BP CAPITAL MARKETS P.L.C.
PURCHASE AGREEMENT STANDARD PROVISIONS
(2002-A EDITION)
From time to time, BP Capital Markets p.l.c., incorporated under the
laws of England and Wales (the "Company"), may enter into one or more purchase
agreements that provide for the sale of designated securities to the purchaser
or purchasers named therein (each a "Purchaser"). The standard provisions set
forth herein may be incorporated by reference in any such purchase agreement
(each a "Purchase Agreement"). The Purchase Agreement relating to any particular
sale of Offered Securities, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Unless otherwise defined
herein, terms defined in such Purchase Agreement are used herein as therein
defined.
I.
The Company proposes to issue debt securities (the "Securities") from
time to time pursuant to the provisions of the Indenture among the Company, BP
p.l.c. (the "Guarantor") and JPMorgan Chase Bank, as Trustee, dated as of March
8, 2002. Pursuant to the Indenture, the Guarantor will guarantee payment of the
principal of (and premium, if any) and interest on the Securities. The
Securities may have varying designations, maturities, rates and times of payment
of interest, selling prices and redemption and other terms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to the
Securities and has filed with the Commission, or transmitted to the Commission
for filing (or will promptly after the sale so file) a prospectus supplement
specifically relating to the Offered Securities pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Act"). The term Registration Statement
means the registration statement as amended to the date of the Purchase
Agreement (including information deemed to be a part thereof by reason of Rule
430A(b) under the Act). The term Basic Prospectus means the prospectus included
in the Registration Statement. The term Prospectus means the Basic Prospectus
together with the prospectus supplement specifically relating to the Offered
Securities, as filed with, or transmitted for filing to, the Commission pursuant
to Rule 424. The term preliminary prospectus means a preliminary prospectus
supplement specifically relating to the Offered Securities together with the
Basic Prospectus. As used herein, the terms "Registration Statement", "Basic
Prospectus", "Prospectus" and "preliminary prospectus" shall include in each
case the material, if any, incorporated by reference therein.
Each Purchaser undertakes that (i) in connection with the distribution
of the Offered Securities which have a maturity of one year or more and which
are to be admitted to the Official List of the U.K. Listing Authority, it has
not offered or sold and will not offer or sell any Notes to persons in the
United Kingdom prior to admission of such securities to listing in accordance
with Part VI of the Financial Services and Markets Xxx 0000 (the "FSMA"), 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 or the FSMA; (ii) in connection
with the distribution of Offered Securities which have a maturity of one year or
more and which are not to be admitted to the Official List of the U.K. Listing
Authority, it has not offered or sold and, prior to the date six months after
the date of issuance of the Offered Securities, will not offer or sell any
Offered 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 as 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; (iii) it has complied and will comply
with all applicable provisions of the FSMA with respect to anything done by it
in relation to the Offered Securities in, from or otherwise involving the United
Kingdom; and (iv) it has only communicated or caused to be communicated and 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 any Offered Securities, in circumstances in
which section 21(1) of the FSMA does not apply to the Company or the Guarantor.
II.
If a Purchaser advises the Company and the Guarantor in the Purchase
Agreement that it intends to resell the Offered Securities, the Company and the
Guarantor will provide assistance as hereinafter provided. The terms of any such
resale will be set forth in the Prospectus. The provisions of Articles V, VI,
and VII of this Agreement will apply only to a Purchaser giving advice in
accordance herewith (the "Reselling Purchaser").
III.
Payment for the Offered Securities shall be made by wire transfer or by
certified or official bank check or checks payable to the order of the Company
in immediately available Federal funds or in New York Clearing House funds as
agreed to by the parties and at the time and place set forth in the Purchase
Agreement, upon delivery to the Purchaser of the Offered Securities registered
in such names and in such denominations as the Purchaser shall request in
writing not less than one full business day prior to the date of delivery. The
time and date of such payment and delivery with respect to the Offered
Securities are herein referred to as the Closing Date.
IV.
The obligations of the Purchaser hereunder are subject to the following
conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission; there shall have been no
material adverse change (not in the ordinary course of business) in the
condition of the Guarantor and its subsidiaries taken as a whole from that
set forth in the Registration Statement and the Prospectus; and the
Purchaser shall have received, on the Closing Date, certificates dated the
Closing Date and signed by officers of the Company and the Guarantor or
other duly authorized persons, to the foregoing effect. The officers or
other persons making such certificates may each rely upon the best of their
knowledge as to proceedings pending or threatened.
