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Exhibit 1.1
$500,000,000
CHEVRON ▇▇▇▇▇▇▇▇ CHEMICAL COMPANY LLC
CHEVRON ▇▇▇▇▇▇▇▇ CHEMICAL COMPANY LP
7.00% NOTES DUE 2011
PURCHASE AGREEMENT
March 14, 2001
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March 14, 2001
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
Chevron ▇▇▇▇▇▇▇▇ Chemical Company LLC, a Delaware limited liability
company (the "LLC") and Chevron ▇▇▇▇▇▇▇▇ Chemical Company, a Delaware limited
partnership (the "LP" and together with the LLC, the "COMPANY"), as co-issuers,
propose to issue and sell to the several purchasers named in Schedule I hereto
(the "INITIAL PURCHASERS") $500,000,000 aggregate principal amount of its 7.00%
Notes due 2011 (the "SECURITIES") to be issued pursuant to the provisions of an
Indenture dated as of March 19, 2001 (the "INDENTURE") between the Company and
Bank of New York, as Trustee (the "TRUSTEE").
The Securities will be offered without being registered under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), to qualified
institutional buyers in compliance with the exemption from registration provided
by Rule 144A under the Securities Act, in offshore transactions in reliance on
Regulation S under the Securities Act ("REGULATION S") and to institutional
accredited investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) that deliver a letter in the form annexed to the Final
Memorandum (as defined below).
In connection with the sale of the Securities, the Company has prepared
a preliminary offering memorandum (the "PRELIMINARY MEMORANDUM") and will
prepare a final offering memorandum (the "FINAL MEMORANDUM" and, with the
Preliminary Memorandum, each a "MEMORANDUM") including a description of the
terms of the Securities, the terms of the offering and a description of the
Company.
Each of the Initial Purchasers, for so long as they own any Securities,
and each of their successors, assigns and direct and indirect transferees who
become registered owners of the Securities under the Indenture, is entitled to
the benefits of the Registration Rights Agreement, dated as of the date hereof
(the "REGISTRATION RIGHTS AGREEMENT"), between the Company, and ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated (together, the "MANAGERS").
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1. Representations and Warranties. The Company represents and warrants
to, and agrees with, you that:
(a) The Preliminary Memorandum does not contain and the Final Memorandum,
in the form used by the Initial Purchasers to confirm sales and on the
Closing Date (as defined in Section 4), will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations
and warranties set forth in this paragraph do not apply to statements
or omissions in either Memorandum based upon information relating to
any Initial Purchaser furnished to the Company in writing by such
Initial Purchaser through you expressly for use therein.
(b) The LP has been duly organized, is validly existing as a limited
partnership in good standing under the laws of the jurisdiction of its
formation, has the requisite power and authority to own its property
and to conduct its business as described in each Memorandum and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the LP and its subsidiaries, taken as
a whole.
(c) The LLC has been duly organized, is validly existing as a limited
liability company in good standing under the laws of the jurisdiction
of its formation, has the corporate power and authority to own its
property and to conduct its business as described in each Memorandum
and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership
or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on the LLC and its subsidiaries,
taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated or organized,
is validly existing as a corporation or other legal entity in good
standing under the laws of the jurisdiction of its incorporation or
formation, has the corporate power and authority to own its property
and to conduct its business as described in each Memorandum and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the
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Company and its subsidiaries, taken as a whole; all of the issued
shares of capital stock of each subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly by the Company, free and clear of
all liens, encumbrances, equities or claims.
(e) This agreement has been duly authorized, executed and delivered by the
Company.
(f) The Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Initial Purchasers in accordance with
the terms of this Agreement, will be valid and binding obligations of
the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally and general principles of equity, and will be entitled
to the benefits of the Indenture and the Registration Rights Agreement
pursuant to which such Securities are to be issued.
(g) Each of the Indenture and the Registration Rights Agreement has been
duly authorized, executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and general principles of equity except as
rights to indemnification and contribution under the Registration
Rights Agreement may be limited under applicable law.
