EXHIBIT 1.1
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Execution Copy
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MOBIL CORPORATION
1996-A PASS THROUGH TRUST
PASS THROUGH CERTIFICATES
SERIES 1996-A
UNDERWRITING AGREEMENT
Dated: December 12, 1996
December 12, 1996
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Mobil Marine Finance Company I Inc., a Delaware corporation, and Mobil
Marine Finance Company II Inc., a Delaware corporation (together with Mobil
Marine Finance Company I Inc., the "Companies" and individually a "Company"), in
connection with the financing or refinancing of the debt portion of four
leveraged lease transactions (each with respect to a separate very large crude
carrier ("VLCC")) in which the Companies, as charterers, propose that State
Street Bank and Trust Company, as trustee (the "Pass Through Trustee"), will
issue and sell to you its Pass Through Certificates, Series 1996-A, in the
aggregate stated principal amount (including full accretion) and with the
interest rate and final distribution date set forth on Schedule A hereto (the
"Offered Certificates") on the terms and conditions stated herein. The Offered
Certificates will be issued under the Pass Through Trust Agreement dated as of
October 4, 1996 (the "Basic Agreement"), among Mobil Corporation, a Delaware
corporation (the "Guarantor"), the Companies and the Pass Through Trustee and
the other parties described therein, as supplemented by the Pass Through Trust
Supplement No. 1996-A, dated as of December 19, 1996 (the "Trust Supplement"),
among the Guarantor, the Companies and the Pass Through Trustee (the Basic
Agreement as supplemented by the Trust Supplement being referred to herein as
the "Designated Agreement"). Capitalized terms used herein without definition
shall have the respective meanings ascribed to such terms in the Designated
Agreement or in each of the four Trust Indenture, Assignment of Charter and Head
Lease and Security Agreements, dated as of December 19, 1996, each between the
related Owner Trust and the Indenture Trustee (each, an "Indenture").
The Guarantor, the Companies and certain other subsidiaries of the
Guarantor have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-13457),
relating to certain pass through certificates, including the Offered
Certificates, and the offering thereof from time to time in accordance with Rule
415 of the Securities Act of 1933, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Securities Act"). The
registration statement as amended at the date hereof, including the exhibits
thereto and the documents incorporated by reference therein, is herein referred
to as the "Registration Statement." The Registration Statement includes a basic
prospectus referred to below which, as supplemented from time to time, will be
used in connection with all offerings of such pass through certificates. A
prospectus supplement or supplements reflecting the terms of the Offered
Certificates, the terms of the offering thereof and other matters relating to
the Offered Certificates has been prepared and has been or will be filed (or
mailed for filing) together with the basic prospectus referred to below pursuant
to Rule 424 under the Securities Act (such prospectus supplement, in the form
first filed on or after the date hereof pursuant to Rule 424, is herein
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referred to as the "Prospectus Supplement" and any such prospectus supplement in
the form or forms filed prior to the Prospectus Supplement is herein referred to
as a "Preliminary Prospectus Supplement"). The basic prospectus included in the
Registration Statement and relating to all offerings of pass through
certificates under the Registration Statement, as supplemented by the Prospectus
Supplement, is herein called the "Prospectus," except that, if such basic
prospectus is amended on or prior to the date on which the Prospectus Supplement
is first filed (or mailed for filing) pursuant to Rule 424, the term
"Prospectus" shall refer to such basic prospectus as so amended and as
supplemented by the Prospectus Supplement, in either case including the
documents filed by the Guarantor with the Commission pursuant to the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Exchange Act"), that are incorporated
by reference therein. Any reference herein to the terms "amendment" or
"supplement" with respect to the Registration Statement, to the Prospectus, any
Preliminary Prospectus Supplement or to any preliminary prospectus shall be
deemed to refer to and include any documents filed with the Commission under the
Exchange Act after the date hereof, the date the Prospectus is filed (or mailed
for filing) with the Commission, or the date of such Preliminary Prospectus
Supplement or preliminary prospectus, as the case may be, and incorporated
therein by reference pursuant to Item 12 of Form S-3 under the Securities Act.
I.
The Guarantor and the Companies represent and warrant to, and agree with,
you that:
(a) The Guarantor and the Companies meet the requirements for use of
Form S-3 under the Securities Act; the Registration Statement has become
effective; (i) on the original effective date of the Registration
Statement, on the effective date of the most recent post-effective
amendment thereto, if any, and on the date of the filing by the Guarantor
of any annual report on Form 10-K after the original effective date of the
Registration Statement, the Registration Statement and any amendments and
supplements thereto complied in all material respects with the requirements
of the Securities Act and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and (ii) on the
date hereof and at all times subsequent thereto up to the Closing Date
referred to below, neither the Prospectus nor any amendment or supplement
thereto will include an 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 neither the Guarantor nor either Company makes any
representation or warranty as to statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Guarantor and the Companies by or on behalf of you expressly for use in the
Registration Statement or the Prospectus or to statements or omissions in
that part of the Registration Statement which shall constitute the
Statement of Eligibility under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), on Form T-1 of the Pass Through Trustee.
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(b) The documents incorporated by reference in the Prospectus pursuant
to Item 12 of Form S-3 under the Securities Act, at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act.
(c) The Guarantor and the Companies have been informed by Ernst &
Young LLP ("E&Y"), who have reported upon the audited consolidated
financial statements and the financial statement schedules, if any,
included or incorporated by reference in the Registration Statement, that
E&Y are independent public accountants as required by the Securities Act.
(d) This Agreement has been duly authorized, executed and delivered by
the Guarantor and each Company.
