EXHIBIT 1.2
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CHEVRON CAPITAL U.S.A. INC.
GUARANTEED DEBT SECURITIES
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
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CHEVRON CAPITAL U.S.A. INC.
GUARANTEED DEBT SECURITIES
UNDERWRITING AGREEMENT STANDARD PROVISIONS
From time to time, Chevron Capital U.S.A. Inc., a Delaware corporation
(the "Company"), may enter into one or more underwriting agreements that provide
for the sale of certain debt securities (the "Securities") guaranteed by
ChevronTexaco Corporation, a Delaware corporation ("ChevronTexaco"), to the
purchaser or purchasers named therein (collectively, the "Underwriters"). The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (the "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this "Agreement." Capitalized terms not otherwise defined in this
Agreement shall have the respective meanings given them in the Indenture (as
hereinafter defined).
The terms governing the issuance and sale of any particular series of
Securities shall be as provided in the applicable Underwriting Agreement (with
respect to each Underwriting Agreement, such series of Securities are herein
referred to as the "Designated Securities") and in the Indenture (the
"Indenture") dated as of among the Company, ChevronTexaco and
, as Trustee (the "Trustee").
SECTION 1. ISSUANCE OF DESIGNATED SECURITIES. Sales of the Designated
Securities may be made from time to time to the Underwriters of the Designated
Securities. Any firm or firms designated as the representative or
representatives, as the case may be, of the Underwriters of the Designated
Securities in the Underwriting Agreement relating thereto will act as the
representative or representatives (collectively, the "Representatives"). The
obligation of the Company to issue and sell any of the Designated Securities,
the obligation of ChevronTexaco to guarantee any of the Designated Securities
and the obligation of any Underwriters to purchase any of the Designated
Securities shall be evidenced by the Underwriting Agreement with respect to the
Designated Securities specified therein. Each Underwriting Agreement shall
specify the aggregate principal amount of the Designated Securities, the public
offering price of the Designated Securities, the purchase price to the
Underwriters of the Designated Securities, the names of the Underwriters of the
Designated Securities, the name of the Representatives, if any, of such
Underwriters, the principal amount of the Designated Securities to be purchased
by each Underwriter and the terms of any Delayed Delivery Contract (as
hereinafter defined), and shall set forth the date, time and manner of delivery
of the Designated Securities and payment therefor. The Underwriting Agreement
shall also specify, to the extent not set forth in the Registration Statement
and Prospectus (each as hereinafter defined) with respect thereto, the general
terms of the Designated Securities. An Underwriting Agreement shall be in
writing (which may be in counterparts), and may be evidenced by an exchange of
facsimile transmissions or any other transmission device designed to produce a
written record of communications transmitted. The obligations of the
Underwriters under each Underwriting Agreement shall be several and not joint.
If the Company and ChevronTexaco agree, the Underwriters may solicit
offers to purchase the Designated Securities pursuant to delayed delivery
contracts ("Delayed Delivery Contracts") in a form agreed upon by the Company
and ChevronTexaco. The Underwriters shall be paid their specified commission for
Delayed Delivery Contracts upon the full performance of the Delayed Delivery
Contracts. If the Delayed Delivery Contracts are invalid or are not fully
performed, then the Underwriters shall not be entitled to any compensation for
their efforts in securing such Delayed Delivery Contracts.
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If the Delayed Delivery Contracts are executed, valid and fully
performed, the Designated Securities delivered pursuant to them shall be
deducted from the Designated Securities to be purchased by the Underwriters and
the aggregate principal amount of Designated Securities to be purchased by each
Underwriter shall be reduced pro rata in proportion to the principal amount of
Designated Securities set forth opposite each Underwriter's name in the
Underwriting Agreement, except to the extent that the Underwriters or the
Representatives, as the case may be, determine that such reduction shall be
otherwise than in such proportion and so advise the Company and ChevronTexaco in
writing; provided, however, that the total principal amount of securities to be
purchased by all Underwriters shall be the aggregate principal amount set forth
in the appropriate schedule thereto, less the aggregate principal amount of
Designated Securities to be delivered pursuant to the delayed delivery
provisions.