(h) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement, the Indenture,
the Registration Rights Agreement and the Securities will not
contravene any provision of applicable law or the certificate of
formation or partnership, limited liability agreement or by-laws, as
applicable, of the Company or any agreement or other instrument binding
upon the Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or any judgment, order
or decree of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental body
or agency is required for the performance by the Company of its
obligations under this Agreement, the Indenture, the Registration
Rights Agreement or the Securities, except such as may be required by
the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Securities and by federal and state
securities laws with respect to the Company's obligations under the
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Registration Rights Agreement.
(i) There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set forth
in the Final Memorandum.
(j) There are no legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is subject
other than proceedings accurately described in all material respects in
the Final Memorandum and proceedings that would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole,
or on the power or ability of the Company to perform its obligations
under this Agreement, the Indenture, the Registration Rights Agreement
or the Securities or to consummate the transactions contemplated by the
Final Memorandum.
(k) The Company and its subsidiaries (i) are in compliance with any and all
applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in compliance with
all terms and conditions of any such permit, license or approval,
except as are accurately described in all material respects in the
Final Memorandum and except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other approvals
or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(l) There are no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties) which are not accurately described in all material
respects in the Final Memorandum or which would, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
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(m) The Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described
in the Final Memorandum, will not be an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
(n) Neither the Company nor any affiliate (as defined in Rule 501(b) of
Regulation D under the Securities Act, an "AFFILIATE") of the Company
has directly, or through any agent, (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any
security (as defined in the Securities Act) which is or will be
integrated with the sale of the Securities in a manner that would
require the registration under the Securities Act of the Securities or
(ii) engaged in any form of general solicitation or general advertising
in connection with the offering of the Securities, (as those terms are
used in Regulation D under the Securities Act) or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act.
(o) None of the Company, its Affiliates or any person acting on its or
their behalf has engaged or will engage in any directed selling efforts
(within the meaning of Regulation S) with respect to the Securities and
the Company and its Affiliates and any person acting on its or their
behalf have complied and will comply with the offering restrictions
requirement of Regulation S, except no representation, warranty or
agreement is made by the Company in this paragraph with respect to the
Initial Purchasers.
(p) It is not necessary in connection with the offer, sale and delivery of
the Securities to the Initial Purchasers in the manner contemplated by
this Agreement to register the Securities under the Securities Act or
to qualify the Indenture under the Trust Indenture Act of 1939, as
amended.
(q) Prior to the date hereof, neither the Company nor any of its affiliates
has taken any action which is designed to or which has constituted or
which might have been expected to cause or result in stabilization or
manipulation of the price of any security of the Company in connection
with the offering of the Securities.
(r) The Securities satisfy the requirements set forth in Rule 144A(d)(3)
under the Securities Act.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell
to the several Initial Purchasers, and each Initial Purchaser, upon the basis of
the representations and warranties herein contained, but subject to the
conditions
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hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective principal amount of Securities set forth in Schedule I
hereto opposite its name at a purchase price of 98.651% of the principal amount
thereof (the "PURCHASE PRICE") plus accrued interest, if any, to the Closing
Date.
The Company hereby agrees that, without the prior written
consent of the Managers on behalf of the Initial Purchasers, it will not, during
the period beginning on the date hereof and continuing to and including the
Closing Date, offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company or warrants to purchase debt securities of the Company
substantially similar to the Securities (other than the sale of the Securities
under this Agreement).
3. Terms of Offering. You have advised the Company that the Initial
Purchasers will make an offering of the Securities purchased by the Initial
Purchasers hereunder on the terms to be set forth in the Final Memorandum, as
soon as practicable after this Agreement is entered into as in your judgment is
advisable.
4. Payment and Delivery. Payment for the Securities shall be made to
the Company at such bank and account as the LLC shall designate in Federal or
other funds immediately available in New York City against delivery of such
Securities for the respective accounts of the several Initial Purchasers at
10:00 a.m., New York City time, on March 19, 2001, or at such other time on the
same or such other date, not later than March 26, 2001, as shall be designated
in writing by you. The time and date of such payment are hereinafter referred to
as the "CLOSING DATE."
