EXHIBIT 4.8
EXECUTION COPY
GUARANTY
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MOBIL CORPORATION
THIS GUARANTY, dated as of September 30, 1997 (together with any amendments
or supplements hereto, this "Guaranty" or "Parent Guaranty"), by and among MOBIL
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CORPORATION, a Delaware corporation (together with any successor permitted by
Section 4.1 hereof, the "Guarantor"), and (a) First Security Bank, National
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Association, both in its individual capacity and as Owner Trustee, (b) State
Street Bank and Trust Company, both in its individual capacity and as Indenture
Trustee, (c) State Street Bank and Trust Company, as Pass Through Trustee under
the Pass Through Trust Documents and as Loan Participant, (d) the
Certificateholders from time to time, and (e) the Owner Participant referred to
in the Participation Agreement described below (collectively, together with each
other Indemnitee and their successors and permitted assigns, the "Beneficiaries"
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and, individually, a "Beneficiary").
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W I T N E S S E T H:
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A. Mobil Transport Finance Company Inc., a Delaware corporation, and a
wholly-owned subsidiary of the Guarantor (together with its successors and
permitted assigns as further defined in Appendix A to the Participation
Agreement, the "Charterer"), is entering into that certain Participation
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Agreement dated as of September 30, 1997 (the "Participation Agreement"), among
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the Charterer, SBCM Marine Finance, Inc., as Owner Participant, First Security
Bank, National Association, not in its individual capacity except to the extent
expressly set forth therein but solely as Owner Trustee, State Street Bank and
Trust Company not in its individual capacity except to the extent expressly set
forth therein but solely as Indenture Trustee, and State Street Bank and Trust
Company acting not in its individual capacity except as expressly provided
therein, but solely as Pass Through Trustee and as Loan Participant.
B. It is a condition precedent to the obligations of the Beneficiaries to
consummate the transactions contemplated by the Participation Agreement that the
Guarantor execute and deliver this Guaranty.
Accordingly, in consideration of the premises and of other good and
valuable consideration, the Guarantor does
hereby covenant and agree with the Beneficiaries from and after the execution
and delivery of the Participation Agreement as follows (capitalized terms used
herein (including those used in the foregoing preamble and recitals) and not
otherwise defined herein having the meanings ascribed to them in Appendix A to
the Participation Agreement):
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF GUARANTOR
Section 1.1. Representations and Warranties of
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Guarantor. The Guarantor hereby represents and warrants that:
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(1) The Guarantor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, has the
corporate power and authority to carry on its business as presently
conducted, to own or hold under lease its properties and to enter into and
perform its obligations under this Guaranty, and is duly qualified to do
business in each jurisdiction in which it has operations or a principal
office and where failure to so qualify could reasonably be expected to
materially adversely affect its consolidated financial condition, business
or operations, or its ability to perform any of its obligations under this
Guaranty.
(2) The execution, delivery and performance by the Guarantor of this
Guaranty and the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of the Guarantor.
(3) This Guaranty has been duly executed and delivered by the
Guarantor and constitutes the legal, valid and binding obligation of the
Guarantor enforceable against the Guarantor in accordance with the terms
hereof, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, liquidation, moratorium or similar
laws affecting creditors', lessors', or charterers' rights generally and by
the application of general equitable principles which may limit the
availability of certain remedies.
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(4) The execution and delivery by the Guarantor of this Guaranty do
not and will not, and the performance by the Guarantor of its obligations
hereunder does not and will not, (i) violate or be inconsistent with its
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charter documents or by-laws; (ii) contravene any Governmental Rule or
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Governmental Action applicable to it (except that no representation or
warranty is made herein with respect to the Securities Act, the Trust
Indenture Act and the securities or Blue Sky laws of the various states);
(iii) contravene any provision of, or constitute a default under, any
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indenture, mortgage, contract or other instrument to which the Guarantor is
a party or by which it or any of its properties are bound or (iv) result in
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or require the creation or imposition of any Lien (other than Permitted
Liens) upon any of its properties or assets.
(5) No Governmental Action and no consent of any other Person
(including, without limitation, any stockholder or creditor of the
Guarantor) is required in connection with the execution, delivery or
performance of this Guaranty, except such as are required under the
Securities Act, the Trust Indenture Act and the securities or Blue Sky laws
of the various states.
