EXHIBIT 1.1
$500,000,000
CHEVRON XXXXXXXX CHEMICAL COMPANY LLC
CHEVRON XXXXXXXX CHEMICAL COMPANY LP
5 3/8% NOTES DUE 2007
PURCHASE AGREEMENT
June 18, 2002
June 18, 2002
Barclays Capital Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
Chevron Xxxxxxxx Chemical Company LLC, a Delaware limited liability
company (the "LLC") and Chevron Xxxxxxxx Chemical Company LP, 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 5 3/8%
Notes due 2007 (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 or incorporating by reference a
description of the terms of the Securities, the terms of the offering and a
description of the Company. As used herein, the term "Memorandum" shall include
in each case the documents incorporated by reference therein. The terms
"SUPPLEMENT", "AMENDMENT" and "AMEND" as used herein with respect to a
Memorandum shall include all documents deemed to be incorporated by reference
in the Preliminary Memorandum or Final Memorandum that are filed subsequent to
the date of such Memorandum with the Securities and Exchange Commission (the
"COMMISSION") pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT").
1
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 June 21, 2002
(the "REGISTRATION RIGHTS AGREEMENT"), between the Company and Barclays Capital
Inc. and Xxxxxx Xxxxxxx & Co. Incorporated (together, the "MANAGERS").
1. REPRESENTATION AND WARRANTIES. The Company represents and warrants
to, and agrees with, you that:
(a) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in either Memorandum
compiled or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder and (ii) 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
2
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 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
3
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 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
4
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.
(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 terms 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
5
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 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 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 98.91% 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, and for expenses
to be paid by the Initial Purchasers pursuant to Section 6(e), shall be made to
the Company at such bank and accounts 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 June 21, 2002, or at such other time on the
same or such other date, not later than June 28, 2002, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as
the "CLOSING DATE."
6
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:
(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 the Closing Date and
that the Company has complied with all the agreements and satisfied all
of the conditions on its part to be performed or satisfied hereunder on
or before the Closing Date.
7
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 on opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, 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 Xxxx Xxxxx, Esquire, Corporate Counsel of the Company,
dated the Closing Date, to the effect set forth in Exhibit B.
(e) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxx Xxxx & Xxxxxxxx, 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, LLP and
PricewaterhouseCoopers, LLP, 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 such proposed amendment or supplement to which you reasonably
object.
8
(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 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) 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
9
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 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 expect 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. It is agreed that the Initial Purchasers
shall reimburse the Company for its expenses incident to the Company's
performance of its obligations under this Agreement in an amount not to
exceed $225,000.
(f) 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.
(g) 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.
(h) 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.
10
(i) 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.
(j) 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.
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
11
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;
(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 (A) has 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)
has complied and will comply with all applicable provisions of
the Financial Services and Markets Act 2000 (the "FSMA") with
respect of anything done by it in relation to the Securities in,
from or otherwise involving the United Kingdom; and (C) will only
communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning
of section 21 of the FSMA) received by it in connection with the
issue or sale of the Securities in circumstances in which section
21(1) of the FSMA does not apply to the Company;
12
(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
(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,
13
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; PROVIDED, HOWEVER, that the foregoing
indemnity agreement with respect to the Preliminary Memorandum shall not
inure to the benefit of any Initial Purchaser from whom the person
asserting any such losses, claims, damages or liabilities purchased
Securities, or any person controlling such Initial Purchaser, if a copy
of the Final Memorandum (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Initial Purchaser to such person,
if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Securities to such person, and if the
Final Memorandum (as so amended or supplemented) would have cured the
defect giving rise to such losses, claims, damages or liabilities, unless
such failure is the result of noncompliance by the Company with
Section 6(a) hereof.
(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
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)
14
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.
(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
15
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, beat 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 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)
16
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, Xxxxxxxx
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.
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
17
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 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.
18
Very truly yours,
CHEVRON XXXXXXXX CHEMICAL
COMPANY LLC
By: /s/ Xxx X. XxXxx
-------------------------------------
Name: Xxx X. XxXxx
Title: Vice President and Treasurer
CHEVRON XXXXXXXX CHEMICAL
COMPANY LP
By: /s/ Xxx X. XxXxx
-------------------------------------
Name: Xxx X. XxXxx
Title: Vice President and Treasurer
Accepted as of the date hereof
Barclays Capital Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Acting severally on behalf of themselves and
the several Initial Purchasers named in
Schedule I hereto.
Barclays Capital Inc.
