicitation may be
resumed.
Promptly upon the closing of the sale of any
Securities, the Company agrees to pay the appropriate agent a
commission (or allow such Agent a discount) in the currency or
composite currency unit in which such Securities are denominated
equal to a percentage of the principal amount of each of the
Securities sold by the Company as a result of a solicitation made
by such Agent during the term of this Agreement as set forth in
Schedule A hereto.
The Agents are authorized to solicit orders for the
Securities in such denominations (in U.S. dollars or in another
currency or composite currency unit), upon such terms and at such
prices as the Company shall authorize and shall be set forth in a
pricing supplement to the Prospectus to be prepared following
each acceptance by the Company of an offer for the purchase of
Securities. Unless otherwise specifically authorized, the Agents
shall solicit orders only for the purchase of Securities (i) at
100 percent of their principal amount and (ii) denominated in
U.S. dollars in the amount of $1,000 or any integral multiple of
$1,000. Each Agent shall communicate to the Company, orally or
in writing, each reasonable offer to purchase Securities received
by it as Agent. The Company shall have the sole right to accept
offers to purchase the Securities and may in its absolute
discretion reject any such offer in whole or in part. The
Company shall have no liability to any Agent for any commission
for its rejection of any offer or its failure to consummate any
sale. Each Agent shall have the right, in its discretion
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reasonably exercised, to reject any offer to purchase the
Securities received by it in whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained
herein.
(b) PURCHASES AS PRINCIPAL. Each sale of Securities
to an Agent as principal shall be made in accordance with the
terms contained herein and (unless the Company and the Agent
shall otherwise agree) in a separate agreement which will provide
for the sale of such Securities to, and the purchase and
reoffering thereof by, the Agent. Each such separate agreement
(which may be an oral agreement) between an Agent and the Company
is herein referred to as a "Terms Agreement." Unless the context
otherwise requires, each reference contained herein to "this
Agreement" shall be deemed to include any applicable Terms
Agreement between the Company and an Agent. Each such Terms
Agreement, whether oral or in writing, shall be with respect to
such information (as applicable) as is specified in Exhibit A
hereto. An Agent's commitment to purchase Securities as
principal pursuant to any Terms Agreement or otherwise shall be
deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject
to the terms and conditions herein set forth. Each Terms
Agreement shall specify (i) the principal amount of Securities to
be purchased by such Agent pursuant thereto, (ii) the price to be
paid to the Company for such Securities (which, if not so
specified in a Terms Agreement, shall be at a discount equivalent
to the applicable commission set forth in Schedule A hereto),
(iii) the time and place of delivery of and payment for such
Securities, (iv) any provisions relating to the rights of and any
default by any broker or dealer acting together with such Agent
in the reoffering of the Securities, and (v) such other
provisions (including further terms of the Securities) as may be
mutually agreed upon. The Agents may utilize a selling or dealer
group in connection with the resale of the Securities purchased
and may reallow to any broker or dealer any portion of the
discount or commission payable pursuant hereto. Such Terms
Agreement shall also specify the requirements for the stand-off
agreement, officer's certificate, opinions of counsel and comfort
letter pursuant to Sections 3(l), 5(b), 5(c), 5(e) and 5(f)
hereof.
Securities to be purchased by an Agent as principal 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").
Delivery of Certificated Securities shall be made to the Agent
and delivery of Book-Entry Securities shall be made to the
Trustee as agent for the Depositary for the account of the Agent,
in either case, against payment by the Agent of the purchase
price to or upon the order of the Company in the funds specified
in the applicable Terms Agreement. Certificated Securities shall
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be registered in such names and in such denominations as the
Agent may request not less than two full business days prior to
the applicable Closing Date (as defined below). The Company will
have Certificated Securities available for inspection, checking
and packaging by the Agent in the city in which delivery and
payment is to occur, not later than 2 p.m., on the business day
prior to the applicable Closing Date.
(c) ADMINISTRATIVE PROCEDURES. Administrative
procedures respecting the sale of Securities shall be agreed upon
from time to time by the Agents and the Company (the
"Procedures"). The several Agents and the Company agree to
perform the respective duties and obligations specifically
provided to be performed by each of them herein and in the
Procedures.
(d) CLOSING DATE. The documents required to be
delivered by Section 5 hereof shall be delivered at the offices
of Xxxxx & Xxxx, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, on the date hereof or, with respect to any particular
Agent, such other date and time as such Agent and the Company may
agree upon in writing (the "Closing Date").
(e) OTHER DEBT SECURITIES. Nothing contained herein
shall limit the right of the Company to authorize and issue debt
securities, including medium-term notes other than the
Securities, under the Indenture or otherwise.
(f) RELIANCE. The Company and the Agents agree that
any Securities the placement of which the Agents arrange shall be
placed by the Agents, and any Securities purchased by an Agent
shall be purchased, in reliance on the representations,
warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided
herein.
SECTION 3. COVENANTS OF THE COMPANY. The Company
covenants and agrees:
(a) To furnish promptly to each Agent 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 Agent such number of
the following documents as each Agent 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
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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
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 the counsel for the Agents and to allow
it and its counsel a reasonable opportunity to comment thereon.
(e) To advise each Agent 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 each twelve-month period identified below, an
earnings statement (in form complying with the provisions of
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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 twelve-month
period beginning not later than the first day of the fiscal
quarter next following each 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 last sale hereunder.
(h) So long as any of the Securities are outstanding,
to furnish to each Agent 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.
(i) To endeavor, in cooperation with the Agents, 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 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) The Company will prepare, with respect to any
Securities to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Securities
in a form previously approved by the Agents and will file such
Pricing Supplement pursuant to Rule 424(b)(3) (or any rule
succeeding or replacing such rule) under the Act not later than
the close of business of the Commission on the fifth business day
after the date on which such Pricing Supplement is first used.
(k) If at any time during the term of this Agreement
any event shall occur or any condition shall exist as a result of
which it is necessary, in the reasonable opinion of counsel for
the Agents or counsel for the Company, to further amend or
supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing
at the time the Prospectus is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of either of such
counsel, to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the Act or
the Rules and Regulations, immediate notice shall be given, and
confirmed in writing, to the Agents to cease the solicitation of
offers to purchase the Securities in the Agents' capacity as
agent and to cease sales of any Securities the Agents may then
own as principal pursuant to a Terms Agreement, and the Company
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will promptly prepare and file with the Commission such amendment
or supplement, whether by filing documents pursuant to the
Exchange Act, the Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the
Registration Statement and Prospectus comply with such
requirements. The Company shall not be required to comply with
the provisions of this subsection during any period from the time
(i) the Agents shall have suspended solicitation of purchases of
the Securities in their capacity as agents pursuant to a request
from the Company and (ii) the Agents shall not then hold any
Securities as principal purchased pursuant to a Terms Agreement,
to the time the Company shall determine that solicitation of
purchases of the Securities should be resumed or shall
subsequently enter into a new Terms Agreement with the Agents.
(l) If provided in a Schedule, between the date of any
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 Agent'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 Agents 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
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 Agents
in connection therewith), and (x) all other costs and expenses
incident to the Company's performance of its obligations under
this Agreement.
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In addition, the Company agrees to pay the reasonable
fees and disbursements of Xxxxx & Xxxx, counsel for the Agents in
connection with the sale of the Securities.
SECTION 5. CONDITIONS OF OBLIGATIONS. The obligations
of an Agent to solicit offers to purchase the Securities 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 proceedings
for such purpose shall be pending before or threatened by the
Commission.
(b) At the Closing Date, the Agents shall have been
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 the Agents and their counsel, to the effect that:
(i) PACCAR 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 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.
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(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
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
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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 or any Terms Agreement, the failure
to obtain which consent, authorization or order to 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
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.
(c) At the Closing Date, the Agents and the Company
shall have received the opinion, dated as of the date of delivery
thereof, of Xxxxxxx Coie, counsel for the Company, in form and
substance reasonably satisfactory to the Agents and their
counsel, to the effect that:
(i) The descriptions of the Securities and the
Indenture in the Registration Statement and each
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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)
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.