(b) The Purchaser shall have received on the Closing Date an opinion
of the Group General Counsel of the Guarantor to the Purchaser, dated the
Closing Date, to the effect set forth in Exhibit A hereto.
(c) The Purchaser shall have received on the Closing Date an opinion
of Xxxxxxxx & Xxxxxxxx, United States counsel to the Company and the
Guarantor, as to certain matters of New York law, dated the Closing Date,
to the effect set forth in Exhibit B hereto.
(d) The Purchaser shall have received on the Closing Date an opinion
of counsel for the Purchaser, dated the Closing Date, in form and substance
reasonably satisfactory to the Purchaser.
(e) The Purchaser shall have received on the Closing Date a letter
from the independent auditors of the Guarantor, dated the Closing Date, to
the effect set forth in Exhibit C hereto.
(f) No downgrading shall have occurred in the rating accorded the
Company's debt securities by any "nationally recognized statistical rating
organization", as that term is defined by
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the Commission for purposes of Rule 436(g)(2) under the Act, and no such
organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities.
(g) Prior to the Closing Date, the Company shall have furnished to the
Purchaser such further available information and certificates as the
Purchaser may reasonably request.
V.
In further consideration of the agreements contained herein of any
Reselling Purchaser, the Company and the Guarantor covenant to such Reselling
Purchaser as follows:
(a) To furnish the Reselling Purchaser, without charge, a copy of the
Registration Statement including exhibits and materials, if any,
incorporated by reference therein and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto as the Reselling Purchaser may reasonably request. The terms
"supplement" and "amendment" or "amend" as used in this Agreement shall
include all documents or reports filed or made by the Guarantor with the
Commission subsequent to the date of the Basic Prospectus, pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), which are
deemed to be incorporated by reference in the Prospectus.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish the Reselling
Purchaser a copy of each such proposed amendment or supplement.
(c) If, during such period after the first date of reselling of the
Offered Securities as in the opinion of counsel for the Reselling Purchaser
the Prospectus is required by law to be delivered, any event shall occur as
a result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a subsequent purchaser, not misleading,
or if it is necessary to amend or supplement the Prospectus to comply with
law, forthwith to prepare and furnish, at its own expense, to the Reselling
Purchaser, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a subsequent
purchaser, be misleading or so that the Prospectus will comply with law.
(d) To qualify the Offered Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions in the United States of
America as the Reselling Purchaser shall reasonably request and to pay all
expenses (including fees and disbursements of counsel) in connection with
such qualification and in connection with the determination of the
eligibility of the Offered Securities for investment under the laws of such
jurisdictions in the United States of America as the Reselling Purchaser
may designate.
(e) To make generally available to the Company's and the Guarantor's
security holders, as soon as reasonably practicable, a consolidated earning
statement of the Guarantor and its subsidiaries covering a twelve month
period beginning after the date of this Agreement and ending at the end of
a fiscal quarter which shall satisfy the provisions of Section 11(a) of the
Act (including Rule 158 thereunder).
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(f) During the period beginning on the date of this Agreement and
terminating after the number of days, if any, indicated under "Restriction
on Additional Sales" in the Purchase Agreement, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
substantially similar to the Offered Securities, without the prior written
consent of the Reselling Purchaser.
VI.
The Company and the Guarantor jointly and severally represent and
warrant to each Reselling Purchaser that (i) each document or report, if any,
filed or made or to be filed or made pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied when filed or made or will
comply when so filed or made in all material respects with such Act and the
rules and regulations thereunder, (ii) each part of the Registration Statement
(including the documents and reports incorporated by reference therein) filed
with the Commission pursuant to the Act relating to the Securities, when such
part became effective, did not contain any untrue statement of material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, (iii) each preliminary prospectus, if
any, filed pursuant to Rule 424 under the Act complied when so filed in all
material respects with such Act and the applicable rules and regulations
thereunder, (iv) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material respects
with the Act and the applicable rules and regulations thereunder and (v) the
Registration Statement and the Prospectus do not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that these representations and warranties do not apply to
statements or omissions in the Registration Statement, any preliminary
prospectus or the Prospectus based upon information furnished to the Company or
the Guarantor in writing by any Reselling Purchaser expressly for use therein.
