PACCAR FINANCIAL CORP.
Medium-Term Notes, Series I
UNDERWRITING AGREEMENT
To each of the Underwriters September __, 1998
who are signatories hereto
Dear Sirs:
PACCAR Financial Corp., a Washington corporation (the "Company"),
proposes to sell its Medium-Term Notes, Series I (the "Securities") to each
of you acting severally as an underwriter (each of you being referred to
herein as an "Underwriter") in such principal amount or amounts as the
Company and the purchasing Underwriter may agree upon from time to time. The
Securities are to be issued pursuant to the indenture, dated as of December
1, 1983, as amended by the first supplemental indenture dated as of June 19,
1989 (the "Indenture"), between the Company and Citibank, N.A., as trustee
(the "Trustee").
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants as of the date hereof, as of the
date of each applicable Schedule hereinafter referred to and as of each
applicable Closing Date hereinafter referred to, and as of the times referred to
in Sections 6(e), 6(f) and 6(g) hereof (in each case a "Representation Date"),
as follows:
(i) A registration statement on Form S-3 with respect to the
Securities has been prepared and filed by the Company under the Securities
Act of 1933, as amended (the "Act"), and the rules and regulations (the
"Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, and has become effective. The Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). As used in this Agreement, (A) "Preliminary Prospectus"
means each prospectus and amendments or supplements thereof (including all
documents incorporated therein by reference) included in such registration
statement before it became effective under the Act, including any
prospectus filed with the Commission pursuant to Rule 424(a) of the Rules
and Regulations; (B) "Registration Statement" means such registration
statement when it became effective under the Act, as from time to time
amended or supplemented (including all documents incorporated therein
by reference) provided, that if the Company files a registration
statement with the Commission pursuant to Rule 462(b) of the Rules and
Regulations (the "Rule 462(b) Registration Statement"), then, after
such filing all references to the "Registration Statement" shall also
be deemed to include the Rule 462(b) Registration Statement; (C) "Basic
Prospectus" means the prospectus (including all documents incorporated
therein
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by reference) included in the Registration Statement; and (D)
"Prospectus" means the Basic Prospectus, together with any prospectus
amendments or supplements (including in each case all documents
incorporated therein by reference) but excluding any amended or
supplemented prospectus with respect to the offer and sale of debt
securities other than the Securities, as filed with, or mailed for
filing to, the Commission pursuant to paragraph (b) of Rule 424 of the
Rules and Regulations. For purposes of this Agreement, all references
to the Preliminary Prospectus, Registration Statement, Basic Prospectus
or Prospectus or any amendment or supplement thereto shall be deemed to
include any copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval System ("XXXXX").
(ii) The Company meets the requirements for use of Form S-3
under the Act; the Registration Statement (including all exhibits
thereto) and each Prospectus conform, and will conform as of each
applicable Representation Date, in all material respects with the
applicable requirements of the Act, the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the Trust Indenture Act, and the
rules and regulations of the Commission under such Acts; the Indenture,
including any amendments and supplements thereto, conforms, and will
conform as of the applicable Representation Date, in all material
respects with the requirements of the Trust Indenture Act and the rules
and regulations of the Commission thereunder; the Registration
Statement does not as of the date hereof, and will not as of each
applicable Representation Date, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
each Prospectus delivered to the applicable Underwriter(s) for use in
connection with the Securities is identical to any electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T; and the Prospectus
does not as of the date hereof, and will not as of each applicable
Representation Date, contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representation or warranty to any Underwriter as to information
contained in or omitted from the Registration Statement or any
Prospectus in reliance upon and in conformity with written information
furnished to the Company by such Underwriter specifically for inclusion
therein.
(iii) The Company is not in violation of its corporate charter or
by-laws or in default in the observance or performance of any
agreement, indenture or instrument, the effect of which violation or
default would be material to the Company; the execution, delivery and
performance of this Agreement, the Indenture and the Securities, and
compliance by the Company with the provisions of the Securities and the
Indenture, have been duly authorized by all necessary corporate action
and will not conflict with, result in the creation or imposition of any
lien, charge or encumbrance upon any of the assets of the Company
pursuant to the terms of, or constitute a default in the observance or
performance of, any agreement, indenture or instrument, or result in a
violation of the corporate charter or by-laws of the Company or any
order, rule or regulation of any court or governmental agency having
jurisdiction over the Company or its properties, the effect of which
conflict, lien, charge, encumbrance, default or violation would be
material to the Company; and except as required by the Act, the Trust
Indenture Act, the Exchange Act
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and applicable state securities laws, no consent, authorization or
order of, or filing or registration with, any court or governmental
agency is required for the execution, delivery and performance of this
Agreement and the Indenture or in connection with the sale of the
Securities hereunder, the failure to obtain which consent,
authorization or order or make which filing or registration would be
material to the Company. The Company has no subsidiaries within the
meaning of Rule 405 of the Rules and Regulations.