(6) The consolidated financial statements of the Guarantor set forth
in its Annual Report on Form 10-K for the year ended December 31, 1996 and
the consolidated financial statements of the Guarantor set forth in its
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1997 and
June 30, 1997 fairly present the consolidated financial position of the
Guarantor and its Subsidiaries as at the date thereof and the consolidated
results of operations and changes in financial position of the Guarantor
and its Subsidiaries for each of the periods covered thereby (subject, in
the case of any unaudited interim financial statements, to changes
resulting from normal year-end adjustments) in conformity with generally
accepted accounting principles applied on a consistent basis (except as
disclosed in the notes thereto). Since June 30, 1997, there has been no
material adverse change in such consolidated financial position of the
Guarantor and its Subsidiaries, taken as a whole.
(7) Except as disclosed in the Guarantor's Annual Report on Form 10-K
for the year ended December 31,
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1996, the Guarantor's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997, the Guarantor's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997 or the Guarantor's current reports on Form 8-K,
there is no action, suit, investigation or proceeding pending or, to the
Actual Knowledge of the Guarantor threatened in writing against the
Guarantor or its properties before any Governmental Authority which,
individually or in the aggregate (so far as the Guarantor now can
reasonably foresee), is reasonably likely materially and adversely to
affect the consummation of the transactions under this Guaranty or the
ability of the Guarantor to perform its obligations hereunder or its
business or financial condition.
(8) The Guarantor owns, directly or indirectly, 100% of the equity
interest in the Charterer.
(9) The representations and warranties of the Charterer in Section 5
of the Participation Agreement are true and correct.
ARTICLE II
GUARANTEE OF OBLIGATIONS
Section 2.1. Guarantee of Obligations. (a) The Guarantor hereby
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guarantees to each of the Beneficiaries, as primary obligor and not as surety,
the full and prompt payment by the Charterer, when due, whether at the stated
payment date thereof, by acceleration or otherwise, of, and the faithful
performance of and compliance with, all payment obligations of the Charterer
under the Participation Agreement, the Charter, the Tax Indemnity Agreement and
the other Operative Documents (collectively, the "Guaranty Documents") owed to
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the Beneficiaries in accordance with the terms thereof, however created, arising
or evidenced, whether direct or indirect, primary or secondary, absolute or
contingent, joint or several, and whether now or hereafter existing or due or to
become due and the full, faithful and timely performance of, and compliance
with, all other obligations of the Charterer owed to the Beneficiaries
thereunder in accordance with the terms thereof, however created, arising or
evidenced, whether direct or indirect, primary or secondary, absolute or
contingent, joint or several, and whether now or hereafter existing or due or to
become due (such payment and other obligations, the "Obligations"). Such
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guarantee is an absolute,
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unconditional, irrevocable, present and continuing guarantee of payment and
performance and not of collectibility.
(b) If for any reason any Obligation to be performed or observed by
the Charterer (whether affirmative or negative in character) shall not be
observed or performed or paid strictly in accordance with the terms thereof, the
Guarantor shall, no later than fifteen (15) Business Days following the
Guarantor's receipt of written notice by the relevant Beneficiary of such non-
observance, non-performance or non-payment, and not less than five (5) Business
Days following the Guarantor's receipt of such a notice in the case of non-
payment of Base Charter Hire, perform or observe or cause to be performed or
observed each such Obligation or shall pay the amount of each such unpaid
Obligation at the place and to the Person entitled thereto pursuant to the
relevant Guaranty Documents, as the case may be, regardless of whether or not
any Beneficiary or anyone on behalf of any of them shall have instituted any
suit, action or proceeding or exhausted its remedies or taken any steps to
enforce any rights against the Charterer or any other Person to compel any such
performance or observance or to collect all or any part of such amount pursuant
to the provisions of the relevant Guaranty Documents, as the case may be, or at
law or in equity, or otherwise, and regardless of any other condition or
contingency; provided that notwithstanding the foregoing no notice shall be
required if the Guarantor is subject to any bankruptcy or similar proceeding.
Nothing in this Guaranty shall be construed to be a guarantee of payment of the
Secured Notes.