Certificates for the Securities shall be in definitive form or global
form, as specified by you, and registered in such names and in such
denominations as you shall request in writing not later than one full business
day prior to the Closing Date. The certificates evidencing the Securities shall
be delivered to you on the Closing Date for the respective accounts of the
several Initial Purchasers, with any transfer taxes payable in connection with
the transfer of the Securities to the Initial Purchasers duly paid, against
payment of the Purchase Price therefor plus accrued interest, if any, to the
date of payment and delivery.
5. Conditions to the Initial Purchasers' Obligations. The several
obligations of the Initial Purchasers to purchase and pay for the Securities on
the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
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(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Final Memorandum (exclusive
of any amendments or supplements thereto subsequent to the
date of this Agreement) that, in the judgment of the Managers,
is material and adverse and that makes it, in the judgment of
the Managers, impracticable to market the Securities on the
terms and in the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in Section 5(a)(i) and
to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing
Date an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, outside counsel for the
Company, dated the Closing Date, to the effect set forth in Exhibit A.
Such opinion shall be rendered to the Initial Purchasers at the request
of the Company and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing
Date an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire, Assistant General
Counsel of the Company, dated the Closing Date, to the effect set forth
in Exhibit B.
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(e) The Initial Purchasers shall have received on the Closing
Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Initial
Purchasers, dated the Closing Date, to the effect set forth in Exhibit
C.
(f) The Initial Purchasers shall have received on each of the
date hereof and the Closing Date letters, dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Initial Purchasers, from both Ernst & Young and PriceWaterhouse
Coopers, LLC, independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference
into the Final Memorandum.
6. Covenants of the Company. In further consideration of the agreements
of the Initial Purchasers contained in this Agreement, the Company covenants
with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior
to 10:00 a.m. New York City time on the business day next succeeding
the date of this Agreement and during the period mentioned in Section
6(c), as many copies of the Final Memorandum, any documents
incorporated by reference therein and any supplements and amendments
thereto as you may reasonably request.
(b) Before amending or supplementing either Memorandum, to
furnish to you a copy of each such proposed amendment or supplement and
not to use any such proposed amendment or supplement to which you
reasonably object.
(c) If, during such period after the date hereof and prior to
the date on which all of the Securities shall have been sold by the
Initial Purchasers, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Final
Memorandum in order to make the statements therein, in light of the
circumstances when the Final Memorandum is delivered to a purchaser,
not misleading, or if, in the opinion of counsel for the Initial
Purchasers, it is necessary to amend or supplement the Final Memorandum
to comply with applicable law, forthwith to prepare and furnish, at its
own expense, to the Initial Purchasers, either amendments or
supplements to the Final Memorandum so that the statements in the Final
Memorandum as so amended or supplemented will not, in light of the
circumstances when the Final Memorandum is delivered to a purchaser, be
misleading or so that the
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Final Memorandum, as amended or supplemented, will comply with
applicable law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request.
(e) If requested by you, to use its best efforts to cause the
Securities to be eligible for the PORTAL trading system of the National
Association of Securities Dealers, Inc.
