EXHIBIT 1.1
MOBIL CORPORATION
1997-C PASS THROUGH TRUST
PASS THROUGH CERTIFICATES
SERIES 1997-C
UNDERWRITING AGREEMENT
Dated: December 2, 1997
December 2, 1997
Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
Ladies and Gentlemen:
Mobil Equipment Finance Company Inc., a Delaware corporation (the
"Company"), in connection with the financing of the debt portion of two lease
transactions (each with respect to a double-hulled LR1 crude oil tank vessel
(each a "Vessel" and collectively, the "Vessels")) in which the Company, as
charterer, proposes that State Street Bank and Trust Company, as trustee (the
"Pass Through Trustee"), will issue and sell to you its Pass Through
Certificates, Series 1997-C, 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 Company and the Pass
Through Trustee and the other parties described therein, as supplemented by the
Pass Through Trust Supplement No. 1997-C, dated as of December 5, 1997 (the
"Trust Supplement"), among the Guarantor, the Company 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 two Trust Indenture,
Assignment of Charter and Head Lease and Security Agreements, dated as of
December 5, 1997, each between the related Owner Trust and the related Indenture
Trustee (each, an "Indenture").
The Guarantor and the Company 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 promulgated under 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 pass through certificates thereunder.
A prospectus supplement 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 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 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
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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 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 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 Company represent and warrant to, and agree with, you
that:
(a) The Guarantor and the Company 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 the 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
Company 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 on form T-1 (the "Statement of Eligibility") under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") 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 Company have been informed by Xxxxx & 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 the 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 (if any) 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 Company 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 each of the Guarantor and the 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 the 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
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adverse effect, whether with respect to the Guarantor or the Company, as
applicable, is referred to herein as a "Material Adverse Effect").
(g) Each subsidiary of the Guarantor (other than the Company) 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 the Company is, or is to be, a
party, have each been duly authorized by the Guarantor and/or the Company,
as the case may be, and, when duly executed and delivered by the Guarantor
and/or the Company, as the case may be, and assuming the due authorization,
execution and delivery thereof by the other parties thereto, each such
document will constitute valid and binding obligations of the Guarantor
and/or the 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 laws which may affect the
remedies provided therein, which laws, however, do not make such remedies
inadequate for the practical realization of the rights and remedies
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 the 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 generally and by general
principles of equity; and the Holders thereof will be entitled to the
benefits of the Designated Agreement.
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(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 the 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 the Company is, or is to be, a
party, the consummation by the Guarantor and/or the Company of the
transactions contemplated by, and compliance by the Guarantor and the
Company with the terms of, each such document do not and will not result in
any violation of the charter or by-laws of the Guarantor or the 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 the
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 the 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 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
such conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect).
(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 the 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 the Company is, or is to be, a
party, or the consummation by the Guarantor or the Company of the
transactions contemplated by each such document, except (i) such as are
required
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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, (ii) those which if not obtained would not result in a Material
Adverse Effect and (iii) such as otherwise are required in connection with
the transactions contemplated by such documents which are not required to
be obtained or applied for prior to the Closing Date.
(n) Except as disclosed in the Prospectus, there are no legal or
governmental proceedings pending or, to the knowledge of the Company or the
Guarantor, threatened to which the Guarantor or any of its subsidiaries is
a party or to which any of the properties of 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 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 the 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.
(r) Neither the Guarantor nor the Company has taken or will take,
directly or indirectly, any actions prohibited by Regulation M under the
Exchange Act.
II.
Subject to the terms and conditions set forth herein, and in reliance
upon the representations and warranties herein contained, the Guarantor and the
Company agree to cause the Pass Through Trustee to sell to you, and you agree to
purchase from the Pass
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Through Trustee, the aggregate principal amount of Offered Certificates
(including full accretion) set forth in Schedule A at a purchase price of
85.811% of the principal aggregate stated amount (including full accretion)
thereof.
The Guarantor and the Company 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
Company are further advised by you that the Offered Certificates are to be
offered to the public initially at .% of their aggregate stated principal amount
(including full accretion) -- the public offering price -- plus 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
Trusts to you an amount equal to that percentage of the aggregate 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 deducting the amount of such compensation from the purchase
price of the Offered Certificates.
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III.