(iv) From the dates as of which information is given in the
Registration Statement and each Prospectus, and except as described
therein or in any amendment or supplement thereto (A) there has not
been any material adverse change in the business, properties, financial
condition, results of operations or prospects of the Company, (B) there
has been no material transaction entered into by the Company other than
those in the ordinary course of business, and (C) except as disclosed
in the financial statements incorporated by reference in the
Prospectus, 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 LLP, whose report appears in the Company's
Annual Report on Form 10-K which is incorporated by reference in the
Prospectus, are independent public auditors as required by the Act and
the Rules and Regulations.
(vi) (A) The Indenture has been validly authorized, duly executed
and delivered by the Company and constitutes the legally binding
obligation of the Company enforceable in accordance with its terms
(except as enforcement thereof may be limited by bankruptcy,
insolvency, other laws relating to creditor's rights generally or by
general equity principles and except further as enforcement thereof may
be limited by requirements that a claim with respect to any debt
securities issued under the Indenture that are payable in a foreign or
composite currency (or a foreign or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or
by governmental authority to limit, delay or prohibit the making of
payments outside the United States), (B) when Securities are sold
pursuant hereto, they will have been validly authorized for issuance
and sale pursuant to this Agreement and, upon delivery and payment
therefor as provided in this Agreement and the Indenture, will be
validly issued and outstanding, and will constitute legally binding
obligations of the Company enforceable in accordance with their terms
(except as enforcement thereof may be limited by bankruptcy,
insolvency, or other laws relating to creditors' rights generally or by
general equity principles and except further as enforcement thereof may
be limited by requirements that a claim with respect to any Notes
payable in a foreign or composite currency (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S.
dollars at a rate or exchange prevailing on a date determined to
applicable law or by governmental authority to limit, delay or prohibit
the making of payments outside the United States), the Securities will
be in a form previously certified to the Underwriters and contemplated
by the Indenture 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 any Preliminary
Prospectus or Prospectus have been, and will be as of each applicable
Representation Date, prepared by the Company in conformity in all
material respects with the applicable requirements of the Act and the
Rules and Regulations and the Exchange Act and the rules and
regulations of the Commission thereunder; and such documents have been,
or will be as of each applicable Representation Date, timely filed as
required thereby.
(xi) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the Act or by
the Rules and Regulations, or which were required to be filed as
exhibits to any document incorporated by reference in any Prospectus by
the Exchange Act or the rules and regulations of the Commission
thereunder, which have not been filed as exhibits to the Registration
Statement or to such document or incorporated therein by reference as
permitted by the Rules and Regulations or the rules and regulations of
the Commission under the Exchange Act, as the case may be.
(xii) All the authorized, issued and outstanding capital stock of
the Company has been duly authorized, is validly issued, fully paid and
nonassessable and is owned, of record and beneficially, by PACCAR, free
and clear of any mortgage, pledge, lien, claim or encumbrance, except
as described in the Prospectus.
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(xiii) The Company has all licenses for the conduct of its
business, the failure to have which would have a material adverse
effect on the Company.
(xiv) The Medium-Term Note Program under which the Securities are
issued (the "Program"), as well as the Securities, are rated [A1] by
Xxxxx'x Investors Service, Inc. and [AA-1] by Standard & Poor's Rating
Services, or such rating as to which the Company has have most recently
notified the Agents pursuant to Section 3(e) hereof.
(b) Any certificate signed by any officer of the Company and delivered to
an Underwriter or to its counsel in connection with a sale of Securities to it
shall be deemed a representation and warranty by the Company to such Underwriter
as to the matters covered thereby.
SECTION 2. PURCHASE AND SALE.
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, from time to time the
Company may agree to sell Securities to an Underwriter, and such Underwriter
may agree to purchase Securities from the Company. Each such agreement shall
incorporate the terms of this Agreement and shall be evidenced by the
execution and delivery by the Company and the Underwriter of a schedule in
the form of Exhibit A hereto appropriately completed to set forth the
principal amount, interest rate(s) or manner of determining the interest
rate(s), interest payment dates, purchase price of the Securities to be
purchased and any other terms of the Securities and the purchase thereof (a
"Schedule"). Such execution and delivery may be accomplished by exchange of
telecopied facsimiles, by telex or by other mutually agreed means.
