SELLING AGENCY AGREEMENT
------------------------
New York, New York
Dated the date set forth
in Schedule I hereto
To the Agents named in
Schedule I hereto
Ladies and Gentlemen:
ARCO Chemical Company, a Delaware corporation (the "Company"), proposes to
authorize each of the firms named in Schedule I hereto (each, an "Agent", and
collectively, the "Agents") to act as its agent to solicit orders for all or
part of its securities identified in Schedule I hereto (the "Securities"), to be
issued under an indenture (the "Indenture") dated as of June 15, 1988, between
the Company and The Bank of New York, as trustee (the "Trustee"), as amended or
supplemented at the date of this Agreement.
1. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the Agents as set forth in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (c) hereof
(a) If the offering of the Securities is a Delayed Offering (as specified
in Schedule I hereto), paragraph (i) below is applicable and, if the offering of
the Securities is a Non-Delayed Offering (as so specified), paragraph (ii) below
is applicable.
(i) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act") and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on such
Form (the file number of which is set forth in Schedule I hereto),
including a basic prospectus, which has become effective, for the
registration under the Act of the offering and sale of Securities and no
stop order suspending the effectiveness of the registration statement
(including any Rule 462(b) registration statement) has been issued under
the Act and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with. Such registration statement, as
amended at the date of this Agreement, meets the requirements set forth in
Rule 415(a)(1)(ix) or (x) under the Act and complies in all material
respects with said Rule. The Company has included in such registration
statement, or has filed or will file with the Commission pursuant to the
applicable paragraph of Rule 424(b) under the Act, a supplement to the form
of basic prospectus included in such registration statement relating to the
Securities and the plan of distribution thereof (the "Prospectus
Supplement"). In connection with the sale of Securities, the Company
proposes to file with the Commission pursuant to the applicable paragraph
of Rule 424(b) under the Act her supplements to the Prospectus Supplement
specifying the interest rates, maturity dates and, if appropriate, other
terms of the Securities sold pursuant hereto or the offering thereof.
(ii) The Company meets the requirements for the use of Form S-3 under
the Act and has filed with the Commission a registration statement on such
Form (the file number of which is set forth in Schedule I
Exhibit 1.2
hereto), including a basic prospectus, which has become effective for
registration under the Act of the offering and sale of the Securities and
no stop order suspending the effectiveness of the registration statement
(including any Rule 462(b) registration statement) has been issued under
the Act and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with. Such registration statement, as
amended at the date of this Agreement, meets the requirements set forth in
Rule 415(a)(ix) or (x) under the Act and complies in all other material
respects with said Rule. The Company will next file with the Commission a
final Prospectus Supplement relating to the Securities in accordance with
Rules 430A and 424(b)(1) or (4). The Company has included in such
registration statement, as amended at its effective date, all information
(other than Rule 430A Information) required by the Act and the rules
thereunder to be included in the Final Prospectus with respect to the
Securities and the offering thereof. As filed, such final Prospectus
Supplement shall contain all Rule 430A information, together with all other
such required information, with respect to the Securities and the offering
thereof. In connection with the sale of the Securities of the Company
proposes to file with the Commission pursuant to the applicable paragraph
of Rule 424(b) under the Act further supplements to the Prospectus
Supplement specifying the interest rates, maturity dates and, if
appropriate, other terms of the Securities sold pursuant hereto or the
offering thereof.
(b) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424(b) under the Act, at the date of delivery by the Company of
any Securities sold hereunder (a "Closing Date"), when the Registration
Statement became effective, when any amendment to the Registration Statement
becomes effective (including any document incorporated by reference in such
Registration Statement and the filing of the Company's most recent Annual Report
on Form 10-K with the Commission), and at the Closing Date (i) the Registration
Statement, as amended as of any such time and the Final Prospectus, as amended
or supplemented and when read together with the other information in the Final
Prospectus as of any such time, and Indenture did or will comply in all material
respects with the applicable requirements of the Act, the Trust Indenture Act of
1939 (the "Trust Indenture Act") and the Securities Exchange Act of 1934 (the
"Exchange Act") and the respective rules and regulations thereunder and (ii)
neither the Registration Statement, as amended as of any such time and including
the Rule 430A Information or Rule 434 Information, if any, deemed to be a part
thereof, nor the Final Prospectus, as amended or supplemented as of any such
time, did or will contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading. Notwithstanding the foregoing, the
Company makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility and
Qualification under the Trust Indenture Act of the Trustee (the Form "T-1") or
(ii) the information contained in or omitted from the Registration Statement or
the Final Prospectus or any amendment thereof or supplement thereto in reliance
upon and in conformity with information furnished in writing to the Company by
or on behalf of any Agent specifically for use in connection with the
preparation of the Registration Statement and the Final Prospectus; for this
purpose, the information set forth in each of the first paragraph following the
table and footnotes thereto on page S-1 and under the caption "_______" on page
S-__ in the Final Prospectus shall constitute the only information furnished to
the Company in writing by the Agents expressly for use in the Registration
Statement in connection with the offer and sale of the Securities (the "Provided
Information").
