MOBIL OIL CORPORATION
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
$500,000,000
Medium-Term Notes
Due 9 Months or more from the Date of Issue
SALE AND DISTRIBUTION AGREEMENT
May 14, 1999
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Warburg Dillon Read LLC
677 Washington Blvd.
Stamford, Connecticut 06901
Dear Sirs:
Mobil Oil Corporation Employee Stock Ownership Plan Trust (the "ESOP
Trust"), a part of the Employees Savings Plan of Mobil Oil Corporation (the
"Plan") acting by and through Bankers Trust Company, not in its individual
capacity but solely as trustee of the ESOP Trust (the "ESOP Trustee") and Mobil
Corporation, a Delaware corporation (the "Company"), confirm their agreement
with each of you with respect to the issue and sale from time to time by the
ESOP Trust of up to $500,000,000 (or the equivalent thereof in one or more
foreign currencies) aggregate initial offering price of its medium-term notes
due 9 months or more from date of issue (the "Notes"). The Notes will be issued
under an Indenture dated as of February 1, 1990, as amended from time to time
(as so amended, the "Indenture") among the ESOP Trust, the Company and U.S. Bank
Trust, National Association as successor to Continental Bank, National
Association, as Trustee (the "Indenture Trustee"). The Notes will be
unconditionally guaranteed by the Company. Such guaranties (the "Guaranties")
shall be endorsed on the Notes. The Notes will have the maturities, interest
rates, redemption provisions, if any, and other terms as set forth in
supplements to the Basic Prospectus referred to below.
Subject to the terms and conditions stated herein and subject to the
reservation by the ESOP Trust of the right to sell Notes directly to investors
on its own behalf or through other agents, dealers or underwriters on terms
substantially identical to the terms contained herein, the Company hereby
appoints Morgan Stanley & Co.
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Incorporated ("Morgan Stanley"), Goldman, Sachs & Co. ("Goldman Sachs"), J.P.
Morgan Securities Inc. ("J.P. Morgan"), Salomon Smith Barney Inc. ("Salomon
Smith Barney"), and Warburg Dillon Read LLC ("Warburg Dillon Read"),
(individually, an "Agent" and collectively, the "Agents") as its agents, for the
purpose of soliciting and receiving offers to purchase Notes from the ESOP Trust
by others and, on the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, each Agent
agrees to use reasonable efforts to solicit and receive offers to purchase Notes
upon terms acceptable to the Company at such times and in such amounts as the
Company, on behalf of the ESOP Trust, shall from time to time specify. In
addition, any Agent may also purchase Notes as principal pursuant to the terms
of a Terms Agreement relating to such sale (a "Terms Agreement") in accordance
with the provisions of Section 2(a) hereof.
The ESOP Trust and the Company have filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a prospectus,
relating to the Notes. Such registration statement, including the exhibits
thereto, as amended at the Commencement Date (as hereinafter defined), is
hereinafter referred to as the "Registration Statement." The Company and the
ESOP Trust propose to file with the Commission from time to time, pursuant to
Rule 424 under the Securities Act of 1933, as amended (the "Securities Act"),
supplements to the prospectus included in the Registration Statement that will
describe certain terms of the Notes. The prospectus in the form in which it
appears in the Registration Statement is hereinafter referred to as the "Basic
Prospectus." The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement or supplements (each a "Prospectus Supplement")
specifically relating to Notes, as filed with, or transmitted for filing to, the
Commission pursuant to Rule 424. As used herein, the terms "Basic Prospectus"
and "Prospectus" shall include in each case the documents, if any, incorporated
by reference therein. The terms "supplement," "amendment" and "amend" as used
herein shall include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Basic Prospectus by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
1. Representations and Warranties of the ESOP Trustee. The ESOP Trustee
represents and warrants to and agrees with each Agent as of the Commencement
Date, as of each date on which an Agent solicits offers to purchase Notes
(except with respect to the representations and warranties in paragraph 1(a)
below), as of each date on which the Company, on behalf of the ESOP Trust,
accepts an offer to purchase Notes (including any purchase by an Agent as
principal, pursuant to a Terms Agreement) (except with respect to the
representations and warranties in paragraph 1(a) below), as of each date the
ESOP Trust issues and delivers Notes and as of each date the Registration
Statement or the Basic Prospectus is supplemented, that:
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(a) It is a banking corporation duly organized, validly existing and in good
standing under the laws of New York and has all requisite power and authority,
corporate or otherwise, to conduct its business and to execute and deliver, and
to perform all its obligations under, the trust agreement pursuant to which the
ESOP Trust is established (the "ESOP Trust Agreement").