(d) On or prior to the Closing Date, the Agents shall
have been furnished such documents, certificates and opinions as
it may reasonably request for the purpose of enabling it or Xxxxx
& Wood, counsel for the Agents, to determine the accuracy,
completeness or satisfaction of any of the representations,
warranties or conditions herein contained.
(e) At each Closing Date, the Agents shall have
received a certificate 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 Section 5 (a) and (g) have been
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satisfied, and as to the continued accuracy of the
representations and warranties of the Company set forth herein.
(f) The Company has furnished to the Agents on the
Closing Date a letter of Ernst & Young, addressed to the Agents
and dated the Closing Date, 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, as of the date of such letter (or
with respect to matters involving changes or developments since
the respective dates as of which specified financial information
is given to the Prospectus, as of a date not more than five days
prior to the date of such letter), the conclusions and findings
of such accountants with respect to such financial information
and other matters as reasonably requested by the Agents.
(g) No order suspending the sale of the Securities in
any jurisdiction designated pursuant to Section 3(i) hereof shall
have been issued, and no proceeding for that purpose shall have
been instituted or, to the knowledge of the purchasing Agent or
the Company, shall be contemplated.
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 Agents.
If any conditions specified in this Section shall not
have been fulfilled in all material respects, the agency of any
Agent under this Agreement may be terminated by such Agent by
notice to the Company at any time on or prior to the Closing
Date, and such termination shall be without liability of either
the Company or such Agent, except with respect to any unpaid
commission then owing to such Agent by the Company and except
that Sections 3(g), 4, 7, 9 and 13 hereof shall remain in effect.
SECTION 6. ADDITIONAL COVENANTS OF THE COMPANY. The
Company covenants and agrees that:
(a) Each acceptance by the Company of an offer for the
purchase of Securities through an Agent, and each delivery of
Securities to an Agent pursuant to a Terms Agreement, shall be
deemed to be an affirmation to such Agent that the
representations and warranties of the Company contained in this
Agreement and in any certificate theretofore delivered to such
Agent pursuant hereto are true and correct at the time of such
acceptance, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to
the purchaser or his agent of the Securities relating to such
acceptance, as though made at and as of each such time (it being
understood that such representations and warranties shall relate
-17-
to the Registration Statement and the Prospectus as amended or
supplemented to each such time).
(b) 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 similar
changes or a supplement to the Prospectus in the form previously
furnished to the Agents relating to a sale of securities
otherwise than through an Agent) or the Company files with the
Commission any document incorporated by reference into the
Prospectus or (if required pursuant to the terms of a Terms
Agreement) the Company sells Securities to an Agent pursuant to a
Terms Agreement, the Company shall furnish or cause to be
furnished to each Agent 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 statements
contained in the certificate referred to in Section 5(e) hereof
which was last furnished to such Agent 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 that such
statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, a certificate of the same
tenor as the certificate referred to in said Section 5(e),
modified as necessary to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of
delivery of such certificate.
(c) 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 remaining to be sold or similar changes or a
supplement to the Prospectus in the form previously furnished to
the Agents relating to the sale of securities otherwise than
through an Agent) or (if required pursuant to the terms of a
Terms Agreement) the Company sells Securities to an Agent
pursuant to a Terms Agreement, the Company shall cause to be
furnished promptly to each Agent 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 5(b) and 5(c) 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 a letter to the effect
that the Agents may rely on a prior opinion of such counsel which
was to the same effect as the opinion in lieu of which such
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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).
(d) 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 or (if required
pursuant to the terms of a Terms Agreement) the Company sells
Securities to an Agent pursuant to a Terms Agreement, the Company
shall cause Ernst & Young promptly to furnish each Agent a
letter, dated the date of filing of such amendment, supplement or
document with the Commission, in form satisfactory to each Agent,
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
the reasonable judgment of an Agent, should be covered by such
letter.
SECTION 7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each
Agent, each person, if any, who at the written request of such
Agent and with the consent of the Company is participating with
such Agent as the Company's agent in the distribution of the
Securities who is an "underwriter" within the meaning of Section
2(11) of the Act with respect to the distribution of the
Securities (the "Participants") and each person, if any, who
controls such Agent or any Participant 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
Agent or such Participant 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 Agent, each such
Participant, and each such controlling person for any legal and
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other expenses reasonably incurred, as they are incurred, by it
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 Agent 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 Agent, any Participant, or
any person controlling such Agent or any Participant, on account
of any loss, claim, damage, liability or action arising from the
sale of Securities to any person by such Agent or such
Participant if such Agent or such Participant 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 noncompliance by the Company with Section 3(b) or 3(d)
hereof. For purposes of the second proviso to the immediately
preceding sentence, under no circumstances shall any Agent or any
Participant be obligated to send or give any 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 Agent or any Participant or any controlling
person.
(b) Each Agent shall 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 Agent specifically
for inclusion therein, and shall reimburse the Company for any
legal and other expenses reasonably incurred, as they are
-20-
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 Agent 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
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.
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(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 Agent 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 the Agent 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 an Agent, the intent
of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement
or omission. The Company and the Agents 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
Agent 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.
(e) Each Agent represents for purposes of
Sections 7(a) and 7(b) that 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 that the Agent will
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be soliciting offers to purchase the Securities (subject to the
conditions hereof) for sale as described therein.
SECTION 8. ASSISTANCE BY THE AGENTS. Each Agent will
make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Securities
from the Company has been solicited by the Agent and accepted by
the Company, but such Agent shall have no liability to the
Company in the event any such purchase is not consummated for any
reason.
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS
TO SURVIVE DELIVERY. All representations and warranties of the
Company contained in this Agreement, or contained in certificates
of officers of the Company 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 Agent or any person controlling any Agent or by or
on behalf of the Company, and shall survive each delivery of and
payment for any of the Securities.
SECTION 10. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement
shall terminate when the Agents shall have been advised by the
Company that all of the Securities have been sold and the
purchase price therefor has been paid. This Agreement may be
terminated (except with respect to offers to purchase Securities
which have been accepted by the Company or a Terms Agreement has
been executed) for any reason, at any time, by either the Company
or such Agent, upon the giving of one day's written or
telegraphic notice of such termination to the other.
(b) TERMINATION OF A TERMS AGREEMENT. An Agent may
terminate any Terms Agreement, immediately upon notice to the
Company, at any time prior to the Settlement Date relating there-
to (i) if there has been, since the date of such Terms Agreement
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 Agent, would have a material adverse
effect on the ability of such Agent to market the Securities or
enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended by
the Commission or a national securities exchange, or if trading
generally on either the American Stock Exchange or the New York
Stock Exchange shall have been suspended, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices
-23-
for securities have been required, by either of said exchanges or
by order of the Commission or any other governmental authority,
or if a banking moratorium shall have been declared by either
Federal or New York authorities or if a banking moratorium shall
have been declared 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) if the
rating assigned by any nationally recognized securities rating
agency to any debt securities of the Company as of the date of
any applicable Terms Agreement shall have been lowered since that
date or if any such rating agency shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any debt securities of the Company,
or (v) if there shall have come to such Agent's attention any
facts that would cause such Agent 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.
(c) GENERAL. In the event of a termination of this
Agreement, neither party will have any liability to the other
party hereto, except that (i) the Agents shall be entitled to any
commission earned in accordance with the fourth paragraph on
Section 2(a) hereof, (ii) if at the time of termination (a) an
Agent shall own any Securities purchased pursuant to a Terms
Agreement with the intention of reselling them or (b) an offer to
purchase any of the Securities has been accepted by the Company
but the time of delivery to the purchaser or his agent of the
Security or Securities relating thereto has not occurred, the
covenants set forth in Sections 3 and 6 hereof shall remain in
effect until such Notes are so resold or delivered, as the case
may be, and (iii) the provisions of Section 4 hereof, the
indemnity and contribution agreements set forth in Section 7
hereof, and the provisions of Sections 9 and 13 hereof shall
remain in effect.