(f) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the issuance and sale of the Securities
and all other fees or expenses in connection with the preparation of
each Memorandum and all amendments and supplements thereto, including
all printing costs associated therewith, and the delivering of copies
thereof to the Initial Purchasers, in the quantities herein above
specified, (ii) all costs and expenses related to the transfer and
delivery of the Securities to the Initial Purchasers, including any
transfer or other taxes payable thereon, (iii) the cost of printing or
producing any Blue Sky or legal investment memorandum in connection
with the offer and sale of the Securities under state securities laws
and all expenses in connection with the qualification of the Securities
for offer and sale under state securities laws as provided in Section
6(d) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Initial Purchasers in connection with
such qualification and in connection with the Blue Sky or legal
investment memorandum, (iv) any fees charged by rating agencies for the
rating of the Securities, (v) all document production charges and
expenses of counsel to the Initial Purchasers (but not including their
fees for professional services) in connection with the preparation of
this Agreement, (vi) the fees and expenses, if any, incurred in
connection with the admission of the Securities for trading in PORTAL
or any appropriate market system, (vii) the costs and charges of the
Trustee and any transfer agent, registrar or depositary, (viii) the
cost of the preparation, issuance and delivery of the Securities, (ix)
the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the
marketing of the offering of the Securities, including, without
limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in
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connection with the road show presentations with the prior approval of
the Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show, and (x) all other
costs and expenses incident to the performance of the obligations of
the Company hereunder for which provision is not otherwise made in this
Section. It is understood, however, that except as provided in this
Section, Section 8, and the last paragraph of Section 10, the Initial
Purchasers will pay all of their costs and expenses, including fees and
disbursements of their counsel, transfer taxes payable on resale of any
of the Securities by them and any advertising expenses connected with
any offers they may make.
(g) Neither the Company nor any Affiliate will sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) which could be integrated
with the sale of the Securities in a manner which would require
registration under the Securities Act of the Securities.
(h) Not to solicit any offer to buy or offer or sell the
Securities by means of any form of general solicitation or general
advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act.
(i) While any of the Securities remain "restricted securities"
within the meaning of the Securities Act, to make available, upon
request, to any seller of such Securities the information specified in
Rule 144A(d)(4) under the Securities Act, unless the Company is then
subject to Section 13 or 15(d) of the Exchange Act.
(j) None of the Company, its Affiliates or any person acting
on its or their behalf (other than the Initial Purchasers) will engage
in any directed selling efforts (as that term is defined in Regulation
S) with respect to the Securities, and the Company and its Affiliates
and each person acting on its or their behalf (other than the Initial
Purchasers) will comply with the offering restrictions requirement of
Regulation S.
(k) During the period of two years after the Closing Date, the
Company will not, and will not permit any of its affiliates (as defined
in Rule 144A under the Securities Act) to resell any of the Securities
which constitute "restricted securities" under Rule 144A that have been
reacquired by any of them.
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7. Offering of Securities; Restrictions on Transfer. (a) Each Initial
Purchaser, severally and not jointly, represents and warrants that such Initial
Purchaser is a qualified institutional buyer as defined in Rule 144A under the
Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly,
agrees with the Company that (i) it will not solicit offers for, or offer or
sell, such Securities by any form of general solicitation or general advertising
(as those terms are used in Regulation D under the Securities Act) or in any
manner involving a public offering within the meaning of Section 4(2) of the
Securities Act and (ii) it will solicit offers for such Securities only from,
and will offer such Securities only to, persons that it reasonably believes to
be (A) in the case of offers inside the United States, (1) QIBs or (2) other
institutional accredited investors (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act ("INSTITUTIONAL ACCREDITED INVESTORS") that, prior
to their purchase of the Securities, deliver to such Initial Purchaser a letter
containing the representations and agreements set forth in Appendix A to the
Memorandum and (B) in the case of offers outside the United States, to persons
other than U.S. persons ("FOREIGN PURCHASERS," which term shall include dealers
or other professional fiduciaries in the United States acting on a discretionary
basis for foreign beneficial owners (other than an estate or trust)) in reliance
upon Regulation S under the Securities Act that, in each case, in purchasing
such Securities are deemed to have represented and agreed as provided in the
Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly,
represents, warrants, and agrees with respect to offers and sales
outside the United States that:
(i) such Initial Purchaser understands that no action
has been or will be taken in any jurisdiction by the Company
that would permit a public offering of the Securities, or
possession or distribution of either Memorandum or any other
offering or publicity material relating to the Securities, in
any country or jurisdiction where action for that purpose is
required;
(ii) the Securities have not been registered under
the Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S.