(b) No stop order suspending the effectiveness of the Registration Statement
has been issued to the ESOP Trustee and no proceedings for that purpose have
been instituted against the ESOP Trust.
2. Representations and Warranties of the Company. The Company represents
and warrants to and agrees with each Agent as of the Commencement Date, as of
each date on which an Agent solicits offers to purchase Notes, as of each date
on which the Company, on behalf of the ESOP Trust, accepts an offer to purchase
Notes (including any purchase by an Agent as principal, pursuant to a Terms
Agreement), as of each date the ESOP Trust issues and delivers Notes and as of
each date the Registration Statement or the Basic Prospectus is amended or
supplemented, as follows (it being understood that such representations,
warranties and agreements shall be deemed to relate to the Registration
Statement, the Basic Prospectus and the Prospectus, each as amended or
supplemented to each such date):
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus complied or will comply when
so filed in all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (ii each part of the Registration
Statement, when such part became effective, did not contain, and each such part,
as amended or supplemented, if applicable, will not contain any 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, (ii the
Registration Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iv the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that (A) the representations and warranties set forth in this Section
paragraph do not
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apply (1) to statements or omissions in the Registration Statement or the
Prospectus based upon information relating to an Agent furnished to the Company
in writing by such Agent expressly for use therein or (2) to that part of the
Registration Statement that constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
of the Indenture Trustee and (B) the representations and warranties set forth in
clauses 2(b)(iii) and 2(b)(iv) above, when made as of the Commencement Date or
as of any date on which an Agent solicits offers to purchase Notes or on which
the Company, on behalf of the ESOP Trust, accepts an offer to purchase Notes,
shall be deemed not to cover information concerning an offering of particular
Notes to the extent such information will be set forth in a supplement to the
Basic Prospectus.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
The ESOP Trust is a valid and existing trust under the laws of the State of New
York.
(d) Each subsidiary of the Company 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 and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(e) Each of this Agreement and any applicable Written Terms Agreement (as
defined below) has been duly authorized, executed and delivered by the Company
and by the ESOP Trust.
(f) The Indenture has been duly qualified under the Trust Indenture Act and
has been duly authorized, executed and delivered by the Company and by the ESOP
Trust and is a valid and binding agreement of the Company and of the ESOP Trust,
enforceable against each of them in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
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affecting creditors' rights generally and (ii rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(g) The Notes have been duly authorized and, when executed and authenticated
in accordance with the Indenture and delivered to and paid for by the purchasers
thereof, will be entitled to the benefits of the Indenture and will be valid and
binding obligations of the ESOP Trust, enforceable in accordance with their
respective terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(ii rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(h) The Guaranties to be endorsed on the Notes have been duly authorized and,
when the Notes are executed and authenticated in accordance with the Indenture
and delivered to and duly paid for by the purchasers thereof, will be valid and
binding obligations of the Company, enforceable in accordance with their terms,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(i) The execution and delivery by the ESOP Trust of this Agreement, the
Notes, the Indenture and any applicable Written Terms Agreement, and the
performance by the ESOP Trust of its obligations under, this Agreement, the
Notes, the Indenture and any applicable Terms Agreement will not contravene any
provision of applicable law or the ESOP Trust Agreement or any other agreement
or instrument binding upon the ESOP Trust that is material to it, or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the ESOP Trust, and no consent, approval, authorization or
order of or qualification with any governmental body or agency is required for
the performance by the ESOP Trust of its obligations under this Agreement, the
Notes, the Indenture and any applicable Terms Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Notes.
(j) The execution and delivery by the Company of this Agreement, the
Guaranties, the Indenture and any applicable Written Terms Agreement, and the
performance by the Company of its obligations under, this Agreement, the
Guaranties, the Indenture and any applicable Terms Agreement will not contravene
any provision of applicable law or the certificate of incorporation or by-laws
of the Company or any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of or qualification with any
governmental body or agency is
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required for the performance by the Company of its obligations under this
Agreement, the Guaranties, the Indenture and any applicable Terms Agreement,
except such as may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Notes.