Securities to be purchased by an Underwriter are herein sometimes called the
"Purchased Securities." Purchased Securities will be represented by a global
certificate (the "Book-Entry Securities) registered in the name of the
depositary (the "Depositary") specified in the Prospectus or by certificates
issued in definitive form (the "Certificated Securities").
Each delivery of and payment for Purchased Securities shall be made at
the location, on the date and at the time specified in the applicable
Schedule, which date and time may be postponed by agreement between the
purchasing Underwriter and the Company (each such date and time of delivery
and payment for the Securities being herein called the "Closing Date").
Delivery of Certificated Securities shall be made to the Underwriter and
delivery of Book-Entry Securities shall be made to the Trustee as agent for
the Depositary for the account of the Underwriter, in either case against
payment by the Underwriter of the purchase price to or upon the order of the
Company in immediately available funds, unless otherwise specified in the
applicable Schedule. Certificated Securities shall be registered in such
names and in such denominations as the Underwriter may request at least one
full business day prior to the applicable Closing Date. The Company will
have Certificated Securities available for inspection, checking and packaging
by the Underwriter in the city in which delivery and payment is to occur, not
later than 2 p.m. Eastern Time, on the business day prior to the applicable
Closing Date.
SECTION 3. COVENANTS OF THE COMPANY.
The Company covenants and agrees:
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(a) To furnish promptly to each Underwriter a signed copy of
the Registration Statement as originally filed and each amendment or
supplement thereto, and a copy of each Prospectus with respect to the
Securities filed with the Commission, including all supplements thereto and
all documents incorporated therein by reference, and all consents and
exhibits filed therewith. The Registration Statement and each amendment
thereto so furnished to the Underwriter will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(b) To deliver promptly to each Underwriter such number of
the following documents as each Underwriter may reasonably request: (i)
conformed copies of the Registration Statement (excluding exhibits other than
the computation of the ratios of earnings to fixed charges, the Indenture and
this Agreement), (ii) each Preliminary Prospectus, Basic Prospectus and
Prospectus with respect to the Securities, and (iii) any documents
incorporated by reference in any Prospectus with respect to the Securities
(excluding exhibits).
(c) To file with the Commission, during any period in which
any Prospectus is required by law to be delivered in connection with sales of
the Securities, any amendment or supplement to the Registration Statement or
any Prospectus that is required by the Act or the Rules and Regulations, and
all documents, and any amendments to previously filed documents, required to
be filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act.
(d) Prior to filing with the Commission during any period in
which the Prospectus is required by law to be delivered in connection with
sales of Securities (i) any amendment or supplement to the Registration
Statement, (ii) any Prospectus or any amendment or supplement thereto, or
(iii) any document incorporated by reference in any of the foregoing or any
amendment of or supplement to any such incorporated document, to furnish a
copy thereof to each Underwriter and its counsel and, between the date of
delivery of any Schedule and prior to the applicable Closing Date, not to
file any such document to which the purchasing Underwriter reasonably objects.
(e) To advise each Underwriter promptly (i) when any
post-effective amendment to the Registration Statement relating to or
covering the Securities becomes effective, (ii) of any request by the
Commission for an amendment or supplement to the Registration Statement, to
any Prospectus, to any document incorporated by reference in any of the
foregoing or for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or any order directed to any Prospectus or any document
incorporated therein by reference or the initiation or threat of any stop
order proceeding or of any challenge by the Commission to the accuracy or
adequacy of any document incorporated by reference in any Prospectus, (iv) of
receipt by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the
initiation or threat of any proceeding for that purpose, (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, and (vi) any change in the rating assigned by any nationally
recognized statistical rating organization ("NRSRO") to the Program or any
debt securities (including the Securities) of the Company, or the public
announcement by any NRSRO that it has under surveillance or
6
review, with possible negative implications, its rating of the Program or any
such debt securities, or the withdrawal by any NRSRO of its rating of the
Program or any such debt securities.
(f) If, during any period in which the Prospectus is required
by law to be delivered in connection with sales of the Securities, the
Commission shall issue a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the lifting
of that order at the earliest possible time.
(g) To make generally available to its security holders, as
soon as practicable but in no event later than 90 days after the end of the
twelve-month period identified below, an earnings statement (in form
complying with the provisions of Section 11(a) of the Act, which need not be
certified by independent certified public accountants unless required by the
Act or the Rules and Regulations) covering the twelve-month period beginning
not later than the first day of the fiscal quarter next following the latest
date which (i) under Section 11(a) of the Act and the Rules and Regulations
is an effective date of the Registration Statement for purposes of said
Section 11(a), and (ii) is not later than the sale of all the Securities.