persons except in accordance with Rule 144A or Regulation S
under the Securities Act or pursuant to another exemption
from, or a transaction not subject to, the registration
requirements of the Securities Act and any other applicable
securities laws;
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(iii) such Initial Purchaser has offered the
Securities and will offer and sell the Securities (A) as part
of their distribution at any time and (B) otherwise until 40
days after the later of the commencement of the offering and
the Closing Date, only in accordance with Rule 903 of
Regulation S or as otherwise permitted in Section 7(a);
accordingly, neither such Initial Purchaser, its Affiliates
nor any persons acting on its or their behalf have engaged or
will engage in any directed selling efforts (within the
meaning of Regulation S) with respect to the Securities, and
any such Initial Purchaser, its Affiliates and any such
persons have complied and will comply with the offering
restrictions requirement of Regulation S;
(iv) such Initial Purchaser has (A) not offered or
sold and, prior to the date six months after the Closing Date,
will not offer or sell any Securities to persons in the United
Kingdom except to persons whose ordinary activities involve
them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (B) complied and will comply with
all applicable provisions of the Financial Services Act 1986
with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom,
and (C) only issued or passed on and will only issue or pass
on in the United Kingdom any document received by it in
connection with the issue of the Securities to a person who is
of a kind described in Article 11(3) of the Financial Services
Act 1986 (Investment Advertisements) (Exemptions) Order 1996
or is a person to whom such document may otherwise lawfully be
issued or passed on;
(v) such Initial Purchaser understands that the
Securities have not been and will not be registered under the
Securities and Exchange Law of Japan, and represents that it
has not offered or sold, and agrees not to offer or sell,
directly or indirectly, any Securities in Japan or for the
account of any resident thereof except pursuant to any
exemption from the registration requirements of the Securities
and Exchange Law of Japan and otherwise in compliance with
applicable provisions of Japanese law; and
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(vi) such Initial Purchaser agrees that, at or prior
to confirmation of sales of the Securities, it will have sent
to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases
Securities from it during the restricted period a confirmation
or notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered or sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time
or (ii) otherwise until 40 days after the later of the commencement of
the offering and the closing date, except in either case in accordance
with Regulation S (or Rule 144A if available) under the Securities Act.
Terms used above have the meaning given to them by Regulation S."
Terms used in this Section 7(b) have the meanings given to them by Regulation S.
8. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Initial Purchaser and each person, if any, who controls any Initial
Purchaser within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any
untrue statement or alleged untrue statement of a material fact
contained in either Memorandum (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material
fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except insofar
as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission
based upon information relating to any Initial Purchaser furnished to
the Company in writing by such Initial Purchaser through you expressly
for use therein.
(b) Each Initial Purchaser agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers
and each person, if any, who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Company to
such
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Initial Purchaser, but only with reference to information relating to
such Initial Purchaser furnished to the Company in writing by such
Initial Purchaser through you expressly for use in either Memorandum or
any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 8(a) or 8(b), such
person (the "INDEMNIFIED PARTY") shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the Indemnifying Party, upon request of the Indemnified
Party, shall retain counsel reasonably satisfactory to the Indemnified
Party to represent the Indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay the
reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any Indemnified Party shall have
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (i)
the Indemnifying Party and the Indemnified Party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
Indemnifying Party and the Indemnified Party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Party shall not, in respect of the legal expenses of any
Indemnified Party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing jointly by the Managers, in the case of parties
indemnified pursuant to Section 8(a), and by the Company, in the case
of parties indemnified pursuant to Section 8(b). The Indemnifying Party
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Party
agrees to indemnify the Indemnified Party from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying
Party shall, without the prior written consent of the Indemnified
Party, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Party is or could have been a party
and indemnity could have been sought hereunder by such Indemnified
Party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject
matter of such proceeding.
