EXHIBIT 99.12
MOBIL 1234 GUARANTY
THIS Guaranty, dated as of December 19, 1996 (together with any amendments
or supplements hereto, this "Guaranty"), by and among MOBIL CORPORATION, a
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Delaware corporation (together with any successor permitted by Section 4.1
hereof, the "Guarantor"), and the Managing Trustee, in both its individual
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capacity and as Managing Trustee, the Delaware Trustee, in both its individual
capacity and as Delaware Trustee, the Indenture Trustee, in both its individual
capacity and as Indenture Trustee, the Pass Through Trustee, in both its
individual capacity and as Pass Through Trustee and as Loan Participant, and the
Owner Participant (defined below) referred to in the Participation Agreement
described below (collectively, together with each other Indemnitee and their
successors and permitted assigns, the "Beneficiaries" and, individually, a
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"Beneficiary").
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W I T N E S S E T H:
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WHEREAS, Mobil Marine Finance Company I Inc., a Delaware corporation, and
wholly-owned subsidiary of the Guarantor (together with its successors and
permitted assigns, the "Charterer"), is entering into that certain Participation
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Agreement dated as of December 19, 1996 (the "Participation Agreement"), among
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the Charterer, the Owner Participant, the Owner Trust, Deutsche Xxxxxx Xxxxxxxx
(Cayman) Limited, acting not in its individual capacity except as expressly set
forth therein, but solely as Managing Trustee, State Street Bank and Trust
Company, acting not in its individual capacity except as expressly provided
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 Loan Participant; and
WHEREAS, 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,
NOW, THEREFORE, 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 Guarantor. The Guarantor
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hereby represents and warrants that:
(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 so to qualify could reasonably be expected to
materially adversely affect its financial condition, business, 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' or lessors' rights generally and by the
application of general equitable principles which may limit the
availability of certain remedies.
(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 do not and will not, (i) violate or be inconsistent with its
charter documents or by-laws, (ii) contravene any Governmental Rule or
Governmental Action applicable to it, (iii) contravene any provision of, or
constitute a default under, any 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 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
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connection with the execution, delivery or performance of this Guaranty.
(6) Each of the consolidated financial statements of the Guarantor set
forth in its Annual Report on Form 10-K for the year ended December 31,
1995 and the consolidated financial statements of the Guarantor set forth
in its Quarterly Report on Form 10-Q for the quarter ended September 30,
1996 fairly presents the consolidated financial position of the Guarantor
and its Subsidiaries as at the respective dates 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 GAAP
applied on a consistent basis (except as disclosed in the notes thereto).
Since September 30, 1996, 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, 1995 or the Guarantor's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1996, there is no action,
suit, investigation or proceeding pending or, to the Actual Knowledge of
the Guarantor threatened in writing against the Guarantor or affecting it
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.
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ARTICLE II.
Guaranty OF OBLIGATIONS
Section 2.1. Guaranty 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, as the case may be, 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 and the other
Operative Documents owed to the Beneficiaries strictly 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 strictly 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 guarantee is an absolute,
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unconditional, irrevocable, present and continuing guarantee of payment and
performance and not of collectability.
(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 strictly in accordance with the terms thereof, the
Guarantor shall, no later than 15 Business Days following receipt of written
notice by the relevant Beneficiary of such non-observance, non-performance or
nonpayment, and not less than 5 Business Days following receipt of notice in the
case of non-payment of Base Hire, perform or observe or cause to be performed or
observed each such Obligation and shall pay such amount at the place and to the
Person or entity entitled thereto pursuant to the relevant Operative 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 or entity to compel any such performance or to
collect all or any part of such amount pursuant to the provisions of the
relevant Operative Document or at law or in equity, or otherwise, and regardless
of any other condition or contingency. Nothing in this Guaranty shall be
construed to be a guaranty of payment of the Secured Note.
Section 2.2. Nature of Guaranty. The obligations, covenants,
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agreements and duties of the Guarantor shall remain in full force and effect
until the Obligations are finally,
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indefeasibly and unconditionally paid and performed in full in accordance with
the terms of the Operative Documents 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 conditions contained in this Guaranty (other than Section 2.1
hereof), the Participation Agreement, the Charter and the other
Operative 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 Participation Agreement,
the Charter, the other Operative Documents or this Guaranty, or the
inability of the Beneficiaries to enforce any provision of the
Participation Agreement, the Charter, the other Operative 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 Interest or the Vessel or the
invalidity, unenforceability or termination of the Participation
Agreement, the Charter or any other Operative Document 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 or any Permitted Subcharterer;
(d) the modification or amendment (whether material or otherwise)
of any obligation, covenant or agreement set forth in the
Participation Agreement, the Charter, or any other Operative Document;
(e) the voluntary or involuntary liquidation, dissolution, sale
of all or substantially all of the assets, marshalling of assets and
liabilities, receivership, conservatorship, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of, or other similar proceedings
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affecting the Charterer or any of its assets or any allegation or
contest of the validity of this Guaranty, the Participation Agreement,
the Charter or any other Operative Document 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 to perform and
observe any agreement or covenant, or to discharge any duty or
obligation, arising out of or connected with this Guaranty, the
Participation Agreement, the Charter or any other Operative Document
or the occurrence or pendency of any Charter Default or Charter Event
of Default or any proceedings or actions as a result of, or attendant
upon, such Charter Default or Charter Event of Default;
(h) the inability of the Guarantor, the Beneficiaries or the
Charterer to enforce any provision of this Guaranty, the Participation
Agreement, the Charter or any other Operative Document 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 Participation Agreement, the Charter or the other
Operative 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 a
guarantor or surety with respect to any Obligation.