(k) There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus.
(l) There are no legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus and are
not so described or any statutes, regulations, contracts or other documents that
are 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,
filed or incorporated as required.
(m) Neither the Company nor the ESOP Trust is an "investment company" or an
entity "controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(n) The Company and the ESOP Trust have complied with all provisions of
Section 517.075, Florida Statutes relating to doing business with the Government
of Cuba or with any person or affiliate located in Cuba.
3. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. In connection with an Agent's actions as agent
hereunder, such Agent agrees to use reasonable efforts to solicit offers to
purchase Notes upon the terms and conditions set forth in the Prospectus as then
amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Notes. Upon receipt of at least one business
day's prior notice from the Company, the Agents will forthwith suspend
solicitations of offers to purchase Notes from the ESOP Trust until such time as
the Company has advised the Agents that such solicitation may be resumed. While
such solicitation is suspended, neither the Company nor the ESOP Trust shall be
required to deliver any certificates, opinions or letters in accordance with
Sections 7(a), 7(b), 7(c); provided, however, that if the Registration
Statement or Prospectus is amended or supplemented during the period of
suspension (other than by an amendment or supplement providing solely for a
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change in the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes or for a change the Agents deem to be
immaterial), no Agent shall be required to resume soliciting offers to purchase
Notes until the Company and the ESOP Trust have delivered such certificates,
opinions and letters as such Agent may request.
The ESOP Trust agrees to pay to each Agent, as consideration for the sale
of each Note resulting from a solicitation made or an offer to purchase received
by such Agent, a commission, ranging from .125% to .875% of the purchase price
of such Note, and the Company agrees (i) to contribute to the ESOP Trust the
amounts to be used by the ESOP Trust to pay such commissions and (ii) to pay
such commissions to the extent not paid by the ESOP Trust.
Each Agent shall communicate to the Company, orally or in writing, each
offer to purchase Notes received by such Agent as agent that in its judgment
should be considered by the Company. The Company, on behalf of the ESOP Trust,
shall have the sole right to accept offers to purchase Notes and may reject any
offer in whole or in part. Each Agent shall have the right to reject any offer
to purchase Notes that it considers to be unacceptable, and any such rejection
shall not be deemed a breach of its agreements contained herein. The procedural
details relating to the issue and delivery of Notes sold by the Agents as agents
and the payment therefor shall be as set forth in the Administrative Procedures
(as hereinafter defined).
(b) Purchases as Principal. Each sale of Notes to an Agent as principal shall
be made in accordance with the terms of this Agreement, and, if requested by
such Agent, the Company and the ESOP Trust will enter into a Terms Agreement
that will provide for the sale of such Notes to and the purchase thereof by such
Agent. Each Terms Agreement will take the form of either (i) a written agreement
between such Agent, the Company and the ESOP Trust, which may be substantially
in the form of Exhibit A hereto (a "Written Terms Agreement"), or (ii) an oral
agreement between such Agent and the Company confirmed in writing by such Agent
to the Company and the ESOP Trust.
An Agent's commitment to purchase Notes as principal, whether pursuant to a
Terms Agreement or otherwise, shall be deemed to have been made on the basis of
the representations and warranties of the Company and the ESOP Trustee herein
contained and shall be subject to the terms and conditions herein set forth.
Each agreement by an Agent to purchase Notes as principal (whether or not set
forth in a Terms Agreement) shall specify the principal amount of Notes to be
purchased by such Agent pursuant thereto, the maturity date of such Notes, the
price to be paid to the ESOP Trust for such Notes, the interest rate and
interest rate formula, if any, applicable to such Notes and any other terms of
such Notes. Each such agreement shall also specify any requirements for
officers' certificates, opinions of counsel and
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letters from the independent public accountants of the Company pursuant to
Section 6 hereof. A Terms Agreement may also specify certain provisions relating
to the re-offering of such Notes by such Agent, including sales to a selling or
dealer group.
Each Terms Agreement shall specify the time and place of delivery of and
payment for such Notes. Unless otherwise specified in a Terms Agreement, the
procedural details relating to the issue and delivery of Notes purchased by an
Agent as principal and the payment therefor shall be as set forth in the
Administrative Procedures. Each date of delivery of and payment for Notes to be
purchased by an Agent as principal, whether pursuant to a Terms Agreement or
otherwise, is referred to herein as a "Settlement Date."