The Company and the Guarantor jointly and severally agree to indemnify
and hold harmless each Reselling Purchaser and each person, if any, who controls
such Reselling Purchaser within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any
preliminary prospectus or the Prospectus (if used within the period set forth in
paragraph (c) of Article V hereof and as amended or supplemented if the Company
or the Guarantor shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information furnished in writing to the Company or the
Guarantor by any Reselling Purchaser expressly for use therein, provided,
however, that the foregoing indemnity with respect to preliminary prospectuses
shall not inure to the benefit of any Reselling Purchaser (or to the benefit of
any person controlling such Reselling Purchaser) from whom the person asserting
any such losses, claims, damages or liabilities purchased the Offered Securities
if a copy of the Prospectus had not been sent or given to such person at or
prior to the written confirmation of the sale of such Offered Securities to such
person and such Prospectus would have cured such deficiency in the preliminary
prospectus.
Each Reselling Purchaser severally agrees to indemnify and hold
harmless the Company and the Guarantor, their directors, their officers who sign
the Registration Statement and any person controlling the Company or the
Guarantor to the same extent as the foregoing indemnity from the Company and the
Guarantor to each Reselling Purchaser, but only with reference to information
relating to such Reselling Purchaser furnished in writing by such Reselling
Purchaser expressly for use in the Registration Statement, any preliminary
prospectus or the Prospectus.
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In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such other person (the
"indemnified party") shall promptly notify the person or persons 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 fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. Such firm shall be designated in
writing by the Reselling Purchaser in the case of parties indemnified pursuant
to the second preceding paragraph and by the Company or the Guarantor in the
case of parties indemnified pursuant to the first preceding paragraph. 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.
If the indemnification provided for in this Article VI is unavailable
to an indemnified party other than as a result of the proviso to the second
paragraph of Article VI or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party 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 and the Guarantor on the one hand and the
Reselling Purchaser on the other from the offering of the Offered Securities or
(ii) if the allocation provided by clause (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 (i) above but also the relative fault of
the Company and the Guarantor on the one hand and of the Reselling Purchaser on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Guarantor
on the one hand and the Reselling Purchaser on the other in connection with the
offering of the Offered Securities shall be deemed to be in the same proportion
as the total net proceeds from the offering of such Offered Securities (before
deducting expenses) received by the Company bear to the total commissions, if
any, received by the Reselling Purchaser in respect thereof. If there are no
commissions allowed or paid by the Company or the Guarantor to the Reselling
Purchaser in respect of the Offered Securities, the relative benefits received
by the Reselling Purchaser in the preceding sentence shall be the difference
between the price received by such Reselling Purchaser upon resale of the
Offered Securities and the price paid for such Offered Securities pursuant to
the Purchase Agreement. The relative fault of the Company and the Guarantor on
the one hand and of the Reselling Purchaser on the other 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 the Guarantor or by the
Reselling Purchaser and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Guarantor and the Reselling Purchaser agree that it
would not be just and equitable if contribution pursuant to this Article VI were
determined by pro rata allocation or by any other method of allocation which
does not take account of the considerations referred to in the immediately
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preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph 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 Article VI, no Reselling
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Offered Securities resold to the public by
such Reselling Purchaser were offered to the public exceeds the amount of any
damages which such Reselling 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Article VI
and the representations and warranties of the Company and the Guarantor in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by any Reselling
Purchaser or on behalf of any Reselling Purchaser or any person controlling any
Reselling Purchaser and (iii) acceptance of and payment for any of the Offered
Securities.
The Guarantor agrees that any legal suit, action or proceeding brought
by any Reselling Purchaser to enforce the indemnity agreements contained in this
Article VI may be instituted in any state or Federal court in the Borough of
Manhattan, Xxx Xxxx xx Xxx Xxxx, Xxx Xxxx, Xxxxxx Xxxxxx of America, waives, to
the extent it may effectively do so, any objection which it may have now or
hereafter to the laying of the venue of any such suit, action or proceeding, and
irrevocably submits to the jurisdiction of any such court in any such suit,
action or proceeding. The Guarantor has designated and appointed BP America Inc.