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 Agents 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 the several Agents 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
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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 of 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. MISCELLANEOUS. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York. This Agreement may be executed in
counterparts and the executed counterparts shall together
constitute a single instrument.
Please indicate your acceptance hereof in the space
provided for that purpose below.
Very truly yours,
PACCAR Financial Corp.
By __________________________
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ACCEPTED:
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
By: ______________________________
Title: ___________________________
Dated: March __, 1996
10th Floor Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: MTN Product Management
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxx Xxxxxxx & Co. Incorporated
By: ______________________________
Title: ___________________________
Dated: March __, 1996
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Manager - Continuously
Offered Products
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Copy to:
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx - Investment Banking Information
Center
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-26-
Xxxxxx Brothers Inc.
By: ______________________________
Title: ___________________________
Dated: March __, 1996
3 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Medium-Term Note Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000,
Salomon Brothers Inc
By: ______________________________
Title: ___________________________
Dated: March __, 0000
Xxxxx Xxxxx Xxxxx Xxxxxx, 00xx Xxx.
Xxx Xxxx, XX 00000
Attention: Medium-Term Note Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-27-
SCHEDULE A
As compensation for the services of the Agents hereunder,
the Company shall pay each Agent, on a discount basis, a
commission for the sale of each Security sold through such Agent
equal to the principal amount of such Security multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
From 9 months to less than 1 year. . . . . . . . . . . .125%
From 1 year to less than 18 months . . . . . . . . . . .150
From 18 months to less than 2 years. . . . . . . . . . .200
From 2 years to less than 3 years. . . . . . . . . . . .250
From 3 years to less than 4 years. . . . . . . . . . . .350
From 4 years to less than 5 years. . . . . . . . . . . .450
From 5 years to less than 6 years. . . . . . . . . . . .500
From 6 years to less than 7 years. . . . . . . . . . . .550
From 7 years to 10 years . . . . . . . . . . . . . . . .600
Exhibit A
The following terms, if applicable, shall be agreed to by
the purchasing Agent and the Company pursuant to each Terms
Agreement:
Principal Amount: $_____________
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Security, Interest Rate:
If Floating Rate Security:
Interest Rate Basis or Bases:
If LIBOR:
/ / LIBOR Reuters:
/ / LIBOR Telerate:
Index Currency:
If CMT Rate:
Designated CMT Telerate Page:
Designated CMT Maturity Index:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Month(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable at Option of Holder:
Optional Repayment Date:
Date of Maturity:
Purchase Price: _____%
Settlement Date and Time:
Currency of Denomination:
Denominations (if currency is other than U.S. dollars):
Currency of Payment:
Exchange Rate Agent
Additional Terms:
Also, agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 5(e)
of the Distribution Agreement
Legal Opinions pursuant to Section 5(b) and (c)
of the Distribution Agreement
Comfort Letter pursuant to Section 5(f)
of the Distribution Agreement
Other sales prior to Settlement Date pursuant
to Section 3(l) of the Distribution Agreement
PACCAR FINANCIAL CORP.
ADMINISTRATIVE PROCEDURES
FOR FIXED AND FLOATING RATE MEDIUM-TERM NOTES, SERIES H
(ATTACHMENT TO THE DISTRIBUTION AGREEMENT
DATED MARCH __, 1996)
Medium-Term Notes, Series H (the "Notes") in the aggregate
principal amount of up to U.S.$1,000,000,000, or the equivalent
in one or more foreign currencies or composite currency units are
to be offered on a continuing basis by PACCAR Financial Corp.
(the "Company") through Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co.
Incorporated, Xxxxxx Brothers, Xxxxxx Brothers Inc. and Salomon
Brothers Inc who, as agents (each an "Agent", and, collectively,
the "Agents"), have agreed to use their reasonable efforts to
solicit offers to purchase the Notes from the Company. The
Agents may also purchase Notes as principal for resale.
The Notes are being sold pursuant to a Distribution
Agreement between the Company and the Agents, dated March __,
1996 (the "Distribution Agreement"). The Notes will be issued
pursuant to an Indenture (the "Indenture"), dated as of
December 1, 1983, as amended by the first supplemental indenture
dated as of June 19, 1989 between the Company and Citibank, N.A.
as trustee (the "Trustee"). A Registration Statement (the
"Registration Statement", which term shall include any additional
registration statements filed in connection with the Notes as
provided in the Distribution Agreement) with respect to the Notes
has been filed with the Securities and Exchange Commission (the
"Commission"). The most recent basic Prospectus included in the
Registration Statement, as supplemented with respect to the
Notes, is herein referred to as the "Prospectus Supplement". The
most recent supplement to the Prospectus with respect to the
specific terms of the Notes is herein referred to as the "Pricing
Supplement".
The Notes will either be issued (a) in book-entry form and represented by
one or more fully registered Notes (each, a "Book-Entry Note") delivered to
the Trustee, as agent for The Depository Trust Company ("DTC"), and recorded
in the book-entry system maintained by DTC, or (b) in certificated form
(each, a "Certificated Note") delivered to the purchaser thereof or a person
designated by such purchaser. Owners of beneficial interest in Notes issued
in book-entry form will be entitled to physical delivery of Notes in
certificated form equal in principal amount to their respective beneficial
interests only upon certain limited circumstances described in the Prospectus.
Administrative procedures and specific terms of the offering
are explained below.
General procedures relating to the issuance of all Notes are set forth in
Part I hereof. Additionally, Notes issued in book-entry form will be issued
in accordance with the procedures set forth in Part II hereof and Notes
issued in certificated form will be used in accordance with the procedures
set forth in Part III hereof. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Indenture
or the Notes (which in the case of Notes issued in book-entry form shall be
the related Book-Entry Note), as the case may be.
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date
of its authentication by the Trustee.
Each Note shall also bear an original
issue date (the "Original Issue Date").
The Original Issue Date shall remain the
same for all Notes subsequently issued
upon transfer, exchange or substitution
of an original Note regardless of their
dates of authentication.
Maturities: Each Note will mature on a date selected
by the purchaser and agreed to by the
Company which is not less than nine
months nor more than ten years from its
Original Issue Date; provided, however,
that Notes bearing interest at rates
determined by reference to selected
indices ("Floating Rate Notes") will
mature on an Interest Payment Date
unless otherwise indicated in the
applicable pricing supplement.
Denominations: The Notes generally will be issued in
denominations of U.S. $1,000 and
integral multiples thereof. Any Notes
denominated other than in U.S. dollars
will be issuable in denominations as set
forth in the applicable pricing
supplement and in such Notes.
Registration: Notes will be issued only in fully
registered form.
Redemption/Repayment: The Notes will be subject to repayment
at the option of the Holders thereof in
accordance with the terms of the Notes
-2-
on their respective Optional Repayment
Dates, if any. Optional Repayment
Dates, if any, will be fixed at the time
of sale and set forth in the applicable
pricing supplement and in the applicable
Note. If no Optional Repayment Dates
are indicated with respect to a Note,
such Note will not be repayable at the
option of the Holder prior to maturity.
The Notes will be subject to redemption
by the Company on and after their
respective Redemption Dates, if any.
Redemption Dates, if any, will be fixed
at the time of sale and set forth in the
applicable pricing supplement and in the
applicable Note. If no Redemption Dates
are indicated with respect to a Note,
such Note will not be redeemable prior
to maturity.
Interest: Each Note will bear interest in
accordance with its terms. The Company
will advise the Paying Agent by telecopy
of each determination of the interest
rate applicable to each Floating Rate
Note promptly after such determination
is made by the Calculation Agent.
Acceptance and
Rejection of Offers: The Company shall have the sole right to
accept offers to purchase Notes from the
Company and may reject any such offer in
whole or in part. The Agents shall
communicate to the Company, orally or in
writing, each reasonable offer to
purchase Notes from the Company received
by it. Each Agent shall have the right,
in its discretion reasonably exercised,
without notice to the Company, to reject
any offer to purchase Notes in whole or
in part.