Unless otherwise specified in a Terms Agreement, an Agent purchasing Notes
as principal may resell such Notes to other dealers. Any such sales shall be at
a discount, which shall not exceed the amount set forth in the Prospectus, as
amended or supplemented in connection with the sale of the Notes.
(c) Administrative Procedures. The Agents, the Company and the ESOP Trust
agree to perform the respective duties and obligations specifically provided to
be performed in the Medium-Term Notes Administrative Procedures (attached hereto
as Exhibit B) (the "Administrative Procedures"), as amended from time to time.
The Administrative Procedures may be amended only by written agreement of the
Company, the ESOP Trust and the Agents.
(d) Delivery. The documents required to be delivered by Section 6 of this
Agreement as a condition precedent to the Agents' obligations to begin
soliciting offers to purchase Notes as agents of the ESOP Trust shall be
delivered at the office of Davis Polk & Wardwell, counsel for the Agents, not
later than 5:00 p.m., New York time, on the date hereof, or at such other time
and/or place as the Agents, the ESOP Trust and the Company may agree upon in
writing, but in no event later than the day prior to the earlier of (i) the date
on which the Agents begin soliciting offers to purchase Notes and (ii the first
date on which the Company, on behalf of the ESOP Trust, accepts any offer by an
Agent to purchase Notes as principal. The date of delivery of such documents is
referred to herein as the "Commencement Date."
(e) Obligations Several. The Company and the ESOP Trust acknowledge that the
obligations of the Agents under this Agreement are several and not joint.
4. Agreements. The Company and the ESOP Trust agree with each Agent that:
(a) Prior to the termination of the offering of the Notes pursuant to this
Agreement or any Terms Agreement, neither the ESOP Trust nor the Company will
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file any Prospectus Supplement relating to the Notes or any amendment to the
Registration Statement unless the Company has previously furnished to the Agents
copies thereof for their review and will not file any such proposed supplement
or amendment to which the Agents reasonably object; provided, however, that (i)
the foregoing requirement shall not apply to any of the Company's or the Plan's
periodic filings with the Commission required to be filed pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, copies of which filings the
Company or the ESOP Trust will cause to be delivered to the Agents promptly
after being transmitted for filing with the Commission and (ii) any Prospectus
Supplement that merely sets forth the terms or a description of particular Notes
shall only be reviewed and approved by the Agent or Agents offering such Notes.
Subject to the foregoing sentence, the Company or the ESOP Trust will promptly
cause each Prospectus Supplement to be filed with or transmitted for filing to
the Commission in accordance with Rule 424(b) under the Securities Act. The
Company or the ESOP Trust will promptly advise the Agents (iii) of the filing of
any amendment or supplement to the Basic Prospectus (except that notice of the
filing of an amendment or supplement to the Basic Prospectus that merely sets
forth the terms or a description of particular Notes shall only be given to the
Agent or Agents offering such Notes), (iv) of the filing and effectiveness of
any amendment to the Registration Statement, (v) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Basic Prospectus or for any additional information, (vi) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the institution or threatening of any proceeding
for that purpose and (vii) of the receipt by the Company or the ESOP Trust of
any notification with respect to the suspension of the qualification of the
Notes for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company and the ESOP Trust will use their best
efforts to prevent the issuance of any such stop order or notice of suspension
of qualification and, if issued, to obtain as soon as possible the withdrawal
thereof. If the Basic Prospectus is amended or supplemented as a result of the
filing under the Exchange Act of any document incorporated by reference in the
Prospectus, no Agent shall be obligated to solicit offers to purchase Notes so
long as it is not reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to the Notes is required to be
delivered under the Securities Act, any event occurs or condition exists as a
result of which the Prospectus, as then amended or supplemented, would include
an untrue statement of a material fact, or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances when
the Prospectus, as then amended or supplemented, is delivered to a purchaser,
not misleading, or if, in the opinion of the Agents or in the opinion of the
Company, it is necessary at any time to amend or supplement the Prospectus, as
then amended or supplemented, to comply with applicable law, the Company will
immediately notify the Agents by telephone (with confirmation in writing) to
suspend solicitation of offers to purchase Notes and,
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if so notified by the Company, the Agents shall forthwith suspend such
solicitation and cease using the Prospectus, as then amended or supplemented. If
the Company or the ESOP Trust shall decide to amend or supplement the
Registration Statement or Prospectus, as then amended or supplemented, the
Company or the ESOP Trust shall so advise the Agents promptly by telephone (with
confirmation in writing) and, at its expense, shall prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to the Agents, that will correct such statement or
