PACCAR FINANCIAL CORP.
Medium-Term Notes, Series J
DISTRIBUTION AGREEMENT
Dated _____, 2000
To the several Agents
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 $2,500,000,000 (or the equivalent based upon the applicable exchange rate at
the time of issuance in such foreign currency as the Company shall designate),
aggregate principal amount of its Medium-Term Notes, Series J (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"). It is
understood, however, that the Company may from time to time authorize the
issuance of additional Securities and that such additional Securities may be
sold pursuant to the terms of this Agreement, as though the issuance of such
Securities were authorized as of the date hereof.
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 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.
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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) 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 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. 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
("▇▇▇▇▇").
(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; 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
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make the statements therein not misleading; each Prospectus delivered to
the applicable Agent(s) for use in connection with the Securities is
identical to any electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, 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 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 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,
except as disclosed in the financial statements incorporated by reference
in the Prospectus, (d) there has been no amendment to the support agreement
between the Company and PACCAR Inc ("PACCAR") as amended and restated on
June 19, 1989.
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(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 auditors as required by the Act and the Rules and
Regulations.
(vi 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 currency (or a foreign 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).
(vii) 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 except further as enforcement thereof may be
limited by requirements that a claim with respect to any Securities
payable in a foreign currency (or a foreign currency judgment in respect
of such claim) be converted into U.S. dollars at a rate or 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); the Securities will be in a form
previously certified to the Agents and contemplated by the Indenture and
entitled to the benefits of the Indenture.
(viii) The descriptions of the Securities and the Indenture contained
in the Prospectus fairly present the information required with respect
thereto in all material respects.
(ix) 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.
(x) 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
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condition, results of operations, business, property or prospects of the
Company or which is required to be disclosed in the Registration Statement.
(xi) The financial statements filed as part of or incorporated by
reference the Registration Statement, any Preliminary Prospectus or the
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 by reference in the Registration
Statement present fairly the information required to be stated therein.
(xii) 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.
(xiii) 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.
(xiv) 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.
(xv) 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.
(xvi) The Medium-Term Note Program under which the Securities are
issued (the "Program"), as well as the Securities, are rated A1 by ▇▇▇▇▇'▇
Investors Service Limited, Inc. and AA- by Standard & Poor's Rating
Services, or such other 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 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.
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SECTION 2. AGENTS.
(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 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 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, 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 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), 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 reasonably exercised, to
6
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 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.
If the Company and two or more Agents enter into an agreement pursuant to
which such Agents agree to purchase Securities from the Company as principal and
one or more of such Agents shall fail on the Closing Date to purchase the
Securities which it or they are obligated to purchase (the "Defaulted
Securities"), then the nondefaulting Agents shall have the right, within
7
24 hours thereafter, to make arrangements for one of them or one or more other
Agents or underwriters to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; provided, however, that if such arrangements shall not have been
completed within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of Securities to be so
purchased by all of such Agents on the Closing Date, the nondefaulting
Agents shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective initial
underwriting obligations bear to the underwriting obligations of all
nondefaulting Agents; or
(b) if the aggregate principal amount of Defaulted Securities exceeds 10%
of the aggregate principal amount of Securities to be so purchased by all
of such Agents on the Closing Date, such agreement shall terminate without
liability on the part of any nondefaulting Agent.
No action taken pursuant to this paragraph shall relieve any defaulting
Agent from liability in respect of its default. In the event of any such
default which does not result in a termination of such agreement, either the
nondefaulting Agents or the Company shall have the right to postpone the Closing
Date for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
(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 ▇▇▇▇▇ & Wood LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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, other than Section
3(l) hereof, 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:
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(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. The
Registration Statement and each amendment thereto so furnished to the Agents
will be identical to any electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
(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 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 the Agents and counsel FOR THE AGENTS a
reasonable opportunity to comment thereon and, between the date of delivery of
any Terms Agreement and the Settlement Date with respect to such Terms
Agreement, not to file any such document to which the applicable agent
reasonably objects.
(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,(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)
9
of the Company, or the public announcement by any NRSRO that it has under
surveillance or review, with possible negative implications, its rating of the
Program or any such debt securities, or the withdrawal by an 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 each 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 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
10
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 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 Terms Agreement, between the date of such Terms
Agreement and the Settlement Date with respect to such Terms Agreement, 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 Terms Agreement 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.
(m) 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 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.
In addition, the Company agrees to pay the reasonable fees and
disbursements of ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Agents in connection with the
sale of the Securities.
11
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 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) At the Closing Date, the Agents shall have been received the opinion,
dated as of the delivery date thereof, of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, 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.