Preparation of
Pricing Supplement: If any offer to purchase a Note is
accepted by the Company, the Company
will prepare a Pricing Supplement
reflecting the terms of such Note.
Information to be included in the
Pricing Supplement shall include:
1. the name of the Company;
2. the title of the securities,
including series designation;
-3-
3. the date of the Pricing Supplement
and the date of the Prospectus
Supplement to which the Pricing
Supplement relates;
4. the Price to Public (but only if
(a) the trade is being made on an
agency basis and (b) such Price to
Public is other than 100%);
5. Net Proceeds to the Company, but
only if (a) the trade is being made
on a principal basis and (b) the
Net Proceeds to the Company is
other than 100%, less what would
have been the applicable agency
commission; and
6. the information with respect to the
terms of the Notes set forth below
(whether or not the applicable Note
is a Book-Entry Note) under
"Procedures for Notes Issued in
Book-Entry Form - Settlement
Procedures", items 2, 3, 7, 8 and
9; and
7. any other terms of the Notes not
otherwise specified in the
Prospectus or Prospectus
Supplement.
The Company shall use its reasonable
best efforts to send such Pricing
Supplement by telecopy or overnight
express (for delivery by the close of
business on the applicable trade date,
but in no event later than 11:00 A.M.
New York City time on the Business Day
(as defined below) following the trade
date) to the Agent which presented the
offer to purchase the applicable Note
(the "Presenting Agent") at the
following addresses:
If to Xxxxxxx Xxxxx & Co.:
For overnight, express, or special
delivery packages only:
Tritech Services
00 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Prospectus Operations/
Xxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
-4-
For all other types of deliveries:
Xxxxxxx Xxxxx & Co. - Tritech Services
0 Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxx 000
Xxxxxxxxxx, XX 00000
Attention: Final Prospectus Unit/
Xxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000/5/6
also, for record keeping purposes,
please send a copy to:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center, Xxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: MTN Product Management
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Xxxxxx Xxxxxxx:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Medium-Term Note Trading
Desk, Xxxxxx Xxxxxxx
If to Xxxxxx Brothers:
Please send copies of Pricing
Supplements prepared in connection with
MTN trades done with Xxxxxx Brothers to
the following telecopy/addresses:
By telecopy to
Xxxxxx Brothers Inc
c/o ADP
Prospectus Services
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxx
Telecopy: (000)000-0000
Telephone: (000)000-0000
and by hand to
Xxxxxx Brothers Inc
3 World Financial Center, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000)000-0000
-5-
All other notices and inquires should be
directed to:
Xxxxxx Brothers Inc
3 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Medium-Term Note Department
Telecopy: (000)000-0000
Telephone: (000)000-0000
Certified Notes should be delivered to:
Chemical Bank
4 New York Plaza
Ground Floor
Receive Window
FAO Xxxxxx Brothers
New York, New York
Attn: Xxxxxxxx Xxxxx
Telephone: (000) 000-0000
If to Salomon Brothers:
Salomon Brothers Inc
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
In each instance that a Pricing
Supplement is prepared, the Agents will
provide a copy of such Pricing
Supplement to each investor or purchaser
of the relevant Notes or its agent.
Pursuant to Rule 434 ("Rule 434") of the
Securities Act of 1933, as amended, the
Pricing Supplement may be delivered
separately from the Prospectus.
Outdated Pricing Supplements, and the
supplemented Prospectuses to which they
are attached (other than those retained
for files) will be destroyed.
Settlement: The receipt of immediately available
funds by the Company in payment for a
Note and the authentication and delivery
of such Note shall, with respect to such
Note, constitute "settlement." Offers
accepted by the Company will generally
be settled from one to three Business
Days or at a time as the purchaser, the
applicable Agent and the Company shall
agree, pursuant to the timetable for
settlement set forth in Parts II and III
hereof under "Settlement Procedures"
-6-
with respect to Book-Entry Notes and
Certificated Notes, respectively. Each
such date fixed for settlement is
hereinafter referred to as a
("Settlement Date"). If procedures A
and B of the applicable Settlement
Procedures with respect to a particular
offer are not completed on or before the
time set forth under the applicable
"Settlement Procedures Timetable," such
offer shall not be settled until the
Business Day following the completion of
settlement procedures A and B or such
later date as the purchaser and the
Company shall agree.
In the event of a purchase of Notes by
any Agent as principal, appropriate
settlement details will be between the
Agent and the Company pursuant to the
applicable Terms Agreement.
Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached to
change the interest rate or any other
variable term on any Notes being sold by
the Company, the Company will promptly
advise the Agents and the Agents will
forthwith suspend solicitation of offers
to purchase such Notes. The Agents will
telephone the Company with
recommendations as to the changed
interest rates or other variable terms.
At such time as the Company advises the
Agents of the new interest rates or
other variable terms, the Agents may
resume solicitation of offers to
purchase such Notes. Until such time
only "indications of interest" may be
recorded. Immediately after acceptance
by the Company of an offer to purchase
Notes at a new interest rate or new
variable term, the Company, the
Presenting Agent and the Trustee shall
follow the procedures set forth under
the applicable "Settlement Procedures."
The foregoing procedure for changes
shall in no way affect the Company's
right to suspend all solicitations of
offers to purchase Notes as set forth in
the Distribution Agreement.
-7-
Suspension of Solicita-
tion; Amendment or
Supplement: Subject to its representations,
warranties and covenants contained in
the Distribution Agreement, the Company
may instruct the Agents to suspend
solicitation of to purchase Notes at any
time. Upon receipt of such
instructions, the Agents will forthwith
suspend solicitation of offers to
purchase from the Company until such
time as the Company has advised them
that solicitation of offers to purchase
may be resumed. If the Company decides
to amend or supplement the Registration
Statement (including incorporating any
documents by reference therein or the
Prospectus or any supplement relating to
the Notes (other than to change rates or
other variable terms with respect to the
offering of the Notes), it will promptly
advise the Agents, Trustee and Agents'
counsel and will furnish the Agents and
their counsel with copies of the
proposed amendment or supplement
(including any document proposed to be
incorporated by reference therein). One
copy of such filed document, along with
a copy of the cover letter sent to the
Commission, will be delivered or mailed
to the Agents at the following
respective addresses: MTN Product
Management, Xxxxxxx Xxxxx Money Markets,
North Tower, World Financial Center,
00xx Xxxxx, Xxx Xxxx, XX 00000-0000;
Xxxxxx Xxxxxxx & Co. Incorporated, 0000
Xxxxxxxx, Xxx Xxxx, XX 00000, Attention:
Manager - Continuously Offered Products;
Xxxxxx Brothers Inc., American Express
Tower-9th Floor, World Financial Center,
Xxx Xxxx, XX 00000, Attention: Medium-Term
Note Department or Salomon Brothers
Inc, 0 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000, Attention: Medium-Term Note Group.
In the event that at the time the
solicitation of offers to purchase from
the Company is suspended (other than to
change interest rates or other variable
terms) there shall be any offers to
purchase Notes that have been accepted
by the Company which have not been
settled, the Company will promptly
advise the Agents and the Trustee
whether such offers may be settled and
-8-
whether copies of the Prospectus as
theretofore amended and/or supplemented
as in effect at the time of the
suspension may be delivered in
connection with the settlement of such
offers. The Company will have the sole
responsibility for such decision and for
any arrangements which may be made in
the event that the Company determines
that such offers may not be settled or
that copies of the Prospectus may not be
so delivered.
Delivery of
Prospectus: A copy of the most recent Prospectus
and the applicable Pricing Supplement,
which pursuant to Rule 434 may be
delivered separately from the
Prospectus, must accompany or precede
the earlier of (a) the written
confirmation of a sale sent to an
investor or other purchaser or its agent
and (b) the delivery of Notes to an
investor or other purchaser or its
agent. The Company will make all such
Prospectus deliveries with respect to
all Notes sold directly by the Company.
