EXHIBIT 1.1
TOTALFINAELF CAPITAL
PURCHASE AGREEMENT STANDARD PROVISIONS
(2003 EDITION)
From time to time, TotalFinaElf Capital S.A., a societe anonyme
organized under the laws of the Republic of France (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 defined in the Purchase Agreement.
I.
The Company proposes to issue debt securities (the "Securities") from
time to time pursuant to the provisions of an Indenture to be entered into among
the Company, Total Fina Elf S.A. (the "Guarantor") and JPMorgan Chase Bank, as
Trustee, on the Closing Date (as defined below). Pursuant to the Indenture, the
Guarantor will guarantee payment of the principal of (and premium, if any) and
interest on the Securities (the obligations of the Guarantor in respect of any
Offered Securities is referred to as the "Guarantee"). 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 U.S. 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 so file promptly after the sale), a prospectus
supplement specifically relating to the Offered Securities pursuant to Rule 424
under the U.S. Securities Act of 1933 (the "Securities 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 Securities Act). The term "Base Prospectus"
means the prospectus included in the Registration Statement. The term
"Prospectus" means the Base 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 Base Prospectus. As used herein, the
terms "Registration Statement", "Base Prospectus", "Prospectus" and "preliminary
prospectus" shall include in each case the material, if any, incorporated by
reference therein.
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, VII
and IX 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) The Registration Statement shall have become effective,
and 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 in the condition of the Guarantor and
its subsidiaries taken as a whole, except as 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 and to the effect that the
representations and warranties of the Guarantor and Company are true
and correct as of the Closing Date. 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 or opinions of the General Counsel or Associate General Counsel
of the Guarantor or other counsel reasonably satisfactory to the
Purchaser, as to certain matters of French, New York and United States
federal law, 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 in respect of the Company of the General Counsel or Associate
General Counsel of the Guarantor or other French counsel reasonably
satisfactory to the Purchaser, 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 each of the date of
pricing of Offered Securities and the Closing Date a letter from the
independent auditors for the Guarantor, dated the date of pricing of
Offered Securities and the Closing Date, respectively, to the effect
set forth in Exhibit C hereto.
(f) Since the date of the Purchase Agreement, 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 the Commission for purposes of
Rule 436(g)(2) under the Securities 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) If specified in the Purchase Agreement, at the Closing
Date, the Offered Securities shall have been approved for listing on
the Luxembourg Stock Exchange or application shall have been made
therefore.
(h) On or 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 Base Prospectus, pursuant
to the U.S. Securities Exchange Act of 1934 (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 Securities Act (including Rule
158 thereunder).
(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 the Purchaser, as of the date of the Purchase Agreement, that:
(a) (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 the
Exchange 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 Securities Act relating to the Offered 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
Securities Act when so filed complied in all material respects with the
Securities 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 Securities 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.
(b) Each of the Company and the Guarantor is validly existing
as a societe anonyme and in good standing under the laws of France and
has all the requisite power and authority to execute, deliver and
perform its obligations under the Offered Securities, the Purchase
Agreement, the Indenture, and in the case of the Guarantor, the
Guarantee.
(c) Each of the Guarantor and the Company has taken all
necessary corporate action required by its statuts and by the laws of
France to authorize the execution of the Purchase Agreement and the
Indenture, and in the case of the Guarantor, the Guarantee. The Company
has taken all necessary corporate action required by its statuts and by
the laws of France to authorize the issuance and sale of the Offered
Securities.
(d) The Purchase Agreement has been duly authorized, executed
and delivered by each of the Company and the Guarantor.
(e) The Indenture has been duly authorized, executed and
delivered by each of the Company and the Guarantor and constitutes a
valid and legally binding obligation of the Company and the Guarantor,
and the Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended by the Trust Indenture Reform Act of 1990
(hereinafter called the "Trust Indenture Act").
(f) The Offered Securities to be issued by the Company and the
Guarantee to be issued by the Guarantor have been duly authorized, and
when issued, delivered and, in the case of the Offered Securities,
authenticated, as provided in the Indenture, will be duly and validly
issued and will constitute legal, valid and binding obligations
enforceable against the Company and the Guarantor in accordance with
their terms, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(g) The Offered Securities to be issued by the Company will
rank at least pari passu with all of the Company's other unsecured and
unsubordinated indebtedness. The obligations of the Guarantor in
respect of the Guarantee rank at least pari passu with all other
unsecured and unsubordinated indebtedness of the Guarantor.