Section 2.3. Waivers by Guarantor. The Guarantor waives notice of the
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acceptance of and reliance on this
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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 further waives any right
it may have to (a) require the Beneficiaries to proceed against the Charterer,
(b) require the Beneficiaries to proceed against or exhaust any security granted
by the Charterer or the Owner Trust or (c) require the Beneficiaries to pursue
any other remedy within the power of the Beneficiaries, and the Guarantor agrees
that 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; Subordination. Notwithstanding
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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. The Guarantor further agrees that
any right of subrogation it may have against the Owner Trust by reason of any
guaranty by it of obligations of the Owner Trust under the U.K. Documents shall
in all respects be subject and subordinate to the Owner Trust's obligations
under the Indenture and the Secured Notes, and the Guarantor agrees that it will
not exercise such subrogation right or any similar right until all of the
Obligations then due shall have been finally, indefeasibly and unconditionally
paid and performed in full.
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 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 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 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 by
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the Guarantor under this Guaranty to a
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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 consents to the assignment by the Owner
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Trust to the Indenture Trustee of the Owner Trust's right, title and interest
in, to and under this Guaranty to the extent set forth in the Indenture, and
agrees to 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 has been fully discharged, and
thereafter to the Owner Trust. The Guarantor agrees that it will make all
payments due hereunder by wire transfer at or before 12 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 the
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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 Operative 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 when and as the same
shall become due, whether at the stated maturity thereof, by acceleration or
otherwise, the Beneficiaries may proceed to enforce their respective rights
hereunder and the 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.
Section 3.4. Guarantor to Pay Costs of Enforcement. The Guarantor
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agrees to pay all costs, expenses
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and fees, including, without limitation, all reasonable attorneys' fees, which
may be incurred by the Beneficiaries in enforcing or attempting to enforce this
Guaranty or protecting the rights of the Beneficiaries hereunder 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.
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 nor
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) (a) shall expressly and unconditionally assume, in a written
instrument delivered to the Owner Participant, the Owner Trust, 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, and (b) shall not, immediately after such merger, consolidation,
sale or disposition, be in default in the performance of any covenant, condition
or obligation of the Guarantor pursuant to this Guaranty.
Section 4.2. Financial Statements. The Guarantor shall provide to the
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Owner Participant and the Indenture Trustee, within 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 any amendment
to an annual report, filed by the Guarantor with the SEC pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 (currently Form 10-K), as the
same may be amended from time to time, 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.
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Section 4.3. No Petition. Unless otherwise agreed in writing by both
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the Indenture Trustee and the Owner Participant, the Guarantor hereby agrees to
the fullest extent permitted by law that it will not at any time institute
against the Owner Trust, or join in the institution against the Owner Trust of
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under any United States Federal or state bankruptcy or similar law.
ARTICLE V.
GENERAL
Section 5.1. Benefitted Parties. This Guaranty is entered into by the
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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 in part for the benefit of, any
person other than the Beneficiaries and the Guarantor and their respective
permitted successors and 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; Counterparts; Amendments; Governing
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Law; Etc. This Guaranty (a) constitutes 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
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
only by an instrument in writing signed by the duly authorized representatives
of the parties hereto; and (d) 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. 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
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.
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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 respect
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of this Guaranty to the Guarantor or the Beneficiaries shall be given as
provided in the applicable provisions of the Participation Agreement.
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 the Guarantor to the extent
permitted by applicable law 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.
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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.
MOBIL CORPORATION
/s/ R.E. Xxxxxxxxx
By:______________________
Name: R.E. Xxxxxxxxx
Title: Attorney in Fact
ACCEPTED:
DEUTSCHE XXXXXX XXXXXXXX (CAYMAN) LIMITED, in its
individual capacity and as Managing Trustee
/s/ Xxxxx Xxxxx
By: ____________________
Name: Xxxxx Xxxxx
Title: Attorney in Fact
STATE STREET BANK AND TRUST COMPANY, in its individual
capacity and as Indenture Trustee
/s/ Xxxx X. Xxxxx
By:______________________
Name: Xxxx X. Xxxxx
Title: Vice President
STATE STREET BANK AND TRUST COMPANY, in its individual
capacity and as Pass Through Trustee under the Pass
Through Trust Agreement and as the Loan Participant
/s/ Xxxx X. Xxxxx
By: _____________________
Name: Xxxx X. Xxxxx
Title: Vice President
SAMOCO L.L.C.
/s/ Xxxxx Xxxxxxxx
By: _____________________
Name: Xxxxx Xxxxxxxx
Title: Director
SAMOCO 1234 TRUST
By: Deutsche Xxxxxx Xxxxxxxx
(Cayman) Limited, as Managing
Trustee
/s/ Xxxxx Xxxxx
By: _____________________
Name: Xxxxx Xxxxx
Title: Attorney-in-Fact