SECTION 2. REPRESENTATIONS AND COVENANTS. The Company and
ChevronTexaco represent to, and covenant with, each Underwriter that:
(a) A registration statement on Form S-3 (Registration No.
), including a prospectus, relating to the Securities of
the Company has been filed with the Securities and Exchange Commission
(the "Commission") in accordance with applicable regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"),
and has become effective under the Act. Such registration statement,
as amended to the date of this Agreement, is hereinafter referred to
as the "Registration Statement," and such prospectus as proposed to be
supplemented by a prospectus supplement (the "Prospectus Supplement")
relating to the Designated Securities to be filed pursuant to Rule 424
under the Act is hereinafter referred to as the "Prospectus." Any
reference herein to the Registration Statement or the Prospectus shall
be deemed to refer to and include the documents which were filed under
the Securities Exchange Act of 1934 (the "Exchange Act") on or before
the date of this Agreement, and incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3, excluding any documents or
portions of such documents which are deemed under the rules and
regulations of the Commission under the Act not to be incorporated by
reference; and any reference herein to the terms "amend," "amendment"
or "supplement" with respect to the Registration Statement or the
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act deemed to be incorporated therein by
reference after the date of this Agreement.
(b) The Registration Statement and the Prospectus conform, and
any amendments thereof and supplements thereto relating to the
Designated Securities will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder, each document filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus complied when so
filed as to form with the Exchange Act and the rules and regulations
thereunder, the Indenture conforms in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and the rules and regulations of the Commission
thereunder, and none of the above listed documents included or will
include any untrue statement of a material fact or omitted or will
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that the Company and ChevronTexaco make no representations as
to (i) that part of the Registration Statement which shall constitute
the Trustee's Statement of Eligibility and Qualifications (Form T-1)
under the Trust Indenture Act or (ii) any statements or omissions made
in reliance upon and in conformity with information furnished to the
Company or ChevronTexaco by or on behalf of any Underwriter for use in
connection with the preparation of such documents.
SECTION 3. DELIVERY AND PAYMENT. Delivery of and payment for the
Designated Securities (except for Designated Securities to be delivered under
Delayed Delivery Contracts) shall be made at the place, on the date and at the
time specified in the Underwriting Agreement (the "Closing Date"), which Closing
Date may be postponed by agreement between the Underwriters or the
Representatives, as the case may be,
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Underwriting Agreement
Standard Provisions
the Company and ChevronTexaco. Delivery of the Designated Securities shall be
made to the Underwriters or, if appropriate, the Representatives for the
respective accounts of the Underwriters, in either case, against payment by the
Underwriters directly or through the Representatives of the purchase price
thereof to or upon the order of the Company by either wire transfer of
immediately available funds or by certified or official bank check or checks
payable in New York Clearing House funds, unless otherwise agreed in the
Underwriting Agreement. Unless issued in Global Form, certificates for the
Designated Securities shall be registered in such names and in such
denominations as the Underwriters or, if appropriate, the Representatives may
request in writing not less than three full business days in advance of the
Closing Date. If issued as Global Securities, the Designated Securities shall be
issued in the form and registered to the Depository or its order, all as
provided in the Indenture.
If so requested by the Underwriters or the Representatives, as the
case may be, the Company agrees to have the Designated Securities available for
inspection, checking and packaging in New York, New York, at least one business
day prior to the Closing Date.
SECTION 4. OFFERING BY UNDERWRITER OR UNDERWRITERS. It is understood
that the Underwriters propose to offer the Designated Securities for sale to the
public upon the terms and conditions set forth in the Prospectus.