omission or effect such compliance and will supply such amended or supplemented
Prospectus to the Agents in such quantities as they may reasonably request. If
any documents, certificates, opinions and letters furnished to the Agents
pursuant to paragraph 4(f) below and Sections 6(a), 6(b), 6(c) in connection
with the preparation and filing of such amendment or supplement are satisfactory
in all respects to the Agents, upon the filing with the Commission of such
amendment or supplement to the Prospectus or upon the effectiveness of an
amendment to the Registration Statement, the Agents will resume the solicitation
of offers to purchase Notes hereunder. Notwithstanding any other provision of
this paragraph until the distribution of any Notes an Agent may own as principal
has been completed, if any event described above in this paragraph occurs, the
Company will, at its own expense, forthwith prepare and cause to be filed
promptly with the Commission an amendment or supplement to the Registration
Statement or Prospectus, as then amended or supplemented, satisfactory in all
respects to such Agent, will supply such amended or supplemented Prospectus to
such Agent in such quantities as it may reasonably request and shall furnish or
cause to be furnished to such Agent pursuant to paragraph 4(f) below and
Sections 6(a), 6(b), and 6(c) such documents, certificates, opinions and letters
as it may request in connection with the preparation and filing of such
amendment or supplement.
(c) The Company will make generally available to its security holders and to
the Agents as soon as practicable earning statements that satisfy the provisions
of Section 12 of the Securities Act and the rules and regulations of the
Commission thereunder covering twelve month periods beginning, in each case, not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158 under the Securities Act) of the
Registration Statement with respect to each sale of Notes. If such fiscal
quarter is the last fiscal quarter of the Company's fiscal year, such earning
statement shall be made available not later than 90 days after the close of the
period covered thereby and in all other cases shall be made available not later
than 45 days after the close of the period covered thereby.
(d) The Company will furnish to each Agent, without charge, a signed copy of
the Registration Statement, including exhibits and all amendments thereto, and
as many copies of the Prospectus, any documents incorporated by reference
therein and any supplements and amendments thereto as such Agent may reasonably
request.
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(e) The Company and the ESOP Trust will endeavor to qualify the Notes for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Agents shall reasonably request and to maintain such qualifications for as
long as the Agents shall reasonably request; provided, however, that neither the
ESOP Trust nor the Company shall be obligated to file any general consent to
service of process or to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified.
(f) During the term of this Agreement, the Company shall furnish to the
Agents such relevant documents and certificates of officers of the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indenture, the Notes, this Agreement, the Administrative
Procedures, any Terms Agreement and the performance by the Company or the ESOP
Trust of their obligations hereunder or thereunder as the Agents may from time
to time reasonably request.
(g) During the term of this Agreement, the Company shall notify the Agents
promptly in writing of any downgrading, or of its receipt of any notice of any
intended or potential downgrading or of any review for possible change that does
not indicate the direction of the possible change, in the rating accorded any of
the Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
(h) The Company will, whether or not any sale of Notes is consummated, pay
all expenses incident to the performance of its obligations under this Agreement
and any Terms Agreement, including: (i) the preparation and filing of the
Registration Statement and the Prospectus and all amendments and supplements
thereto, (ii) the preparation, issuance and delivery of the Notes, (iii) the
reasonable fees and disbursements of the Company's and the ESOP Trustee's
counsel and accountants and of the Indenture Trustee and its counsel, (iv) the
qualification of the Notes under securities or Blue Sky laws in accordance with
the provisions of Section 4(e), including filing fees and the reasonable fees
and disbursements of Davis Polk & Wardwell, counsel for the Agents, in
connection therewith and in connection with the preparation of any Blue Sky or
Legal Investment Memoranda, (v) the printing and delivery to the Agents in
quantities as herein above stated of copies of the Registration Statement and
all amendments thereto and of the Basic Prospectus and any amendments or
supplements thereto, (vi) the printing and delivery to the Agents of copies of
the Indenture and any Blue Sky or Legal Investment Memoranda, (vii) any fees
charged by rating agencies for the rating of the Notes, (viii) the fees and
expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc., (ix) the reasonable fees and
disbursements of Davis Polk & Wardwell, counsel for the Agents, incurred in
connection with the offering and sale of the Notes, including any opinions to be
rendered by such counsel hereunder, and (x) any out-of-pocket expenses incurred
by the Agents with the consent of the
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Company which consent shall not be unreasonably withheld; provided that any
advertising expenses incurred by the Agents shall have been approved by the
Company.