(or any successor corporation) as the Guarantor's authorized agent to accept and
acknowledge on its behalf service of any and all process which may be served in
any such suit, action or proceeding in any such court and agrees that service of
process upon said agent at its office at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, attention of the General Counsel (or such other address
in the Borough of Manhattan, The City of New York, as the Guarantor may
designate by written notice to you) and written notice of said service to the
Guarantor, mailed or delivered to it, at Xxxxxxxxx Xxxxx, 0 Xxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX, Xxxxxxx, attention of the Company Secretary, shall be deemed in
every respect effective service of process upon the Guarantor in any such suit,
action or proceeding and shall be taken and held to be valid personal service
upon the Guarantor, whether or not the Guarantor shall then be doing, or at any
time shall have done, business within the State of New York, and any such
service of process shall be of the same force and validity as if service were
made upon it according to the laws governing the validity and requirements of
such service in such State, and waives all claim of error by reason of any such
service. Said designation and appointment shall be irrevocable until the
principal of and interest on the Offered Securities and all other sums owing by
the Company or the Guarantor to holders of the Offered Securities in accordance
with the provisions of the Offered Securities and the Indenture have been paid
in full by the Company or the Guarantor in accordance with the provisions
thereof. The Guarantor agrees to take all action as may be necessary to continue
the designation and appointment of BP America Inc. or any successor corporation
in full force and effect so that the Guarantor shall at all times have an agent
for service of process for the above purposes in the Borough of Manhattan, Xxx
Xxxx xx Xxx Xxxx, Xxx Xxxx, Xxxxxx Xxxxxx of America.
VII.
This Agreement shall be subject to termination in the absolute
discretion of any Reselling Purchaser, by notice given to the Company and the
Guarantor, if prior to the Closing Date (i) trading in securities generally or
trading in the Guarantor's securities on the New York Stock Exchange shall have
been suspended or materially limited, (ii) a general moratorium on commercial
banking activities in New
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York shall have been declared by either Federal or New York State authorities or
a material disruption in commercial banking or securities settlement or
clearance services within the United States shall have occurred 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 United
States is such as to make it, in the judgment of such Reselling Purchaser,
impracticable to resell the Offered Securities.
VIII.
If this Agreement shall be terminated by the Purchaser because of any
failure or refusal on the part of the Company or the Guarantor to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company or the Guarantor shall be unable to perform its obligations
under this Agreement, the Company or the Guarantor will reimburse the Purchaser
for all out-of-pocket expenses (including the fees and disbursements of counsel)
reasonably incurred by such Purchaser in connection with the Offered Securities.
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.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
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EXHIBIT A
You shall have received on and as of the Closing Date a favorable
opinion of the Group General Counsel of the Guarantor, or other counsel
reasonably satisfactory to you, to the effect that (and subject to the
qualifications described below) (i) the Guarantor and the Company have been duly
incorporated and are validly existing as companies under the laws of England
and Wales; (ii) the Purchase Agreement, the Indenture, the Guarantees and the
execution thereof have been duly authorized by the Guarantor; the Guarantees
have been duly executed and delivered by the Guarantor and, upon the due
execution, authentication and delivery of the Offered Securities by the Company,
such Guarantees will be valid, binding and enforceable obligations of the
Guarantor; (iii) the Purchase Agreement and the Indenture have been duly
executed and delivered by the Guarantor and the Indenture constitutes a valid,
binding and enforceable obligations of the Guarantor; (iv) the Purchase
Agreement, the Indenture and the execution thereof have been duly authorized by
the Company; the Purchase Agreement and the Indenture have been duly executed
and delivered by the Company and the Indenture constitutes a valid, binding and
enforceable obligation of the Company; (v) the Offered Securities have been duly
authorized and, when executed in accordance with the terms of the Indenture and
authenticated and delivered to and paid for by the Purchaser pursuant to the
Purchase Agreement, will constitute valid and legally binding obligations of the
Company; (vi) the execution and delivery of the Purchase Agreement, the
Indenture and the Guarantees by the Guarantor and the performance of the terms
and provisions thereof do not, and will not, conflict with or result in a breach
of any of the current terms or provisions of any law of England, or of the
Memorandum of Association or the Articles of Association of the Guarantor or any
of the terms or provisions of any indenture, mortgage or any agreement or
instrument known to such counsel by which the Guarantor is bound, except that
such counsel need express no opinion as to compliance or otherwise with the
financial limitations on borrowings or the giving of guarantees by the Guarantor
contained therein; (vii) the execution and delivery of the Purchase Agreement
and the Indenture by the Company and the performance of the terms and provisions
thereof and the issuance of the Offered Securities in accordance with the