SECTION 5. AGREEMENTS. The Company and ChevronTexaco agree with the
Underwriters that:
(a) The Company and ChevronTexaco will cause the Prospectus
Supplement to be filed pursuant to Rule 424 under the Act and will promptly
advise the Underwriters or the Representatives, as the case may be, when the
Prospectus Supplement has been so filed, and prior to the termination of the
offering of the Designated Securities will promptly advise such Underwriters or
Representatives (i) when any amendment to the Registration Statement has become
effective or any further supplement to the Prospectus has been filed, (ii) of
any request by the Commission for any amendment of the Registration Statement or
the Prospectus or for any additional information, (iii) 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
and (iv) of the receipt by the Company or ChevronTexaco of any notification with
respect to the suspension of the qualification of the Designated Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company and ChevronTexaco will use their best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof. The Company and ChevronTexaco will not file any
amendment to the Registration Statement or supplement to the Prospectus relating
to the Designated Securities unless they have furnished the Underwriters or the
Representatives, as the case may be, a copy prior to filing and will not file
any such proposed amendment or supplement to which such Underwriters or
Representatives reasonably object.
(b) If, at any time when a prospectus relating to the Designated
Securities is required to be delivered under the Act or any other applicable
securities law, any event occurs as a result of which the 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 Prospectus to comply with the Act
or the Exchange Act or the respective rules thereunder, the Company and
ChevronTexaco will promptly notify the Underwriters or the Representatives, as
the case may be, and will promptly prepare and file with the Commission, subject
to paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance.
(c) ChevronTexaco will make generally available to its security
holders and to the Underwriters or the Representatives, as the case may be, as
soon as practicable, but not later than 45 days after the end of the 12-month
period beginning at the end of the fiscal quarter of ChevronTexaco during which
the filing of the Prospectus Supplement pursuant to Rule 424 under the Act first
occurs (except not later than
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Underwriting Agreement
Standard Provisions
90 days if such filing date is in the last fiscal quarter), an earnings
statement (which need not be audited) of ChevronTexaco and its consolidated
subsidiaries, covering such 12-month period, which will satisfy the provisions
of Section 11(a) of the Act.
(d) The Company and ChevronTexaco will furnish to the Underwriters or
the Representatives, as the case may be, and counsel for such Underwriters or
Representatives copies of the Registration Statement (including, if requested,
the exhibits thereto and the documents incorporated by reference in the
Prospectus) and each amendment or supplement thereto relating to the Designated
Securities which is thereafter filed pursuant to paragraph (a) or (b) of this
Section 5 and to each Underwriter, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act or other applicable securities
laws, as many copies of the Prospectus and any amendments thereof and
supplements thereto, relating to the Designated Securities, as such Underwriters
may reasonably request.
(e) The Company and ChevronTexaco will pay (i) all expenses incurred
by them in the performance of their obligations under this Agreement, (ii)
reasonable fees charged for rating the Designated Securities and for preparing a
Blue Sky and Legal Investment Memorandum with respect to the sale of the
Designated Securities, and (iii) the expenses of printing or otherwise producing
and delivering the Designated Securities, the documents specified in paragraph
(d) of this Section 5 and any Blue Sky and Legal Investment Memorandum.
(f) The Company and ChevronTexaco will use their best efforts to
arrange and pay for the qualification of the Designated Securities for sale
under the laws of such jurisdictions as the Underwriters or the Representatives,
as the case may be, may designate and to maintain such qualifications in effect
so long as required for the distribution of the Designated Securities; provided,
however, that the Company and ChevronTexaco shall not be required to qualify to
do business in any jurisdiction where they are not now qualified or to take any
action which would subject them to general or unlimited service of process in
any jurisdiction where they are not now so subject.