(i) Between the date of any agreement by an Agent to purchase Notes as
principal and the Settlement Date with respect to such agreement, neither the
ESOP Trust nor the Company will, without such Agent's prior consent, offer,
sell, contract to sell or otherwise dispose of any debt securities of the ESOP
Trust substantially similar to such Notes (other than (i) the Notes that are to
be sold pursuant to such agreement, (ii) Notes previously agreed to be sold by
the Company and (iii) commercial paper issued in the ordinary course of
business), except as may otherwise be provided in such agreement.
5. Conditions of the Obligations of the Agents. Each Agent's obligation to
solicit offers to purchase Notes as agent of the ESOP Trust, each Agent's
obligation to purchase Notes as principal pursuant to any Terms Agreement or
otherwise and the obligation of any other purchaser to purchase Notes will be
subject to the accuracy of the representations and warranties on the part of the
ESOP Trustee and the Company herein, to the accuracy of the statements of the
ESOP Trustee's and the Company's officers made in each certificate furnished
pursuant to the provisions hereof and to the performance and observance by the
ESOP Trust and the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of an Agent's obligation to
solicit offers to purchase Notes, at the time of such solicitation, and, in the
case of an Agent's or any other purchaser's obligation to purchase Notes, at the
time the Company, on behalf of the ESOP Trust, accepts the offer to purchase
such Notes and at the time of purchase) and (in each case) to the following
additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may be: (i) 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 Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus, as amended or supplemented at the time of such
solicitation or at the time such offer to purchase was made, that is material
and adverse and that would, in the reasonable judgment of such Agent after
consultation with the Company, prevent or materially impair the marketing, or
enforcement or contracts for sale, of the Notes; (ii) there shall not have
occurred any(A) suspension or material limitation of trading generally on or by,
as the case may be, the New York Stock Exchange, the American Stock Exchange,
the National Association of Securities Dealers, Inc., the Chicago Board Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (B)
suspension of trading of any securities of the Company on any exchange or in any
over-the-counter market, (C) declaration of a general moratorium on commercial
banking activities in New York by either Federal or New York State authorities
or
13
(D) any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the relevant Agent,
is material and adverse and, in the case of any of the events described in
clauses 5(a)(ii)(A) through (D), such event, singly or together with any other
such event, would, in the reasonable judgment of such Agent after consultation
with the Company, prevent or materially impair the marketing, or enforcement of
contracts for sale, of the Notes; and (iii) there shall not have occurred any
downgrading, nor shall any notice have been given either publicly or directly to
the Company of any intended or potential downgrading or of any review with
possible negative implications in the rating accorded any of the Company's debt
securities by Standard & Poor's Corporation or Moody's Investors Service, Inc.;
(A) except, in each case described in paragraph 5(a)(i), 5(a)(ii) or 5(a)(iii)
above, as disclosed to the relevant Agent in writing by the Company prior to
such solicitation or, in the case of a purchase of Notes, as disclosed to the
relevant Agent before the offer to purchase such Notes was made or (B) unless in
each case described in (ii) above, the relevant event shall have occurred and
been known to the relevant Agent before such solicitation or, in the case of a
purchase of Notes, before the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any agreement by an Agent
to purchase Notes as principal, on the corresponding Settlement Date, the
relevant Agents shall have received: (i) the opinion, dated as of such date, of
the counsel for the Company, who may be an employee of the Company, to the
effect that: (A) the Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus, as then amended or supplemented, and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole; (B) each subsidiary of the
Company 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, as then amended or supplemented, and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole; (C) each of this Agreement and
any applicable Written Terms Agreement has been duly authorized, executed and
delivered by the Company; (D) the Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (1) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (2) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability; (E)
the Guaranties endorsed on the Notes have been duly authorized and, when the
Notes are executed and authenticated in accordance with the Indenture and
delivered to and duly paid for by the purchasers thereof, the Guaranties will be
valid and binding obligations of the Company, enforceable in accordance with
their respective terms except as (1)
14
the enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (2) rights of acceleration and
the availability of equitable remedies may be limited by equitable principles of
general applicability; (F) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Guaranties, the Indenture and any applicable Written Terms Agreement will not
contravene any provision of applicable law or the certificate of incorporation