Authenticity of
Signatures: The Company will cause the Trustee to
furnish the Agent from time to time with
the specimen signatures of the Trustee's
officers, employees and agents who have
been authorized by the Trustee to
authenticate Notes. However, the Agent
will have no obligation or liability to
the Company or the Trustee in respect of
the authenticity of the signature of any
officer, employee or agent of the
Company or the Trustee on any Note.
Documents Incorporated
by Reference: The Company shall supply the Agents with
an adequate supply of all documents
incorporated by reference in the
Registration Statement.
Business Day: "Business Day" means, unless otherwise
stated in the applicable Pricing
Supplement, any day other than a
Saturday or Sunday that is not a day on
which banking institutions are
authorized or obligated by law to close
in The City of New York and, with
respect to LIBOR Notes, is also a London
Business Day. As used herein, "London
-9-
Business Day" means any day (a) if the
Index Currency (as defined below) is
other than the ECU, on which dealings in
deposits in such Index Currency are
transacted in the London interbank
market or (b) if the Index Currency is
the ECU, that is not designated as an
ECU Non-Settlement Day by the ECU
Banking Association in Paris or
otherwise generally regarded in the ECU
interbank market as a day on which
payments on ECUs shall not be made.
Trustee Not to Risk
Funds: Nothing herein shall be deemed to
require the Trustee to risk or expend
its own funds in connection with any
payment to the Company, or the Agents,
or DTC, or any Noteholder, it being
understood by all parties that payments
made by the Trustee to either the
Company, or the Agents, or DTC, or any
Noteholder shall be made only to the
extent that funds are provided to the
Trustee for such purpose.
PART II: PROCEDURES FOR NOTES ISSUED IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in
book-entry form for eligibility in the book-entry system
maintained by DTC, the Trustee will perform the custodial,
document control and administrative functions described below, in
accordance with its respective obligations under a Letter of
Representations from the Company and the Trustee to DTC, and a
Medium-Term Note Certificate Agreement, with respect to the Notes
dated October 31, 1988, between the Trustee and DTC (the
"Certificate Agreement"), and its obligations as a participant in
DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-
entry form having the same Original
Issue Date, redemption terms and/or
repayment, specified currency, interest
rate, and Stated Maturity (collectively,
the "Fixed Rate Terms") will be
represented initially by a single global
security in fully registered form
without coupons (each, a "Book-Entry
Note"); and all Floating Rate Notes
issued in book-entry form having the
same Original Issue Date, specified
currency, redemption and/or repayment
terms, base rate upon which interest may
be determined (each, a "Base Rate"),
-10-
which may be the Commercial Paper Rate,
the Treasury Rate, LIBOR, the CD Rate,
the Federal Funds Rate, the CMT Rate,
the Prime Rate or any other rate set
forth by the Company, Initial Interest
Rate, Index Maturity, Spread or Spread
Multiplier, if any, Minimum Interest
Rate, if any, Maximum Interest Rate, if
any, and Stated Maturity (collectively,
the "Floating Rate Terms") will be
represented initially by a single Book-Entry Note.
Each Book-Entry Note will be dated and
issued as of the date of its
authentication by the Trustee. Each
Book-Entry Note will bear an Interest
Accrued Date, which will be (a) with
respect to an original Book-Entry Note
(or any portion thereof), its Original
Issue Date and (b) with respect to any
Book-Entry Note (or portion thereof)
issued subsequently upon exchange of a
Book-Entry Note or in lieu of a
destroyed, lost or stolen Book-Entry
Note, the most recent Interest Payment
Date to which interest has been paid or
duly provided for on the predecessor
Book-Entry Note or Notes (or if no such
payment or provision has been made, the
Original Issue Date of the predecessor
Book-Entry Note or Notes), regardless of
the date of authentication of such
subsequently issued Book-Entry Note. No
Book-Entry Note shall represent any Note
issued in certificated form.
Except as set forth in the Notes, no
owner of a beneficial interest in a
Book-Entry Note shall be entitled to
receive any Note issued in certificated
form with respect to such beneficial
interest.
Identification: The Company has arranged with the CUSIP
Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau")
for the reservation of approximately 900
CUSIP numbers which have been reserved
for and relating to Book-Entry Notes and
the Company has delivered to the Trustee
and DTC such list of such CUSIP numbers.
The Trustee will assign CUSIP numbers to
Book-Entry Notes as described below
under Settlement Procedure C. DTC will
notify the CUSIP Service Bureau
-11-
periodically of the CUSIP numbers that
the Company has assigned to Book-Entry
Notes. The Trustee will notify the
Company at any time when fewer than 100
of the reserved CUSIP numbers remain
unassigned to Book-Entry Notes, and, if
it deems necessary, the Company will
reserve additional CUSIP numbers for
assignment to Book-Entry Notes. Upon
obtaining such additional CUSIP numbers,
the Company will deliver a list of such
additional numbers to the Trustee and
DTC. Book-Entry Notes having an
aggregate principal amount in excess of
$200,000,000 (or the equivalent thereof
in one or more foreign or composite
currencies)and otherwise required to be
represented by the same Global
Certificate will instead be represented
by two or more Global Certificates which
shall all be assigned the same CUSIP
number.
Registration: Each Book-Entry Note will be registered
in the name of CEDE & Co., as nominee
for DTC, on the register maintained by
the Trustee under the Indenture. The
beneficial owner of a Note issued in
book-entry form (i.e., an owner of a
beneficial interest in a Book-Entry
Note) (or one or more indirect
participants in DTC designated by such
owner) will designate one or more
participants in DTC (with respect to
such Note issued in book-entry form, the
"Participants") to act as agent for such
beneficial 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 Note issued in book-
entry form in the account of such
Participants. The ownership interest of
such beneficial owner in such Note
issued in book-entry form 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.
Neither the Company nor the Trustee
shall have any liability or
responsibility for the book-entry system
maintained by DTC. For all purposes
under the Indenture, CEDE & Co. as the
-12-
registered owner of a Book-Entry Note
shall be considered the sole Holder of
such Note.
Transfers: Transfers of a beneficial interest in a
Book-Entry Note will be accomplished by
book entries made by DTC and, in turn,
by participants (and in certain cases,
one or more indirect participants in
DTC) acting on behalf of beneficial
transferors and transferees of such
Book-Entry Note.
Exchanges: The Trustee may deliver to DTC and the
CUSIP Service Bureau at any time a
written notice specifying (a) the CUSIP
numbers of two or more Book-Entry Notes
outstanding on such date that represent
Book-Entry Notes having the same Fixed
Rate Terms or Floating Rate Terms, as
the case may be, (other than Original
Issue Dates) and for which interest has
been paid to the same date; (b) a date,
occurring at least 30 days after such
written notice is delivered and at least
30 days before the next Interest Payment
Date for the related Notes issued in
book-entry form, on which such Book-
Entry Notes shall be exchanged for a
single replacement Book-Entry Note; and
(c) a new CUSIP number, obtained from
the Company to be assigned to such
replacement Book-Entry Note. Upon
receipt of such a notice, DTC will send
to its Participants (including the
Trustee) a written reorganization notice
to the effect that such exchange will
occur on such date. Prior to the
specified exchange date, the Trustee
will deliver to the CUSIP Service Bureau
written notice setting forth such
exchange date and the new CUSIP number
and stating that, as of such exchange
date, the CUSIP numbers of the Book-
Entry Notes to be exchanged will no
longer be valid. On the specified
exchange date, the Trustee will exchange
such Book-Entry Notes for a single Book-
Entry Note bearing the new CUSIP number
and the CUSIP numbers of the exchanged
Book-Entry Notes will, in accordance
with CUSIP Service Bureau procedures, be
cancelled and not immediately
reassigned. Notwithstanding the
foregoing, if the Book-Entry Notes to be
exchanged exceed $200,000,000 (or the
-13-
equivalent thereof in one or more
foreign or composite currencies) in
aggregate principal amount, one
replacement Book-Entry Note will be
authenticated and issued to represent
each $200,000,000 (or the equivalent
thereof in one or more foreign or
composite currencies) of principal
amount of the exchanged Book-Entry Notes
and an additional Book-Entry Note will
be authenticated and issued to represent
any remaining principal amount of such
Book-Entry Notes (see "Denominations"
below).