(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
12
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 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
13
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 ▇▇▇▇▇▇▇ Coie LLP,
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 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 ▇▇▇▇▇ & Wood LLP, counsel for the Agents, to determine
the accuracy, completeness or satisfaction of any of the representations,
warranties or conditions herein contained.
14
(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
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 LLP, addressed to the Agents and dated the Closing Date,
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,
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 in the Prospectus, as of a date not more than three 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 ▇▇▇▇▇ & ▇▇▇▇ LLP, 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 to the Registration Statement
and the Prospectus as amended or supplemented to each such time).
15
(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 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
and/or, at the option of the Company, of ▇▇▇▇▇▇▇ Coie LLP, 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 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 LLP
promptly to furnish each Agent a letter, dated the date of filing of such
amendment, supplement or document with the Commission or the Closing Date, as
the case may
16
be, in form satisfactory to each Agent, of the same tenor as the letter
referred to in Section 5(f) 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 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 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, ay 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 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 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
17
any liability which the Company may otherwise have to any Agent or any
Participant or any controlling person.
(b) Each Agent shall severally 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 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 thee 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
18
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 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 file with
the Commission with respect to the Securities and that the Agent will be
soliciting offers to purchase the Securities (subject to the conditions hereof)
for sale as described therein.
19
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 and the Securities
delivered to the purchasers thereof. 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 (xi) 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 (xii) if there
shall have occurred 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
Agent(s), impracticable to market the Securities or enforce contracts for the
sale of the Securities, or (xiii) 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 materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices 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 (xiv) if the rating
20
assigned by any NRSRO 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 orgaization 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 (xv) 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 (xvi) the
Agents shall be entitled to any commission earned in accordance with the fourth
paragraph on Section 2(a) hereof, (xvii) 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 (xviii) 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., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 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.
21
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
--------------------------
22
Accepted:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
By:
------------------------------
Title:
---------------------------
▇▇▇▇▇▇▇, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Banc of America Securities LLC
By:
------------------------------
Title:
---------------------------
Banc of America Securities
NC1-007-07-01
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Medium-Term Note Product Management
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By:
------------------------------
Title:
---------------------------
23
15th Floor North Tower
World Financial Center
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: MTN Product Management
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By:
------------------------------
Title:
---------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Manager - Continuously
Offered Products
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ - Investment Banking Information
Center
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By:
------------------------------
Title:
---------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Medium-Term Note Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
24
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
LIBOR Currency
If CMT Rate:
CMT Telerate Page 7051
CMT Telerate Page 7052
If CMT Telerate Page 7052:
__ Weekly Average
__ Monthly Average
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:
Interest Payment Period:
Interest Payment Date(s):
Interest Determination Date(s):
Calculation Date:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
25
If Repayable at Option of Holder:
Optional Repayment Date:
Date of Maturity:
Purchase Price: _____%
Settlement Date and Time:
Settlement Details:
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
26
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 .100
From 1 year to less than 18 months .125
From 18 months to less than 2 years . .150
From 2 years to less than 3 years .200
From 3 years to less than 4 years .300
From 4 years to less than 5 years . .350
From 5 years to less than 6 years .400
From 6 years to less than 7 years .450
From 7 years to less than 10 years .500
From 10 years to less than 15 years .550
From 15 years to less than 20 years .600
From 20 years to 30 years .650
Beyond 30 years- To be agreed upon by the Company and the Agent at the
time of sale.
27
PACCAR FINANCIAL CORP.
ADMINISTRATIVE PROCEDURES
FOR FIXED AND FLOATING RATE MEDIUM-TERM NOTES, SERIES J
(ATTACHMENT TO THE DISTRIBUTION AGREEMENT
DATED _______________, 2000
Medium-Term Notes, Series J (the "Notes") in the aggregate principal amount
of up to U.S. $2,500,000,000, or the equivalent in one or more foreign
currencies are to be offered on a continuing basis by PACCAR Financial Corp.
(the "Company") through ▇▇▇▇▇▇▇, Sachs & Co., Banc of America Securities LLC,
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney 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, by and among
the Company and the Agents, dated ________, 2000 (the "Distribution Agreement").
The Notes will be issued pursuant to an 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").
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 interests 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.
The Company has appointed Citibank, N.A., as paying agent (the "Paying
Agent") with respect to the Notes. The Company has also appointed Citibank,
N.A., as calculation agent (the
"Calculation Agent") with respect to Notes bearing interest at rates determined
if reference to selected indices ("Floating Rate Notes").
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 nine months or more from its Original Issue Date; provided,
however, that 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 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 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 its stated 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
2
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 its stated maturity.