Indenture and sale of the Offered Securities by the Company to the Purchaser
pursuant to the Purchase Agreement do not, and will not, conflict with or result
in a breach of any of the current terms or provisions of any law of England, or
of the Memorandum of Association or the Articles of Association of the Company
or any of the terms or provisions of any indenture, mortgage or any agreement or
instrument known to such counsel by which the Company is bound; (viii) no
consent, approval, authorization or order of, or filing with any authority in
the United Kingdom is legally required by either of the Guarantor or the Company
for the execution of the Indenture or the Purchase Agreement, and, in the case
of the Guarantees, by the Guarantor, and the performance of the terms and
provisions thereof or the issuance of the Offered Securities in accordance with
the Indenture and sale of the Offered Securities by the Company to the Purchaser
pursuant to the Purchase Agreement; (ix) the submission to jurisdiction and
consent to service of process contained in the Purchase Agreement and the
Indenture are, under the laws of England, valid and sufficient, if notice is
duly given to the Guarantor or, where appropriate, the Company as provided
therein, to confer personal jurisdiction over the Guarantor or the Company in
respect of any legal suit, action or proceeding brought by any Purchaser to
enforce the indemnity agreements contained in Article VI of the Purchase
Agreement or any legal suit, action or proceeding brought under the Indenture
with respect to the Offered Securities instituted in any State or Federal court
in the Borough of Manhattan, The City of New York, the State of New York, United
States of America, and, under the laws of England currently in force and under
current practice in England as of such date, any final and conclusive judgment
rendered in any such action or proceeding (a "United States judgment") would be
enforced by the English courts without a retrial or re-examination of the
matters thereby adjudicated upon; (x) the Guarantees rank equally and ratably,
without priority by reason of date of issue, currency of payment or otherwise,
with all other unsecured and unsubordinated Debt (as defined in the Indenture)
of the Guarantor outstanding at the date hereof (except on a winding-up, or in a
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receivership, for certain claims which are accorded priority by statute in the
United Kingdom); and (x) such counsel does not believe that the Registration
Statement, as of its effective date, or the Prospectus, as of its date,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading. Such opinion may state that such counsel does not assume
any responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus except for those made
under the caption "Description of Debt Securities and Guarantees" insofar as
they relate to provisions of documents therein described; and that such counsel
does not express any opinion or belief as to the financial statements or other
financial data contained in the Registration Statement and the Prospectus, or as
to the statement of the eligibility of the Trustee under the Indenture.
Such counsel may state that the opinion is subject to the following
qualifications: (i) an English court may refuse to give effect to the provisions
of the indemnity agreements contained in, inter alia, Sections 514 and 607 of
the Indenture in respect of the costs of unsuccessful litigation brought before
an English court or where the court itself has made an order for costs; and (ii)
any certificate or determination of any party to the Purchase Agreement, the
Indenture or, as the case may be, the Guarantees as to any matter provided for
in such deed or document might not be held by an English court to be conclusive
if it could be shown to have an unreasonable or arbitrary basis or in the event
of manifest error.
In giving the opinion, such counsel may state that such counsel has
made no investigation of the laws of any country other than England, and that
such counsel's opinion is confined to matters of English law and to the extent
that such counsel's opinion involves matters governed by the laws of the United
States or the State of New York, that such counsel has relied exclusively on the
opinion of United States counsel to the Company and the Guarantor. Such counsel
further may state that the term "enforceable" as used in such opinion means that
the obligations assumed by the relevant party under the relevant document are a
type which the English courts enforce. It does not mean that those obligations
will necessarily be enforced in all circumstances in accordance with their
terms. In particular:
(a) enforcement may be limited by bankruptcy, insolvency, liquidation,
reorganization and other laws of general application relating to or
affecting the rights of creditors;
(b) enforcement may be limited by general principles of equity-- for
example, equitable remedies may not be available where damages are
considered to be an adequate remedy;
(c) claims may become barred under the Limitation Acts or may be or
become subject to defenses of set-off or counterclaim;
(d) where obligations are to be performed in a jurisdiction outside
England, they may not be enforceable in England to the extent that
performance would be illegal or contrary to public policy under the laws of
that jurisdiction.
In addition such counsel may state that (a) a United States judgment
would not be enforced by the English Courts without a retrial or re-examination
if such judgment was obtained by fraud or in a manner opposed to natural justice
or if the enforcement thereof were contrary to United Kingdom public policy; and
(b) in any proceedings to enforce in an English Court a foreign judgment
(including a United States judgment) it is open to the defendant to raise any
counter-claim which the defendant could have brought if the action had
originally been brought in England unless the subject of the counter-claim was
in issue and decided in the foreign proceedings.