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(c) The terms which follow, when used in this Agreement, shall have the
meanings indicated. "Basic Prospectus" shall mean the form of basic prospectus
relating to the Securities contained in the Registration Statement at the date
on which it became effective. "Preliminary Final Prospectus" shall mean any
preliminary Prospectus Supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to the filing of the Final
Prospectus. "Final Prospectus" shall mean the Basic Prospectus as supplemented
by the Prospectus Supplement. "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as amended and read
together at its effective date. "Rule 415 and Rule 424" refer to such rules
under the Act. "Rule 430A Information" means information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A. "Rule
434 Information" means information with respect to the Securities and the
offering thereof permitted to be omitted from the Registration Statement when it
becomes effective pursuant to Rule 434. Any reference herein to the
Registration Statement, the Basic Prospectus, the Prospectus Supplement, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to
and include documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act on or before the date of this
Agreement or the issue date of the Basic Prospectus, and Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any reference herein
to the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the date of this
Agreement or the Final Prospectus, as the case may be, and on or prior to the
Closing Date and therefore deemed to be incorporated therein by reference. A
"Non-Delayed Offering", shall mean an offering of securities that is intended to
commence promptly after the effective date of a registration statement, with the
result that, pursuant to Rules 415 and 430A all information (other than Rule
430A Information) with respect to the securities so offered must be included in
such registration statement at the effective date thereof. A "Delayed Offering"
shall mean an offering of securities pursuant to Rule 415 that does not commence
promptly after the effective date of a registration statement with the result
that only information required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect to the
securities so offered. Whether the offering of the Securities is a Non-Delayed
Offering or a Delayed Offering shall be set forth in Schedule I hereto.
(d) Except as otherwise stated in the Registration Statement and Final
Prospectus (as such terms are defined in Sections 1(a) and (c) to include
incorporated documents, exhibits, financial statements, amendments, additional
registration statements and prospectus supplements), since the respective dates
of the Registration Statement and Final Prospectus, (i) there has been no
material adverse change in the financial condition, earnings or business affairs
of the Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material Adverse Effect") and
(ii) there have been no transactions entered into by the Company or any of its
subsidiaries, other than those arising in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as one
enterprise.
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own its properties and conduct its business as
described in the Final Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each jurisdiction
which requires such qualification wherein it owns or leases material properties
or conducts material business or is subject to no material
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liability or disability by reason of failure to be so qualified in any such
jurisdiction.
(f) As of the date hereof, each of ARCO Chemie Nederland, Ltd., a Delaware
corporation ("ACN"), ARCO Chemical Delaware Company, a Delaware corporation
("ACDC"), The ▇▇▇▇▇▇▇ Corporation, a Delaware corporation ("▇▇▇▇▇▇▇" and
together with ACN and ACDC, the "Corporate Subsidiaries" and individually a
"Corporate Subsidiary"), ARCO Chimie France SNC, a French partnership ("ACF"),
POSM II Limited Partnership, L.P., a Delaware limited partnership ("POSM"), and
ARCO Chemical Technology, L.P., a Delaware limited partnership ("ACT") is a
"significant subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X promulgated under the Act) (each, a "Subsidiary" and,
collectively, the "Subsidiaries"). Each Corporate Subsidiary has been duly
organized and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate power and authority
to own, lease and operate its properties and to conduct its business and is duly
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, except where
the failure to so qualify or be in good standing would not result in a Material
Adverse Effect. Except as otherwise stated in the Registration Statement and
the Final Prospectus, all of the issued and outstanding capital stock of each
Corporate Subsidiary has been duly authorized and is validly issued, fully paid
and non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. None of the outstanding shares of capital stock
of any Corporate Subsidiary was issued in violation of preemptive or other
similar rights of any securityholder of such Corporate Subsidiary. ACF owns or
has valid rights to use, all items of real and personal property which are
material to its business, free and clear of all liens, encumbrances and claims
which may materially interfere with its financial condition, results of
operations or business. POSM and ACT have been duly formed and are validly
existing as limited partnerships under the Uniform Delaware Limited Partnership
Act, with full partnership power and authority to own or lease their properties
and conduct their business and are duly qualified or registered as foreign
limited partnerships for the transaction of business under the laws of each
jurisdiction in which their ownership or lease of property or the conduct of
their business requires such qualifications, except where the failure to be so
qualified or registered would not have a Material Adverse Effect. The Company,
directly or indirectly, owns a 100% interest in ACF and ACT and a ____ %
interest in POSM, in each case free and clear of any liens, encumbrances or
claims which could produce a Material Adverse Effect.
(g) This Agreement has been duly authorized, executed and delivered by the
Company.
(h) The Indenture, as amended or supplemented at the date of this
Agreement, has been duly authorized, executed and delivered, has been duly
qualified under the Trust Indenture Act, and constitutes a legal, valid and
binding instrument enforceable against the Company in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect and to general principles of equity); and
the Securities have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture, as amended or supplemented at
the date of this Agreement, and delivered to and paid for by the purchasers
thereof, constitute legal, valid and binding obligations of the Company entitled
to the benefits of the Indenture, as amended or supplemented at the date of this
Agreement.