Section 2.2. Nature of Guarantee. The obligations, covenants,
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agreements and duties of the Guarantor hereunder shall remain in full force and
effect and enforceable until the Obligations are finally, indefeasibly and
unconditionally paid and performed in full in accordance with the terms of the
Operative Documents, as the case may be, and, to the maximum extent permitted by
law, shall in no way be affected or impaired by reason of the happening from
time to time of any other event, including, without limitation, the following,
whether or not any such event shall have occurred without notice to or the
consent of the Guarantor:
(a) the waiver, compromise, settlement, termination or other release
of the performance or observance by the Guarantor or the Charterer of any
or all of their respective agreements, covenants, terms or
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conditions contained in this Guaranty (other than Section 2.1 hereof), or
the Guaranty Documents;
(b) any failure, omission, delay or lack on the part of the
Beneficiaries to enforce, assert or exercise any right, power or remedy
conferred on the Beneficiaries in the Guaranty Documents or this Guaranty
or the inability of the Beneficiaries to enforce any provision of the
Guaranty Documents or this Guaranty for any reason, or any other act or
omission on the part of the Beneficiaries;
(c) the transfer, assignment or mortgaging, or the purported transfer,
assignment or mortgaging, of all or any part of the interest of the
Charterer in the Vessel or the invalidity, unenforceability or termination
for any reason whatsoever of the Guaranty Documents or any defect in the
title of the Vessel or any part thereof or any loss of possession, use or
operational control of the Vessel or any part thereof by the Charterer;
(d) the modification or amendment (whether material or otherwise) of
any obligation, covenant or agreement set forth in the Guaranty Documents;
(e) the voluntary or involuntary liquidation, dissolution, sale of all
or substantially all of the assets, marshaling of assets and liabilities,
receivership, conservatorship, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of, or other similar proceedings affecting the Charterer or
any of its assets or any allegation or contest of the validity of this
Guaranty or the Guaranty Documents in any such proceeding;
(f) the surrender or impairment of any security for the performance or
observance of any of the Obligations;
(g) any failure of the Guarantor or the Charterer or any other Person
to perform and observe any agreement or covenant, or to discharge any duty
or obligation, arising out of or connected with this Guaranty, the Guaranty
Documents or the occurrence or pendency of any Charter Default or Charter
Event of Default or any proceedings or actions as a result of,
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or attendant upon, such Charter Default or Charter Event of Default;
(h) the inability of the Guarantor, the Beneficiaries or the Charterer
or any other Person to enforce any provision of this Guaranty or the
Guaranty Documents for any reason;
(i) the failure to give notice to the Guarantor or the Charterer of
the occurrence of an event of default under the terms and provisions of the
Guaranty Documents;
(j) the disposition by the Guarantor of any or all of its interest in
any capital stock of the Charterer or any change, restructuring or
termination of the corporate structure, ownership or existence of the
Charterer;
(k) any set-off, counterclaim, reduction, or diminution of any
Obligation, or any defense of any kind or nature whatsoever (other than
performance), which the Guarantor or the Charterer may have or assert
against the Beneficiaries; or
(l) any other circumstance (other than performance) that might
otherwise constitute a legal or equitable defense or discharge of the
Guarantor under this Guaranty or of a guarantor or surety with respect to
any Obligation.
Section 2.3. Waivers by Guarantor. The Guarantor waives notice of
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the acceptance of and reliance on this Guaranty by the Beneficiaries, and the
Guarantor also waives presentment, demand for payment, protest and notice of
nonpayment or dishonor and all other notices and demands whatsoever, except that
the Guarantor does not waive the notices provided for in Section 2.1(b) hereof.
The Guarantor waives any and all right to assert any set-off, counterclaim,
reduction, or diminution of any Obligation, or any defense of any kind or nature
whatsoever (other than performance), which the Guarantor or the Charterer may
have or assert against the Beneficiaries. The Guarantor further waives any
right it may have to (a) require the Beneficiaries to proceed against the
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Charterer, (b) require the Beneficiaries to proceed against or exhaust any
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security granted by the Charterer or the Owner Trustee or (c) require the
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Beneficiaries to pursue any other remedy within the power of the Beneficiaries,
and the Guarantor agrees that
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all of its obligations under this Guaranty are independent of the Obligations
and that a separate action may be brought against the Guarantor whether or not
an action is commenced against the Charterer under the Operative Documents.
Section 2.4. Subrogation of Guarantor; Subordina tion.
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Notwithstanding any payment or payments made by the Guarantor, the Guarantor
shall not be subrogated to any rights of the Beneficiaries against the Charterer
until all of the Obligations then due shall have been finally, indefeasibly and
unconditionally paid and performed in full. Any claim of the Guarantor against
the Charterer arising from payments made by the Guarantor by reason of this
Guaranty shall be in all respects subordinated to the final, indefeasible,
unconditional, full and complete payment or discharge of all of the Obligations
guaranteed hereby, and no payment by the Guarantor shall give rise to any claim
of the Guarantor against the Beneficiaries.