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Finally, such counsel may state that the opinion is addressed to the
Purchaser on the understanding that it may transmit copies thereof to the
Trustee who may rely upon it in connection with the issue and sale of the
Offered Securities as if it had been addressed and transmitted directly to it,
but to no other person and for no other purpose. It may not be quoted or
referred to in any public document or filed with any government agency or other
person without such counsel's consent.
A-3
EXHIBIT B
You shall have received on and as of the Closing Date a favorable
opinion of Xxxxxxxx & Xxxxxxxx, United States counsel to the Company and the
Guarantor, to the effect that (i) assuming that the Indenture has been duly
authorized, executed and delivered by the Company and the Guarantor, the
Indenture constitutes a valid and legally binding obligation of the Company and
the Guarantor enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditor's rights and to general
equity principles; and the Indenture has been duly qualified under the Trust
Indenture Act of 1939 (the "Trust Indenture Act"); (ii) assuming that the
Offered Securities have been duly authorized, the Offered Securities will, when
executed and authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the Purchaser pursuant to the Purchase Agreement,
constitute valid and legally binding obligations of the Company entitled to the
benefits of the Indenture and enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditor's rights and to general equity principles; (iii) assuming that the
Guarantees of the Guarantor endorsed on the Offered Securities have been duly
authorized, executed and delivered by the Guarantor, upon due execution,
authentication and delivery of the Offered Securities, the Guarantees will
constitute valid and legally binding obligations of the Guarantor enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditor's rights and to general equity principles;
(iv) the execution and delivery of the Purchase Agreement by the Company and the
Guarantor, the execution and delivery of the Indenture by the Company and the
Guarantor and the issuance of the Offered Securities in accordance with the
Indenture and the execution of the Guarantees by the Guarantor and the sale of
Offered Securities by the Company to the Purchaser pursuant to the Purchase
Agreement do not violate any Federal law of the United States or law of the
State of New York, except that such counsel may state that for purposes of this
opinion such counsel expresses no opinion with respect to Federal or state
securities laws, other antifraud laws, fraudulent transfer laws, the Employment
Retirement Income Security Act of 1974 and related laws, and laws that restrict
transactions between United States persons and citizens or residents of certain
foreign countries or specially designated nationals and organizations; (v) all
regulatory consents, authorizations, approvals and filings required to be
obtained or made by the Company or the Guarantor under the Federal laws of the
United States and the laws of the State of New York for the execution of the
Indenture by the Company and the Guarantor, the issuance of the Offered
Securities in accordance with the Indenture and the execution of the Guarantees
by the Guarantor and sale of the Offered Securities by the Company to the
Purchaser pursuant to the Purchase Agreement have been obtained or made, except
that such counsel may state that for purposes of this opinion such counsel
expresses no opinion with respect to state securities laws; (vi) the Company is
not required to register as an "investment company" under the Investment Company
Act of 1940, as amended; and (vii) the Registration Statement, as of its
effective date, and the Prospectus, as of its date, appeared on their face to be
appropriately responsive in all material respects to the requirements of the
Act, the Trust Indenture Act and the applicable rules and regulations of the
Commission thereunder; and nothing that came to such counsel's attention in the
course of their review of the Registration Statement and Prospectus has caused
such counsel to believe that the Registration Statement, as of its effective
date, contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of its date, contained any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Such counsel may state that they do
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and Prospectus except for
those made under the
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caption "Description of Debt Securities and Guarantees" insofar as they relate
to provisions of documents therein described; and that they do not express any
opinion or belief as to the financial statements or other financial data
contained in the Registration Statement and the Prospectus, or as to the
statement of the eligibility of the Trustee under the Indenture.
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EXHIBIT C
1. We are independent auditors with respect to BP within the meaning of the
Act and the applicable rules and regulations thereunder adopted by the
Commission.
2. In our opinion, the consolidated financial statements and financial
statement schedule audited by us and included in BP's Annual Report on Form
20-F for the year ended at December 31, ____ and incorporated by reference
in the Registration Statement comply as to form in all material respects
with the applicable accounting requirements of the Act and the Exchange Act
and the related rules and regulations adopted by the Commission.