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(i) There is no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any arbitrator involving the
Company, of a character required to be disclosed in the Registration Statement
which is not adequately disclosed in the Registration Statement or the Final
Prospectus, and there is no franchise, contract or other document of a character
required to be described in the Registration Statement or Final Prospectus, or
to be filed as an exhibit, which is not described or filed as required; and the
statements included or incorporated in the Final Prospectus describing any legal
proceedings or material contracts or agreements relating to the Company fairly
summarize such matters.
(j) Neither the issue and sale of the Securities, nor the consummation of
any other of the transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach of, or constitute a default
under the Restated Certificate of Incorporation or By-Laws of the Company or the
terms of any indenture or other agreement or instrument to which the Company is
a party or bound, or any order or regulation applicable to the Company of any
court, regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Company.
(k) The Company is not, and upon the issuance and sale of the Securities as
herein contemplated and the application of the net proceeds therefrom as
described in the Final Prospectus will not be, an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the "1940 Act").
2. Appointment as Agent.
(a) Subject to the terms and conditions stated herein and subject to the
reservation by the Company of the right to sell Notes directly on its own
behalf, the Company hereby agrees that Notes will be sold exclusively to or
through the Agents. The Company agrees that it will not appoint any other
agents to act on its behalf, or to assist it, in the placement of the Notes.
(b) The Company shall not sell or approve the solicitation of offers for
the purchase of Notes in excess of the amount which shall be authorized by the
Company from time to time or in excess of the aggregate initial offering price
of Notes registered pursuant to the Registration Statement. The Agents shall
have no responsibility for maintaining records with respect to the aggregate
initial offering price of Notes sold, or of otherwise monitoring the
availability of Notes for sale, under the Registration Statement.
(c) The Agents shall not have any obligation to purchase Notes from the
Company as principal. However, absent an agreement between an Agent and the
Company that such Agent shall be acting solely as an agent for the Company, such
Agent shall be deemed to be acting as principal in connection with any offering
of Notes by the Company through such Agent. Accordingly, the Agents,
individually or in a syndicate, may agree from time to time to purchase Notes
from the Company as principal for resale to investors and other purchasers
determined by such Agents. Any purchase of Notes from the Company by an Agent
as principal shall be made in accordance with Section 3(a) hereof.
(d) If agreed upon between an Agent and the Company, such Agent, acting
solely as an agent for the Company and not as principal, will solicit offers for
the purchase of Notes. Such Agent will communicate to the Company, orally, each
offer for the purchase of Notes solicited by it on an agency basis other than
those offers rejected by such Agent. Such Agent shall have the right, in its
discretion reasonably exercised, to reject any offer for the purchase of Notes,
in whole or in part, and any such rejection shall not be deemed a breach of its
agreement contained herein. The Company may accept or reject any offer for the
purchase of Notes, in whole or in part. Such Agent shall make reasonable
efforts to assist the Company in obtaining performance
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by each purchaser whose offer for the purchase of Notes has been solicited by it
on an agency basis and accepted by the Company. Such Agent shall not have any
liability to the Company in the event that any such purchase is not consummated
for any reason. If the Company shall default on its obligation to deliver Notes
to a purchaser whose offer has been solicited by such Agent on an agency basis
and accepted by the Company, the Company shall (i) hold such Agent harmless
against any loss, claim or damage arising from or as a result of such default by
the Company and (ii) pay to such Agent any commission to which it would
otherwise be entitled absent such default.
(e) The Company and the Agents agree that any Notes purchased from the
Company by one or more Agents as principal shall be purchased, and any Notes the
placement of which an Agent arranges as an agent of the Company shall be placed
by such Agent, 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.
3. Purchases as Principal; Solicitations as Agent.
(a) Notes purchased from the Company by the Agents, individually or in a
syndicate, as principal shall be made in accordance with terms agreed upon
between such Agent or Agents and the Company (which terms, unless otherwise
agreed, shall, to the extent applicable, include those terms specified in
Exhibit A hereto and shall be agreed upon orally, with written confirmation
prepared by such Agent or Agents and mailed to the Company). An Agent's
commitment to purchase Notes as principal 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. Unless the
context otherwise requires, references herein to "this Agreement" shall include
the applicable agreement of one or more Agents to purchase Notes from the
Company as principal. Each purchase of Notes, unless otherwise agreed, shall be
at a discount from the principal amount of each such Note equivalent to the
applicable commission set forth in Schedule I hereto. The Agents may engage the
services of any broker or dealer in connection with the resale of the Notes
purchased by them as principal and may allow all or any portion of the discount
received from the Company in connection with such purchases to such brokers or
dealers. At the time of each purchase of Notes from the Company by one or more
Agents as principal, such Agent or Agents shall specify the requirements for the
officers' certificate, opinion of counsel and comfort letter pursuant to
Sections 4(g), 4(h) and 4(i) hereof.