or by-laws of the Company or, to the best of such counsel's knowledge, any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as a
whole, or, to the best of such counsel's knowledge, any judgment, order or
decree of any governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval, authorization or order of
or qualification with any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Guaranties, the Indenture and any applicable Terms Agreement, except such as may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Notes; (G) the statements (1) in the
Prospectus, as then amended or supplemented, under the captions "Description of
the Notes" and "Plan of Distribution", (2) in the Registration Statement under
Item 15, (3) in "Item 3- Legal Proceedings" of the Company's most recent annual
report on Form 10-K incorporated by reference in the Prospectus and (4) in "Item
1 - Legal Proceedings" of Part II of the Company's quarterly reports on Form 10-
Q, if any, filed since such annual report, in each case insofar as such
statements constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly summarize the matters
referred to therein; (H) after due inquiry, such counsel does not know of any
legal or governmental proceeding pending or threatened to which the Company or
any of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be described
in the Registration Statement or the Prospectus, as then amended or
supplemented, and are not so described or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus, as then amended or supplemented, or to
be filed as exhibits to such Registration Statement that are not described or
filed as required; (I) such counsel is of the opinion ascribed to it in the
Prospectus, as then amended or supplemented, under the caption United States
Federal Taxation; and (J) such counsel (1) is of the
15
opinion that each document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus, as then amended or supplemented
(except for financial statements and schedules included therein as to which such
counsel need not express any opinion), complied when so filed as to form in all
material respects with the Exchange Act and the applicable rules and regulations
of the Commission thereunder, (2) believes that (except for financial statements
and schedules as to which such counsel need not express any belief and except
for that part of the Registration Statement that constitutes the Form T-1
heretofore referred to) each part of the Registration Statement, as then
amended, if applicable, when such part became effective did not, and as of the
date such opinion is delivered, does not contain any 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, (3) is of the opinion
that the Registration Statement and Prospectus, as then amended or supplemented,
if applicable (except for financial statements and schedules included therein as
to which such counsel need not express any opinion), comply as to form in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (4) believes that (except for
financial statements and schedules as to which such counsel need not express any
belief) the Prospectus, as then amended or supplemented, if applicable, as of
the date such opinion is delivered does not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that in the case of an opinion delivered on the
Commencement Date or pursuant to Section 6(b), the opinion and belief set forth
in clauses 5(b)(i)(J)(3) and 5(b)(i)(J)(4) above shall be deemed not to cover
information concerning an offering of particular Notes to the extent such
information will be set forth in a supplement to the Basic Prospectus. (ii the
opinion, dated as of such date, of counsel for the ESOP Trust, who may be an
employee of the Company, to the effect that: (A) the ESOP Trustee has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation and the ESOP Trust is a valid and
existing trust under such laws; (B) each of this Agreement and any applicable
Written Terms Agreement has been duly authorized, executed and delivered by the
ESOP Trust; (C) the Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the ESOP Trust and
is a valid and binding agreement of the ESOP Trust, enforceable in accordance
with its terms except as (1) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(2) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability; (D) the Notes have
been duly authorized and, when executed and authenticated in accordance with the
Indenture and delivered and duly paid for by the purchasers thereof on the date
of such opinion, will be entitled to the benefits of the Indenture and will be
valid and binding obligations of the ESOP Trust, enforceable in accordance with
their respective terms except as (1) the enforceability thereof may
16
be limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (2) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability; and
(E) the execution and delivery by the ESOP Trust of, and the performance by the
ESOP Trust of its obligations under, this Agreement, the Notes, the Indenture
and any applicable Written Terms Agreement will not contravene any provision of
law applicable to the ESOP Trust or the ESOP Trust Agreement or, to the best of
such counsel's knowledge, any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the ESOP Trust or the ESOP
Trustee, and no consent, approval, authorization or order of qualification with
any governmental body or agency is required for the performance by the ESOP
Trust of its obligations under this Agreement, the Notes, the Indenture and any
applicable Terms Agreement, except such as may be required by the securities or
Blue Sky Laws of the various states in connection with the offer and sale of the
Notes.