(h) So long as any of the Securities are outstanding, to
furnish to each Underwriter not later than the time the Company makes the
same generally available to others, copies of all reports and financial
statements furnished by the Company to any securities exchange on which the
Securities are listed pursuant to requirements of or agreements with such
exchange or to the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder.
(i) To endeavor, in cooperation with the Underwriters, to
qualify the Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as we may
agree upon and to maintain such qualifications in effect for as long as may
be reasonably required for the distribution of the Securities. The Company
will file such statements and reports as may be required by the laws of each
jurisdiction in which the Securities have been qualified as above provided.
(j) If provided in the Schedule, between the date of such
Schedule and the Settlement Date with respect to such Schedule, the Company
will not offer or sell, or enter into any agreement to sell, any debt
securities of the Company (other than the Securities that are to be sold
pursuant to such Schedule and commercial paper for other short-term debt with
an original maturity of 270 days or less in the ordinary course of business)
without such Underwriter's prior consent.
(k) The Company will use the net proceeds received by it from the
issuance and sale of the Securities in the manner specified in the Prospectus.
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
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document and any amendments and exhibits thereto required to be filed by the
Company under the Exchange Act, (iv) the costs of furnishing to the
Underwriters copies of the Registration Statement as originally filed and
each amendment and post-effective amendment thereof (including exhibits), any
Preliminary Prospectus, Basic Prospectus or Prospectus, any supplement to the
Prospectus and any documents incorporated by reference in any of the
foregoing documents, (v) the fees and disbursements of the Trustee and its
counsel, (vi) the cost of any filings with the National Association of
Securities Dealers, Inc., in respect of the Securities, (vii) the fees and
disbursements of counsel to the Company, (viii) any fees payable to rating
agencies in connection with the rating of the Securities, (ix) the fees and
expenses of qualifying the Securities under the securities laws of the
several jurisdictions as provided in this Agreement and of preparing and
printing a Blue Sky Memorandum and a memorandum concerning the legality of
the Securities as an investment (including reasonable fees and expenses of
counsel for the Underwriters in connection therewith), and (x) all other
costs and expenses incident to the Company's performance of its obligations
under this Agreement.
In addition, the Company agrees to pay the reasonable fees and
disbursements of Xxxxx & Xxxx LLP, counsel for the Underwriters in connection
with the sale of the Securities.
SECTION 5. CONDITIONS OF OBLIGATIONS.
The obligations of an Underwriter to purchase the Securities identified
on a Schedule will be subject to the continued accuracy of the
representations and warranties of the Company contained herein, to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance and
observance by the Company of all covenants and agreements contained herein
and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no order shall have been issued by the
Commission suspending or preventing the use of any Prospectus, and no
proceedings for such purpose shall be pending before or threatened by the
Commission.
(b) On or prior to the applicable Closing Date, the purchasing
Underwriter shall have been furnished such documents, certificates,
accountants' letters and opinions as it may reasonably request for the
purpose of enabling it or its counsel to determine the accuracy, completeness
or satisfaction of any of the representations, warranties or conditions
herein contained.
(c) At each Closing Date, the purchasing Underwriter shall have
received a certificate, dated such Closing Date, of the President, a Vice
President, the General Manager, the Treasurer or the Controller of the
Company to the effect that, to the best of such officer's knowledge, the
conditions set forth in subsections (a) and (d) of this Section 5 have been
satisfied, and as to the continued accuracy of the representations and
warranties of the Company set forth herein.
(d) No order suspending the sale of the Securities in any jurisdiction
designated pursuant to subsection 3(i) hereof shall have been issued, and no
proceeding for that purpose
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shall have been instituted or, to the knowledge of the purchasing Underwriter
or the Company, shall be contemplated.