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(d) To the extent the indemnification provided for in Section
8(a) or 8(b) is unavailable to an Indemnified Party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each Indemnifying Party under such paragraph, in lieu of
indemnifying such Indemnified Party thereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Initial Purchasers on the other hand from the
offering of the Securities or (ii) if the allocation provided by clause
8(d)(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in
clause 8(d)(i) above but also the relative fault of the Company on the
one hand and of the Initial Purchasers on the other hand in connection
with the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Initial Purchasers on the other hand in connection
with the offering of the Securities shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the
Securities (before deducting expenses) received by the Company and the
total discounts and commissions received by the Initial Purchasers, in
each case as set forth in the Final Memorandum, bear to the aggregate
offering price of the Securities. The relative fault of the Company on
the one hand and of the Initial Purchasers on the other hand shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Company or by the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Initial Purchasers' respective
obligations to contribute pursuant to this Section 8 are several in
proportion to the respective principal amount of Securities they have
purchased hereunder, and not joint.
(e) The Company and the Initial Purchasers agree that it would
not be just or equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the Initial Purchasers
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 8(d). The amount paid or payable by an
Indemnified Party as a result of the losses, claims, damages and
liabilities referred to in Section 8(d) shall be deemed to include,
subject to the limitations set forth
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above, 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 8,
no Initial Purchaser shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
resold by it in the initial placement of such Securities were offered
to investors exceeds the amount of any damages that such Initial
Purchaser has otherwise been required to pay by reason of such 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 Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 8 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any
Indemnified Party at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 8 and the representations, warranties and other statements
of the Company contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Initial
Purchaser or any person controlling any Initial Purchaser or by or on
behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of
the Securities.
9. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, either of the
New York Stock Exchange or the National Association of Securities Dealers, Inc.,
(ii) trading of any securities of the Company's predecessor companies, ▇▇▇▇▇▇▇▇
Petroleum Company or Chevron Corporation, shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Managers, is material and
adverse and (b) in the case of any of the events specified in clauses 9(a)(i)
through 9(a)(iv), such event, singly or together with any other such event,
makes it, in the judgment of the Managers, impracticable to market the
Securities on the terms and in the manner contemplated in the Final Memorandum.
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10. Effectiveness; Defaulting Initial Purchasers. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Initial Purchasers
shall fail or refuse to purchase Securities that it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of
Securities which such defaulting Initial Purchaser or Initial Purchasers agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of Securities to be purchased on such date, the other Initial
Purchasers shall be obligated severally in the proportions that the principal
amount of Securities set forth opposite their respective names in Schedule I
bears to the aggregate principal amount of Securities set forth opposite the
names of all such non-defaulting Initial Purchasers, or in such other
proportions as you may specify, to purchase the Securities which such defaulting
Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase
on such date; provided that in no event shall the principal amount of Securities
that any Initial Purchaser has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such principal amount of Securities without the written consent of such Initial
Purchaser. If, on the Closing Date any Initial Purchaser or Initial Purchasers
shall fail or refuse to purchase Securities which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of Securities
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Securities to be purchased on such date, and
arrangements satisfactory to you and the Company for the purchase of such
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Initial Purchaser
or of the Company. In any such case either you or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Final Memorandum or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Initial Purchaser from liability in
respect of any default of such Initial Purchaser under this Agreement.
If this Agreement shall be terminated by the Initial Purchasers, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or as a
result of any of the provisions of Section 9 above, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Initial Purchasers or such Initial Purchasers as have
so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably
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incurred by such Initial Purchasers in connection with this Agreement or the
offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York applicable to
contracts made and performed in such state.
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
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Very truly yours,
CHEVRON ▇▇▇▇▇▇▇▇ CHEMICAL
COMPANY LLC
By: /s/ ▇.▇. ▇▇▇▇▇
-----------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Treasurer
CHEVRON ▇▇▇▇▇▇▇▇ CHEMICAL
COMPANY LP
By: /s/ ▇.▇. ▇▇▇▇▇
-----------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Treasurer
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Acting severally on behalf of themselves and
the several Initial Purchasers named in
Schedule I hereto.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name:
Title:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
By: /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
------------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
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SCHEDULE I
PRINCIPAL AMOUNT OF
INITIAL PURCHASER SECURITIES TO BE PURCHASED
----------------------------------------------------------- --------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co $ 175,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 175,000,000
ABN AMRO Incorporated. 15,000,000
Banc of America Securities LLC. 30,000,000
Chase Securities Inc. 30,000,000
▇▇▇▇▇▇ Brothers Inc. 30,000,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated 30,000,000
The Royal Bank of Scotland plc 15,000,000
Total: $ 500,000,000
===============
Total: $ 500,000,000
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EXHIBIT A
OPINION OF ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
The opinion of the counsel for the Company, to be delivered pursuant to
Section 5(c) of the Purchase Agreement, shall be to the effect that:
A. The LLC has been duly organized, is validly existing as a
limited liability company in good standing under the laws of the
jurisdiction of its formation, and has the requisite power and
authority to own its property and to conduct its business as described
in the Final Memorandum.