(h) No consent, approval, authorization or order of, or filing
with, any regulatory authority in the United States of America or
France is legally required for the execution of the Indenture, the
issuance and sale of the Offered Securities to the Purchasers pursuant
to the Purchase Agreement or the execution of the Guarantee by the
Guarantor, other than the filings with, and the orders of, the
Securities and Exchange Commission in connection with the registration
of the Offered Securities and the Guarantee under the Securities Act
and the qualification of the Indenture under the Trust Indenture Act,
except that the offer and sale of the Offered Securities in certain
jurisdictions may be subject to the provisions of the securities or
Blue Sky laws of such jurisdictions.
(i) Neither the execution of the Purchase Agreement and the
Indenture, nor the issuance of the Offered Securities or the Guarantee,
nor the fulfillment of or compliance with the terms and provisions
hereof or thereof by the Company and the Guarantor, will (i) result in
the creation or imposition of any mortgage, lien, charge or encumbrance
of any nature whatsoever upon any of its properties or assets, or (ii)
violate or result in a breach or a default under any of the terms of
its statuts, any contract or instrument to which it is a party or by
which it or its property is bound, or any law or regulation, or any
order, writ, injunction or decree of any court or government
instrumentality, to which it is subject or by which it or its property
is bound, which breach or default would have a material adverse effect
on its condition (financial or otherwise) or operations or its ability
to perform its obligations under the Purchase Agreement, the Offered
Securities, the Indenture or the Guarantee, or the validity of the
Offered Securities.
(j) Except as disclosed in the Prospectus, there is no
litigation or governmental proceeding pending, or to its actual
knowledge threatened, against or affecting the Guarantor or any of its
subsidiaries that would result in a material adverse change in its
condition (financial or otherwise) or operations or its ability to
perform its obligations under the Purchase Agreement, the Offered
Securities issued by the Company, the Indenture, or, in the case of the
Guarantor, the Guarantee.
(k) Neither the Company nor the Guarantor is an "investment
company" or an entity "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(l) The statements set forth in the Prospectus under the
heading "Taxation", to the extent that they purport to summarize
certain provisions of the United States federal income tax law and
regulations, or the French tax law and regulations, constitute a fair
summary of such provisions in all material respects.
(m) Except as described in the Prospectus, there are no
withholding taxes or stamp or other similar issuance or transfer taxes
or duties imposed or payable in France or the United States or any
political subdivision or taxing authority thereof or therein by or on
behalf of the Purchasers in connection with (A) the issuance, sale and
delivery of the Offered Securities to or for the account of the
Reselling Purchasers in the manner contemplated in the Purchase
Agreement or (B) the issuance, sale and delivery by the Purchasers of
the Offered Securities to the purchasers thereof in connection with the
distribution of the Offered Securities in the manner contemplated in
the Purchase Agreement (provided such sale and delivery is not made or
settled in any manner in France).
(n) Interest payments made by the Company in respect of the
Offered Securities may be made without withholding or deduction for or
on account of any taxes, duties, assessments or
charges of whatever nature imposed or levied by or on behalf of the
French Republic or any political subdivision or authority thereof or
therein.
VII.
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
Securities 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.
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 VII is unavailable
to an indemnified party other than as a result of the proviso to the first
paragraph of Article VII 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 VII
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
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 VII, 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 Securities 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 VII
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.
Each of the Guarantor and the Company agrees that any legal suit,
action or proceeding brought by any Reselling Purchaser to enforce the indemnity
agreements contained in this Article VII may be instituted in any state or
Federal court in the Borough of Manhattan, The City of New York, New York,
United States 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. Each of the Guarantor and the Company has
designated and appointed [-] (or any successor corporation) as the authorized
agent of each of the Guarantor and the Company 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 [-], attention of [-] (or such other address in the
Borough of Manhattan, The City of New York, as the Guarantor or the Company, as
applicable, may designate by written notice to you), shall be deemed in every
respect effective service of process upon the Guarantor or the Company, as
applicable, in any such suit, action or proceeding and shall be taken and held
to be valid personal service upon the Guarantor or the Company, as applicable,
whether or not the Guarantor or the Company, as applicable, 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. Each of the Guarantor and the Company agrees to take all action as may
be necessary to continue the designation and appointment of [-] 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, The City of New York, New York, United States of America.
VIII.