INTEREST:
Each Note will bear interest in accordance with its terms. The Calculation
Agent will advise the Company and 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, and any such rejection
shall not be a breach of such Agent's agreement contained in the Distribution
Agreement, dated the date hereof, by and among the Company and the Agents.
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. The
Pricing Supplement shall be in substantially the forms attached hereto as
Exhibits A and B. 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) 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 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;
6) The information with respect to the terms of the Notes set
forth below (whether or not the applicable Note is a 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.
3
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 ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.:
▇▇▇▇▇▇▇, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Banc of America Securities LLC
Banc of America Securities
NC1-007-07-01
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Medium-Term Note Product Management
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.:
For overnight DELIVERIES only:
Tritech Services
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Prospectus Operations/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇/5/6
For all other deliveries only:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Tritech Services
Corporate Park 287
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Final Prospectus Unit/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
4
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇/5/6
Also, for record keeping purposes, please send a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: MTN Product Management
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to ▇▇▇▇▇ & Wood LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
If to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Medium-Term Note Trading Desk
If to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc..
Brooklyn Army Terminal
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, 5th Floor
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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.
5
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 Timetable" 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 agreed to by the Agent and the Company and set forth
in 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 Trustee by facsimile transmission 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 and the Trustee 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 effect the Company's right to suspend all solicitations of offers to
purchase Notes as set forth in the Distribution Agreement.
SUSPENSION OF SOLICITATION; 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
6
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: ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇, Sachs & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇,
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇; Banc of America Securities LLC, Banc of America
Securities, NC1-007-07-01, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: Medium-Term Note Product Management; MTN Product Management,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Money Markets North Tower, World Financial Center, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇; ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Manager-Continuously Offered Products; or ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇, Attention: Medium-Term Note
Department. For record keeping purposes, one copy of each such amendment or
supplement shall also be mailed or telecopied to ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.,
(▇▇▇) ▇▇▇-▇▇▇▇, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇.
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 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 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.
7
BUSINESS DAY:
"Business Day" means, unless otherwise stated in the applicable Pricing
Supplement, any day other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which commercial banks are authorized or required by law,
regulation or executive order to close in The City of New York provided,
however, that, with respect to foreign currency notes, the day is also not a day
on which commercial banks are authorized or required by law, regulation or
executive order to close in the Principal Financial Center, as defined below, of
the country issuing the specified currency or, if the specified currency is
Euro, the day is also a day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer (TARGET) System is open; provided, further,
that, with respect to notes as to which LIBOR is an applicable Interest Rate
Basis, the day is also a London Business Day. "London Business Day" means a day
on which commercial banks are open for business, including dealings in the LIBOR
Currency, in London.
"Principal Financial Center" means, unless otherwise specified in the
applicable pricing supplement,
(1) the capital city of the country issuing the specified currency, except
that with respect to United States dollars, Australian dollars, Canadian
dollars, Deutsche marks, Dutch guilders, South African rand and Swiss
francs, the "Principal Financial Center" will be The City of New York,
Sydney and Melbourne, Toronto, Frankfurt, Amsterdam, Johannesburg and
Zurich, respectively, or
(2) the capital city of the country to which the LIBOR Currency relates,
except that with respect to United States dollars, Canadian dollars,
Deutsche marks, Dutch guilders, Portuguese escudos, South African rand and
Swiss francs, the "Principal Financial Center" will be ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ and Zurich,
respectively.
TRUSTEE NOT TO RISK FUNDS:
Nothing herein shall be deemed to require the Trustee or the Paying Agent
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 or the Paying Agent 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 or the Paying Agent, as the case may be, 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,
8
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"), which may be the CD Rate, the CMT Rate, the
Commercial Paper Rate, the Federal Funds Rate, LIBOR, the Prime Rate, the
Treasury 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.
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 one series of
CUSIP numbers, which series consists of approximately 900 CUSIP numbers which
have been reserved for and relating to Book Entry Notes and the Company has
delivered to each of the Trustee and DTC such list of such CUSIP numbers. The
Company will assign CUSIP numbers to Book-Entry Notes as described below under
Settlement Procedure C. DTC will notify the CUSIP Service Bureau 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 and obtain 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 $400,000,000 (or the
equivalent thereof in one or more foreign 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:
Unless otherwise specified by DTC, 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
9
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 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 Book-Entry Notes,
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 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 Services Bureau procedures, be canceled and not
immediately reassigned. Notwithstanding the foregoing, if the Book-Entry Notes
to be exchanged exceed $400,000,000 (or the equivalent thereof in one or more
foreign currencies) in aggregate principal amount, one replacement Book-Entry
Note will be authenticated and issued to represent each $400,000,000 (or the
equivalent thereof in one or more foreign 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).