(e) Subsequent to the date of the applicable Schedule and on or prior
to the applicable Closing Date, there shall not have occurred (i) since the
date of such Schedule or since the respective dates as of which information
is given in the Registration Statement, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or
(ii) any material adverse change in the financial markets in the United
States or, if such Securities are denominated and/or payable in, or indexed
to, one or more foreign currencies, in the international financial markets,
or any outbreak or escalation of hostilities or other calamity or crisis or
any change or development or event involving a prospective change in national
or international political, financial or economic conditions, in each case
the effect of which is such as to make it, in the judgment of such
Underwriter(s), impracticable to market the Securities or enforce contracts
for the sale of the Securities, or (iii) any suspension by the Commission or
a national securities exchange of trading in any securities of the Company,
or suspension or material limitation of trading generally on either the
American Stock Exchange or the New York Stock Exchange, or the fixing of
minimum or maximum prices for trading, or the requirement of maximum ranges
for prices for securities by either of said exchanges or by order of the
Commission or any other governmental authority, or a banking moratorium
declared by either Federal or New York authorities, or a declaration of a
banking moratorium by the relevant authorities in the country or countries of
origin of any foreign currency or currencies in which the Securities are
denominated or payable, or (iv) a lowering of the rating assigned by any
NRSRO to any debt securities of the Company as of the date of any applicable
Schedule since that date, or a public announcement by any such organization
that it has under surveillance or review, with possible negative
implications, its rating of any debt securities of the Company, or (v) any
facts coming to such Underwriter's attention that would cause such
Underwriter to believe that the Prospectus, at the time it was required to be
delivered to a purchaser of Securities, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make
the statements therein, in light of the circumstances existing at the time of
such delivery, not misleading.
(f) At the applicable Closing Date, the purchasing Underwriter shall
have received an opinion of counsel, dated such Closing Date, to the effect
specified in Section 6(f) hereof.
SECTION 6. EVIDENCE OF COMPLIANCE.
(a) On the date of its execution of this Agreement, each Underwriter
has received the opinion, dated as of the delivery date thereof, of Xxxxx X.
Xxxxxxxx, Assistant General Counsel of PACCAR and counsel for the Company, in
form and substance reasonably satisfactory to such Underwriter and its
counsel, to the effect that:
(i) PACCAR has been duly incorporated and is validly existing as
a corporation in good standing 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.
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(ii) The Company has corporate power and authority to own, lease
and operate its properties and conduct its business as described in the
Registration Statement.
(iii) The Company is duly qualified and in good standing as a
foreign corporation to transact business in each jurisdiction in which the
failure so to qualify and be in good standing would materially adversely
affect its business or financial condition.
(iv) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus and the shares of issued and
outstanding capital stock set forth therein have been duly authorized and
validly issued and are fully paid and non-assessable and are owned, of
record and beneficially, by PACCAR, free and clear of any mortgage,
pledge, lien, claim or encumbrance except as described in the Prospectus.
(v) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding agreement
of the Company.
(vi) The Indenture has been duly and validly authorized, executed
and delivered by the Company and constitutes the legal, valid and binding
agreement of the Company enforceable in accordance with its terms (except
as enforcement thereof may be limited by bankruptcy, insolvency, other
laws relating to creditor's rights generally or by general equity
principles).
(vii) The Securities are in a form contemplated by the Indenture and
have been duly and validly authorized by all necessary corporate action
and, when executed and authenticated as specified in the Indenture and
delivered against payment therefor in accordance with this Agreement, will
be legal, valid and binding obligations of the Company enforceable in
accordance with their terms (except as enforcement thereof may be limited
by bankruptcy, insolvency, other laws relating to creditor's rights
generally or by general equity principles).
(viii) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company which
would affect the 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,
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indenture or instrument, the effect of which violation or default would be
material to the Company.
(xi) The execution, delivery and performance of this Agreement,
and compliance by the Company with the provisions of the Securities and
the Indenture, will not conflict with, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets of
the Company pursuant to the terms of, or constitute a default under,
any agreement, indenture or instrument known to such counsel, after due
inquiry, or result in a violation of the corporate charter or bylaws of
the Company or any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company, or its
properties, the effect of which conflict, lien, charge, encumbrance,
default or violation would be material to the Company; and, except as
may be required by the Act, the Trust Indenture Act, the Exchange Act
or state securities laws, no consent, authorization or order of, or
filing or registration with, any court or governmental agency is
required for the execution, delivery and performance by the Company of
this Agreement, the failure to obtain which consent, authorization or
order or make which filing or registration would be material to the
Company.
(xii) The Registration Statement and the Prospectus (except that
no opinion need be expressed as to the financial statements and other
financial data contained therein) comply as to form in all material
respects with the requirements of the Act and the Trust Indenture Act
and the rules and regulations of the Commission under said Acts, and
the documents incorporated by reference in the Prospectus (except that
no opinion need be expressed as to the financial statements and other
financial data contained therein) comply as to form in all material
respects with the applicable requirements of the Exchange Act and the
rules and regulations of the Commission thereunder; and, to the
knowledge of such counsel after due inquiry, the Registration Statement
does not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading and the Prospectus does not
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(b) At the date of its execution of this Agreement, each Underwriter has
received the opinion, dated as of the date of delivery thereof, of Xxxxxxx Coie
LLP, counsel for the Company (or at the option of the Company, of Xxxxx X.