(e) The consolidated financial statements included or incorporated by
reference in the Registration Statement present fairly the consolidated
financial position of the Guarantor and its subsidiaries as of the dates
indicated and the consolidated results of operations and cash flows or
changes in financial position of the Guarantor and its subsidiaries for the
periods specified. Such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved, except as may be
indicated therein. The financial statement schedules, if any, included or
incorporated by reference in the Registration Statement present fairly the
information required to be stated therein. The selected consolidated
financial data included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of the
audited consolidated financial statements included or incorporated by
reference in the Registration Statement.
(f) Each of the Guarantor and the Companies is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware with corporate power and authority under such laws to
own, lease and operate its properties and conduct its business as described
in the Prospectus and to perform its obligations under this Agreement, the
Designated Agreement, the Parent Guaranties, the Charters and the other
Operative Documents and the UK Documents to which it is, or is to be, a
party; and the Guarantor and each Company is duly qualified to transact
business as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or transacts
business of a type, that would make such qualification necessary, except to
the extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the Guarantor and its subsidiaries, taken
as a whole or on the power or ability of the Guarantor or either Company,
as the case may be, to perform its obligations under this Agreement, the
Designated Agreement or the Operative Agreements or the UK Documents to
which it is, or is to be, a party or to consummate the transactions
contemplated hereby and thereby (any such material adverse effect, whether
with
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respect to the Guarantor or either Company, as applicable, is referred to
herein as a "Material Adverse Effect").
(g) Each subsidiary of the Guarantor (other than the Companies) is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation with corporate power and
authority under such laws to own, lease and operate its properties and
conduct its business as described in the Prospectus, and is duly qualified
to transact business as a foreign corporation and is in good standing in
each other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification necessary,
except to the extent that the failure to so qualify or be in good standing
would not have a Material Adverse Effect.
(h) The Designated Agreement, the Participation Agreements, the Parent
Guaranties, the Charters and the other Operative Documents and the UK
Documents to which the Guarantor and/or each Company is, or is to be, a
party, have each been duly authorized by the Guarantor and/or the
applicable Company, as the case may be, and, when duly executed and
delivered by the Guarantor and/or such Company, as the case may be, the
Designated Agreement, the Participation Agreements, and on the respective
Transfer Dates, the Parent Guaranties, the Charters and the other Operative
Documents and, on the date of execution thereof, the UK Documents (if such
documents are entered into), will constitute valid and binding obligations
of the Guarantor and/or the applicable Company, as the case may be, except
as (A) the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally, and by general principles of equity and (B)
the enforceability of the Charters may be limited by applicable law which
may affect the remedies provided therein, which laws, however, do not make
such remedies inadequate for the practical realization of the rights and
benefits intended to be provided thereby. The Basic Agreement as executed
is substantially in the form filed as an exhibit to the Registration
Statement and has been duly qualified under the Trust Indenture Act. The
Offered Certificates, the Secured Notes, the Indentures, the Designated
Agreement, the Participation Agreements, the Parent Guaranties, the
Charters and other Operative Documents and the UK Documents to which the
Guarantor and/or either Company is, or is to be, a party will conform in
all material respects to the descriptions thereof in the Prospectus.
(i) The Offered Certificates, when duly executed, authenticated and
delivered by the Pass Through Trustee in accordance with the terms of the
Designated Agreement and this Agreement will be duly issued under the
Designated Agreement and will constitute valid and binding obligations of
the Pass Through Trustee, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting enforcement of creditors' rights
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generally and by general principles of equity; and the holders thereof will
be entitled to the benefits of the Designated Agreement.
(j) The Secured Notes to be issued under each Indenture, when duly
executed and delivered by the related Owner Trust and duly authenticated by
the Indenture Trustee in accordance with the terms of such Indenture, will
be duly issued under such Indenture and will constitute the valid and
binding obligations of such Owner Trust and the holders thereof will be
entitled to the benefits of such Indenture.
(k) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, there has not been any material adverse
change, or any development involving a prospective material adverse change,
in the condition, financial or otherwise, or in the earnings or business
operations of the Guarantor and its subsidiaries, taken as a whole.
(l) The execution and delivery by the Guarantor and/or each Company of
this Agreement, the Designated Agreement, the Participation Agreements, the
Parent Guaranties, the Charters and the other Operative Documents and the
UK Documents to which the Guarantor and/or each Company is, or is to be, a
party, the consummation by the Guarantor and each Company of the
transactions contemplated in this Agreement, the Designated Agreement, the
Participation Agreements, the Parent Guaranties, the Charters and the other
Operative Documents and the UK Documents, and compliance by the Guarantor
and the applicable Company with the terms of this Agreement, the Designated
Agreement, the Participation Agreements, the Parent Guaranties, the
Charters and the other Operative Documents and the UK Documents, do not and
will not result in any violation of the charter or by-laws of the Guarantor
or either Company, and do not and will not conflict with, or result in a
breach of any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or encumbrance
(other than Permitted Liens) upon any property or assets of the Guarantor
or either Company under (A) any indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which the Guarantor or any of its
subsidiaries is a party or by which it may be bound or to which any of its
properties may be subject and which is material to the Guarantor and its
subsidiaries, taken as a whole, or to either Company or (B) any existing
applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over either Company, the Guarantor or any of its
subsidiaries or any of their properties other than the securities or Blue
Sky or similar laws of the various states (except, in the case of either
clause (A) or (B), for Permitted Liens and such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect).
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(m) No authorization, approval, consent, order or license of or filing
with or notice to any government, governmental instrumentality or court,
domestic or foreign, is required for the valid authorization, issuance,
sale and delivery of the Offered Certificates, the valid authorization,
execution, delivery and performance by the Guarantor or either Company of
this Agreement, the Designated Agreement, the Participation Agreements, the
Parent Guaranties, the Charters and the other Operative Documents and the
UK Documents to which the Guarantor and/or each Company is, or is to be, a
party, or the consummation by the Guarantor or each Company of the
transactions contemplated by this Agreement, the Designated Agreement, the
Participation Agreements, the Parent Guaranties, the Charters and the other
Operative Documents and the UK Documents to which the Guarantor and/or each
Company is, or is to be, a party, except (i) such as are required under the
Securities Act (which approvals have been obtained), the Trust Indenture
Act and the securities or Blue Sky or similar laws of the various states
and (ii) those which if not obtained would not result in a Material Adverse
Effect.