Denominations: All Notes issued in book-entry form will
be denominated in U.S. dollars. Notes
will be issued in denominations of
$1,000 and integral multiples in excess
thereof of $1,000. Book-Entry Notes
will be denominated in principal amounts
not in excess of $200,000,000 (or the
equivalent thereof in one or more
foreign or composite currencies). If
one or more Notes issued in book-entry
form having an aggregate principal
amount in excess of $200,000,000 (or the
equivalent thereof in one or more
foreign or composite currencies) would,
but for the preceding sentence, be
represented by a single Book-Entry Note,
then one Book-Entry Note will be issued
to represent $200,000,000 (or the
equivalent thereof in one or more
foreign or composite currencies)
principal amount of such Note or Notes
issued in book-entry form and an
additional Book-Entry Note or Notes will
be issued to represent any remaining
principal amount of such Note or Notes
issued in book-entry form. In such a
case, each of the Book-Entry Notes
representing such Note or Notes issued
in book-entry form shall be assigned the
same CUSIP number.
Payments of Principal
and Interest: PAYMENTS OF INTEREST ONLY. Promptly
after each Regular Record Date, the
Trustee will deliver to the Company and
DTC a written notice specifying by CUSIP
number the amount of interest to be paid
on each Book-Entry Note on the following
Interest Payment Date (other than an
Interest Payment Date coinciding with
Maturity) and the total of such amounts.
-14-
Promptly after confirming such
information with the Company, the
Trustee will deliver written notice of
such information to DTC. DTC will
confirm the amount payable on each Book-Entry
Note on such Interest Payment Date
by reference to the daily bond reports
published by Standard & Poor's. On such
Interest Payment Date, the Company will
pay to the Trustee, and the Trustee in
turn will pay to DTC, such total amount
of interest due (other than at Maturity)
which is payable in U.S. dollars, at the
times and in the manner set forth below
under "Manner of Payment." The Trustee
shall make payment of that amount of
interest due and owing on any Book-Entry
Notes that Participants have elected to
receive in foreign or composite
currencies directly to such
Participants.
NOTICE OF INTEREST PAYMENTS AND REGULAR
RECORD DATES. On the first Business Day
of January, April, July and October of
each year, the Trustee will deliver to
the Company and DTC a written list of
Regular Record Dates and Interest
Payment Dates that will occur during the
six-month period beginning on such first
Business Day with respect to Floating
Rate Notes issued in book-entry form.
Promptly after each Determination Date
for Floating Rate Notes issued in book-entry
form, the Company will notify Standard & Poor's
of the interest rates determined on such Interest
Determination Date.
PAYMENTS AT MATURITY. On or about the
first Business Day of each month, the
Trustee will deliver to the Company and
DTC a written list of principal,
interest and premium, if any, to be paid
on each Book-Entry Note maturing either
at Stated Maturity or on a Redemption
Date in, or for which Notice of
Repayment at the option of the Holder
has been received with respect to, the
following month. The Trustee, the
Company and DTC will confirm the amount
of such principal and interest payments
with respect to a Book-Entry Note on or
about the fifth Business Day preceding
the Maturity of such Book-Entry Note.
At such Maturity, the Company will pay
-15-
to the Trustee, and the Trustee in turn
will pay to DTC, the principal amount of
such Note, together with interest and
premium, if any, due at such Maturity
which are payable in U.S. dollars, at
the times and in the manner set forth
below under "Manner of Payment." The
Trustee shall make payment of the
principal, premium, if any, and interest
to be paid at maturity of such Book-Entry
Notes that Participants have
elected to receive in foreign or
composite currencies directly to such
Participants. If any Maturity of a
Book-Entry Note is not a Business Day,
the payment due on such day shall be
made on the next succeeding Business Day
and no interest shall accrue on such
payment for the period from and after
such Maturity. Promptly after (i)
payment to DTC of the principal,
interest and premium, if any, due at the
Maturity of such Book-Entry Note which
are payable in U.S. dollars and (ii)
payment of the principal, interest and
premium, if any, due at the maturity of
such Book-Entry Note to those
Participants who have elected to receive
such payments in foreign or composite
currencies, the Trustee will promptly
cancel such Book-Entry Note and
periodically destroy groups of such
Notes and deliver a certificate of
destruction to the Company. On the
first Business Day of each month, the
Trustee will deliver to the Company a
written statement indicating the total
principal amount of outstanding Book-Entry Notes
as of the close of business on the immediately
preceding Business Day.
MANNER OF PAYMENT. The total amount of
any principal, premium, if any, and
interest due on Book-Entry Notes on any
Interest Payment Date or at maturity or
upon redemption or repayment shall be
paid by the Company to the Trustee in
funds available for use by the Trustee
as of 9:30 A.M., New York City time, on
such date. The Company will make such
payment on such Book-Entry Notes by wire
transfer to the Trustee. Prior to 10:00
A.M., New York City time on such date or
as soon as possible thereafter,
following receipt of such funds from the
-16-
Company, the Trustee will pay by
separate wire transfer (using Fedwire
message entry instructions in a form
previously specified by DTC) to an
account at the Federal Reserve Bank of
New York previously specified by DTC, in
funds available for immediate use by
DTC, each payment in U.S. dollars of
interest, principal and premium, if any,
due on a Book-Entry Note on such date.
On each Interest Payment Date, interest
payment shall be made to DTC in same day
funds in accordance with existing
arrangements between the Trustee and
DTC. Thereafter on each such date, DTC
will pay, in accordance with its SDFS
operating procedures then in effect,
such amounts in funds available for
immediate use to the respective
Participants in whose names such Notes
are recorded in the book-entry system
maintained by DTC. Neither the Company
nor the Trustee shall have any
responsibility or liability for the
payment in U.S. dollars by DTC to such
Participants of the principal of,
premium, if any, or interest on, the
Book-Entry Notes. The Trustee shall
make all payments of principal, premium,
if any, and interest on each Book-Entry
Note that Participants have elected to
receive in foreign or composite
currencies directly to such
Participants.
WITHHOLDING TAXES. The amount of any
taxes required under applicable law to
be withheld from any interest payment on
a Note will be determined and withheld
by the Participant, indirect participant
in DTC or other Person responsible for
forwarding payments and materials
directly to the beneficial owner of such
Note.
Settlement
Procedures: Settlement Procedures with regard to
each Note in book-entry form sold by
each Agent, as agent of the Company or
purchased by an Agent, as principal,
shall be completed as soon as possible
following the trade, but no later than
the times set forth below:
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A. The Presenting Agent will advise
the Company by telecopy of the
following Settlement information:
1. Taxpayer identification number
of the purchaser.
2. Principal amount, authorized
denomination and specified
currency of the Note.
3. Fixed Rate Notes:
(a) interest rate;
(b) interest payment dates.
Floating Rate Notes:
(a) interest rate basis or
bases;
(b) initial interest rate;
(c) spread or spread
multiplier, if any;
(d) interest rate reset dates;
(e) interest rate reset period;
(f) interest payment dates;
(g) interest payment period;
(h) record dates;
(i) index maturity, if any;
(j) calculation agent;
(k) maximum interest rate, if
any;
(l) minimum interest rate, if
any;
(m) calculation date; and
(n) interest determination
dates.
4. Price to public of the Note.
5. Trade date.
6. Settlement Date (Original Issue
Date).
7. Maturity Date.
8. Redemption provisions, if any,
including: Redemption Date,
Initial Redemption Percentage
and Annual Redemption Reduction
Percentage.
9. Optional Repayment Date(s), if
any.
10. Net Proceeds to the Company.
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11. Whether the trade is being made
on an agency basis or a
principal basis and the Agent's
commission or discount, as
applicable.
12. Currency payment option for
specified currency.
13. Whether such Note is being
issued with Original Issue
Discount and the terms thereof.
14. Exchange Rate Agent, if any.
15. Such other information specified
with respect to the Notes.