Xxxxxxxx), in form and substance reasonably satisfactory to such Underwriter and
its counsel, to the effect that:
(i) The descriptions of the Securities and the Indenture in the
Registration Statement and each Prospectus fairly present the information
required with respect thereto by Form S-3 in all material respects.
(ii) The Indenture is qualified under, and complies in all material
respects as to form with, the Trust Indenture Act.
(iii) The Registration Statement has become effective under the
Act; and, to the knowledge of such counsel no stop order suspending its
effectiveness has been issued,
11
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.
(c) The Company has furnished to each Underwriter a letter of
Ernst & Young LLP, addressed to the Underwriters and dated the date hereof,
confirming that they are independent auditors within the meaning of the Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, and stating certain conclusions and findings with respect to
financial information concerning the Company, all as more fully set forth in
the letter, as of the date of the letter, or as to certain items specified
therein as of a date not more than three days prior to such date.
(d) Each execution and delivery by the Company of a Schedule for the
purchase of Purchased Securities shall be deemed to be an affirmation to the
purchasing Underwriter that the representations and warranties of the Company
contained in this Agreement and in any certificate theretofore delivered to
such Underwriter pursuant hereto are true and correct at the date of such
Schedule as though made at and as of each such time (it being understood that
such representations and warranties shall relate to the Registration
Statement and the Prospectus as amended or supplemented to each such time).
(e) Each time that the Registration Statement or the Prospectus shall
be amended or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rates, manner of determining
interest rates, interest payment dates or maturities of the Securities or a
change in the principal amount of Securities remaining to be sold or a
supplement in the form previously furnished to the Underwriters reflecting
the price and underwriting discount applicable to a particular issue of
Securities or similar changes) or the Company files with the Commission any
document incorporated by reference into the Prospectus, the Company shall
furnish or cause to be furnished to each Underwriter promptly a certificate
of the President, a Vice President, the General Manager, the Treasurer or the
Controller of the Company to the effect that the representations and
warranties of the Company herein are true and correct at the time of such
amendment or supplement or filing, as the case may be, as though made at and
as of
12
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).
(f) Each time that the Registration Statement or the Prospectus shall
be amended or supplemented or the Company files with the Commission any
document incorporated by reference into the Prospectus (other than by an
amendment or supplement providing solely for a change in the interest rates,
manner of determining interest rates, interest payment dates or maturities of
the Securities or a change in the principal amount of Securities remaining to
be sold or a supplement in the form previously furnished to the Underwriters
reflecting the price and underwriting discount applicable to a particular
issue of securities or similar changes), the Company shall cause to be
furnished promptly to each Underwriter and its counsel the written opinion or
opinions of Xxxxx X. Xxxxxxxx, and/or, at the option of the Company, of
Xxxxxxx Coie LLP, dated the date of delivery of such opinion or opinions, of
the same tenor as the opinions referred to in Sections 6(a) and 6(b) hereof,
but modified as necessary, to relate to the Registration Statement and the
Prospectus as amended or supplemented to the time of delivery of such opinion
or opinions; provided, however, that in lieu of such opinion or opinions,
counsel may furnish the Underwriters with a letter to the effect that they
may rely on a prior opinion of such counsel which was to the same effect as
the opinion in lieu of which such letter is given to the same extent as
though it was dated the date of such letter authorizing reliance (except that
statements in such prior opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended or supplemented to the
time of delivery of such letter authorizing reliance).
(g) Each time that the Registration Statement or the Prospectus shall
be amended or supplemented to include additional financial information or the
Company files with the Commission any document incorporated by reference into
the Prospectus which contains additional financial information, the Company
shall cause Ernst & Young LLP promptly to furnish each Underwriter a letter,
dated the date of filing of such amendment, supplement or document with the
Commission, in form satisfactory to each Underwriter, of the same tenor as
the letter referred to in Section 6(c) hereof but modified to relate to the
Registration Statement and Prospectus, as amended and supplemented to the
date of such letter, with such changes as may be necessary to reflect changes
in the financial statements and other information derived from the accounting
records of the Company; provided, however, that if the Registration Statement
or the Prospectus is amended or supplemented solely to include financial
information as of and for a fiscal quarter, Ernst & Young LLP 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 Underwriter, should be covered by such letter.