(n) Except as disclosed in the Prospectus, there are no legal or
governmental proceedings pending or, to the knowledge of either Company or
the Guarantor, threatened to which either Company or the Guarantor or any
of its subsidiaries is a party or to which any of the properties of either
Company or the Guarantor or any of its subsidiaries is subject other than
proceedings that if adversely determined would not have a Material Adverse
Effect.
(o) There are no contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described and filed as
required or incorporated by reference therein.
(p) Each of the Companies, the Guarantor and its subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-
regulatory organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its business in
the manner described in the Prospectus, except to the extent that the
failure to so obtain or file would not have a Material Adverse Effect.
(q) Neither the Guarantor nor either Company is an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act"); and none of the Owner Trusts nor the Pass Through Trust,
after giving effect to the offering and sale of the Offered Certificates
and the application of proceeds thereof as described in the Prospectus,
will be an "investment company" as defined in the Investment Company Act.
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(r) Neither the Guarantor nor either Company has taken or will take,
directly or indirectly, any actions prohibited by Rule 10b-6 under the
Exchange Act.
(s) The Guarantor and both Companies have each complied with all
provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida), and all regulations promulgated thereunder relating to doing
business with the government of Cuba or with any person or affiliate
located in Cuba.
II.
Subject to the terms and conditions set forth herein, and in reliance
upon the representations and warranties herein contained, the Guarantor and the
Companies agree to cause the Pass Through Trustee to sell to you, and you agree
to purchase from the Pass Through Trustee, at a purchase price of 92.154% of the
principal aggregate stated amount (including full accretion) thereof, the
aggregate principal amount of Offered Certificates (including full accretion)
set forth in Schedule A.
The Guarantor and the Companies are advised by you that you propose to
make a public offering of the Offered Certificates as soon after this Agreement
has been entered into as in your judgment is advisable. The Guarantor and the
Companies are further advised by you that the Offered Certificates are to be
offered to the public initially at 92.154% of their aggregate stated principal
amount (including full accretion) -- the public offering price -- plus accrued
interest and accretion of discount, if any, and to certain dealers selected by
you at concessions not in excess of the concessions set forth in the Prospectus,
and that you may allow, and such dealers may reallow, concessions, not in excess
of the concessions set forth in the Prospectus, to certain other dealers.
As compensation to you for your commitments and obligations hereunder
in respect of the Offered Certificates, including your undertaking to distribute
Offered Certificates, the Guarantor will pay or cause to be paid by the Owner
Trust to you an amount equal to that percentage of the aggregate stated
principal amount (including full accretion) of the Offered Certificates
purchased by you as set forth in Schedule A. Such payment shall be made
simultaneously with the payment by you to the Pass Through Trustee of the
purchase price of the Offered Certificates as specified in Article III hereof.
Payment of such compensation shall be made by Federal funds check or other
immediately available funds.
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III.
Delivery of and payment for the Offered Certificates shall be made at
the office of Xxxxx Xxxxxxxxxx, 1301 Avenue of the Americas, New York, New York,
at 9:00 A.M. (New York time) on December 19, 1996, or such other date, time and
place as may be agreed upon by the Guarantor, the Companies and you (such date
and time of delivery and payment for the Offered Certificates being herein
called the "Closing Date"). Delivery of the Offered Certificates shall be made
to your account at The Depository Trust Company against payment by you of the
purchase price thereof to or upon the order of the Pass Through Trustee by
Federal funds check or other immediately available funds. The Offered
Certificates shall be registered in the name of Cede & Co. or in such other
names, and in such denominations as you may request in writing at least two full
business days in advance of the Closing Date.
The Guarantor and the Companies agree to have the Offered
Certificates, which may be in temporary form, available for inspection, checking
and packaging by you in New York, New York not later than 1:00 P.M. on the
business day prior to the Closing Date.
IV.
Your obligations hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued under the Securities Act and no
proceedings therefor shall have been instituted or threatened by the
Commission.