10
DENOMINATIONS:
Unless otherwise provided in the applicable Pricing Supplement, notes will
be issued in denominations of $1,000 and integral multiples in excess of $1,000.
Book-Entry Notes will be denominated in principal amounts not in excess of
$400,000,000 (or the equivalent thereof in one or more foreign currencies). If
one or more Notes issued in book-entry form having an aggregate principal amount
in excess of $400,000,000 (or the equivalent thereof in one or more foreign
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
$400,000,000 (or the equivalent thereof in one or more foreign 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 the Maturity Date) and the total of such amounts.
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 Corporation. On such Interest Payment Date, the Company will
pay to the Trustee as Paying Agent in immediately available funds, and the
Trustee as Paying Agent in turn will pay in immediately available funds 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 as Paying Agent shall make payment of that amount of
interest due and owing on any Book-Entry Notes that Participants have elected to
receive in foreign 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 Corporation 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.
11
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 to the Trustee as Paying Agent in immediately available
funds, and the Trustee as Paying Agent in turn will pay to DTC in immediately
available funds, 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
as Paying Agent 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 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 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 as
Paying Agent in funds available for use by the Trustee as Paying Agent 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 instructing the Trustee as Paying Agent to withdraw
funds from an account maintained by the Trustee at Citibank, N.A. 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 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 as Paying Agent 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 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
12
Participant, indirect participant in DTC or other Person responsible for
forwarding payments and materials directly to the beneficial owner of such
Book-Entry 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:
(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 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: Initial Redemption
Date, Initial Redemption Percentage and Annual Redemption
Percentage Reduction.
13
9) Holder's Optional Repayment Date(s), if any.
10) Net Proceeds to the Company.
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 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 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.
14
DTC will arrange for each pending deposit message described above to
be transmitted to Standard & Poor's Corporation, 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 Corporation.
(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 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.
15
(L) If such Note was sold through the Presenting Agent, as agent, the
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 date
C No later than the close of business on the trade date
D 3:00 p.m. on the Business Day following the trade 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
▇-▇ 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.
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.
16
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 ▇▇▇▇ such Book-Entry Note "canceled," make appropriate entries
in its records and send such canceled Book-Entry Note to the Company. The CUSIP
number assigned to such Book-Entry Note shall, in accordance with CUSIP Service
Bureau procedures, be canceled 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 canceled 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 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 PRINCIPAL 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 as Paying Agent and mailed
17
by the Trustee as Paying Agent to the person entitled thereto as provided in the
Indenture and Certificated Note. However, holders of $1,000,000, or the
equivalent amount in a specified currency, or more in aggregate principal amount
of Certificated Notes (whether having identical or different terms and
provisions) shall be 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 Paying Agent not less
than 15 days prior to the applicable Interest Payment Date. Any wire transfer
instructions received by the Paying Agent shall remain in effect until revoked
by the Holder of the Note. 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 of
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 as Paying Agent 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 Paying Agent at maturity for payment
will be canceled by the Paying Agent. All canceled Certificated Notes held by
the Paying Agent shall be destroyed, and the Paying Agent 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) Denomination of the Certificated 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 reset dates;
18
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 Certificated Note.
5) Trade date.
6) Settlement date (Original Issue Date).
7) Maturity date.
8) Redemption provisions, if any, including: Initial Redemption
Date, Initial Redemption Percentage, and Annual Redemption
Percentage Reduction.
9) Net proceeds to the Company.
10) Holder's Optional Repayment Date(s), if any.
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) 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 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.
19
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: ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇; Banc of America
Securities Banc of America Securities, NC1-007-07-01, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Medium-Term Note
Product Management; ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇,
Incorporated, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Money Markets Clearance, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇., N.S.C.C. Window, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇ ▇▇▇▇▇▇▇▇;
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated at Bank of New York, Dealer
Clearance Department, 1 Wall Street, 3rd Flr., Window 3b, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: for the Account of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated; or ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., at the New York Window,
The Depository Trust Company, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇., ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇, For the Account of SSB. 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 acknowledgement 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.
(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:
20
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 Certificated Note in respect of which the failure occurred, the
Trustee will ▇▇▇▇ the note "canceled," make appropriate entries in its records
to reflect the fact that the Note was never issued, and accordingly notify the
Company in writing.
21
EXHIBIT A
Pricing Supplement Dated ____________ Rule 424(b) (3)
(To Prospectus dated ____________ and File No._____
Prospectus Supplement dated ___________)
PACCAR FINANCIAL CORP.