3. We have also audited the consolidated balance sheets of BP Group as of
December 31, ____ and the related consolidated statements of income, total
recognized gains and losses, changes in BP shareholders' interest and cash
flows for the year ended December 31, ____, which have been prepared in
accordance with United Kingdom generally accepted accounting practice, have
been approved by a duly appointed and authorized committee of the Board of
Directors[, but not yet delivered to the UK Registrar of Companies nor
filed with the Commission]. Our report on the financial statements for the
year ended December 31, ____ was unqualified.
4. [If applicable-- We have audited the consolidated balance sheet of [include
any BP entity whose financials are incorporated by reference in the
Registration Statement/ Prospectus] as of December 31, ____ and the related
consolidated statement of income, shareholders' equity and cash flows for
the year then ended included in BP's Form 6-K dated ________ __, ____
incorporated by reference in the Registration Statement. In our opinion,
except for the fact that these financial statements presented are only for
one year, these financial statements comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related rules and regulations adopted by the
Commission.]
5. We have not audited any financial statements of the BP Group as of any date
or for any period subsequent to December 31, ____. The purpose (and
therefore the scope) of our audit for the years ended December 31, ____ and
____ was to enable us to express our opinion on the consolidated financial
statements as of December 31, ____ and ____, and for the years then ended,
but not on any consolidated financial statements for any interim period
within those years. Therefore, we are unable to express and do not express
an opinion on: the unaudited consolidated balance sheets at [insert dates
of interim financials since most recent audited financials], the unaudited
consolidated statements of income for the [adjust to reflect interim
financials since most recent audited financials-- three-month periods ended
March 31, ____ and ____, the six-month periods ended June 30, ____ and ____
and the nine-month periods ended September 30, ____ and ____ or the
unaudited consolidated statements of cash flows for the three-month periods
ended March 31, ____ and ____, the six-month periods ended June 30, ____
and ____ and the nine-month periods ended September 30, ____ and ____] all
incorporated by reference in the Registration Statement from BP's Quarterly
Reports on Form 6-K for the quarters ended [insert dates of interim
financials since most recent audited financials]; or on the financial
position, results of operations or cash flows as of any date or for any
period subsequent to December 31, ____.
6. For the purposes of this letter we have read the ____ and ____ minutes of
the meetings of the Board of Directors and the committees of the Board of
BP to ________ __, ____, officials of BP having advised us that all minutes
of meetings held to that date have been made available to us. These minutes
include the draft minutes of the meeting of the Audit Committee held on
________ __, ____,
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the Board of Directors held on ________ __, ____, the Chairman's Committee
held on ________ __, ____ and the Results Committee held on ________ __,
____. The draft minutes have been prepared by the office of the Company
Secretary but have not yet been adopted by the Board of Directors or
committees in accordance with normal practice in the United Kingdom.
We have carried out other procedures to ________ __, ____, as follows (our
work did not extend to the period from ________ __, ____ to ________ __,
____ inclusive). With respect to the _____-month period ended ________ __,
____, we have:
a. performed the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS 71, Interim Financial
Information, on the unaudited balance sheet at ________ __, ____
and the unaudited statement of income and statement of cash flows
for the _____-month periods ended ________ __, ____ and ____,
incorporated by reference in the Registration Statement,
officials of BP having advised us that no such financial
statements as of any date or for any period subsequent to
December 31, ____ were available; and
b. inquired of certain officials of BP who have responsibility for
financial and accounting matters as to whether the unaudited
consolidated financial statements referred to under 5a comply as
to form in all material respects with the applicable accounting
requirements of the Act and the related rules and regulations
adopted by the Commission.
The foregoing procedures do not constitute an audit conducted in accordance
with United Kingdom auditing standards or United States generally accepted
auditing standards. Also, they would not necessarily reveal matters of
significance with respect to the comments in the following paragraph.
Accordingly, we make no representations as to the sufficiency of the
foregoing procedures for your purposes.
7. Nothing came to our attention as a result of the foregoing procedures that
caused us to believe that:
a. any material modifications should be made to the unaudited
financial statements described in 6a above incorporated by
reference in the Registration Statement, for them to be in
conformity with accounting principles generally accepted in the
United Kingdom; or
b. the unaudited consolidated financial statements described in 6a
above do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
rules and regulations adopted by the Commission.