Delivery of and payment for the Offered Certificates shall be made at
the offices of Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx, at 9:00 A.M. (New York time) on December 5, 1997, or such other date, time
and place as may be agreed upon by the Guarantor, the Company 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 Company 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 LLP, special counsel for the Guarantor and the Company
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;
(ii) The Offered Certificates, the Designated Agreement, the
Participation Agreements, the Indentures, the Secured Notes, the
Parent
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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 the 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 the Company is a party, or the
consummation by the Guarantor and/or the Company of the transactions
contemplated by such documents, 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 the Company;
(vii) The Participation Agreements, the Designated Agreement,
the Charters, the Parent Guaranties and the other Operative Documents
and the UK Documents to which the Guarantor and/or the Company is a
party have been duly authorized, executed and delivered by the
Guarantor and/or the Company, as the case may be, and, assuming the
due authorization, execution and delivery thereof by the other parties
thereto, each is a valid and binding obligation of the Guarantor and
the Company enforceable against the
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Guarantor and the 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
remedies provided thereby;
(viii) 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;
(ix) 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 the Pass Through Trust;
(x) None of the Trusts is required to be registered under the
Investment Company Act of 1940, as amended;
(xi) Upon consummation of the transactions contemplated by the
Participation Agreements, on the Closing Date, assuming due
authorization, execution and delivery by the related Owner Trust and
due authentication by the related Indenture Trustee, each Secured Note
will constitute the valid and binding obligation of the related Owner
Trust, enforceable against such Owner Trust 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 the holders of each Secured Note will be entitled to the benefits
of the applicable Indenture; and
(xii) 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;
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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 the Company is 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 (viii) 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," "Use of Proceeds and Outline of the Transaction," "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 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 Company 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
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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 the Company is 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 Guarantor and the 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;
(iv) Each of the Guarantor, the Company 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 its 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 the Company, the failure to obtain or file would
not have a Material Adverse Effect;
(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 the 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 the Company is a party, or the consummation by
the Guarantor and/or the Company of the transactions contemplated by
each such document, 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;
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(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 the 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, the Charters, the Parent Guaranties and other Operative
Documents and the UK Documents, to which the Guarantor and/or the
Company is a party have each been duly authorized, executed and
delivered by the Guarantor and/or the Company, as the case may be.
The execution and delivery by the Guarantor and/or the 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 the Company is a party, the issuance and sale of the Offered
Certificates, the consummation by the Guarantor and/or the Company of
the transactions contemplated in this Agreement, the Designated
Agreement, the Participation Agreements, the Charters, the Parent
Guaranties, such other Operative Documents, such other UK Documents
and in the Registration Statement and compliance by the Guarantor
and/or the 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 the 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 the Company
under (A) any indenture, mortgage, loan agreement, note, lease or
other agreement or instrument known to such counsel, to which the
Guarantor or the Company is a party or by which it may be bound or to
which
14
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 the 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 the 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 the 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 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," "Use of Proceeds and
Outline of the Transaction," "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," "Use of Proceeds and Outline of the Transaction," "Diagram of
Payments," "Description of the Pass Through
15
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, 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 to execute, deliver and perform its obligations
under the Designated Agreement, the Offered Certificates, the
Participation Agreements, the Indentures 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,
executed and delivered the Designated Agreement, the Participation
Agreements, the Indentures and the other Operative Documents to which
it is a party, each of which constitutes a valid and binding
obligation 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 its
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);
16
(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 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 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 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,
17
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 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 a party or to issue the Offered Certificates.
(e) You shall have received on the Closing Date an opinion of Xxxxxxxx
& Xxxxxxxx, 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
18
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 the
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, the Controller or any Assistant Treasurer 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, the
Controller or any Assistant Treasurer of the 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.
(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 form and substance satisfactory to you,
containing statements and information of the type ordinarily included in
auditors' "comfort letters" to underwriters, 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 Closing Date shall have been satisfied on the Closing Date; the
representations and warranties of the Guarantor and the 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, Treasurer or Assistant
Treasurer of the Guarantor and the 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 representations and warranties of the Guarantor contained in
the Guaranty 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)
19
and you shall have received a certificate of a Vice President, Treasurer or
Assistant Treasurer of the Guarantor, dated as of the Closing Date, to such
effect.
(l) The Guarantor and the 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 the 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 the Company covenant as follows:
(a) To furnish to 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 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 Company) to which
Offered Certificates may have been sold by or on behalf of 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.
20
(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 the 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 the 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 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 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 the 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
Company shall have furnished any amendments or supplements thereto) or caused by
any omission or
21
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/or the Company
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,
with respect to any person asserting any such losses, claims, damages or
liabilities who purchased Offered Certificates from you or any person
controlling you, if a copy of the Prospectus (as then amended or supplemented if
the Guarantor or the Company 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
Company, each of their directors, each of their officers who sign the
Registration Statement and each person, if any, who controls the Guarantor or
the 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 Company to you, but only with reference to
information relating to you furnished to the Guarantor and/or the Company 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 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
22
the Guarantor and the Company, and such directors, officers and control persons
of the Guarantor and the Company, such firm shall be designated in writing by
the Guarantor or the Company, as the case may be. 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 Company 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 Company 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 Company on the one hand and
you on the other hand shall be deemed to be in the 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 Company 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 Company 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 Company 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
23
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 Company
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 the Company, its officers or directors or any other person
controlling the Guarantor or the Company and (iii) acceptance of and payment for
any of the Offered Certificates.
VII.
This Agreement shall be subject to termination in your absolute
discretion, by notice given to the Guarantor or the Company, 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 the 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.
24
If this Agreement shall be terminated by you, because of any failure
or refusal on the part of the Guarantor or the Company to comply with the terms
or to fulfill any of the conditions of this Agreement, or if for any reason the
Guarantor or the Company shall be unable to perform its obligations under this
Agreement, the Guarantor and the 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 EQUIPMENT FINANCE
COMPANY INC.
By:_____________________________
MOBIL CORPORATION
By:______________________________
Accepted as of the date first
above written:
SALOMON BROTHERS INC
By:______________________________
SCHEDULE A
Aggregate
Pass Through Principal Final
Certificate Amount Distribution Underwriting
----------- -------------- Date Commissions
Designation at Maturity Interest Rate ------------ -------------
-------------- ----------- --------------
1997-C $61,200,000 6.69% 1/02/ 2018 .70%
=======================================================================