(b) On the basis of the representations and warranties herein contained,
but subject to the terms and conditions herein set forth, when agreed by the
Company and an Agent, such Agent, as an agent of the Company, will use its
reasonable efforts to solicit offers for the purchase of Notes upon the terms
set forth in the Final Prospectus. The Agents are not authorized to appoint
sub-agents with respect to Notes sold through them as agent. All Notes sold
through an Agent as agent will be sold at 100% of their principal amount unless
otherwise agreed upon between the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers for the purchase of Notes through an Agent, as an agent
of the Company, commencing at any time for any period of time or permanently.
As soon as practicable after receipt of instructions from the Company, such
Agent will suspend solicitation of offers for the purchase of Notes from the
Company until such time as the Company has advised such Agent that such
solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
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Note sold by the Company as a result of a solicitation made by such Agent, as an
agent of the Company, as set forth in Schedule I hereto.
(c) The purchase price, interest rate or formula, maturity date and other
terms of the Notes specified in Exhibit A hereto (as applicable) shall be agreed
upon between the Company and the applicable Agent(s) and specified in a pricing
supplement to the Prospectus (each, a "Pricing Supplement") to be prepared by
the Company in connection with each sale of Notes. Except as otherwise
specified in the applicable Pricing Supplement, the Notes will be issued in
denominations of U.S. $1,000 or any larger amount that is an integral multiple
of U.S. $1,000. Administrative procedures with respect to the issuance and sale
of the Notes (the "Procedures") shall be agreed upon from time to time among the
Company, the Agents and the Trustee. The Agents and the Company agree to
perform, and the Company agrees to cause the Trustee to agree to perform, their
respective duties and obligations specifically provided to be performed by them
in the Procedures.
4. Agreements of the Company. The Company agrees with the Agents that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus (other
than by periodic or current reports filed under the Exchange Act or by an
amendment or supplement providing solely for a change in the interest rates
on the Securities or a change in the range of maturities of the Securities
or a change in the principal amount of Securities remaining to be sold or
other changes not material to the offer or sale of the Securities) unless
the Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Company will
cause the Final Prospectus to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
provide evidence satisfactory to you of such filing. The Company will
promptly advise the Agents (i) when the initial Final Prospectus shall
have been filed with the Commission pursuant to Rule 424(b), (ii) when any
amendment to the Registration Statement shall have been filed or become
effective, (iii) of the receipt of any comments from the Commission, (iv)
of any request by the Commission for any amendment of the Registration
Statement or amendment of or supplement to the Final Prospectus or for any
additional information, (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose, (vi) of the
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 threatening of any proceeding for such purpose, (vii) of the
happening of any event which makes untrue any statement of a material fact
made in the Registration Statement or the Final Prospectus or which
requires the making of a change in the Registration Statement or the Final
Prospectus in order to make any material statement therein not misleading,
(viii) of any change in the rating assigned by any nationally recognized
statistical rating organization to the program or any debt securities
(including the Notes) of the Company, or the public announcement by any
nationally recognized statistical rating organization 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 any
nationally recognized statistical rating organization of its rating of the
Program or any such debt securities and (ix) upon the filing of any
supplement to the Final Prospectus not reviewed in advance by the Agents
pursuant to the first sentence of this paragraph (a). The Company will use
its
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best efforts to prevent the issuance of any stop order, as described in
clause (v) of the third sentence of this paragraph (a), and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary to
amend or supplement the Registration Statement or the Final Prospectus to
comply with the Act or the Exchange Act or the respective rules thereunder,
the Company promptly will (i) notify you to suspend solicitation of offers
to purchase Securities and to cease using the Final Prospectus, as then
amended or supplemented, (ii) prepare and file with the Commission, subject
to the first sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or will effect
such compliance and (iii) supply any supplemented Final Prospectus to you
in such quantities as you may reasonably request. If such amendment or
supplement, and any documents, certificates and opinions furnished to you
in connection with the preparation or filing of such amendment or
supplement are satisfactory in all respects to you, you will, upon the
filing of such amendment or supplement with the Commission and upon the
effectiveness of an amendment to the Registration Statement, if such an
amendment is required, resume your obligation to solicit offers to purchase
Securities hereunder.
(c) The Company will make generally available to its securityholders
and to the Agents as soon as practicable, but not later than 45 days after
the end of the 12-month period beginning at the end of the current fiscal
quarter of the Company, an earnings statement (which need not be audited)
of the Company and its subsidiaries, covering such 12-month period, which
will satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish to the Agents and their counsel,
without charge upon request, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the termination of the offering of the Securities,
as many copies of any Preliminary Final Prospectus and the Final Prospectus
and any amendments thereof and supplements thereto as the Agents may
reasonably request. The Company will pay the expenses of printing all
documents relating to the offering.
(e) The Company will use reasonable efforts in cooperating with the
Agents to arrange for the qualification of the Securities for sale under
the laws of such jurisdictions as the Agents may designate, will maintain
such qualifications in effect so long as required for the distribution of
the Securities and will arrange for the determination of the legality of
the Securities for purchase by institutional investors.