(b) You shall have received on the Closing Date an opinion of Xxxxx
Xxxxxxxxxx, special counsel for the Guarantor and the Companies reasonably
acceptable to you, dated the Closing Date, in form satisfactory to you and
your counsel, to the effect that:
(i) Assuming that the Offered Certificates have been duly
authorized and validly executed, authenticated, issued and delivered
by the Pass Through Trustee pursuant to the Designated Agreement, when
such Offered Certificates have been paid for in accordance with the
terms of this Agreement, such Offered Certificates will (x) be valid
and binding obligations of the Pass Through Trustee enforceable in
accordance with their terms except as may be limited by bankruptcy,
insolvency, moratorium, reorganization or similar laws affecting
creditors' rights generally and by general principles of equity and
(y) be entitled to the benefits of the Designated Agreement;
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(ii) The Offered Certificates, the Designated Agreement, the
Participation Agreements, the Indentures, the Secured Notes, the
Parent Guaranties, the Charters and the other Operative Documents and
the UK Documents conform in all material respects as to legal matters
to the descriptions thereof, if any, contained in the Prospectus, and
the description of the Offered Certificates conforms in all material
respects to the rights set forth in the instruments defining the same;
(iii) No authorization, approval, consent, order or license of
or filing with or notice to any government, governmental
instrumentality, regulatory body or authority or court is required for
the valid authorization, issuance and delivery of the Offered
Certificates, the valid authorization, execution, delivery and
performance by the Guarantor and/or each Company of this Agreement,
the Designated Agreement, the Participation Agreements, the Charters,
the Parent Guaranties and the other Operative Documents and the UK
Documents to which the Guarantor and/or each Company is, or is to be,
a party, or the consummation by the Guarantor and/or each Company of
the transactions contemplated by this Agreement, the Designated
Agreement, the Participation Agreements, the Charters, the Parent
Guaranties and the other Operative Documents and the UK Documents to
which the Guarantor and/or each Company is, or is to be, a party,
except (i) such as are required under the Securities Act (which
approvals have been obtained), the Trust Indenture Act and the
securities or Blue Sky laws of the various states (as to which such
counsel need express no opinion) and (ii) those which if not obtained
would not result in a Material Adverse Effect;
(iv) The Registration Statement has become effective under the
Securities Act, the Basic Agreement has been duly qualified under the
Trust Indenture Act and, to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted
or threatened;
(v) The Registration Statement, the Prospectus and each amendment
thereof or supplement thereto (except for the financial statements and
other financial and statistical data included or incorporated by
reference therein, the documents incorporated by reference in the
Prospectus, and the Statement of Eligibility as to which such counsel
need express no opinion) comply as to form in all material respects
with the requirements of the Securities Act;
(vi) This Agreement has been duly authorized, executed and
delivered by the Guarantor and each Company;
(vii) The Participation Agreements and the Designated Agreement
have each been duly authorized, executed and delivered by the
Guarantor and
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each Company and each is a valid and binding obligation of the
Guarantor and each Company enforceable against the Guarantor and each
Company in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting enforcement of creditors' rights generally and by
general principles of equity;
(viii) The Charters, the Parent Guaranties and other Operative
Documents and the UK Documents to which the Guarantor and/or each
Company is, or is to be, a party have been duly authorized and, on the
respective Transfer Dates, the related Charters, the Parent Guaranties
and other Operative Documents to which the Guarantor and/or each
Company is, or is to be, a party, upon due execution and delivery by
the Guarantor and/or the applicable Company, as the case may be, will
each be a valid and binding obligation of the Guarantor and the
applicable Company enforceable against the Guarantor and the
applicable Company in accordance with its respective terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting enforcement of creditors' rights
generally and by general principles of equity and, except, in the case
of each Charter, as limited by applicable laws which may affect the
remedies provided in such Charter, which laws, however, do not in such
counsel's opinion make the remedies provided in such Charter
inadequate for the practical realization of the rights and benefits
provided thereby;
(ix) The statements in the Registration Statement and Prospectus
under the headings "Federal Income Tax Consequences" and "ERISA
Considerations," to the extent that they constitute matters of law or
legal conclusions with respect thereto, have been prepared or reviewed
by such counsel and are correct in all material respects;
(x) Based upon an interpretation of analogous authorities under
currently applicable law, the Pass Through Trust created by the
Designated Agreement will be classified as a grantor trust (and not as
an association taxable as a corporation) for federal income tax
purposes and each Certificate Owner will be treated as the owner of a
pro rata undivided interest in each of the Secured Notes or any other
property held in such Pass Through Trust;
(xi) None of the Trusts is required to be registered under the
Investment Company Act of 1940, as amended;
(xii) Upon consummation of the transactions contemplated by the
Participation Agreements, on the respective Transfer Dates, assuming
due authorization, execution and delivery by the related Owner Trust
and due authentication by the related Indenture Trustee, each Secured
Note will constitute valid and binding obligations of the related
Owner Trust,
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enforceable against such Owner Trust in accordance with their terms,
except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting enforcement of creditors'
rights generally and by general principles of equity; and the holders
of the Secured Notes will be entitled to the benefits of the
respective Indentures; and
(xiii) Assuming due authorization, execution and delivery of the
Designated Agreement by the Pass Through Trustee, the Designated
Agreement constitutes the valid and binding obligation of the Pass
Through Trustee, enforceable in accordance with its terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting enforcement of creditors' rights
generally and by general principles of equity.
and to such further effect with respect to other legal matters relating to
this Agreement, the Participation Agreements, the Designated Agreement and
the Charters, the Parent Guaranties and other Operative Documents and the
UK Documents to which the Guarantor and/or each Company is, or is to be, a
party and the sale of the Offered Certificates hereunder as your counsel
may reasonably request.
Such opinion may state that, except with respect to the matters set
forth in clauses (ii) and (ix) above, such counsel have not verified, and are
not passing upon and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, or the documents incorporated by reference therein,
and have not made an independent investigation of facts for the purpose of
rendering such opinion. Such opinion shall state, however, that no facts came
to such counsels' attention that caused them to believe that the descriptions of
the Offered Certificates, the Designated Agreement, the Participation
Agreements, the Charters, the Parent Guaranties, the Indentures, the Secured
Notes and the other Operative Documents and the UK Documents set forth under the
headings "Summary," "Outline of the Transaction," "Use of Proceeds," "Diagram of
Payments," "Description of the Pass Through Certificates," "Description of the
Secured Notes," "Description of the Charters," "The Parent Guaranties," "The
Participation Agreements," "The U.K. Financing," "Appendix A: Glossary of
Certain Terms," "Formation of the Trusts," "Description of the Certificates,"
and "Outline of the Leveraged Lease Structure" in the Prospectus or any
amendment or supplement thereto, at the time the Prospectus Supplement was
issued, at the time any such amended or supplemented prospectus was issued or at
the Closing Date, included or includes an untrue statement of a material fact or
omitted or omits 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.
In addition, such counsel may rely upon the opinions of counsel for
the related Owner Trusts and the related Owner Trustees and counsel for the Pass
Through Trustee and the Indenture Trustee, and may state that their opinion is
limited to matters governed by the
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laws of the State of New York, the corporate law of the State of Delaware and
the federal law of the United States, except that such counsel expresses no
opinion as to the securities laws of any state.