Any payments to any Purchaser hereunder or to any holder (each
Purchaser and holder is hereinafter referred to in this Article VIII as a
"Payee") from time to time with respect to the Offered Securities and Guarantee
shall be in United States dollars and shall be payable free and clear of, and
without deduction or withholding for, or on account of, any and all present or
future taxes, duties, assessments, levies and other governmental charges of any
nature whatsoever now or hereafter imposed, levied, collected, withheld or
assessed by or on behalf of France or any other jurisdiction from which such
payments are made, or any territory or political subdivision thereof, unless
such deduction or withholding is required by law ("Foreign Taxes"). If by
operation of law or otherwise, Foreign Taxes are required to be deducted or
withheld from any amounts payable to a Payee, the Company or the Guarantor, as
the case may be, agrees to pay such additional amounts to each Payee (the
"Additional Amounts") as may be necessary to ensure that the net amount actually
received by the Payee, after deduction of any Foreign Taxes imposed with respect
to the payment of such Additional Amounts, shall equal the amount the Payee
would have received if Foreign Taxes had not been deducted or withheld from such
payment; provided, however, that no Additional Amounts shall be so payable for
or on account of: (i) any Foreign Taxes which would not have been imposed but
for the fact that any Payee: (A) had a present or former personal or business
connection with France or any other jurisdiction from which payments are made,
or any territory or political subdivision thereof (a "Foreign Jurisdiction")
other than the mere ownership of, or receipt of payment under, the Offered
Securities; (B) presented such Offered Securities for payment in any Foreign
Jurisdiction unless such Offered Securities could not have been presented for
payment elsewhere; or (C) presented an Offered Security for payment more than
fifteen (15) days after the date on which such payment became due and payable or
the date on which payment thereof is duly provided for, whichever occurs later;
(ii) any estate, inheritance, gift, sale, transfer, personal property or similar
tax, assessment or other governmental charge; or (iii) any Foreign Taxes which
are payable otherwise than by withholding or deduction.
The Company and the Guarantor, jointly and severally, agree to
indemnity each Purchaser and each holder from time to time of Offered Securities
against any loss incurred by any such Purchaser as holder as a result of any
judgment or order being given or made for any amount due hereunder and such
judgment or order being expressed and paid in a currency (the "Judgment
Currency") other than United States dollars and as a result of any variation as
between (i) the rate of exchange at which the United States dollar amount is
converted into the Judgment Currency for the purpose of such judgment or order,
and (ii) the rate of exchange at which such Payee upon receipt of the Judgment
Currency could have purchased United States dollars with the amount of Judgment
Currency actually received by such Payee. The foregoing indemnity shall
constitute a separate and independent obligation of the Company and the
Guarantor, and shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. The term "rate of exchange" shall include any
premiums and costs of exchange payable in connection with the purchase of, or
conversion into, the relevant currency.
IX.
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 either Euronext Paris or the New York
Stock Exchange shall have been suspended or materially limited, (ii) a general
moratorium on commercial banking activities in New York or France shall have
been declared by either Federal, New York State or French authorities or a
material disruption in commercial banking or securities settlement or clearance
services within the United States or the European Union 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 or the European Union is such as to make it, in the
judgment of such Reselling Purchaser, impracticable to resell the Offered
Securities.
X.
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.
EXHIBIT A
OPINION OF GUARANTOR COUNSEL
You shall have received on and as of the Closing Date an opinion or
opinions of the General Counsel or Associate General Counsel of the Guarantor,
or other counsel reasonably satisfactory to you, to the effect that:
(1) Each of the Company and the Guarantor is validly existing as a
societe anonyme under the laws of France and has all the
requisite power and authority to execute, deliver and perform
its obligations under the Offered Securities, the Purchase
Agreement, the Indenture, and in the case of the Guarantor,
the Guarantee.
(2) The Purchase Agreement has been duly authorized, executed and
delivered by each of the Company and the Guarantor.
(3) The Indenture has been duly authorized, executed and delivered
by each of the Company and the Guarantor and constitutes a
valid and legally binding obligation of the Company and the
Guarantor enforceable against the Company and the Guarantor in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles, and the
Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended by the Trust Indenture Reform Act of
1990 (hereinafter called the "Trust Indenture Act").
(4) The Offered Securities to be issued by the Company have been
duly authorized and, when issued, delivered and authenticated
as provided in the Indenture, will be duly and validly issued
and will constitute legal, valid and binding obligations
enforceable against the Company in accordance with their
terms, entitled to the benefits of the Indenture, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles.