(g) If the sale of the Designated Securities provided for in an
Underwriting Agreement is not consummated by reason of any failure, refusal or
inability on the part of the Company or ChevronTexaco to perform any agreement
on its part to be performed (except for any failure so to perform on the part of
the Company or ChevronTexaco engendered by a failure, refusal or inability on
the part of the Underwriters or any Representatives to perform any agreement on
their part to be performed) or the failure of any condition set forth in Section
6, the Company or ChevronTexaco will reimburse the several Underwriters who are
named in such Underwriting Agreement for all reasonable out-of-pocket
disbursements incurred by the Underwriters in connection with their
investigation, marketing and preparing to market the Designated Securities, and
upon such reimbursement the Company and ChevronTexaco shall have no further
liability to the Underwriters except as provided in Section 7.
(h) During the period beginning on the date of this Agreement and
terminating on the earlier of (i) the Closing Date or (ii) the date of notice to
the Company by the Underwriters or the Representatives, as the case may be, of
the termination of trading restrictions, if any, with respect to the Designated
Securities imposed by any Agreement among Underwriters, neither the Company nor
ChevronTexaco will offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company substantially similar to the Designated
Securities covered by this Agreement, without the prior written consent of such
Underwriters or Representatives.
SECTION 6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Designated Securities shall be
subject to the accuracy of the representations on the part of the Company and
ChevronTexaco contained herein as of the date hereof and the Closing Date, to
the performance by the Company and ChevronTexaco of their obligations hereunder
and to the following additional conditions:
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Underwriting Agreement
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(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted and be pending or threatened
as of the Closing Date;
(b) Pillsbury Winthrop LLP, counsel for the Company and
ChevronTexaco, shall have furnished to the Underwriters or the
Representatives, as the case may be, their opinion, dated the Closing
Date, substantially in the form attached hereto as Exhibit A;
(c) The Underwriters or the Representatives, as the case may be,
shall have received from counsel for the Underwriters such opinion or
opinions, dated the Closing Date, with respect to such matters as such
Underwriters or Representatives may reasonably require;
(d) ChevronTexaco shall have furnished to the Underwriters or
the Representatives, as the case may be, a certificate, dated the
Closing Date, of ChevronTexaco, signed by one or more officers of
ChevronTexaco, to the effect that the signer of such certificate has
carefully examined the Registration Statement, the Prospectus and this
Agreement and that:
(1) The representations and warranties of ChevronTexaco in
this Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the
Closing Date, and ChevronTexaco has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(2) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted and are pending or, to his or
her knowledge, threatened as of such date; and
(3) Since the date of the most recent financial statements
included in the Prospectus, there has been no material adverse
change in the condition (financial or otherwise) of ChevronTexaco
and its consolidated subsidiaries, taken as a whole, nor any
material increase in the debt of ChevronTexaco Corporation and
its consolidated subsidiaries, except as set forth in or
contemplated by the Prospectus or as described in the
certificate.
(e) The Company shall have furnished to the Underwriters or the
Representatives, as the case may be, a certificate, dated the Closing
Date, of the Company, signed by one or more officers of the Company,
to the effect that the signer of such certificate has carefully
examined the Registration Statement, the Prospectus and this Agreement
and that:
(1) The representations of the Company in this Agreement
are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date,
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 Closing Date; and
(2) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted and are pending or, to his or
her knowledge, threatened as of such date.
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(f) The Underwriters or the Representatives, as the case may be,
shall have received from PricewaterhouseCoopers LLP a letter, dated
the Closing Date, which letter shall be in form as may be agreed upon
among such Underwriters or Representatives, ChevronTexaco and
PricewaterhouseCoopers LLP, and shall cover such matters as may be
reasonably requested by such Underwriters or Representatives.
(g) Prior to the Closing Date, the Company and ChevronTexaco
shall have furnished to the Underwriters or the Representatives, as
the case may be, such further information, certificates and documents
as they may reasonably request.
(h) Subsequent to the date hereof, there shall not have occurred
any change, or any development involving a prospective change, in or
affecting the business or properties of ChevronTexaco and its
subsidiaries considered as a whole which the Underwriters or the
Representatives, as the case may be, conclude, in their judgment,
after consultation with ChevronTexaco, materially impairs the
investment quality of the Designated Securities so as to make it
impractical or inadvisable to proceed with the public offering or the
delivery of the Designated Securities as contemplated by the
Prospectus.