(c) You shall have received on the Closing Date an opinion of Xxxxx X.
Xxxxxxxx, Xx., Managing Counsel, Corporate Finance and Securities of the
Guarantor, dated the Closing Date, in form satisfactory to you and to your
counsel, to the effect that:
(i) Each of the Guarantor and the Companies is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware with corporate power and authority under such laws
to own, lease and operate its properties and conduct its business as
described in the Prospectus and to perform its obligations under this
Agreement, the Designated Agreement, the Participation Agreements, the
Parent Guaranties, the Charters and the other Operative Documents and
the UK Documents to which the Guarantor and/or each Company is, or is
to be, a party;
(ii) Each of Mobil's Significant Subsidiaries (as defined under
Regulation S-X) has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus;
(iii) Each of the Companies and the Guarantor is duly qualified
to transact business as a foreign corporation and is in good standing
in each other jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a Material Adverse
Effect;
(iv) Each of the Companies, the Guarantor and the Guarantor's
Significant Subsidiaries (as defined under Regulation S-X) has all
necessary consents, authorizations, approvals, orders, certificates
and permits of and from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other tribunals,
to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, except
to the extent that, with respect to the Guarantor and the Guarantor's
Significant Subsidiaries, the failure to obtain or file would not have
a material adverse effect on the Guarantor and its subsidiaries, taken
as a whole and, with respect to either Company, the failure to obtain
or file would not have a Material Adverse Effect;
13
(v) No authorization, approval, consent, order or license of or
filing with or notice to any government, governmental instrumentality,
regulatory body or authority or court is required for the valid
authorization, issuance and delivery of the Offered Certificates, the
valid authorization, execution, delivery and performance by the
Guarantor and/or each Company of this Agreement, the Designated
Agreement, the Participation Agreements, the Charters, the Parent
Guaranties or other Operative Documents and the UK Documents to which
the Guarantor and/or each Company is, or is to be, a party, or the
consummation by the Guarantor and/or each Company of the transactions
contemplated by this Agreement, the Designated Agreement, the
Participation Agreements, the Charters, the Parent Guaranties or other
Operative Documents to which the Guarantor and/or each Company is, or
is to be, a party, except (i) such as are required under the
Securities Act (which approvals have been obtained), the Trust
Indenture Act and the securities or Blue Sky laws of the various
states (as to which such counsel need express no opinion) and (ii)
those which if not obtained would not result in a Material Adverse
Effect;
(vi) To the best of such counsel's knowledge, there are no
statutes or regulations, or any pending or threatened legal or
governmental proceedings, required to be described in the Prospectus
that are not described as required, nor any contracts or documents of
a character required to be described or referred to in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not described, referred to or
filed as required;
(vii) The descriptions in the Prospectus of the statutes,
regulations, legal or governmental proceedings, contracts and other
documents therein described are accurate in all material respects and
fairly summarize the information required to be shown;
(viii) To such counsel's knowledge, no default exists in the
Guarantor's or either Company's performance or observance of any
material obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed as an exhibit to the
Registration Statement;
(ix) This Agreement, the Participation Agreements, the Designated
Agreement, and on the respective Transfer Dates, the Charters, the
Parent Guaranties and other Operative Documents and, on the date of
execution thereof, the UK Documents (if such documents are entered
into), to which the Guarantor and/or each Company is, or is to be, a
party have, or will have, each been duly authorized, executed and
delivered by the Guarantor and/or the
14
applicable Company, as the case may be. The execution and delivery by
the Guarantor and/or the each Company, as the case may be, of this
Agreement, the Designated Agreement, the Participation Agreements, the
Charters, the Parent Guaranties, and the other Operative Documents and
the UK Documents to which the Guarantor and/or each Company is, or is
to be, a party, the issuance and sale of the Offered Certificates, the
consummation by the Guarantor and/or the applicable Company of the
transactions contemplated in this Agreement, the Designated Agreement,
the Participation Agreements, in the Registration Statement and in
such Operative Documents and the UK Documents and compliance by the
Guarantor and/or the applicable Company, as the case may be, with the
terms hereof and thereof do not and will not result in any violation
of the charter or by-laws of the Guarantor or either Company, and do
not and will not conflict with, or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance (except
for Permitted Liens) upon any property or assets of the Guarantor or
either Company under (A) any indenture, mortgage, loan agreement,
note, lease or other agreement or instrument known to such counsel, to
which the Guarantor or either Company is a party or by which it may be
bound or to which any of its properties may be subject (except for
such conflicts, breaches or defaults or liens, charges or encumbrances
that would not have a Material Adverse Effect), (B) any existing law,
rule or regulation applicable to the Guarantor or either Company
(other than the securities or Blue Sky laws of the various states, as
to which such counsel need express no opinion), or (C) any judgment,
order or decree of any government, governmental instrumentality or
court, domestic or foreign, known to such counsel having jurisdiction
over the Guarantor or either Company or any of their properties;
(x) The documents incorporated by reference in the Prospectus
(except for the financial statements and other financial data included
or incorporated by reference therein or omitted therefrom, as to which
such counsel need express no opinion), as of the dates they were filed
with the Commission, complied as to form in all material respects with
the requirements of the Exchange Act and the rules and regulations
thereunder; and
(xi) Neither the Guarantor nor either Company is an "investment
company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
Such opinion shall also state that such counsel or lawyers on his
staff have participated in the preparation of the Registration Statement,
the Prospectus and the documents incorporated by reference therein and that
no facts have come to his attention to lead him to believe (A) that the
Registration Statement or any amendment
15
thereto (except for (i) the financial statements and other financial data
included therein or omitted therefrom, (ii) the Statement of Eligibility
and Qualification of the Pass Through Trustee on Form T-1 and (iii) the
descriptions of the Offered Certificates, the Designated Agreement and the
Operative Documents and the UK Documents set forth under the headings
"Summary," "Outline of the Transaction," "Use of Proceeds," "Diagram of
Payments," "Description of the Pass Through Certificates," "Description of
the Secured Notes," "Description of the Charters," "The Parent Guaranties,"
"The Participation Agreements," "The U.K. Financing," "Appendix A: Glossary
of Certain Terms," "Formation of the Trusts," "Description of the
Certificates," and "Outline of the Leveraged Lease Structure" as to which
such counsel need express no opinion), at the time the Registration