B. The LP has been duly organized, is validly existing as a
limited partnership in good standing under the laws of the jurisdiction
of its formation and has the requisite power and authority to own its
property and to conduct its business as described in the Final
Memorandum.
C. The Purchase Agreement has been duly authorized, executed
and delivered by the Company.
D. The Securities have been duly authorized by the Company
and, when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of the Purchase Agreement, will
be valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
general principles of equity, and will be entitled to the benefits of
the Indenture and Registration Rights Agreement pursuant to which such
Securities are to be issued.
E. Each of the Indenture and Registration Rights Agreement has
been duly authorized, executed and delivered by, and is a valid and
binding agreement of, the Company, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and general principles of equity.
F. The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Purchase
Agreement, the Indenture, the Registration Rights Agreement and the
Securities will not contravene any provision of applicable Federal, New
York or Delaware law or the certificate of formation or partnership,
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limited liability agreement or by-laws of the Company, as applicable,
or, the Contribution Agreement dated May 23, 2000 among ▇▇▇▇▇▇▇▇
Petroleum Company, Chevron Corporation and Chevron ▇▇▇▇▇▇▇▇ Chemical
Company LLC, the Company's $900 million Amended and Restated 364-Day
Credit Agreement or the Company's $900 million Three-Year Credit
Agreement, or, to the best of such counsel's knowledge, any judgment,
order or decree of any Federal, New York or Delaware governmental body,
agency or court having jurisdiction over the Company or any subsidiary,
and no consent, approval, authorization or order of, or qualification
with, any Federal, New York or Delaware governmental body or agency is
required for the performance by the Company of its obligations under
the Purchase Agreement, the Indenture, the Registration Rights
Agreement or the Securities, except such as may be required by the
securities or Blue Sky laws of the various states in connection with
the offer and sale of the Securities.
G. To such Counsel's knowledge, there are no pending or
threatened legal or governmental proceedings which would be required to
be disclosed in the exchange offer registration statement to be filed
pursuant to the Registration Rights Agreement were such exchange offer
registration statement filed on the date of this opinion which are not
described in the Final Memorandum.
H. The Company is not, and after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof
as described in the Final Memorandum, will not be an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended.
I. The statements in the Final Memorandum under the captions
"Description of the Notes", "Plan of Distribution" and "Transfer
Restrictions", insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to therein, fairly
summarize the matters referred to therein.
J. The statements in the Final Memorandum under the caption
"Certain United States Federal Income Tax Consequences to Non-United
States Persons," insofar as such statements constitute a summary of the
United States federal tax laws referred to therein, are accurate and
fairly summarize in all material respects the United States federal tax
laws referred to therein.
▇. ▇▇▇▇ counsel has no reason to believe that the Final
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Memorandum when issued contained, or as of the date such opinion is
delivered contains, any untrue statement of a material fact or omitted
or omits 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.
L. Based upon the representations, warranties and agreements
of the Company in Sections 1(m), 1(n), 1(p), 6(f), 6(g) and 6(j) of the
Purchase Agreement and of the Initial Purchasers in Section 7 of the
Purchase Agreement, it is not necessary in connection with the offer,
sale and delivery of the Securities to the Initial Purchasers under the
Purchase Agreement or in connection with the initial resale of such
Securities by the Initial Purchasers in accordance with Section 7 of
the Purchase Agreement to register the Securities under the Securities
Act of 1933 or to qualify the Indenture under the Trust Indenture Act
of 1939, it being understood that no opinion is expressed as to any
subsequent resale of any Security.