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Director
Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxxxx X. Xxxxxxxxxx XXX
----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx III
Title: Executive Director
19
SCHEDULE I
PRINCIPAL AMOUNT OF
INITIAL PURCHASER SECURITIES TO BE PURCHASED
--------------------------------------------- --------------------------
Barclays Capital Inc. ....................... $ 193,750,000
Xxxxxx Xxxxxxx & Co. Incorporated ........... 193,750,000
The Royal Bank of Scotland plc. ............. 75,000,000
Tokyo-Mitsubishi International plc .......... 37,500,000
Total: ................................ $ 500,000,000
=================
1
EXHIBIT A
OPINION OF XXXXXXX XXXXXXX & XXXXXXXX
Xxxx 21, 2002
BARCLAYS CAPITAL INC.
XXXXXX XXXXXXX & CO. INCORPORATED
THE ROYAL BANK OF SCOTLAND PLC
TOKYO-MITSUBISHI INTERNATIONAL PLC
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
We have acted as counsel to Chevron Xxxxxxxx Chemical Company LLC, a
Delaware Limited Liability Company (the "LLC"), and Chevron Xxxxxxxx Chemical
Company LP, a Delaware Limited Partnership, (the "LP" and, together with Chevron
Xxxxxxxx Chemical Company LLC, the "Company") in connection with the purchase by
you of $500,000,000 aggregate principal amount of 5 3/8 % Notes due 2007 (the
"Notes") of the Company, pursuant to the Purchase Agreement, dated June 18, 2002
(the "Purchase Agreement") among Barclays Capital Inc., Xxxxxx Xxxxxxx & Co.
Incorporated, The Royal Bank of Scotland plc and Tokyo-Mitsubishi International
plc (together, the "Initial Purchasers") and the Company.
We have examined the Offering Memorandum, dated June 18, 2002 relating to
the sale of the Notes (the "Offering Memorandum"), which incorporates by
reference certain section (the "Exchange Act Documents") of the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 2001 (the "Form
10-K") and the Company's Current Report on Form 10-Q for the quarter ended March
31, 2002 (the "Form 10-Q"), each as filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"); the global Notes; the Indenture, dated as
of March 19, 2001 (the "Indenture") between the Company and The Bank of
New
York, as Trustee (the "Trustee"), relating to the Notes; the Purchase Agreement;
and the
Registration Rights Agreement, dated as of June 21, 2002 (the
"Registration Rights Agreement") among the Company and the Initial Purchasers.
In addition, we have examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing, and upon originals, or duplicates or
certified or conformed copies of such corporate
1
records, agreements, documents and other instruments and such certificates or
comparable documents of public officials and of officers and representatives of
the Company, and have made such other investigations, as we have deemed relevant
and necessary in connection with the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as duplicates or certified or conformed copies, and
the authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that:
1. The LLC has been duly formed and is validly existing and
in good standing as a limited liability company under the laws of the
State of Delaware and has full corporate power and authority to own its
properties and to conduct its business as described in the Offering
Memorandum.
2. The LP has been duly formed and is validly existing and in
good standing as a limited partnership under the laws of the State of
Delaware and has full partnership power and authority to own its
properties and to conduct its business as described in the Offering
Memorandum.
3. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming that the Indenture is the valid
and legally binding obligation of the Trustee, the Indenture constitutes
a valid and legally binding obligation of the Company enforceable against
the Company in accordance with its terms.
4. The Notes have been duly authorized by the Company and
when executed and issued by the Company and assuming due authorization,
execution and delivery thereof by the Trustee, and upon payment and
delivery in accordance with the Purchase Agreement, the Notes will
constitute valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms and entitled
to the benefits of the Indenture.
5. The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and, assuming that the
Registration Rights Agreement is the valid and legally binding obligation
of the Initial Purchasers, the Registration Rights Agreement
2
constitutes a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms.
6. The Purchase Agreement has been duly authorized, executed
and delivered by the Company.
7. The statements made in the Offering Memorandum under the
captions "Description of Notes" and "Transfer Restrictions," insofar as
they purport to constitute summaries of certain terms of documents
referred to therein, constitute accurate summaries of the terms of such
documents in all material respects.
8. The statements made in the Offering Memorandum under the
caption "Certain U.S. Federal Income Tax Consequences to Non-U.S.
Persons," insofar as they purport to constitute summaries of matters of
United States federal tax law and regulations or legal conclusions with
respect thereto, constitute accurate summaries of the terms of such
documents in all material respects.