Statement or any such amendment became effective, contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (B) that the Prospectus or any amendment or supplement thereto
(except for the financial statements and other financial data included
therein or omitted therefrom and the descriptions of the Offered
Certificates, the Designated Agreement and the Operative Documents and the
UK Documents set forth under the headings "Summary," "Outline of the
Transaction," "Use of Proceeds," "Diagram of Payments," "Description of the
Pass Through Certificates," "Description of the Secured Notes,"
"Description of the Charters," "The Parent Guaranties," "The Participation
Agreements," "The U.K. Financing," "Appendix A: Glossary of Certain Terms,"
"Formation of the Trusts," "Description of the Certificates," and "Outline
of the Leveraged Lease Structure" as to which such counsel need express no
opinion), at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the Closing Date,
included or includes an untrue statement of a material fact or omitted or
omits 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 or (C) that the documents incorporated by reference in the
Prospectus (except for the financial statements and other financial and
statistical data included therein or omitted therefrom and the Statement of
Eligibility, as to which such counsel need express no opinion), as of the
dates they were filed with the Commission, included an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(d) You shall have received on the Closing Date an opinion of Xxxxxxx,
Xxxx & Xxxxx LLP, counsel to State Street Bank and Trust Company ("SSB&T"),
individually and as Pass Through Trustee and Indenture Trustee, dated the
Closing Date to the effect that:
(i) SSB&T is a state chartered trust company duly organized and
validly existing in good standing under the laws of the Commonwealth
of Massachusetts and, in its individual capacity or as Pass Through
Trustee or Indenture Trustee, as the case may be, has full corporate
power and authority
16
to execute, deliver and perform its obligations under the Designated
Agreement, the Offered Certificates, the Participation Agreements and
the other Operative Documents to which it is a party;
(ii) SSB&T, in its individual capacity or as Pass Through Trustee
or as Indenture Trustee, as the case may be, has duly authorized the
Designated Agreement, the Participation Agreements, the Indentures and
the other Operative Documents to which it is a party, and has duly
executed and delivered the Designated Agreement, the Participation
Agreements and the Indentures which constitute, and upon the
respective Transfer Dates the other Operative Documents to which it is
to be a party upon due execution and delivery thereof will constitute,
valid and binding obligations of SSB&T, in its individual capacity or
as Pass Through Trustee or Indenture Trustee, as the case may be,
enforceable against SSB&T, in its individual capacity or as Pass
Through Trustee or Indenture Trustee, as the case may be, in
accordance with their respective terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting enforcement of creditors' rights generally, and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
(iii) The Offered Certificates have been duly authorized and
validly executed, authenticated, issued and delivered by SSB&T, in its
capacity as Pass Through Trustee, pursuant to the Designated
Agreement, and the Offered Certificates constitute valid and binding
obligations of SSB&T, in its capacity as Pass Through Trustee,
enforceable against SSB&T, as Pass Through Trustee, in accordance with
their respective terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization or other similar laws
affecting enforcement of creditors' rights generally, and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law); and the holders of the Offered Certificates are
entitled to the benefits of the Designated Agreement;
(iv) The authorization, execution, delivery and performance by
SSB&T, in its individual capacity or as Pass Through Trustee or
Indenture Trustee, as the case may be, of the Designated Agreement,
the Participation Agreements, the Indentures and the other Operative
Documents to which it is, or is to be, a party and the consummation of
the transactions therein contemplated and compliance with the terms
thereof and issuance of the Offered Certificates under the Designated
Agreement do not and will not result in the violation of the
provisions of the charter documents or by-laws of SSB&T and do not and
will not conflict with, or result in a breach of any terms or
provisions of, or constitute a default under, or result in the
creation
17
or the imposition of any lien, charge or encumbrance upon any property
or assets of SSB&T under any indenture, mortgage or other agreement or
instrument known to such counsel to which SSB&T is a party or by which
it or any of its property is bound, or any Massachusetts or federal
law, rule or regulation governing SSB&T's banking or trust powers, or
of any judgment, order or decree known to such counsel to be
applicable to SSB&T of any court, regulatory body, administrative
agency, government or governmental body having jurisdiction over SSB&T
or its properties;
(v) No authorization, approval, consent, license or order of,
giving of notice to, registration with, or taking of any other action
in respect of, any federal or state governmental authority or agency
pursuant to any federal or Massachusetts law governing the banking or
trust powers of SSB&T is required for the authorization, execution,
delivery and performance by SSB&T, in its individual capacity or as
Pass Through Trustee or Indenture Trustee, as the case may be, of the
Designated Agreement, the Participation Agreements, the Indentures or
the other Operative Documents to which it is, or is to be, a party or
the consummation of any of the transactions by SSB&T, in its
individual capacity or as Pass Through Trustee or Indenture Trustee,
as the case may be, contemplated thereby or the issuance of the
Offered Certificates under the Designated Agreement (except as shall
have been duly obtained, given or taken); and such authorization,
execution, delivery, performance, consummation and issuance do not
conflict with or result in a breach of the provisions of any such law;
(vi) There are no taxes, fees or other governmental charges
payable under the laws of the Commonwealth of Massachusetts or any
political subdivision of such State in connection with the execution
and delivery by SSB&T, in its individual capacity or as Pass Through
Trustee or Indenture Trustee, as the case may be, of the Designated
Agreement, the Participation Agreements, the Indentures and the other
Operative Documents or in connection with the issuance, execution and
delivery of the Offered Certificates by SSB&T, as Pass Through
Trustee, pursuant to the Designated Agreement;
(vii) The statements in the Registration Statements and in the
Prospectus under the caption "Certain Massachusetts Taxes," to the
extent that they constitute matters of law or legal conclusions with
respect thereto, have been prepared and reviewed by such counsel and
are correct in all material respects; and
(viii) To such counsel's knowledge, there are no proceedings
pending or threatened against or affecting SSB&T in any court or
before any governmental authority, agency, arbitration board or
tribunal which, if
18
adversely determined, individually or in the aggregate, would
materially and adversely affect the Pass Through Trust or any trust
related to any Indenture or question the right, power and authority of
SSB&T, in its individual capacity or as Pass Through Trustee or
Indenture Trustee, as the case may be, to enter into or perform its
obligations under the Designated Agreement, the Participation
Agreements, the Indentures and the other Operative Documents to which
it is, or is to be, a party or to issue the Offered Certificates.