SECTION 7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and ChevronTexaco agree to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, 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 or the Prospectus, or in
any amendment thereof or supplement thereto relating to the Designated
Securities, 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 not misleading, and agree to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them,
as so incurred, in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company and
ChevronTexaco will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with information furnished in writing
to the Company or ChevronTexaco by or on behalf of any Underwriter through the
Underwriters or the Representatives, as the case may be, for use in connection
with the preparation thereof. This indemnity agreement will be in addition to
any liability which the Company or ChevronTexaco may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company and ChevronTexaco, each of their directors, each of their officers
who signs the Registration Statement, and each person who controls the Company
or ChevronTexaco within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company and ChevronTexaco to
each Underwriter, but only with reference to information furnished in writing to
the Company or ChevronTexaco by or on behalf of such Underwriter directly or
through the Underwriters or the Representatives, as the case may be, for use in
the preparation of the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
7 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 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
otherwise than under this Section 7. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement
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Underwriting Agreement
Standard Provisions
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 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 7 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, approved by the representatives representing the
indemnified parties 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) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7 is due
in accordance with its terms but is for any reason held by a court to be
unavailable from the Company, ChevronTexaco or the Underwriters on grounds of
policy or otherwise, the Company, ChevronTexaco and the Underwriters shall
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) to which the Company, ChevronTexaco or one or more of the
Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount appearing on the cover page of the Prospectus bears to the public
offering price appearing thereon and ChevronTexaco and the Company are
responsible for the balance; provided that (y) in no case shall any Underwriter
(except as may be provided in any agreement among underwriters relating to the
offering of the Designated Securities) be responsible for any amount in excess
of the underwriting discount applicable to the Designated Securities purchased
by such Underwriter hereunder 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. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act shall have
the same rights to contribution as such Underwriter, and each person who
controls the Company or ChevronTexaco within the meaning of either the Act or
the Exchange Act, each officer of the Company or ChevronTexaco who shall have
signed the Registration Statement and each director of the Company or
ChevronTexaco shall have the same rights to contribution as the Company and
ChevronTexaco, subject in each case to clause (y) of this paragraph (d). 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 the omission to so notify in writing such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (d).
SECTION 8. TERMINATION. This Agreement shall be subject to termination
in the absolute discretion of the Underwriters or the Representatives, as the
case may be, by written notice given to the Company and ChevronTexaco prior to
delivery of and payment for the Designated Securities, if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iii) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the
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Xxxxxx Xxxxxx is such as to make it, in the reasonable judgment of such
Underwriters or Representatives, impracticable to market the Designated
Securities.
SECTION 9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, indemnities and other statements of the Company and
ChevronTexaco, or their officers and of the Underwriters and/or any
Representatives 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
any Underwriter, the Company, ChevronTexaco, or any of the officers, directors
or controlling persons referred to in Section 7 hereof, and will survive
delivery of and payment for the Securities. The provisions of Sections 5(e) and
7 hereof shall survive the termination or cancellation of this Agreement.
SECTION 10. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters
shall fail to purchase and pay for any Designated Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Designated Securities set forth opposite their names in the appropriate
schedule of the Underwriting Agreement bears to the aggregate amount of
Designated Securities set forth opposite the names of all the remaining
Underwriters) the Designated Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate amount of Designated Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the amount of Designated Securities set forth in the appropriate schedule of the
Underwriting Agreement, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Designated Securities, and if such nondefaulting Underwriters do not purchase
all the Designated Securities, this Agreement will terminate without liability
to any nondefaulting Underwriter, the Company or ChevronTexaco. In the event of
a default by any Underwriter as set forth in this Section 10, the Closing Date
shall be postponed for such period, not exceeding seven days, as the
Underwriters or the Representatives, as the case may be, shall determine in
order that the required changes in the Registration Statement and the Prospectus
or in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company or ChevronTexaco and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
SECTION 11. 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 7 hereof,
and no other person will have any right or obligation hereunder.