(5) Upon due execution, authentication and delivery of the Offered
Securities, upon which the text of the Guarantee has been
endorsed as contemplated in the Indenture, the Guarantee will
constitute a valid and legally binding obligation of the
Guarantor with respect to the Offered Securities, enforceable
against the Guarantor in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles.
(6) 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 Sates, the laws
of the State of New York and the laws of the Republic of
France for the issuance, sale and delivery of the Offered
Securities by the Company to the Purchasers have been obtained
or made. Such counsel may state that it expresses no opinion
with respect to the securities or Blue Sky laws of any State.
(7) Neither the Company nor the Guarantor is an "investment
company" or an entity "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as
amended.
(8) Except for French timbres de dimension, the non-payment of
which would not affect the validity or enforceability of the
Offered Securities, the Guarantee, the Indenture or the
Purchase Agreement, there are no stamp or other similar
issuance or transfer taxes or duties imposed or payable in
France or the United States or any political subdivision or
taxing authority thereof or therein by or on behalf of the
Purchasers in connection with (A) the issuance, sale and
delivery of the Offered Securities to or for the account of
the Reselling Purchasers in the manner contemplated in the
Purchase Agreement or (B) the sale and delivery by the
Reselling Purchasers of the Offered Securities to the
purchasers thereof in connection with the distribution of the
Offered Securities in the manner contemplated in the Purchase
Agreement (provided such sale and delivery is not recorded or
referred to in any manner whatsoever in a written document
executed in France).
(9) The choice of the law of the State of New York to govern the
Purchase Agreement, the Indenture, the Offered Securities and
the Guarantee is valid under the laws of the Republic of
France, and a French court would uphold such choice of law in
any proceedings on the Purchase Agreement, the Indenture, the
Offered Securities and the Guarantee brought before it,
provided that the relevant content of New York law is duly
proved in any such proceedings and that the application of New
York law (i) is not found to be contrary to mandatory
provisions of the laws of any jurisdiction presenting a close
connection with the transaction, which under the laws of such
jurisdiction are applicable irrespective of the law governing
the Purchase Agreement, the Indenture, the Offered Securities
or the Guarantee (lois de police), (ii) is not found to be
contrary to a provision of French law whose application to the
situation is found mandatory irrespective of the law governing
the Purchase Agreement, the Indenture, the Offered Securities
or the Guarantee (lois de police) and (iii) is not found to be
manifestly contrary to a provision of French public policy
(ordre public).
(10) Under the laws of the State of New York relating to personal
jurisdiction, the Company has, pursuant to Section VII of the
Agreement and Section 114 of the Indenture, validly and
irrevocably submitted to the personal jurisdiction of any
state or federal court located in the Borough of Manhattan,
The City of New York, New York (each a "New York Court") in
any action arising out of or relating to this Agreement or the
transactions contemplated hereby.
(11) Subject to the rules governing international litis pendens
under French private international law, a final, conclusive
and enforceable judgment obtained in the United States
District Court for the Southern District of New York or any
court from the State of New York under the Purchase Agreement,
the Indenture, the Offered Securities or the Guarantee and in
respect of which the parties to such action either (i) have
mutually agreed to submit to the jurisdiction of such court or
(ii) have waived their rights to the exclusive jurisdiction of
the
French courts under article 15 of the French Civil code, would
be capable of recognition and enforcement in France, without a
review of the merits, by competent French courts (Exequatur)
provided that the requirements imposed by case law for the
enforcement of foreign judgments are satisfied, in particular
that: (a) the courts of New York had jurisdiction over the
matter in accordance with French private international law;
(b) the court that rendered the judgment applied the law that
is applicable under French private international law; (c) the
procedure followed by the court that rendered the judgment
does not conflict with fundamental procedural rights
applicable in France or with French international public
policy (ordre public international francais); and (d) the
judgment rendered by the foreign court does not conflict with
French international public policy and is not tainted with
fraud (fraude a la loi).
(12) Such counsel shall also state that they have reviewed the
Registration Statement and the Prospectus and participated in
discussions with representatives of the Company and the
Guarantor and the accountants for the Company and the
Guarantor and representatives of the Purchasers and their
counsel; and on the basis of the information that they gained
in the course of the performance of such services, considered
in the light of the experience they have gained through their
practice in this field, such counsel shall confirm to the
Purchasers that the Registration Statement, when it became
effective, and the Prospectus appeared on their face to be
appropriately responsive in all material respects relevant to
the offering of the Offered Securities to the requirements of
the Securities Act, the Trust Indenture Act of 1939 and the
applicable rules and regulations of the Securities and
Exchange Commission thereunder; and nothing that has come to
the attention of such counsel has caused them to believe that,
insofar as relevant to the offering of the Offered Securities,
the Registration Statement, when it became effective,
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 contained any untrue statement of material
fact or omitted to state any material fact necessary in order
to make the statements therein, in light of the circumstances
in which they were made, not misleading.