(f) Each acceptance by the Company of an offer for the purchase of
Securities shall be deemed to be an affirmation that the representations
and warranties of the Company contained in this Agreement 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 the purchaser's agent of the Securities
relating to such acceptance, as though made at and as of each such time
(except that such representations and warranties shall be deemed to relate
to the Registration Statement as then in effect and the Final Prospectus
then in use).
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(g) Each time the Final Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in
the interest rates on the Securities or a change in the range of maturities
of the Securities or other changes which, in the reasonable judgment of the
Agent, are not material to the offer or sale of the Securities) the Company
shall furnish or cause to be furnished forthwith to the Agents a
certificate in form satisfactory to the Agents in their reasonable judgment
to the effect that the statements contained in the certificate referred to
in Section 5(d) hereof which were last furnished to the Agents are true and
correct at the time of such amendment or supplement as though made at and
as of such time (except that such statements shall be deemed to relate to
the Registration Statement as then in effect and the Final Prospectus then
in use) or, in lieu of such certificate, a certificate of the same tenor as
the certificate referred to in said Section 5(d) but modified to relate to
the Registration Statement as then in effect and the Final Prospectus then
in use.
(h) Each time the Final Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in
the interest rates on the Securities or a change in the range of maturities
of the Securities or other changes which, in the reasonable judgment of the
Agent, are not material to the offer or sale of the Securities), the
Company shall furnish or cause to be furnished forthwith to the Agents a
written opinion of the General Counsel or an Associate General Counsel of
the Company, dated the date of delivery of such opinion, of the same tenor
as the opinion referred to in Section 5(b) hereof but modified to relate to
the Registration Statement as then in effect and the Final Prospectus then
in use or, in lieu of such opinion, counsel shall furnish the Agents with a
letter to the effect that the Agents may rely on such last furnished
opinion to the same extent as though it were dated the date of such letter
authorizing reliance (except that statements in such last opinion shall be
deemed to relate to the Registration Statement as then in effect and the
Final Prospectus as in use at the time of delivery of such letter
authorizing reliance).
(i) Each time the Final Prospectus shall be amended or supplemented
to set forth amended or supplemental financial information, the Company
shall cause Coopers & ▇▇▇▇▇▇▇ forthwith to furnish the Agents a letter,
dated the date of filing of such amendment or supplement with the
Commission, in form satisfactory to the Agent, of the same tenor as the
corresponding portions of the letter referred to in Section 5(e) hereof but
modified to relate to the Final Prospectus then in use and 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,
to the extent such financial statements and other information are available
as of a date not more than three calendar days prior to the date of such
letter; provided, however, that, if the Final Prospectus is amended or
supplemented solely to include or incorporate by reference financial
information as of and for a fiscal quarter, Coopers & ▇▇▇▇▇▇▇ may limit the
scope of such letter, which shall be satisfactory in form to you, to the
unaudited financial statements, the related "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and any other
information of an accounting, financial or statistical nature included in
such amendment or supplement, unless, in your reasonable judgment, such
letter should cover other information or changes in specified financial
statement line items.
(j) The Company will pay all reasonable costs incident to the
performance of its obligations hereunder including the costs of the
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preparation, printing, delivering and filing of all documents relating to
the offering; the preparation, issuance and delivery of the Notes,
including any fees and expenses relating to the eligibility and issuance of
the Notes in book-entry form and the cost of obtaining CUSIP or other
identification numbers for the Notes, to the Underwriters; the fees and
disbursements of the Company's accountants, counsel and other advisors or
agents (including any calculation agent or exchange rate agent) of the
Trustee; the reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the Program and incurred
from time to time in connection with the transactions contemplated hereby;
the fees and expenses incurred in connection with any listing of Notes on a
securities exchange; the costs of any filings, if any, with the National
Association of Securities Dealers, Inc. (the "NASD") relating to the
Securities, the fees paid to rating agencies in connection with the rating
of the Securities and the costs (including filing fees and fees and
disbursements of counsel to the Agents) of qualifying the Securities as
provided in paragraph (e) of this Section 4 and preparing memoranda
relating thereto. The Company will reimburse the Agents for out-of-pocket
expenses (including fees and disbursements of counsel) incurred by the
Agents in connection with this Agreement and the sale of Securities
hereunder.
(k) The Company will prepare, with respect to any Notes to be sold
to or through one or more Agents pursuant to this Agreement, a Pricing
Supplement with respect to such Notes in a form previously approved by the
Agents. The Company will deliver such Pricing Supplement no later than
11:00 a.m., New York City time, on the business day following the date of
the Company's acceptance of the offer for the purchase of such Notes and
will file such Pricing Supplement pursuant to Rule 424(b)(3) 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.
(l) The Company will from time to time timely update through the
Closing Date its representations in Section 1(f) hereof to the extent
required by additions to or deletions from its universe of significant
subsidiaries (as defined in Rule 1-02 of Regulation S-X), which updating
shall, for purposes hereof, constitute a revision to the definitions of
"Corporate Subsidiaries" and "Subsidiaries".