SECTION 12. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
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Underwriting Agreement
Standard Provisions
EXHIBIT A
[FORM OF PILLSBURY WINTHROP LLP OPINION]
[Date]
Underwriter[s]
Gentlemen and Mesdames:
We have acted as counsel to ChevronTexaco Corporation, a Delaware
corporation ("ChevronTexaco"), and Chevron Capital U.S.A. Inc., a Delaware
corporation (the "Company") in connection with your purchase from the Company of
$ ,000,000 in aggregate principal amount of its Guaranteed [Securities] Due
(the "Securities"). Such purchase is made pursuant to the Underwriting
Agreement dated (the "Underwriting Agreement") among the Company,
ChevronTexaco and [you, the Underwriter[s]] [the underwriters named therein, for
whom you are acting as representative[s]]. The Securities are being issued under
an Indenture dated as of (the "Indenture") among the Company,
ChevronTexaco and , as trustee (the "Trustee"). This opinion is
furnished pursuant to Section 6(b) of the Underwriting Agreement. Terms defined
in the Indenture have the same meanings when used in this opinion.
We have examined executed copies of the Indenture, the Securities, the
Underwriting Agreement, the Registration Statement (as hereinafter defined) and
we have also examined the Prospectus (as hereinafter defined). We have also
examined such other documents and certificates of public officials and
representatives of the Company and ChevronTexaco as we have deemed necessary as
a basis for the opinions expressed herein. As to questions of fact material to
such opinions, we have, when relevant facts were not independently established,
relied upon certificates of officers or authorized representatives of the
Company and ChevronTexaco and the public filings of ChevronTexaco.
We have assumed the genuineness of all signatures and documents
submitted to us as originals, that all copies submitted to us conform to the
originals, the legal capacity of all natural persons, and as to documents
executed by entities other than ChevronTexaco or the Company, that each of such
entities has the power to enter into and perform its respective obligations
thereunder, and that such documents have been duly authorized, executed and
delivered by, and are binding upon and enforceable against, each of such
entities.
We express no opinion as to the laws of any jurisdiction other than
California, New York, the Delaware General Corporation Law and the Federal laws
of the United States of America.
Based upon the foregoing and subject to the qualifications set
forth below, it is our opinion that:
1. ChevronTexaco is validly existing and in good standing
under the laws of the State of Delaware and is duly qualified and in good
standing to do business in each other state in which its ownership
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or leasing of properties requires such qualification and in which a consequence
of the failure to be so qualified would be materially adverse to the business or
financial condition of ChevronTexaco and its subsidiaries taken as a whole and
possesses the requisite corporate power and authority to own its properties and
conduct its business consistent with any description thereof in the prospectus
dated and the prospectus supplement dated , filed with
the Securities and Exchange Commission (the "Commission") pursuant to Rule
424(b)(2) of Regulation C under the Securities Act of 1933, as amended (the
"Act") (the prospectus and the prospectus supplement, including the documents
incorporated by reference therein, are herein collectively referred to as the
"Prospectus").
2. The Company is validly existing and in good standing under the
laws of the State of Delaware.
3. The Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended.
4. The Indenture has been duly authorized, executed and delivered by
ChevronTexaco. The Indenture has been duly executed and delivered by the
Company. The Indenture constitutes the valid and binding obligation of
ChevronTexaco and the Company, enforceable against each in accordance with its
terms.
5. The Securities have been duly authorized, executed and delivered
by the Company and constitute valid and binding obligations of the Company,
enforceable in accordance with their respective terms.