(e) You shall have received on the Closing Date an opinion of Shearman
& Sterling, your counsel, dated the Closing Date, to the effect that the
opinions delivered pursuant to paragraphs (b), (c) and (d) appear on their
face to be appropriately responsive to the requirements of this Agreement
except, specifying the same, to the extent waived by you and with respect
to the issuance and sale of the Offered Certificates, the Registration
Statement, the Prospectus and other related matters as you may reasonably
require.
(f) There shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations, of the Guarantor and its
subsidiaries, taken as a whole, from that set forth in the Prospectus, that
is material and adverse and that would, in your reasonable judgment after
consultation with the Guarantor, prevent or materially impair the marketing
or enforcement of contracts for sale of the Offered Certificates on the
terms and in the manner contemplated in the Prospectus.
(g) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have been any downgrading, nor
any notice given either publicly or directly to the Guarantor of any
intended or potential downgrading or any review with possible negative
implications, in the rating accorded any of the Guarantor's or either
Company's securities, including the Offered Certificates, by Standard &
Poor's Rating Group or Xxxxx'x Investors Service, Inc.
(h) You shall have received on the Closing Date (i) a certificate,
dated the Closing Date and signed by the President, a Vice President, the
Treasurer or the Controller of the Guarantor, to the effect set forth in
paragraph (g) above and to the effect that the representations and
warranties of the Guarantor contained in this Agreement shall be true and
correct as of the Closing Date and that the Guarantor shall have performed
all of its obligations to be performed hereunder on or prior to the Closing
Date and (ii) a certificate, dated the Closing Date and signed by the
President, a Vice President, the Treasurer or the Controller of each
Company, to the effect that the representations and warranties of the
Company contained in this Agreement shall be true and correct as of the
Closing Date and that the Company shall have performed all of its
obligations to be performed hereunder on or prior to the Closing Date.
19
(i) You shall have received on the date of this Agreement and on the
Closing Date letters from E&Y, dated the date of this Agreement and the
Closing Date, respectively, in the form of Exhibit A hereto with respect to
the financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
(j) All conditions specified in each of the Participation Agreements
with respect to the Pass Through Trustee's purchase of the Secured Notes on
the Transfer Date shall have been satisfied on the Closing Date; the
representations and warranties of the Guarantor and each Company contained
in each of the Participation Agreements shall be accurate as of the Closing
Date (except to the extent that they relate solely to an earlier date in
which case they shall be accurate as of such earlier date) and you shall
have received a certificate of a Vice President or Treasurer of the
Guarantor and each Company, dated as of the Closing Date, to such effect;
and you shall have received each opinion referred to in Section 4.6 of each
of the Participation Agreements.
(k) The Guarantor and each Company shall have furnished to you and to
your counsel, in form and substance satisfactory to them, such other
documents, certificates and opinions as such counsel may reasonably request
in order to evidence the accuracy and completeness of any of the
representations, warranties or statements, the performance of any covenant
by the Guarantor or each Company theretofore to be performed, or the
compliance with any of the conditions herein contained.
V.
In further consideration of your agreement herein contained, the
Guarantor and each Company covenant as follows:
(a) To furnish you, without charge, one signed copy of the
Registration Statement including exhibits and a conformed copy of the
Registration Statement without exhibits 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 or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish you a copy of each such proposed amendment or
supplement, and to file no such proposed amendment or supplement to which
you reasonably object.
(c) If, during such period after the first date of the public offering
of the Offered Certificates as in the opinion of your counsel the
Prospectus is required by
20
law to be delivered in connection with sales by you or a dealer, 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 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
you and to the dealers (whose names and addresses you will furnish to the
Guarantor and the Companies) to which Offered Certificates may have been
sold by you and to any other dealers upon request, 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 purchaser, be misleading or so that the
Prospectus, as so amended or supplemented, will comply with law and to
cause such amendments or supplements to be filed promptly with the
Commission.
(d) To endeavor to qualify the Offered Certificates for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request, to maintain such qualifications for so long as required
for the distribution of such Offered Securities and to pay all expenses
(including filing fees and reasonable fees and disbursements of counsel) in
connection with such qualification and in connection with (i) the review
(if any) of the offering of the Offered Certificates by the National
Association of Securities Dealers, Inc., (ii) the determination of the
eligibility of the Offered Certificates for investment under the laws of
such jurisdictions as you may designate and (iii) the preparation of any
Blue Sky or Legal Investment Memorandum; provided, however, that neither
the Guarantor nor either Company shall be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as
a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
(e) To make generally available to the Guarantor's security holders as
soon as practicable an earnings statement covering the twelve-month period
ending twelve months after the end of the Guarantor's fiscal quarter in
which the Closing Date occurs that satisfies the provisions of Section
11(a) of the Securities Act.