Such opinion may state (1) that such counsel do not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement, or the
Prospectus except for those made under the captions
"Description of Debt Securities and Guarantee" and "Tax
Considerations" in the Prospectus insofar as they relate to
the provisions of documents or of French or United States
federal tax law therein described and (2) that they do not
express any opinion or belief as to the financial statements
or other financial data contained in the Registration
Statement, or the Prospectus or as to the statement of the
eligibility and qualification of the Trustee under the
Indenture under which the Designated Securities are being
issued.
(13) Neither the execution of the Purchase Agreement and the
Indenture, nor the issuance of the Offered Securities or the
Guarantee, nor the fulfilment of or compliance with the terms
and provisions hereof or thereof by the Guarantor, will
violate or result in a breach or a default
under any of the terms of its statuts, or, to the best of such
counsel's knowledge, any contract or instrument to which it is
a party or by which it or its property is bound or any law or
regulation, or any order, writ, injunction or decree of any
court or government instrumentality to which it is subject or
by which it or its property is bound, which violation, breach
or default would have a material adverse effect on the
condition (financial or otherwise) or operations of the
Guarantor and its consolidated subsidiaries, taken as a whole,
or its ability to perform its obligations under the Purchase
Agreement, the Offered Securities, the Indenture or the
Guarantee, or the validity of the Offered Securities.
(14) To the best of such counsel's knowledge and except as
disclosed in the Prospectus, there is no litigation or
governmental proceeding pending, or to such counsel's
knowledge threatened, against or affecting the Guarantor or
any of its subsidiaries that would result in a material
adverse change in the condition (financial or otherwise) or
operations of the Guarantor and its consolidated subsidiaries,
taken as a whole, or its ability to perform its obligations
under the Purchase Agreement, the Offered Securities issued by
the Company, the Indenture or the Guarantee.
EXHIBIT B
OPINION OF COUNSEL TO THE COMPANY
You shall have received on and as of the Closing Date an opinion of the
General Counsel or Associate General Counsel of the Guarantor, or other counsel
reasonably satisfactory to you, to the effect that:
1. Neither the execution of the Purchase Agreement and the Indenture, nor
the issuance of the Offered Securities, nor the fulfilment of or
compliance with the terms and provisions hereof or thereof by the
Company, will violate or result in a breach or a default under any of
the terms of its statuts, or, to the best of such counsel's knowledge,
any contract or instrument to which it is a party or by which it or its
property is bound or any law or regulation, or any order, writ,
injunction or decree of any court or government instrumentality to
which it is subject or by which it or its property is bound, which
violation, breach or default would have a material adverse effect on
its condition (financial or otherwise) or operations or its ability to
perform its obligations under the Purchase Agreement, the Offered
Securities or the Indenture, or the validity of the Offered Securities.
2. To the best of such counsel's knowledge and except as disclosed in the
Prospectus, there is no litigation or governmental proceeding pending,
or to such counsel's knowledge threatened, against or affecting the
Company or any of its subsidiaries that would result in a material
adverse change in the condition (financial or otherwise) or operations
of the Company and its consolidated subsidiaries, taken as a whole, or
its ability to perform its obligations under the Purchase Agreement, the
Offered Securities issued by the Company and the Indenture.