5. Conditions to the Obligations of the Agent. The obligations of each
Agent hereunder shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the date hereof, as
of the date of the effectiveness of the Registration Statement and any amendment
to the Registration Statement (including the filing of any document incorporated
by reference therein), when any supplement to the Final Prospectus is filed with
the Commission, and, as of each date of acceptance by the Company of an offer to
purchase Notes and each Closing Date, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened and
the Final Prospectus shall have been filed with the Commission in the
manner and within the time period required by Rule 424(b).
(b) The Company shall have furnished to the Agents the opinion of
the General Counsel or an Associate General Counsel of the Company, dated
the date of this Agreement, to the effect that:
-10-
(i) each of the Company and its Corporate Subsidiaries has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered or
organized, with corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or conducts
material business or is subject to no material liability or disability
by reason of failure to be so qualified in any such jurisdiction. POSM
and ACT have been duly formed and are validly existing as limited
partnerships under the Uniform Delaware Limited Partnership Act, with
full partnership power and authority to own or lease their properties
and conduct their business and are duly qualified or registered as
foreign limited partnerships for the transaction of business under the
laws of each jurisdiction in which their ownership or lease of property
or the conduct of their business requires such qualifications, except
where the failure to be so qualified or registered would not have a
Material Adverse Effect;
(ii) the Indenture, as amended or supplemented at the date of
this Agreement has been duly authorized, executed and delivered, has
been duly qualified under the Trust Indenture Act, and constitutes a
legal, valid and binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time in effect
and to general principles of equity); and the Securities have been duly
authorized and, when executed and authenticated in accordance with the
provisions of the Indenture, as amended or supplemented at the date of
this Agreement, and delivered to and paid for by the purchasers
thereof, will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture, as amended or
supplemented at the date of this Agreement;
(iii) the information in the Final Prospectus under
"Description of Debt Securities" or any caption purporting to describe
any such Securities, "Certain United States Federal Income Tax
Considerations" in the Annual Report on Form 10-K under "Legal
Proceedings," as updated in Part II, Item 1 of the succeeding Quarterly
Reports on Form 10-Q, and in the Registration Statement under Item 15,
to the extent that it constitutes matters of law, summaries of legal
matters, the Company's Restated Certificate of Incorporation or By-laws
or legal proceedings, or legal conclusions, has been reviewed by such
counsel and is accurate in all material respects;
(iv) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Final Prospectus; all descriptions in the Registration
Statement of contracts and other documents, to which the Company or its
subsidiaries are a party are accurate in all material respects, and
there is no franchise, contract or other document of a character
required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit which is not described or
filed as required; and the statements included or incorporated in the
Final Prospectus
-11-
describing any legal proceedings or material contracts or agreements
relating to the Company fairly summarize such matters;
(v) the Registration Statement and any amendments thereto
have become effective under the Act; any required filing of the
Prospectus pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b) and to the best
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement, as amended, has been issued, no
proceedings for that purpose have been instituted or threatened, and
the Registration Statement, the Final Prospectus and each amendment
thereof or supplement thereto as of their respective effective or issue
dates (other than the financial statements and other financial
information contained therein as to which such counsel need express no
opinion) complied as to form in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; and such counsel has no reason to believe
that the Registration Statement, or any amendment thereof, as of the
later of the time it became effective or the time of filing by the
Company with the Commission of the latest subsequent amendment thereto
or Annual Report on Form 10-K, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus, as amended or supplemented,
includes any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated herein, except such as have been obtained
under the Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the solicitation of orders to
purchase the Securities and the distribution of the Securities by the
Agents and such other approvals (specified in such opinion) as have
been obtained;
(viii) the Company is not an "investment company" within the
meaning of the 1940 Act;
(ix) to the best knowledge of such counsel, the Company is not
in violation of its Restated Certificate of Incorporation or By-laws;
(x) neither the issue and sale of the Securities, nor the
consummation of any other of the actions herein contemplated nor the
fulfillment of the terms hereof will conflict with, result in a breach
of, or constitute a default under the Restated Certificate of
Incorporation or By-Laws of the Company or the terms of any material
indenture or other agreement or instrument known to such counsel and to
which the Company or any of its subsidiaries is a party or bound, or
any order or regulation known to such counsel to be applicable to the
Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries.
-12-
In rendering such opinion, such counsel may state that he expresses no opinion
as to the laws of any jurisdiction outside the United States and may rely (A) as
to matters involving the application of laws of any jurisdiction other than the
Federal law of the United States or the General Corporation Law of the State of
Delaware, to the extent deemed proper and specified in such opinion, upon the
opinion of other counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Agents or, if satisfactory to counsel for the
Agents, upon his review of the laws of such jurisdictions; and (B) as to matters
of fact, to the extent deemed proper, on certificates of responsible officers of
the Company and public officials.
(c) The Agent shall have received from Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel
for the Agents, such opinion or opinions, dated the date of this Agreement, with
respect to the issuance and sale of the Securities, the Indenture, the
Registration Statement, the Final Prospectus and other related matters as the
Agent may reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to pass
upon such matters.