8. As mentioned in 6a above, officials of BP have advised us that no
consolidated financial statements of the BP Group as of any date or for any
period subsequent to ________ __, ____ are available; accordingly, the
procedures carried out by us with respect to changes in financial statement
items after ________ __, ____ have, of necessity, been even more limited
than those with respect to the periods referred to in 6a above. With
respect to the period from ________ __, ____ to ________ __, ____, we have,
at your request, enquired of certain officials of BP who have
responsibility for financial and accounting matters as to whether:
a. at ________ __, ____ there was any increase in the consolidated
finance debt of BP as compared with the amounts shown on the
________ __, ____ consolidated balance sheet incorporated by
reference in the Registration Statement; or
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b. at ________ __, ____ there was any increase in the share capital
account of BP as compared with the amounts shown on the ________
__, ____ consolidated balance sheet notes incorporated by
reference in the Registration Statement.
On the basis of these enquiries and our reading of the minutes as described
in 6 above, nothing came to our attention that caused us to believe that
there were any such increases.
9. At your request, we have:
a. read the unaudited pro form consolidated statements of income for
the year ended December 31, ____, incorporated by reference in
the Registration Statement;
b. inquired of certain officials of BP who have responsibility for
financial and accounting matters as to:
(i) the basis for their determination of the pro forma
adjustments; and
(ii) whether the unaudited pro forma consolidated financial
statements referred to in 9a comply as to form in all material
respects with the applicable requirements of Rule 11-02 of
Regulation S-X; and
c. proved the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the unaudited pro
forma consolidated financial statements.
The foregoing procedures are substantially less in scope than an
examination, the objective of which is the expression of an opinion on
management's assumptions, the pro forma adjustments, and the application of
those adjustments to historical financial information. Accordingly, we do
not express such an opinion. The foregoing procedures would not necessarily
reveal matters of significance with respect to the comments in the
following paragraph. Accordingly, we make no representations about the
sufficiency of such procedures for your purposes.
10. Nothing came to our attention as a result of the procedures specified in
paragraph 9, however, that caused us to believe that the unaudited pro
forma consolidated income statement referred to in 9a incorporated by
reference in the Registration Statement does not comply as to form in all
material respects with the applicable requirements of Rule 11-02 of
Regulation S-X and that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of the unaudited pro
forma consolidated income statement. Had we performed additional procedures
or had we made an examination of the pro forma consolidated income
statement, other matters might have come to our attention that would have
been reported to you.
11. At your request, we have also read the items identified by you on the
attached pages of the Registration Statement, the Prospectus, the
Prospectus Supplement, the Annual Report on Form 20-F for the year ended
December 31, ____ and the Reports on Form 6-K filed on ________ __, ____
and have performed the following procedures, which were applied as
indicated with respect to the symbols explained below. Our audits of the
consolidated financial statements for the periods referred to in the
introductory paragraph and in paragraph 5 of this letter were comprised of
audit tests and procedures deemed necessary for the purpose of expressing
an opinion on such financial statements taken as a whole. For neither the
periods referred to therein nor any other period did we perform audit tests
for the purpose of expressing an opinion on individual balances of accounts
or summaries of selected transaction such as those enumerated below and,
accordingly, we do not express an opinion thereon.
C-3
A Compared the dollar amounts either to the amount in the audited
consolidated financial statements described in the introductory
paragraph of this letter, or amounts in the consolidated financial
statements described in paragraph 3 above, or to amounts in the
unaudited financial statements described in paragraph 5 above, to the
extent such amounts are included in or can be derived from such
statements and found them to be in agreement.
B Compared amounts not derived directly from audited or unaudited
consolidated financial statements to amounts in BP's accounting
records to the extent such amounts could be compared directly or can
be derived from such accounting records and found them to be in
agreement, after consideration of rounding or truncating.
C Compared the amounts not derived directly from audited or unaudited
consolidated financial statements, or that could not be compared
directly to BP's accounting records, to analyses prepared by BP from
its accounting records or can be derived from such analyses and found
them to be in agreement, after consideration of rounding or
truncating.
D Recalculated the percentages or amounts based on the data in the
above-mentioned accounting records and analyses and found them to be
in agreement, after consideration of rounding and truncating.
12. It should be understood that we make no representations as to the questions
of legal interpretation or as to the sufficiency for your purposes of the
procedures enumerated in the preceding paragraph; also, such procedures
would not necessarily reveal any material misstatement of the information
identified in 10 above. Further, we have addressed ourselves solely to the
foregoing data as set forth in the Registration Statement, the Prospectus,
the Prospectus Supplement, the Annual Report on Form 20-F for the year
ended December 31, ____ and the Reports on Form 6-K filed ________ __, ____
and make no representations as to the adequacy of disclosure or as to
whether any material facts have been omitted.
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