9. The issue and sale of the Notes by the Company and the
compliance by the Company with all of the provisions of the Purchase
Agreement will not breach or result in a default under the Contribution
Agreement dated May 23, 2000 among Xxxxxxxx Petroleum Company, Chevron
Corporation and Chevron Xxxxxxxx Chemical Company LLC, the Company's $700
million Amended and Restated 364-Day Credit Agreement dated as of July 3,
2000 among the Company and the lenders parties thereto or the Company's
$900 million Three-Year Credit Agreement dated as of July 3, 2000 among
the Company and the lenders parties thereto, nor will such action violate
the Certificate of Formation or Limited Liability Company Agreement, in
the case of the LLC, or the Certificate of Partnership or Partnership
Agreement, in the case of the LP, or any Federal or New York statue or
the Delaware Limited Liability Company Act, in the case of the LLC, or
the Delaware Revised Uniform Limited Partnership Act, in the case of LP,
or any rule or regulation that has been issued pursuant to any Federal or
New York statute or the Delaware Limited Liability Company Act, in the
case of the LLC, or the Delaware Revised Uniform Limited Partnership Act,
in the case of the LP, or any order know to us issued pursuant to any
Federal or New York statute or the Delaware Limited Liability Company
Act, in the case of the LLC, or the Delaware Revised Uniform Limited
Partnership Act, in the case of the LP, by any court or governmental
agency or body or court having jurisdiction over the Company.
3
10. No consent, approval, authorization or order of, or
qualification with, any Federal or New York State governmental body or
agency or any Delaware governmental body or agency acting pursuant to the
Delaware Limited Liability Company Law, in the case of the LLC, or
Delaware Revised Uniform Limited Partnership Act, in the case of the LP,
is required for the issue and sale of the Notes by the Company and the
compliance by the Company with all of the provisions of the Purchase
Agreement, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the purchase, offer and
sale of the Securities by the Initial Purchasers.
11. To our 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 Offering Memorandum.
12. Neither the LLC nor the LP is, and after giving effect to
the offering and sale of the Notes and the application of the proceeds
thereof as described in the Final Memorandum will be, an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended.
13. No registration under the Securities Act of 1933, as
amended, of the Notes and no qualification of the Indenture under the
Trust Indenture Act is required for the offer and sale of the Notes by
the Company to the Initial Purchasers or the reoffer and resale of the
Notes by the Initial Purchasers to the initial purchasers therefrom
solely in the manner contemplated by the Offering Memorandum, the
Purchase Agreement and the Indenture.
Our opinions set forth in paragraphs 3,4 and 5 above are subject to (i)
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, (ii) general equitable principles (whether considered in a proceeding
in equity or at law) and (iii) an implied covenant of good faith and fair
dealing. Our opinion in paragraph 5 with respect to the Registration Rights
Agreement is further limited by considerations of public policy.
Our opinion set forth in paragraph 8 above is based upon the provisions
of the Internal Revenue Code of 1986, as amended, on the regulations promulgated
thereunder and on published rulings and judicial decisions now in effect, all
of which are subject to change or different interpretations.
4
We express no opinion as to any provisions of the Indenture, Notes or
Registration Rights Agreement that requires or relates to payment of any
interest at a rate or in an amount which a court would determine in the
circumstances under applicable law to be commercially unreasonable or a penalty
or a forfeiture.
We have not independently verified the accuracy, completeness or fairness
of the statements made or included in the Offering Memorandum and take no
responsibility therefor, except as and to the extent set forth in paragraphs 7
and 8 above. In the course of the preparation by the Company of the Offering
Memorandum, we participated in conferences with certain officers and employees
of the Company, with representatives of PricewaterhouseCoopers LLP, independent
accountants for the Company and for Chevron U.S.A., with representatives of
Ernst & Young LLP, independent accountants for the Company and for Xxxxxxxx
Petroleum Company, in connection with the preparation of the Offering
Memorandum, and with counsel to the Company. We did not prepare the Exchange Act
Documents; however, we reviewed the Form 10-K prior to its filing with the
Commission. Based upon our examination of the Offering Memorandum and the
Exchange Act Documents, our investigations made in connection with the
preparation of the Offering Memorandum (excluding the Exchange Act Documents)
and our participation in the conferences referred to above, we have no reason
to believe that the Offering Memorandum contained at its issue date or
contains as of the date hereof any untrue statement of a material fact or
omitted to state at its issue date or omits to state as of the date hereof any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except that we
express no belief with respect to the financial statements or other financial
data contained or incorporated by reference in the Offering Memorandum.
We are members of the Bar of the State of New York and we do not express
any opinion herein concerning any law other than the law of the State of New
York, the federal law of the United States the Delaware Limited Liability
Company Act and the Delaware Revised Uniform Limited Partnership Act.
This opinion letter is rendered to you in connection with the above
described transactions. This opinion letter may not be relied upon by you for
any other purpose, or relied upon by, or furnished to, any other person, firm or
corporation without our prior written constant.