6. The Securities will be entitled to the benefits of the Indenture,
including the Guarantee set forth in Article Four of the Indenture (the
"Guarantee"), and such Guarantee constitutes the valid and binding obligation of
ChevronTexaco, enforceable in accordance with its terms.
7. The Underwriting Agreement has been duly authorized, executed and
delivered by ChevronTexaco. The Underwriting Agreement has been duly executed
and delivered by the Company.
8. The Registration Statement on Form S-3 (File No. )
filed by ChevronTexaco and the Company with the Commission on under
Rule 415 of the Act (such Registration Statement including the exhibits thereto
and the documents incorporated by reference therein being herein collectively
referred to as the "Registration Statement") has become effective under the Act,
and, to the best of our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the Act, and, except
as may be otherwise indicated in the Prospectus or required by the blue sky or
securities laws of jurisdictions in which the Securities are offered or sold, no
further authorization, consent, approval of or filing with any Federal or state
governmental or regulatory body is required to be obtained by ChevronTexaco or
the Company in connection with the execution, delivery and performance of the
terms of the Underwriting Agreement, the Indenture or the Securities or the
offer and sale of the Securities as described in the Prospectus, and the
execution, delivery and performance of the terms of the Underwriting Agreement,
the Indenture and the Securities by ChevronTexaco or the Company will not
contravene any provision of the Restated Certificate of Incorporation, as
amended, or By-Laws of ChevronTexaco, the charter documents of the Company, any
Federal law or regulation or, to the best of our knowledge, any applicable state
law or any material agreement or instrument binding upon ChevronTexaco.
9. The Registration Statement and the Prospectus comply as to form
in all material respects with the requirements of the Act and the rules and
regulations of the Commission thereunder; each document filed by ChevronTexaco
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Prospectus complied as to form in all material
respects when so filed with the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder; the statements in the Prospectus
with respect to the terms of the Indenture and the Securities fairly summarize
the terms of such instruments and to the best of our knowledge there are no
other agreements or instruments required to be described or referred to in the
Registration Statement which have not been
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described or referred to therein; and while we have not ourselves checked the
accuracy or completeness of, or otherwise verified the information furnished in
the Registration Statement, we have considered the information required to be
furnished therein and have generally reviewed and had discussions with certain
officers and employees of ChevronTexaco and the Company concerning the
information so furnished, whether or not subject to our checking and
verification, and on the basis of such consideration, review and discussions,
but without independent checking or verification, we have no reason to believe
that the Registration Statement or the Prospectus, as of ,
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, in the light of the circumstances in which they were made, not
misleading or that the Registration Statement or the Prospectus, as of ,
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, in the light of the circumstances in which they were made, not
misleading; it being understood that with respect to the matters covered by this
paragraph 9, we express no opinion as to the financial statements or other
financial or numerical data contained in the Registration Statement or the
Prospectus.
The opinions set forth in the foregoing are subject to the following
qualifications:
(a) Our opinions in paragraphs 4, 5 and 6 are subject to and limited
by: (i) the effect of applicable bankruptcy, insolvency, fraudulent conveyance
transfer, reorganization, receivership, conservatorship, arrangement, moratorium
or other laws affecting or relating to the rights of creditors generally; (ii)
the rules governing the availability of specific performance, injunctive relief
or other equitable remedies and general principles of equity, regardless of
whether considered in a proceeding in equity or at law; (iii) requirements of
reasonableness, good faith and fair dealing and the effect of court decisions
invoking statutes or principles of equity, which have held that certain
covenants and provisions of agreements are unenforceable where the breach of
such covenants or provisions imposes restrictions or burdens upon a borrower,
and it cannot be demonstrated that the enforcement of such restrictions or
burdens is necessary for the protection of the creditor, or which have held that
the creditor's enforcement of such covenants or provisions under the
circumstances would have violated the creditor's covenants of good faith and
fair dealing implied under California law, and (iv) the effect of California
statutes and rules of law which cannot be waived prospectively by a borrower.