Section 2.5. Reinstatement. This Guaranty shall continue to be
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effective, or be automatically reinstated, as the case may be, if at any time
payment, or any part thereof, made by or on behalf of the Charterer or the
Guarantor of any of the Obligations is rescinded or must otherwise be restored
or returned by any Beneficiary for any reason whatsoever, whether upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Charterer or Guarantor, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, either of the
Charterer or the Guarantor or any substantial part of its property, or
otherwise, all as though such payments had not been made.
Section 2.6. Place and Manner of Payments. All payments to be made
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by the Guarantor under this Guaranty to a Beneficiary shall be paid to such
Beneficiary at the address provided for in Schedule 1 of the Participation
Agreement or, if no address, at the address and to the account specified in the
notice demanding payment by the Guarantor; provided, however, that the Guarantor
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consents to the assignment by the Owner Trustee to the Indenture Trustee of the
Owner Trustee's right, title and interest in, to and under this Guaranty to the
extent set forth in the Indenture and, notwithstanding anything herein to the
contrary, the Guarantor shall make all payments (other than Excepted Payments)
hereunder directly to the Indenture Trustee until such time as the Indenture
Trustee shall give notice to the Guarantor that the Lien of the Indenture and
the Lien of the Ship Mortgage have been fully discharged, and thereafter to
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the Owner Trustee. The Guarantor agrees that it will make all payments due
hereunder by wire transfer at or before 12:00 noon, New York time, on the date
due in immediately available funds to the party to which such payment is to be
made.
ARTICLE III
DEFAULT AND REMEDIES
Section 3.1. Enforcement Provisions. The Beneficiaries shall have
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the right, power and authority to do all things, including instituting or
appearing in any suit or proceeding, not inconsistent with the express
provisions of the Operative Documents or this Guaranty, which they may deem
necessary or advisable to enforce the provisions of this Guaranty and protect
the interests of the Beneficiaries. Each and every default in the payment or
performance of the Obligations shall give rise to a separate cause of action
hereunder, and separate suits may be brought hereunder as each cause of action
arises.
Section 3.2. No Remedy Exclusive. No remedy conferred upon or
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reserved to the Beneficiaries herein or in the Guaranty Documents is intended to
be exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
under this Guaranty or now or hereafter existing at law or in equity.
Section 3.3. Right to Proceed Against Guarantor. In the event of a
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default in any payment or performance of any Obligation owed to any
Beneficiaries when and as the same shall become due, whether at the stated
maturity thereof, by acceleration or otherwise, such Beneficiaries may proceed
to enforce their respective rights hereunder and such Beneficiaries shall have
the right to proceed first and directly against the Guarantor under this
Guaranty without proceeding against any other Person or exhausting any other
remedies which they may have and without resorting to any collateral security
relating thereto. The provisions of Section 6.7 of the Pass Through Trust
Agreement and Section 5.11 of the Indenture shall apply to any actions proposed
to be commenced hereunder against the Guarantor by the Certificateholders or by
the Pass Through Trustee in its capacity as a Loan Participant.
Section 3.4. Guarantor to Pay Costs of Enforcement. The Guarantor
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agrees to pay all costs,
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expenses and fees, including, without limitation, all reasonable attorneys'
fees, which may be incurred by the Beneficiaries in enforcing or attempting to
enforce this Guaranty following any default on the part of the Guarantor
hereunder, whether the same shall be enforced by suit or otherwise.
Section 3.5. No Waiver of Rights. No delay in exercising or omission
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to exercise any right or power accruing upon any default, omission or failure of
performance hereunder shall impair any such right or power or shall be construed
to be a waiver thereof, but any such right and power may be exercised from time
to time and as often as may be deemed expedient. Nothing in this Guaranty or
any other document referred to herein shall constitute a waiver by the Guarantor
of any rights to xxx for damages or specific performance for breach of any
obligations undertaken by the Owner Trustee, the Charterer or any other Person
mentioned herein or who is a party to any of the other documents referred to
herein.
ARTICLE IV
COVENANTS OF GUARANTOR
Section 4.1. Maintenance of Corporate Existence. So long as any of
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the Obligations remain outstanding or any amounts due and owing by the Charterer
with respect thereto remain unpaid, the Guarantor will maintain its corporate
existence and will not merge or consolidate with any other corporation or
dissolve or otherwise sell or dispose of all or substantially all of its assets
as an entirety, unless the successor or transferee corporation (if other than
the Guarantor) shall expressly and unconditionally assume, in a written
instrument delivered to the Owner Participant, the Owner Trustee, the Indenture
Trustee, and the Pass Through Trustee, the punctual performance and observance
of all covenants, conditions and obligations of this Guaranty to be performed by
the Guarantor.