B. The Company will provide to the
Trustee by telecopy or other
acceptable method executed by the
President, any Vice President or
Treasurer the applicable settlement
information outlined above received
from the agent including the name of
the Agent.
C. The Trustee will assign a CUSIP
number to the Book-Entry Note, and
will telephone and advise the Company
and the Presenting Agent of said
CUSIP number.
The Trustee will communicate to DTC
and the Presenting Agent through
DTC's Participant Terminal System, a
pending deposit message specifying
the following settlement information:
1. The information set forth in
Settlement Procedure A.
2. Identification numbers of the
participant accounts maintained
by DTC on behalf of the Trustee
and the Presenting Agent.
3. Identification of the Book-Entry
Note of the Book-Entry Note as a
Fixed Rate Book-Entry Note or
Floating Rate Book-Entry Note.
4. Initial Interest Payment Date
for such Note, number of days by
which said date succeeds the
related record date for DTC
-19-
purposes (or, in the case of
Floating Rate Notes which reset
daily or weekly, the date which
is five calendar days preceding
the Interest Payment Date) and,
if then calculable, the amount
of interest payable on such
Interest Payment Date (which
amount shall have been confirmed
by the Trustee).
5. CUSIP number of the Book-Entry
Note representing such Note.
6. Whether such Book-Entry Note
represents any other Notes
issued or to be issued in book-entry form.
DTC will arrange for each pending
deposit message described above to be
transmitted to Standard & Poor's,
which will use the information in the
message to include certain terms of
the related Book-Entry Note in the
appropriate daily bond report
published by Standard & Poor's.
D. The Company will complete and deliver
to the Trustee a Book-Entry Note
representing such Note in a form that
has been approved by the Company, the
Agents and the Trustee.
E. The Trustee will authenticate the
Book-Entry Note representing such
Note.
F. DTC will credit such Note to the
participant account of the Trustee
maintained by DTC.
G. The Trustee will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC (i) to debit such
Note to the Trustee's participant
account and credit such Note to the
participant account of the Presenting
Agent maintained by DTC and (ii) to
debit the settlement account of the
Presenting Agent and credit the
settlement account of the Trustee
maintained by DTC, in an amount equal
to the price of such Note less such
Presenting Agent's commission or
-20-
discount. Any entry of such deliver
order shall be deemed to constitute a
representation and warranty by the
Trustee to DTC that (i) the Book-Entry
Note representing such Note has
been issued and authenticated and
(ii) the Trustee is holding such
Book-Entry Note pursuant to the
Medium-Term Note Certificate
Agreement.
H. In the case of Book-Entry Notes sold
through the Presenting Agent, as
agent, the Presenting Agent will
enter an SDFS deliver order through
DTC's Participant Terminal System
instructing DTC (i) to debit such
Note to the Presenting Agent's
participant account and credit such
Note to the participant account of
the Participants maintained by DTC
and (ii) to debit the settlement
accounts of such Participants and
credit the settlement account of the
Presenting Agent maintained by DTC,
in an amount equal to the initial
public offering price of such Note.
I. Transfers of funds in accordance with
SDFS deliver orders described in
Settlement Procedures G and H will be
settled in accordance with SDFS
operating procedures in effect on the
Settlement Date.
J. The Trustee will credit to an account
of the Company maintained at the
Trustee funds available for immediate
use in the amount transferred to the
Trustee in accordance with Settlement
Procedure G.
K. The Trustee will send a copy of the
Book-Entry Note by first class mail
to the Company together with a
statement setting forth the principal
amount of Notes Outstanding as of the
related Settlement Date after giving
effect to such transaction and all
other offers to purchase Notes of
which the Company has advised the
Trustee but which have not yet been
settled.
L. If such Note was sold through the
Presenting Agent, as agent, the
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Presenting Agent will confirm the
purchase of such Note to the
purchaser either by transmitting to
the Participant with respect to such
Note a confirmation order through
DTC's Participant Terminal System or
by mailing a written confirmation to
such purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted by
the Company, Settlement Procedures "A"
through "L" set forth above shall be
completed as soon as possible but not
later than the respective times (New York
City time) set forth below:
Settlement
Procedure Time
---------- ----
A If possible by 2:00 p.m. on the
trade date or within one hour
following the trade
B As soon as practicable following
the trade, but in no event later
than 2:00 p.m. on the Business
Day following the trade
C No later than the close of
business on the trade date
D 3:00 p.m. on the Business Day
before Settlement Date
E 9:00 a.m. on Settlement Date
F 10:00 a.m. on Settlement Date
G-H No later than 2:00 p.m. on
Settlement Date
I 4:00 p.m. on Settlement Date
X-X 5:00 p.m. on Settlement Date
Settlement Procedure I 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 Note issued in book-entry
form is rescheduled or canceled, the
Company shall notify the Trustee thereof,
and upon receipt of such notice the
Trustee will deliver to DTC, through DTC's
Participant Terminal System, a
cancellation message to such effect by no
later than 5:00 p.m., New York City time,
on the Business Day immediately preceding
the scheduled Settlement Date.
-22-
Fails: If the Trustee fails to enter an SDFS
deliver order with respect to a Book-Entry
Note issued in book-entry form pursuant to
Settlement Procedure G, then upon written
request (which may be evidenced by
telecopy transmission) of the Company, the
Trustee shall deliver to DTC, through
DTC's Participant Terminal System, as soon
as practicable a withdrawal message
instructing DTC to debit such Note to the
participant account of the Trustee
maintained at DTC. DTC will process the
withdrawal message, provided that such
participant account contains a principal
amount of the Book-Entry Note representing
such Note that is at least equal to the
principal amount to be debited. If
withdrawal messages are processed with
respect to all the Notes represented by a
Book-Entry Note, the Trustee will xxxx
such Book-Entry Note "cancelled," make
appropriate entries in its records and
send such cancelled Book-Entry Note to the
Company. The CUSIP number assigned to
such Book-Entry Note shall, in accordance
with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned.
If withdrawal messages are processed with
respect to a portion of the Notes
represented by a Book-Entry Note, the
Trustee will exchange such Book-Entry Note
for two Book-Entry Notes, one of which
shall represent the Notes for which
withdrawal messages are processed and
shall be cancelled immediately after
issuance, and the other of which shall
represent the other Notes previously
represented by the surrendered Book-Entry
Note and shall bear the CUSIP number of
the surrendered Book-Entry Note.
In the case of any Book-Entry Note sold
through the Presenting Agent, as agent, if
the purchase price for any Book-Entry Note
is not timely paid to the Participants
with respect to such Note by the
beneficial purchaser thereof (or a Person,
including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the related
Presenting Agent may enter SDFS deliver
orders through DTC's Participant Terminal
System reversing the orders entered
pursuant to Settlement Procedures G and H,
respectively. Thereafter, the Trustee
will deliver the withdrawal message and
-23-
take the related actions described in the
preceding paragraph. If such failure
shall have occurred for any reason other
than default by the applicable Presenting
Agent to perform its obligations hereunder
or under the Distribution Agreement, the
Company will reimburse such Presenting
Agent on an equitable basis for its loss
of the 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
Note, DTC 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 a
Note that was to have been represented by
a Book-Entry Note also representing other
Notes, the Trustee will provide, in
accordance with Settlement Procedures D
and E, for the authentication and issuance
of a Book-Entry Note representing such
remaining Notes and will make appropriate
entries in its records.
PART III: PROCEDURES FOR NOTES ISSUED IN
CERTIFICATED FORM
Denominations: The Certificated Notes will be issued in
denominations of U.S. $1,000 and integral
multiples thereof. Any notes denominated
other than in U.S. dollars will be
issuable in denominations as set forth in
the applicable pricing supplement and in
such Notes.
Payments of Princi-
pal and Interest: Upon presentment and delivery of the
Certificated Note, the Trustee will pay
the principal amount of each Certificated
Note at Maturity and the final installment
of interest in immediately available
funds. All other interest payments on a
Certificated Note, other than interest due
at Maturity, will be made by check drawn
on the Trustee and mailed by the Trustee
to the person entitled thereto as provided
in the Indenture and Certificated Note.