All opinions, letters, evidences and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to Xxxxx & Xxxx LLP, counsel to the Underwriters. Any opinion,
certificate, accountants' letter or other document to be delivered to an
Underwriter hereunder may be addressed and delivered in multiple counterparts
to the several Underwriters appointed by the Company in connection with the
offering of the Securities.
SECTION 7. INDEMNIFICATION AND CONTRIBUTION.
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(a) The Company shall indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of the
Act from and against any loss, claim, damage or liability, joint or several,
and any action in respect thereof, to which such Underwriter or controlling
person may become subject, under the Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement, or any Prospectus, or
arises out of, or is based upon, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and shall reimburse such Underwriter
and each such controlling person for any legal and other expenses reasonably
incurred, as they are incurred, by such Underwriter or controlling person in
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or any Prospectus in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter specifically for inclusion therein; and provided,
further, that as to any Preliminary Prospectus or Prospectus, this indemnity
agreement shall not inure to the benefit of any Underwriter, or any person
controlling such Underwriter, on account of any loss, claim, damage,
liability or action arising from the sale of Securities to any person by such
Underwriter if such Underwriter failed to send or give a copy of the then
current version of the Prospectus to that person within the time required by
the Act, and the untrue statement or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact in such earlier
Preliminary Prospectus or Prospectus was corrected in such later Prospectus,
unless such failure resulted from non-compliance by the Company with Section
3(b) or 3(d) hereof. For purposes of the second proviso to the immediately
preceding sentence, no Underwriter shall be obligated to send or give any
document incorporated by reference or any supplement or amendment to any
document incorporated by reference in any Preliminary Prospectus or any
Prospectus to any person. The foregoing indemnity agreement is in addition
to any liability which the Company may otherwise have to any Underwriter or
any controlling person.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the
Registration Statement and any person who controls the Company within the
meaning of the Act from and against any loss, claim, damage or liability,
joint or several, and any action in respect thereof, to which the Company or
any such director, officer or controlling person may become subject, under
the Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus,
the Registration Statement, or any Prospectus, or arises out of, or is based
upon, the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by
such Underwriter specifically for inclusion therein, and shall reimburse the
Company for any legal and other expenses reasonably incurred, as they are
incurred, by the Company or any such director, officer or controlling person
in investigating or defending or preparing to defend against such loss,
14
claim, damage, liability or action. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to the
Company or any of its directors, officers or controlling persons.
(c) Promptly after receipt by an indemnified party under this Section
of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than under
this Section. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein, and, to the
extent that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably satisfactory to
the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the indemnified
party shall have the right to employ a separate counsel and one local counsel
to represent such indemnified party who may be subject to liability arising
out of any claim in respect of which indemnity may be sought by the
indemnified party against the indemnifying party under this Section if, in
the reasonable judgment of the indemnified party, it is advisable for such
indemnified party to be represented by separate counsel, but the fees and
expenses of such counsel or such local counsel shall be at the expense of
such indemnified party unless (i) the employment of counsel by such
indemnified party has been authorized by the indemnifying party, (ii) the
indemnified party shall have reasonably concluded that there is a conflict of
interest between the indemnifying party and the indemnified party in the
conduct of the defense of such action or additional or different defenses
such that the counsel retained by the indemnifying party to defend the
indemnified party in such action cannot adequately represent the interests of
the indemnified party (in which case the indemnifying party shall not have
the right to direct the defense of such action on behalf of the indemnified
party), or (iii) the indemnifying party shall not in fact have employed
counsel to assume the defense of such action, in each of which cases the fees
and expense of such separate counsel shall be paid by the indemnifying party.
An indemnifying party shall not be liable for any claim or action settled
without its consent.
(d) If the indemnification provided for in this Section shall for any
reason (other than as specified herein) be unavailable to an indemnified
party under Section 7(a) or 7(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect
thereof, in such proportion as shall be appropriate to reflect the relative
benefits received by the indemnified party and the indemnifying party from
the offering of the Securities, the relative fault of the indemnified party
and the indemnifying party with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and an Underwriter
on the other with respect to an offering shall be determined in light of the
relation of the total net proceeds from the
15
offering of the Securities (before deducting expenses) received by the
Company to the total commissions received by such Underwriter with respect to
such offering. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied
by the Company or by such Underwriter, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree
that it would not be just and equitable if contributions pursuant to this
Section 7(d) were to be determined by pro rata allocation or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7(d) shall be
deemed to include, for purposes of this Section 7(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Purchased Securities were offered by it to the public exceeds the
amount of any damages which it shall have otherwise paid or become liable to
pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations and warranties of the Company and the Underwriters
contained in this Agreement, or contained in certificates of officers
submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of the termination of this Agreement or any investigation
made by or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, and shall survive each
delivery of and payment for any of Purchased Securities.