(f) Between the date of this Agreement and the Closing Date, neither
the Guarantor nor either Company will without your prior written consent
offer, sell, or enter into any agreement to sell, any public debt
securities registered under the Securities Act (other than the Offered
Certificates) or any debt securities (other than debt securities issued by
Ras Laffan Liquified Natural Gas Company Limited, in respect of which debt
securities the Guarantor will have contingent repayment obligations) which
may be resold in a transaction exempt from the registration requirements of
the Securities Act in reliance on Rule 144A thereunder and which are
marketed through the use of a disclosure document containing substantially
the same
21
information as a prospectus for similar debt securities registered under
the Securities Act.
(g) The Guarantor, during the period when a prospectus relating to the
Offered Certificates is required to be delivered under the Securities Act,
will file promptly all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
VI.
The Guarantor and each Company, jointly and severally, agree to
indemnify and hold harmless you and each person, if any, who controls you 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 allegedly untrue statement of a
material fact contained in the Registration Statement, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Guarantor or the
Companies 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 allegedly untrue statement or alleged
omission based upon information relating to you furnished to the Guarantor and
the Companies in writing by you expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to any Preliminary
Prospectus Supplement shall not inure to the benefit of you, or any person
controlling you, from whom the person asserting any such losses, claims, damages
or liabilities purchased Offered Certificates, if a copy of the Prospectus (as
then amended or supplemented if the Guarantor or the Companies shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of you to such person, if required by law so to have been delivered, at
or prior to the written confirmation of the sale of the Offered Certificates to
such person, and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such losses, claims, damages or liabilities.
You agree to indemnify and hold harmless the Guarantor and the
Companies, each of their directors, each of their officers who sign the
Registration Statement and each person, if any, who controls the Guarantor or
either Company within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Guarantor and the Companies to you, but only with reference to
information relating to you furnished to the Guarantor and the Companies in
writing by you expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to
22
either of the two preceding paragraphs, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the 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 fees and expenses of more than one separate
firm (in addition to any local counsel) for all such indemnified parties, and
that all such fees and expenses shall be reimbursed as they are incurred. In
the case of any such separate firm for you and such control persons of you ,
such firm shall be designated in writing by you. In the case of any such
separate firm for the Guarantor and the Companies, and such directors, officers
and control persons of the Guarantor and the Companies, such firm shall be
designated in writing by the Guarantor. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first or second paragraph
of this Article VI is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Guarantor and the Companies on the one hand and you on
the other hand from the offering of the Offered Certificates 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 Guarantor and
the Companies on the one hand and of you on the other hand in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Guarantor and the Companies on the one hand
and you on the other hand shall be deemed to be in the
23
same respective proportions as the net proceeds from the offering of the Offered
Certificates (before deducting expenses) received by the Pass Through Trustee
and the total underwriting commissions received by you, in each case as set
forth in the table and footnotes thereto on the cover of the Prospectus
Supplement, bear to the aggregate public offering price of the Offered
Certificates. The relative fault of the Guarantor and the Companies on the one
hand and you on the other hand shall be determined by reference to, among other
things, whether the untrue or allegedly untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
supplied by the Guarantor or the Companies or by you and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Guarantor, the Companies and you 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 that does not take account
of the equitable 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 VI, you shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Certificates underwritten by you and distributed to the public were
offered to the public exceeds the amount of any damages that you have otherwise
been required to pay by reason of such untrue or allegedly untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided in this Article VI are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Article VI
and the representations and warranties of the Guarantor and the Companies
contained 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 or on behalf of you or any person controlling you or by or on behalf of the
Guarantor or either Company, its officers or directors or any other person
controlling the Guarantor or either Company and (iii) acceptance of and payment
for any of the Offered Certificates.
24
VII.
This Agreement shall be subject to termination in your absolute
discretion, by notice given to the Guarantor or the Companies, if (a) after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Guarantor or either Company
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities, or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your judgment, is
material and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iv), such event singly or together with any other such
event would, in your reasonable judgement after consultation with the Guarantor,
prevent or materially impair the marketing, or enforcement of contracts for
sale, of the Offered Certificates on the terms and in the manner contemplated in
the Prospectus.
VIII.
If this Agreement shall be terminated by you, because of any failure
or refusal on the part of the Guarantor or either Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Guarantor or either Company shall be unable to perform its
obligations under this Agreement, the Guarantor and each Company, jointly and
severally, will reimburse you for all out-of-pocket expenses (including the fees
and disbursements of your counsel) reasonably incurred by you in connection with
this Agreement or the offering contemplated hereunder.
This Agreement may be signed in two or more 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 internal laws of the State of New York.
Very truly yours,
MOBIL MARINE FINANCE
COMPANY I INC.
By: /s/ X.X. Xxxxxxxxxx
--------------------------------
X.X. Xxxxxxxxxx
Vice President and Chief
Financial Officer
MOBIL MARINE FINANCE
COMPANY II INC.
By: /s/ X.X. Xxxxxxxxxx
--------------------------------
X.X. Xxxxxxxxxx
Vice President and Chief
Financial Officer
MOBIL CORPORATION
By: /s/ X.X. Xxxxxxx, Xx.
--------------------------------
X.X. Xxxxxxx, Xx.
Senior Vice President
and Chief Financial Officer
Accepted as of the date first
above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxx Xxxxx
--------------------------------
Xxxxx Xxxxx
Vice President
SCHEDULE A
Aggregate
Pass Through Principal Final
Certificate Amount Distribution Underwriting
Designation at Maturity Interest Rate Date Commissions
-------------- ------------ -------------- ------------ -------------
1996-A $231,900,000 6.97% July 2, 2017 .65%