Medium-Term Notes - Fixed Rate
We are hereby offering to sell Notes having the terms specified below to
you with the assistance of:
/ / ▇▇▇▇▇▇▇, Sachs & Co.
/ / Banc of America Securities LLC
/ / ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
/ / ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
/ / ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
/ / Other: ______________________,
/ / acting as: / / principal / / agent
at: / / varying prices related to prevailing market prices at the time of resale
/ / a fixed initial public offering price of __% of the Principal Amount.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Principal Amount: Original Issue Date:
Agent's Discount or Commission: Maturity Date:
Nets Proceeds to Company: Interest Payment Date(s):
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Interest Rate: ___% per annum
Redemption:
/ / The Notes may not be redeemed prior to the Maturity Date.
/ / The Notes may be redeemed at the option of the Company prior
to the Maturity Date.
Initial Redemption Date:
Initial Redemption Percentage: ____%
Annual Redemption Percentage Reduction: ___% until Redemption Percentage
is 100% of the Principal Amount.
/ / The Notes shall be redeemed by the Company prior to the
Maturity Date (see attached).
Repayment:
/ / The Notes may not be repaid prior to the Maturity Date.
/ / The Notes may be repaid prior to the Maturity Date at the option of the
holder of the Notes.
Optional Repayment Date(s):
Currency:
Specified Currency: ___________ (If other than U.S. dollars, see attached)
Minimum Denominations: ___________ (Applicable only if Specified Currency is
other than U.S. dollars)
Exchange Rate Agent: ___________ (Applicable only if Specified Currency is
other than U.S. dollars)
If Discount Note, check / /
Issue Price: ____%
Form: / / Book-Entry / / Certificated
Other Provisions:
A-1
EXHIBIT B
Pricing Supplement dated ___________ Rule 424(b) (3)
(To Prospectus dated ____________ and File No.______
Prospectus Supplement dated ____________ )
PACCAR FINANCIAL CORP.
Medium-Term Notes - Floating Rate
We are hereby offering to sell Notes having the terms specified below to
you with the assistance of:
/ / ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
/ / Banc of America Securities LLC
/ / ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
/ / ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
/ / ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
/ / Other: ______________________,
/ / acting as: / / principal / / agent
at: / / varying prices related to prevailing market prices at the time of resale
/ / a fixed initial public offering price of __% of the Principal Amount.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Principal Amount: Original Issue Date:
Agent's Discount or Commission: Maturity Date:
Net Proceeds to Company: Interest Payment Date(s):
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Calculation Agent:
Interest Calculation:
/ / Regular Floating Rate Note / / Floating Rate/Fixed Rate Note
/ / Inverse Floating Rate Note Fixed Rate Commencement Date:
Fixed Interest Rate: Fixed Interest Rate:
/ / Other Floating Rate Note (see attached)
Initial Interest Rate:
Initial Interest Reset Date:
Interest Reset Date(s):
Interest Rate Basis:
/ / CD Rate / / Federal Funds Rate / / Prime Rate
/ / Commercial Paper Rate / / LIBOR / / Treasury Rate
/ / CMT Rate Designated LIBOR Page: / / Other (see attached)
/ / CMT Telerate Page 7051 / / LIBOR Reuters Page
/ / CMT Telerate Page 7052 / / LIBOR Telerate
If CMT Telerate Page 7052: LIBOR Currency:
/ / Weekly Average
/ / Monthly Average
Index Maturity:
Spread (+/-):
Spread Multiplier:
Maximum Interest Rate:
Minimum Interest Rate:
Day Count Convention:
/ / 30/360 for the period from to .
B-1
/ / Actual/360 for the period from to .
/ / Actual/Actual for the period from to .
Redemption:
/ / The Notes may not be redeemed prior to the Maturity Date.
/ / The Notes may be redeemed at the option of the Company prior to
Maturity Date.
Initial Redemption Date:
Initial Redemption Percentage: ___%
Annual Redemption Percentage Reduction: ___% until Redemption
Percentage is 100% of the Principal Amount.
/ / The Notes shall be redeemed by the Company prior to the Maturity Date
(see attached).
Repayment:
/ / The Notes may not be repaid prior to the Maturity Date.
/ / The Notes may be repaid prior to the Maturity Date at the option of
the holder of the Notes. Optional Repayment Date(s):
Currency:
Specified Currency:_____ (If other than U.S. dollars, see attached)
Minimum Denominations:_____(Applicable only if Specified Currency is other
than U.S. dollars)
Exchange Rate Agent: _____________ (Applicable only if Specified Currency
is other than U.S. dollars)
If Discount Note, check / /
Issue Price: ___%
Form: / / Book-Entry / / Certificated
Other Provisions:
B-2