SECTION 9. TERMINATION.
If the Company shall fail to tender the Purchased Securities for
delivery to the purchasing Underwriter for any reason permitted under this
Agreement, or if such Underwriter shall decline to purchase the Purchased
Securities for any reason permitted under this Agreement, the Company shall
reimburse such Underwriter for the reasonable fees and expenses of its
counsel and for such other out-of-pocket expenses as shall have been incurred
by it in connection with the proposed purchase of Purchased Securities, and
upon demand the Company shall pay the full amount thereof to such Underwriter.
This Agreement shall terminate when all the Securities have been sold
and the purchase price therefor has been paid. This Agreement may be
terminated as to any Underwriter (except with respect to Securities as to
which a Schedule has been executed) for any reason, at any time, by either
the Company or such Underwriter, upon the giving of one day's written or
telegraphic notice of such termination to the other. The provisions of
Sections 3(g), 4, 7, 8 and 13 shall survive any such termination.
16
SECTION 10. AGREEMENTS OF UNDERWRITERS.
Each Underwriter severally represents, warrants and agrees that:
(a) It has received a copy of the form of Prospectus the Company
proposes to mail for filing with the Commission with respect to the
Securities and it will be purchasing the Securities (subject to the
conditions hereof) for sale as described therein.
(b) It shall not offer to sell, sell or solicit offers to buy the
Securities to or from any person in any state or jurisdiction otherwise than
in conformity with the Blue Sky Memorandum referred to in Section 4.
SECTION 11. NOTICES.
Except as otherwise provided herein, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed as set
forth below their respective signatures hereto. Notices to the Company shall
be directed to it as follows: PACCAR Financial Corp., 000 000xx Xxxxxx X.X.,
Xxxxxxxx, Xxxxxxxxxx 00000, attention: Treasurer.
SECTION 12. PARTIES.
This Agreement shall inure to the benefit of and be binding upon each
Underwriter and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Section 7 and their heirs and legal representatives, any legal
or equitable right, remedy or claim under or in respect of this Agreement or
any provision herein or therein contained. This Agreement and all conditions
and provisions hereof are intended to be for the sole and exclusive benefit
of the parties hereto and their respective successors and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Securities shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. OTHER.
The Company has reserved the right to appoint one or more additional
Underwriters with respect to sale of Securities. The appointment of
additional Underwriters may be effected by the Company's addition of the name
and address of such Underwriter to the signature page of a counterpart of
this Agreement and the execution of such counterpart of this Agreement by
such Underwriter. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements
made and to be performed in such state. This Agreement may be executed in
counterparts and the executed counterparts shall together constitute a single
instrument. Additional terms and conditions may be set forth on one or more
Schedules.
17
Please indicate your acceptance hereof in the space provided for that
purpose below.
Very truly yours,
PACCAR Financial Corp.
By ___________________________
___________________________
By: _______________________
Title:
Dated:
Address:
Attention:
Telephone:
Fax:
18
Exhibit A
Schedule to Underwriting Agreement of PACCAR Financial Corp.
With Respect to Medium Term Notes, Series I ("Securities")
Date of Schedule:
Name of Underwriter:
Securities to be purchased:
Maturity:
Principal amount:
Purchase price (include accrued
interest or amortization if
applicable):
Redemption/repayment terms and conditions, if any:
Price to public:
Interest:
Rate if fixed rate:
Terms if floating rate*:
Interest Rate Basis or Bases:
If LIBOR:
/ / LIBOR Reuters:
/ / LIBOR Telerate:
Index Currency:
If CMT Rate:
Designated CMT Telerate Page:
Designated CMT Maturity Index:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
19
Interest Payment Period:
Interest Payment Date(s):
Interest Determination Date(s):
Calculation Date:
Calculation Agent:
Specified currency, currency payment option and authorized
denominations, if other than U.S. dollars:
Exchange Rate Agent:
Closing Date, time and location:
Additional terms and conditions:
* The listed terms are as used in the most recent prospectus supplement to
the Basic Prospectus.
The terms of the Underwriting Agreement dated September __, 1998,
between PACCAR Financial Corp. and the undersigned Underwriter are incorporated
herein by reference.
[NAME OF UNDERWRITER] PACCAR Financial Corp.
By ________________________ By ________________________