(d) The Company shall have furnished to the Agents a certificate of the
Company, signed by a financial Senior Vice President or Vice President, the
Treasurer or the Manager of Corporate Finance, dated the date of this Agreement,
to the effect that the signer of such certificate has carefully examined the
Registration Statement, the Final Prospectus and this Agreement and that:
(i) in the case of the certificate described in Section 4(g)
hereof, the representations and warranties of the Company in this Agreement
are true and correct in all material respects on and as of the date thereof
with the same effect as if made on the date thereof and the Company has
complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the date thereof;
(ii) no stop order suspending the effectiveness of the Registration
Statement, as amended, has been issued and no proceedings for that purpose
have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included
in the Final Prospectus, there has been no Material Adverse Effect, except
as set forth or contemplated in the Final Prospectus.
(e) At the date of this Agreement, Coopers & ▇▇▇▇▇▇▇ shall have furnished
to the Agents a letter, in form and substance satisfactory to the Agent, dated
as of the date hereof (or, with respect to matters involving changes or
developments since the respective dates as of which specified information is
given in the Final Prospectus, as of a date not more than three business days
prior to the date of such letter), of the type described in the American
Institute of Certified Public Accountants' Statement on Auditing Standards No.
72.
(f) On or prior to the date of this Agreement, the Company shall have
furnished to the Agents and counsel for the Agents such further information,
certificates, documents and opinions (including tax opinions) as the Agents or
such counsel may reasonably request.
(g) At the Closing Date, the Notes shall have been approved for listing,
subject only to official notices of issuance, if and as specified in the Final
Prospectus.
-13-
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Agents and their counsel, this Agreement and all
obligations of the Agents hereunder may be canceled at any time by the Agents.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be delivered
at the office of Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Agent, at
Philadelphia National Bank Building, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, on the date hereof.
6. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless the Agents and each person who controls the Agents within the
meaning of either the Act or the Exchange Act against any and all losses,
claims, damages, liabilities and expenses, joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the registration statement for the registration
of the Securities as originally filed or in any amendment thereof, including the
Rule 430A Information and the Rule 434 Information deemed to be a part thereof,
if applicable, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating, preparing or defending any
such loss, claim, damage, liability or action, and to the extent of the
aggregate amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, provided
that, subject to Section 6(d) below, any such settlement is effected with the
written consent of the Company and; provided, however, that (i) the Company will
not be liable in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein concerning
the Provided Information or Form T-1 and (ii) such indemnity with respect to the
Basic Prospectus, the Final Prospectus or any Preliminary Final Prospectus shall
not inure to the benefit of you (or any person controlling you) if the person
asserting any such loss, claim, damage, liability or expense purchased the
Securities which are the subject thereof and such person did not receive a copy
of the Final Prospectus (or the Final Prospectus as supplemented), excluding
documents incorporated therein by reference, at or prior to the confirmation of
the sale of such Securities to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in the Basic Prospectus, the Final Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
supplemented). This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
-14-
(b) The Agents agree to indemnify and hold harmless the Company, each of
its directors, each of its officers who signs the Registration Statement, and
each person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
the Agent, but only with reference to the Provided Information. This indemnity
agreement will be in addition to any liability which the Agents may otherwise
have.
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but failure promptly to notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, representing the indemnified parties under paragraph (a) who
are parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action, or (iii)
the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall be only in respect of
the counsel referred to in such clause (i) or (iii).
(d) No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
-15-
this Section 6 is due in accordance with its terms but is for any reason held by
a court to be unavailable from the Company on grounds of policy or otherwise,
the Company and the Agents shall contribute to the aggregate losses, claims,
damages, liabilities and expenses (including legal or other expenses reasonably
incurred in connection with investigating or defending same) to which the
Company and the Agents may be subject (i) in such proportion so that the Agents
are responsible for that portion represented by the percentage that the sales
commission received by the Agents in connection with the Securities from which
such losses, claims, damages and liabilities arise (or, in the case of
Securities sold pursuant to a Purchase Agreement (as defined below), the
aggregate commissions that would have been received by you if such commissions
had been payable) bears to the sum of such commission and the purchase price of
the Securities and the Company is responsible for the balance or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company, on the one
hand, and of the Agents, on the other hand, in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other equitable considerations; provided, however, that
(y) in no case shall you be responsible for any amount in excess of the
commissions received by you in connection with the Securities from which such
losses, claims, damages and liabilities arise (or, in the case of Securities
sold pursuant to a Purchase Agreement, the aggregate commissions that would have
been received by you if such commissions had been payable) and (z) no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The relative fault of the Company, on the
one hand, and the Agents, on the other hand, shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Agents and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. For purposes of this Section 6, each person
who controls the Agents within the meaning of the Act shall have the same rights
to contribution as the Agent, and each person who controls the Company within
the meaning of either the Act or the Exchange Act, each Officer of the Company
who shall have signed the Registration Statement and each Director of the
Company shall have the same rights to contribution as the Company, subject in
each case to clauses (y) and (z) of this paragraph (e). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be sought, but
failure promptly to notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have otherwise than under this paragraph (e).