Section 4.2. Financial Statements. The Guarantor shall provide to
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the Owner Participant and the Indenture Trustee, within thirty (30) days after
the Guarantor is required to file the same with the Securities and Exchange
Commission (the "SEC") or any successor agency, a copy of each annual report and
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any amendment to an annual report (currently Form 10-K), filed by the Guarantor
with the SEC pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as the same may be amended from time to time,
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and all financial statement reports, notices, proxy statements or other
documents that are sent or made generally available by the Guarantor to holders
of its registered securities and all regular and periodic reports filed by the
Guarantor with the SEC except for reports on SEC Forms 3, 4 or 5 or any
comparable reports.
ARTICLE V
GENERAL
Section 5.1. Benefitted Parties. This Guaranty is entered into by
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the Guarantor for the benefit of the Beneficiaries in accordance with the
provisions of this Guaranty and the Operative Documents. This Guaranty shall
not be deemed to create any right in, or to be in whole or part for the benefit
of, any person other than the Beneficiaries and the Guarantor and their
respective permitted successors and permitted assigns. The Guarantor may not
assign any of its rights or obligations hereunder except in accordance with
Section 4.1 hereof.
Section 5.2. Interpretations. The article and section headings of
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this Guaranty are for reference purposes only and shall not affect its
interpretation in any respect.
Section 5.3. Entire Agreement; Counterpart; Amendments; Governing
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Law; Etc. This Guaranty (a) con stitutes the entire agreement, and supersedes
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all prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof; (b) may be executed in
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several counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument; (c) may be modified
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only by an instrument in writing signed by the duly authorized representatives
of the parties hereto and (d) has been delivered in the State of New York and
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shall be governed in all respects, including validity, interpretation and effect
by, and shall be enforceable in accordance with, the laws of the State of New
York (other than the law of the State of New York governing choice of law).
Subject to Section 2.5 hereof, this Guaranty shall terminate when the
Obligations have been fully, indefeasibly and unconditionally paid and performed
in full.
If any provision of this Guaranty shall be held to be invalid by any
court of competent jurisdiction, the invalidity of such provisions shall not
affect any of the remaining provisions, and any such invalidity in any
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jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto hereby waive any provision thereof that renders any term or provision
hereof invalid or unenforceable in any respect.
Section 5.4. Further Assurances. The Guarantor will execute and
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deliver all such instruments and take all such actions as the Beneficiaries may
from time to time reasonably request in order fully to effectuate the purposes
of this Guaranty.
Section 5.5. Notices. All notices and other communications in
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respect of this Guaranty (a) to the Beneficiaries shall be made in the manner
and at the respective addresses set forth in the Participation Agreement and (b)
to the Guarantor shall be made in the manner provided in the Participation
Agreement at the following address (or such other address as the Guarantor may
notify to the Beneficiaries from time to time):
Mobil Corporation
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Telecopier: 000-000-0000
Telephone: 000-000-0000
Section 5.6. Consent to Jurisdiction. Any legal suit, action or
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proceeding arising out of or relating to this Guaranty or any transaction
contemplated hereby may be instituted in any state or Federal court in the
County of New York and State of New York and, to the extent permitted by
applicable law, the Guarantor waives any objection which it may now or hereafter
have 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.
Section 5.7. Waiver of Jury Trial. BY ITS SIGNATURE BELOW WRITTEN,
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EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY
OR THE OTHER OPERATIVE DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed in
its name and behalf and its corporate seal to be affixed hereto and attested by
its duly authorized officers, and the Beneficiaries have accepted the same, as
of the date first above written.
ATTEST: MOBIL CORPORATION
By: ______________________ By: _______________________
Name: Name:
Title: Title:
ACCEPTED:
FIRST SECURITY BANK, NATIONAL ASSOCIATION, in both
its individual capacity and as Owner Trustee
By: _________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, in its
individual capacity and as Indenture Trustee
By: _________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, in its
individual capacity and as Pass Through Trustee
under each of the Pass Through Trust Documents and
as Loan Participant
By: _______________________
Name:
Title:
SBCM MARINE FINANCE, INC.
By: _________________________
Name:
Title:
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