EXHIBIT C
LETTER OF INDEPENDENT AUDITORS
The letter of the independent auditors for the Guarantor, to be
delivered pursuant to Article IV, paragraph (e) of the document entitled
Purchase Agreement Standard Provisions (2003 Edition) (the "Standard
Provisions") shall be to the effect that:
(i) such auditors are independent public accountants with respect to
the Guarantor within the meaning of the Securities Act of 1933 and
the Securities Exchange Act of 1934 and the applicable published
rules and regulations thereunder;
(ii) in the opinion of such auditors, the consolidated financial
statements and schedules included in the Annual Report on Form
20-F of the Guarantor most recently filed with the Securities and
Exchange Commission (the "Annual Report") comply as to form in all
material respects with the applicable accounting requirements of
the Securities Exchange Act of 1934 and the published rules and
regulations thereunder;
(iii) nothing has come to the attention of such auditors, as a result of
specified procedures not constituting an audit, that caused them
to believe
a. that the unaudited financial statements, if any,
incorporated by reference into the Registration Statement,
do not comply in all material respects with the applicable
accounting requirements of the Securities Exchange Act of
1934 and the applicable published rules and regulations
thereunder, or that such financial statements are not
stated on a basis substantially consistent with that of the
audited financial statements referred to above,
b. that, except as set forth in such letter or disclosed in
the Registration Statement, there was any change in the
share capital, long-term debt, consolidated non-current
assets or shareholders' equity of the Guarantor from the
date of the latest balance sheet included or incorporated
by reference in the Registration Statement to a date not
more than __ days from the date of such letter, or
c. that, except as set forth in such letter or disclosed in
the Registration Statement, there was any change in
consolidated sales or in the total or per share amounts of
consolidated net income of the Guarantor from the date of
the latest income statement included or incorporated by
reference in the Registration Statement to a date not more
than __ days from the date of such letter.
[FORM OF PURCHASE AGREEMENT]
PURCHASE AGREEMENT
[-], 2003
Total Fina Elf Capital
2, place de la Coupole
92078 Paris La Defense Cedex
France
Total Fina Elf S.A.
2, place de la Coupole
92078 Paris La Defense Cedex
France
Ladies and Gentlemen:
The underwriter(s) named below (such underwriter(s) being herein called
the "Reselling Purchaser(s)") understand(s) that TotalFinaElf Capital (the
"Company") proposes to issue and sell $[-] aggregate principal amount of [-]%
Notes due [-], [-] (the "Offered Securities"), guaranteed by Total Fina Elf S.A.
(the "Guarantor"). Subject to the terms and conditions set forth or incorporated
by reference herein, the Company agrees to sell, and the Reselling Purchaser(s)
agree(s) to purchase, the aggregate principal amount of the Offered Securities
set forth opposite its name below at [-]% of their principal amount and accrued
interest, if any, from [-], 2003 to the date of payment and delivery:
PRINCIPAL AMOUNT OF
FIXED RATE
RESELLING PURCHASER NOTES
------------------- -------------------
[Underwriter(s)] .................. $[-]
The Reselling Purchaser(s) will pay for such Offered Securities upon
delivery thereof at the offices of Sullivan & Cromwell LLP, 125 Broad Street,
New York, New York, 10004 or through the facilities of The Depository Trust
Company at 10:00 A.M. (New York time) on [-], 2003 (the "Closing Date"), or at
such other time as shall be agreed upon between us.
The Offered Securities shall have the following additional terms(1):
Maturity:
Interest Rate:
Interest Payment Dates:
Regular Record Dates for Interest:
Sinking Fund:
CUSIP Number:
Each Reselling Purchaser agrees to comply with the following selling
restrictions:
(a) It agrees that it has not offered or sold and will not offer or
sell, directly or indirectly, the Offered Securities to the public in France,
and has not distributed or caused to be distributed and will not distribute or
cause to be distributed to the public in France, the Prospectus or any other
offering material relating to the Offered Securities, and that such offers,
sales and distributions have been and shall only be made in France to (i)
qualified investors (investisseurs qualifies) and/or (ii) a restricted group of
investors (cercle restreint d'investisseurs) all as defined in, and in
accordance with, Articles L.411-1 and L.411-2 of the French Code monetaire et
financier and decret no. 98-880 dated October 1, 1998.
(b)(i) It has not offered or sold and, prior to the expiry of a period
of six months from the Closing Date, 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 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; (ii) it has only communicated and 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 Financial Services and Markets Act 2000 ("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 Guarantor; and (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.
[Add other selling restrictions, if appropriate.]
- ----------------------
(1) These terms assume that the Offered Securities will be fixed rate
notes.
All the provisions contained in the document entitled TotalFinaElf
Capital Purchase Agreement Standard Provisions (2003 Edition) attached hereto
are herein incorporated by reference in their entirety and shall be deemed to be
a part of this Agreement to the same extent as if such provisions had been set
forth in full herein.
IN WITNESS WHEREOF, the parties hereto have, by duly authorized
directors, officers or attorneys-in-fact, executed this Agreement as of the date
first above written.
TOTALFINAELF CAPITAL
By:________________________
Name:
Title:
TOTAL FINA ELF S.A.
By:________________________
Name:
Title:
[UNDERWRITER(S)]
___________________________
[Underwriter(s)]