With respect to paragraph I above, counsel may state that its
belief is based upon their participation in the preparation of the
Final Memorandum (and any amendments or supplements thereto) and review
and discussion of the contents thereof, but are without independent
check or verification except as specified.
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EXHIBIT B
OPINION OF INTERNAL COMPANY COUNSEL
The opinion of Internal Company Counsel to be delivered pursuant to
Section 5(d) of the Purchase Agreement shall be to the effect that:
A. The LLC has been organized, is validly existing as a
limited liability company in good standing under the laws of the
jurisdiction of its formation, has the requisite power and authority to
own its property and to conduct its business as described in the Final
Memorandum and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the LLC or its
subsidiaries, taken as a whole.
B. The LP has been duly organized, is validly existing as a
limited partnership in good standing under the laws of the jurisdiction
of its formation, has the requisite power and authority to own its
property and to conduct its business as described in the Final
Memorandum and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the LP and its
subsidiaries, taken as a whole.
C. The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Purchase
Agreement, the Indenture, the Registration Rights Agreement and the
Securities will not contravene, to the best of such counsel's
knowledge, any agreement or other instrument binding upon the Company
or any of its subsidiaries that is material to the Company or any of
its subsidiaries, taken as a whole.
D. After due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened to which the Company
or any of its subsidiaries is a party or to which any of the properties
of the Company or any of its subsidiaries is subject other than
proceedings fairly summarized in all material respects in the Final
Memorandum and proceedings which such counsel believes are not likely
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to have a material adverse effect on the Company and its subsidiaries,
taken as a whole, or on the power or ability of the Company to perform
its obligations under the Purchase Agreement, the Indenture, the
Registration Rights Agreement or the Securities or to consummate the
transactions contemplated by the Final Memorandum.
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EXHIBIT C
OPINION OF ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
The opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ to be delivered pursuant to
Section 5(e) of the Purchase Agreement shall be to the effect that:
A. The Purchase Agreement has been duly authorized, executed
and delivered by the Company.
B. The Securities have been duly authorized by the Company
and, when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of the Purchase Agreement, will
be valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
general principles of equity, and will be entitled to the benefits of
the Indenture and the Registration Rights Agreement pursuant to which
such Securities are to be issued.
C. Each of the Indenture and the Registration Rights Agreement
has been duly authorized, executed and delivered by, and is a valid and
binding agreement of, the Company, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and general principles of equity.
D. The statements in the Final Memorandum under the captions
"Description of The Notes", "Plan of Distribution" and "Transfer
Restrictions", insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to therein, fairly
summarize the matters referred to therein.
▇. ▇▇▇▇ counsel has no reason to believe that the Final
Memorandum when issued contained, or as of the date such opinion is
delivered contains, any untrue statement of a material fact or omitted
or omits 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.
F. Based upon the representations, warranties and agreements
of the Company in Sections 1(n), 1(o), 1(r), 6(g), 6(h) and 6(j) of the
Purchase Agreement and of the Initial Purchasers in Section 7 of the
Purchase Agreement, it is not necessary in connection with the offer,
sale
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and delivery of the Securities to the Initial Purchasers under the
Purchase Agreement or in connection with the initial resale of such
Securities by the Initial Purchasers in accordance with Section 7 of
the Purchase Agreement to register the Securities under the Securities
Act of 1933 or to qualify the Indenture under the Trust Indenture Act
of 1939, it being understood that no opinion is expressed as to any
subsequent resale of any Security.
With respect to paragraph E above, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ may
state that their opinion and belief are based upon their participation
in the preparation of the Final Memorandum (and any amendments or
supplements thereto) and review and discussion of the contents thereof
(including the review of, but not participation in the preparation of,
the incorporated documents), but are without independent check or
verification except as specified.
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