Very truly yours,
XXXXXXX XXXXXXX & XXXXXXXX
5
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 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
1
obligations under the Purchase Agreement, the Indenture, the Registration
Rights Agreement or the Securities or to consummate the transactions
contemplated by the Final Memorandum.
2
EXHIBIT C
OPINION OF XXXXX XXXX & XXXXXXXX
Barclays Capital Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
The Royal Bank Of Scotland plc
Tokyo-Mitsubishi International plc
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as counsel for you and the other several Initial Purchasers
(the "Initial Purchasers") named in Schedule I to the Purchase Agreement dated
June 18, 2002 (the "Purchase Agreement") with Chevron Xxxxxxxx Chemical Company
LLC, a Delaware limited liability company (the "LLC") and Chevron Xxxxxxxx
Chemical Company LP, a Delaware limited partnership (the "LP" and together with
the LLC, the "Company"), under which you and such other Initial Purchasers have
severally agreed to purchase from the Company $500,000,000 aggregate principal
amount of the Company's 5 3/8% Notes due 2007 (the "Notes"), to be issued under
an Indenture dated as of March 19, 2001 (the "Indenture") between the Company
and The Bank of the New York, as Trustee (the "Trustee"). This opinion is
delivered to you pursuant to Section 5(e) of the Purchase Agreement.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments as we have deemed necessary or advisable
for the purpose of rendering this opinion.
We have also participated in the preparation of the offering memorandum
dated June 18, 2002 (the "Offering Memorandum") relating to the offering of the
Notes. All terms not otherwise defined herein shall have the meanings given to
those terms in the Purchase Agreement.
Based upon the foregoing, we are of the opinion that:
(i) the Purchase Agreement has been duly authorized, executed
and delivered by the Company;
(ii) the Notes have been duly authorized by the Company and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered against payment therefor in accordance with the terms of
1
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 dated June 21, 2002 (the "Registration Rights
Agreement") between the Company and the Initial Purchasers;
(iii) the Indenture 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;
(iv) 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, except as rights to indemnity and
contribution thereunder may be limited under applicable law; and
(v) subject to compliance by the Initial Purchasers with their
representations and warranties set forth in Section 7 of the Purchase Agreement
and by the Company with its representations, warranties and agreements set forth
in Sections 1(n), 1(o), 1(r), 6(g), 6(h), 6(i) and 6(j) of the Purchase
Agreement, it is not necessary in connection with the offer, sale and delivery
of the Notes to the Initial Purchasers in the manner contemplated by the
Purchase Agreement and the Offering Memorandum or in connection with the initial
resale of the Notes by the Initial Purchasers in accordance with Section 7 of
the Purchase Agreement to register the Notes under the Securities Act of 1933,
as amended, or to qualify the Indenture under the Trust Indenture Act of 1939,
as amended, it being understood that no opinion is expressed as to any
subsequent resale of the Notes.
In our opinion, the statements contained in the Offering Memorandum under
the headings "Description of Notes", "Plan of Distribution" and "Transfer
Restrictions," insofar as such statements constitute summaries of the legal
matters and documents referred to therein, fairly summarize the matters referred
to therein.
We have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to other matters in
the Offering Memorandum, but we have generally reviewed and discussed with your
representatives and with certain officers and employees of, and counsel and
independent public accountants for, the Company the information furnished,
whether or not subject to our check and verification. On the basis of such
consideration, review and discussion, but without independent check or
verification, except as stated above, we believe that, except for the financial
statements and other financial data contained therein, as to which we are not
called upon to express any belief, the Offering Memorandum as of its date and as
2
of the date hereof did not and does not contain any untrue statement of a
material fact and did not or does not 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.
We have examined the opinions dated June 21, 2002 of Xxxxxxx Xxxxxxx &
Xxxxxxxx, outside counsel for the Company, delivered to you pursuant to the
provisions of Section 5(c) of the Purchase Agreement, and of Xxxx Xxxxx,
Corporate Counsel of the Company, delivered to you pursuant to the provisions of
Section 5(d) of the Purchase Agreement. Such opinion appear on their face to be
substantially responsive to the requirements of the Purchase Agreement.
We have also examined the letters of Xxxxx & Young LLP and
PricewaterhouseCoopers LLP dated June 18, 2002 and June 21, 2002, furnished to
you pursuant to the provisions of Section 5(f) of the Purchase Agreement. We
participated in discussions with representatives of such firms and with your
representatives relating to the forms of such letters, and we believe that such
letters are substantially in the forms agreed.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the federal laws of
the United States of America and the General Corporation Law of the State of
Delaware.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
3