7. Termination.
(a) This Agreement may be terminated at any time by the Agents or by the
Company for any period of time or permanently by written notice to the other
without liability of any party to any other party except as provided in Sections
4(j) (with respect to out-of-pocket expenses of the Agents incurred prior to
such termination), 6 and 7 hereof and except that, if at the time of termination
an offer for the purchase of Securities solicited by the Agents shall have been
accepted by the Company but the time of delivery to the purchaser of the
Securities relating thereto shall not yet have occurred, the Company shall be
obligated to pay the Agents the sales commissions in respect
-16-
of such purchase. Upon receipt of such notice from the Company, the Agents will
forthwith suspend solicitation of offers to purchase Securities from the Company
until such time as the Company has advised the Agents that such solicitation may
be resumed.
(b) The applicable Agent(s) may terminate any agreement by such Agent(s) to
purchase Notes from the Company as principal, immediately upon notice to the
Company, at any time prior to the settlement date relating thereto, if (i) there
has been, since the date of such agreement or since the respective dates as of
which information is given in the Final Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or, if such Notes are denominated and/or payable in, or indexed
to, one or more foreign or composite currencies, in the international financial
markets, or any outbreak of hostilities or escalation thereof 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 such Notes or enforce contracts for the sale
of such Notes, or (iii) trading in any securities of the Company has been
suspended or limited by the Commission or a national securities exchange, or if
trading generally on the New York Stock Exchange or the American Stock Exchange
or in the Nasdaq National Market has been suspended or limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by either of said exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority, or (iv) a banking
moratorium has been declared by either Federal or New York authorities or by the
relevant authorities in the country or countries of origin of any foreign or
composite currency in which such Notes are denominated and/or payable, or (v)
the rating assigned by any nationally recognized statistical rating organization
to the Program or any debt securities (including the Notes) of the Company as of
the date of such agreement shall have been lowered or withdrawn since that date
or if any such rating organization shall have publicly announced that it has
under surveillance or review its rating of the Program or any such debt
securities, or (vi) there shall have come to the attention of such Agent(s) any
facts that would cause such Agent(s) to believe that the Final Prospectus, at
the time it was required to be delivered to a purchaser of such Notes, included
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time of such delivery, not misleading.
8. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Agents set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of the Agents or the Company or any of the officers,
directors or controlling persons referred to in Section 6 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections
4(j) (with respect to out-of-pocket expenses of the Agents incurred prior to the
termination or cancellation of this Agreement) and 6 hereof shall survive the
termination or cancellation of this Agreement.
9. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Agent(s), will be mailed,
delivered or telegraphed and confirmed to such Agent at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at ARCO Chemical Company, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of the Treasurer.
-17-
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 6 hereof, and no
other person will have any right or obligation hereunder. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Agents and the Company and their
respective successors and the officers and directors and controlling persons
referred to in Section 6 hereof 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 contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes shall be
deemed to be a successor by reason merely of such purchase.
11. Applicable Law. This Agreement will be governed by and construed in
accordance,with the laws of the State of New York without regard to the conflict
of laws principles thereof.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the Agents.
Very truly yours,
ARCO CHEMICAL COMPANY
By:
---------------------------
The foregoing Agreement is hereby confirmed
and accepted as of the date specified in
Schedule I hereto.
By:
--------------------------
-18-
SCHEDULE I
Registration Statement No. 333-27099
Agent:
Type of Offering: [Delayed Offering/Non-Delayed Offering]
Commissions to Agent:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT(1)
--------------- ----------------
From 9 months to less than 1 year . . . . . . .
From 1 year to less than 18 months . . . . . . .
From 18 months to less than 2 years. . . . . . .
From 2 years to less than 3 years. . . . . . . .
From 3 years to less than 4 years. . . . . . . .
From 4 years to less than 5 years. . . . . . . .
From 5 years to less than 6 years. . . . . . . .
From 6 years to less than 7 years. . . . . . . .
From 7 years to less than 10 years . . . . . . .
From 10 years to less than 15 years. . . . . . .
From 15 years to less than 20 years. . . . . . .
From 20 years to 30 years. . . . . . . . . . . .
Greater than 30 years. . . . . . . . . . . . . .
----------------------------
/1/ As agreed to by the Company and the applicable Agent at the time of sale.
EXHIBIT A
PRICING TERMS
Principal Amount: $ _________
(or principal amount of foreign or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
[_] LIBOR Reuters Page:
[_] LIBOR Telerate Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
[_] Weekly Average
[_] Monthly Average
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Price to Public: ___%, plus accrued interest, if any, from __________
Issue Price:
Settlement Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Company by one or more
Agents as principal, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 4(g) of the Selling Agency
Agreement.
Legal Opinion pursuant to Section 4(h) of the Selling Agency Agreement.
Comfort Letter pursuant to Section 4(i) of the Selling Agency Agreement.
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