However, holders of $10,000,000 or more in
aggregate principal amount of Certificated
Notes (whether having identical or
different terms and provisions) shall be
-24-
entitled to receive payments of interest,
other than at Maturity, by wire transfer
of immediately available funds if
appropriate wire transfer instructions
have been received in writing by the
Trustee not less than 16 days prior to the
applicable Interest Payment Date. Any
payment of principal or interest required
to be made on an Interest Payment Date or
at maturity of a Note which is not a
Business Day (as defined below) need not
be made on such day, but may be made on
the next succeeding Business Day with the
same force and effect as if made on the
Interest Payment Date or at maturity, as
the case may be, and no interest shall
accrue for the period from and after such
Interest Payment Date or Maturity Date.
The Trustee will provide monthly to the
Company a list of the principal and
interest in each currency to be paid on
Certificated Notes maturing in the next
succeeding month. The Trustee will be
responsible for withholding taxes on
interest paid as required by applicable
law, but shall be relieved from any such
responsibility if it acts in good faith
and in reliance upon an opinion of
counsel.
Certificated Notes presented to the
Trustee at maturity for payment will be
cancelled by the Trustee. All cancelled
Certificated Notes held by the Trustee
shall be destroyed, and the Trustee shall
furnish to the Company a certificate with
respect to such destruction.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note purchased through any
Agent, as agent, or purchased by an Agent,
as principal, shall be as follows:
A. The Presenting Agent will advise the
Company by telephone of the following
Settlement information with regard to
each Note:
1. Exact name in which the
Certificated Note(s) is to be
registered (the "Registered
Owner").
2. Exact address of the Registered
Owner for delivery, notices and
-25-
payments of principal and
interest.
3. Taxpayer identification number
of the Registered Owner.
4. Principal amount, authorized
denomination and specified
currency of the Certificated
Note.
5. Denomination of the Certificated
Note.
6. Fixed Rate Notes:
(a) interest rate;
(b) interest payment dates.
Floating Rate Notes:
(a) interest rate basis or
bases;
(b) initial interest rate;
(c) spread or spread
multiplier, if any;
(d) interest rate reset dates;
(e) interest rate reset period;
(f) interest payment dates;
(g) interest payment period;
(h) record dates;
(i) index maturity, if any;
(j) calculation agent;
(k) maximum interest rate, if
any;
(l) minimum interest rate, if
any;
(m) calculation date; and
(n) interest determination
dates.
7. Price to public of the
Certificated Note.
8. Trade date.
9. Settlement date (Original Issue
Date).
10. Maturity date.
11. Redemption provisions, if any,
including: Initial Redemption
Date, Initial Redemption
Percentage and Annual redemption
Reduction Percentage.
-26-
12. Optional Repayment Date(s), if
any.
13. Net proceeds to the Company.
14. Whether the trade is being made
on an agency basis or a
principal basis and the Agent's
commission or discount, as
applicable.
15. Currency payment option for
specified currency.
16. Whether such Note is being
issued with Original Issue
Discount and the terms thereof.
17. Exchange Rate Agent, if any.
18. Such other information specified
with respect to the Notes.
B. After receiving such settlement
information from the Agent, the
Company will advise the Trustee of
the above settlement information.
The Company will prepare a Pricing
Supplement to the Prospectus and
deliver copies to the Agent and the
Trustee and will cause the Trustee to
issue, authenticate and deliver
Notes.
C. The Trustee will complete the
preprinted 4-ply Certificated Note
packet containing the following
documents in forms approved by the
Company, the Presenting Agent and the
Trustee:
1. Certificated Note with Agent's
customer confirmation.
2. Stub 1 - for Trustee.
3. Stub 2 - for Presenting Agent.
4. Stub 3 - for the Company.
D. With respect to each trade, the
Trustee will deliver the Certificated
Notes and Stub 2 thereof to the
Presenting Agent at the following
applicable address: Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx, Incorporated,
-27-
Xxxxxxx Xxxxx Money Markets
Clearance, 00 Xxxxx Xxxxxx, 0xx Xxx.,
N.S.C.C. Window, Xxx Xxxx, XX 00000,
Attention: Xx Xxxxxxxx; Xxxxxx
Xxxxxxx & Co. Incorporated at Bank of
New York, Dealer Clearance
Department, 1 Wall Street, 3rd Flr.,
Window 3b, Xxx Xxxx, XX 00000,
Attention: For the Account of Xxxxxx
Xxxxxxx & Co. Incorporated; Xxxxxx
Brothers, Xxxxxx Special Securities
Inc., 0 Xxxxxxx Xxxx Xxxxx, Xxxxxx
Xxxxx, Xxx Xxxx, XX 00000, Attention:
Xxxxx Xxxxxxxx or Xxxxxxx Xxxxxxxx
Inc, or Salomon Brothers Inc, at The
Bank of New York, Dealer Clearance,
0 Xxxx Xxxxxx 0xx Xxx., Xxx Xxxx, XX
00000, Account: Salomon Brothers Inc.
The Trustee will keep Stub 1. The
Presenting Agent will acknowledge
receipt of the Certificated Note
through a broker's receipt and will
keep Stub 2. Delivery of the
Certificated Note will be made only
against such acknowledgment of
receipt. Upon determination that the
Certificated Note has been
authorized, delivered and completed
as aforementioned, the Presenting
Agent will wire the net proceeds of
the Certificated Note after deduction
of its applicable commission to the
Company pursuant to the standard wire
instructions given by the Company.
E. The Presenting Agent will deliver the
Certificated Note (with
confirmation), as well as a copy of
the Prospectus and any applicable
Prospectus Supplement or Supplements
received from the Company to the
purchaser against payment in full in
immediately available funds. In all
cases, the prospectus, prospectus
supplement and pricing sticker must
accompany or precede the earlier of
the written confirmation of the sale
of the Notes or the delivery of the
Notes. If instructed by the
purchaser to deliver the Note and
confirmation to different locations,
the Note and the confirmation will
each be accompanied or preceded by
the prospectus, prospectus supplement
and pricing sticker to the Note being
delivered.
-28-
F. The Trustee will send Stub 3 to the
Company.
Settlement Procedures
Timetable: For offers to purchase Certificated Notes
accepted by the Company, Settlement
Procedures "A" through "F" set forth above
shall be completed as soon as possible but
not later than the respective times
(New York City time) set forth below:
Settlement
Procedure Time
---------- ----
A - B 3:00 p.m. on Business Day
prior to Settlement Date
C - D 2:15 p.m. on Settlement Date
E 3:00 p.m. on Settlement Date
F 5:00 p.m. on Settlement Date
Failure to Settle: In the event that a purchaser of a Note
from the Company shall either fail to
accept delivery of or make payment for a
Certificated Note on the date fixed for
settlement, the Presenting Agent will
forthwith notify the Trustee and the
Company by telephone, confirmed in
writing, and return the Certificated Note
to the Trustee.
The Trustee, upon receipt of the
Certificated Note from the Presenting
Agent, will immediately advise the Company
and the Company will promptly arrange to
credit the account of the Presenting Agent
in an amount of immediately available
funds equal to the amount previously paid
by such Presenting Agent in settlement for
the Certificated Note. Such credits will
be made on the Settlement Date if
possible, and in any event not later than
the Business Day following the Settlement
Date; provided that the Company has
received notice on the same day. If such
failure shall have occurred for any reason
other than failure by such Presenting
Agent to perform its obligations hereunder
or under the Distribution Agreement, the
Company will reimburse such Presenting
Agent on an equitable basis for its loss
of the use of funds during the period when
the funds were credited to the account of
the Company. Upon receipt of the
-29-
Certificated Note in respect of which the
failure occurred, the Trustee will xxxx
the note "cancelled," make appropriate
entries in its records to reflect the fact
that the Note was never issued, and
accordingly notify the Company in writing.
-30-