With respect to the Guarantee, we note that certain California statutes and
cases provide that a surety may be exonerated if the creditor alters the
original obligation of the principal without the surety's consent, elects
remedies for default that may impair the surety's subrogation rights against the
principal, or otherwise takes action which materially prejudices the surety,
without notification of the surety and opportunity on the part of the surety to
cure, unless such rights of the surety are validly waived. California courts
have generally upheld the waivers of such rights as are contained in the
Guarantee under California law; however, we express no opinion with respect to
the effect under California law (other than California choice of law rules) of
any modification of the obligations of the Company which materially increases
such obligations, or any election of remedies by the Trustee or the holders of
the Securities following the occurrence of a default, or any other action by the
Trustee or the holders of the Securities which materially prejudices
ChevronTexaco, as guarantor, if such action occurs without notice and
opportunity to cure being granted to ChevronTexaco, as guarantor. However, in
our opinion (x) acceleration of the maturity of the Securities would be
available if an Event of Default occurs as a result of non-payment by
ChevronTexaco of principal of or interest or any premium on the Securities or as
a result of a material breach by ChevronTexaco of a covenant contained in the
Indenture, (y) failure to enforce any such covenant will not render the
Indenture or the Guarantee invalid as a whole and (z) there exists in the
Indenture or pursuant to applicable law legally adequate remedies for a
realization of the principal benefits intended to be provided by the Indenture
or the Guarantee. Notwithstanding the foregoing, as set forth in our opinion in
paragraph 4 above, the waivers and consents in the Guarantee are enforceable
under New York law. While there is no decision of the California Supreme Court
directly on point, it is our opinion that the provisions of Section 14.06 of the
Indenture selecting New York law as the governing law would be honored by a
California court applying California choice of law principles.
(b) Whenever a statement herein is qualified by "known to us", "to
our knowledge" or similar phrase, it indicates that in the course of our
representation of ChevronTexaco and the Company no information that would give
us current actual knowledge of the inaccuracy of such statement has come to the
attention of the attorneys in this firm who have rendered legal services in
connection with this transaction,
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including the principal partners of this firm who are familiar with matters
relating to ChevronTexaco. We have not made any independent investigation to
determine the accuracy of such statement, except as expressly described herein.
No inference as to our knowledge of any matters bearing on the accuracy of such
statement should be drawn from the fact of our representation of ChevronTexaco
in other matters in which such attorneys are not involved.
(c) We have assumed the execution and delivery of, and the
performance of ChevronTexaco's obligations under, the Guarantee, do not and will
not (i) require any authorization or approval by a State governmental body,
commission or agency under the laws of any State (except that we make no
assumption as to Federal law, the laws of the States of New York and California
and the Delaware General Corporation Law) or (ii) violate or conflict with,
result in a breach of, or constitute a default under (A) any authorizations or
approvals by a State governmental body, commission or agency that may be
applicable to ChevronTexaco or its properties under the laws of any State other
than the laws of the States of New York and California and the Delaware General
Corporation Law; (B) any order, decision, judgment or decree that may be
applicable to ChevronTexaco or the Company or any of its properties or (C) any
law (except that we make no assumption as to Federal law, the laws of the States
of New York and California and the Delaware General Corporation Law). Subject to
the same qualifications as are contained in paragraph (a) of this opinion, we
have also assumed that the Guarantee constitutes the valid, legally binding and
enforceable agreement of ChevronTexaco under all applicable law (except that we
make no assumption as to Federal law, the laws of the States of New York and
California and the Delaware General Corporation Law).
(d) Our opinions in paragraphs 4 and 6 above with respect to the
Guarantee are limited to the laws which, in our experience, are applicable to
guarantees.
This opinion is rendered by us as counsel for ChevronTexaco and the
Company solely for your benefit in connection with the transaction referred to
herein and may not be relied upon by you in connection with any other
transaction and may not be relied upon by any other person without our prior
written consent.
Very truly yours,
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