(iii) The opinion, dated as of such date, of Davis Polk & Wardwell, counsel
for the Agents, covering the matters in subparagraphs 5(b)(i)(C), 5(b)(i)(D),
5(b)(i)(E), 5(b)(i)(F) and 5(b)(i)(G) (with respect to statements in the
Prospectus, as then amended or supplemented, under the captions "Description of
the Notes" and "Plan of Distribution") and clauses 5(b)(i)(J)(2), 5(b)(i)(J)(3)
and 5(b)(i)(J)(4) of subparagraph 5(b)(i)(J) above and reflecting that such
counsel has reviewed the opinion set forth in the Prospectus, as then amended or
supplemented, under the caption "United States Federal Taxation" and concurs
with such opinion.
In rendering such opinions, such counsel may rely (A) as to matters of
fact, to the extent deemed proper, upon certificates of officers of the ESOP
Trustee and the Company and upon certificates of public officials and (B) as to
matters relating to the ESOP Trustee, upon an opinion of counsel to the ESOP
Trustee.
Notwithstanding the foregoing, the opinions described in Sections
5(b)(i)(E) (except as to the authorization of the Guaranties), 5(b)(i)(F),
5(b)(i)(G) and 5(b)(i)(J)(3) and 5(b)(i)(J)(4) and the opinions described in
Sections 5(b)(i)(D) (except as to the authorization of the Notes) and 5(b)(i)(E)
of paragraph (b)(ii) above, when contained in an opinion delivered on the
Commencement Date or pursuant to Section 6(b), shall be deemed not to address
the application of the Commodity Exchange Act, as amended, or the rules,
regulations or interpretations of the Commodity Futures Trading Commission to
Notes the payments of principal or interest on which will be determined by
reference to one or more currency exchange rates, commodity prices, equity
indices or other factors.
With respect to Section 5(b)(i)(J) above, counsel for the Company may
state that his opinion and belief is based upon his participation in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto
17
and documents incorporated therein by reference and review and discussion of the
contents thereof, but is without independent check or verification, except as
specified. With respect to clauses 5(b)(i)(J)(1), 5(b)(i)(J)(3), and
5(b)(i)(J)(4) Davis Polk & Wardwell may state that their opinion and belief are
based upon their participation in the preparation of the Registration Statement
and Prospectus and any amendments or supplements thereto (but not including
documents incorporated therein by reference) and review and discussion of the
contents thereof (including documents incorporated therein by reference), but is
without independent check or verification, except as specified.
(c) On the Commencement Date and, if called for by any agreement by an Agent
to purchase Notes as principal, on the corresponding Settlement Date, the
relevant Agents shall have received a certificate, dated the Commencement Date
or such Settlement Date, as the case may be, and signed by an executive officer
of the Company to the effect set forth in subparagraph 5(a)(iii) above and to
the effect that the representations and warranties of the Company contained
herein are true and correct as of such date and that the Company and the ESOP
Trust have complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely upon the best
of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any agreement by an Agent
to purchase Notes as principal, on the corresponding Settlement Date, the
Company's independent public accountants shall have furnished to the relevant
Agents a letter or letters, dated as of the Commencement Date or such Settlement
Date, as the case may be, in form and substance satisfactory to such Agents
containing statements and information of the type ordinarily included in
accountant's "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Prospectus, as then amended or supplemented.
(e) On the Commencement Date and, if called for by any agreement by an Agent
to purchase Notes as principal, on the corresponding Settlement Date, the
relevant Agents shall have received a certificate, dated such Commencement Date
or Settlement Date, as the case may be, signed by any Vice President of the ESOP
Trustee to the effect that the representations and warranties of the ESOP
Trustee contained herein are true as of such date.
The officer signing and delivering such certificate may rely upon the best
of his knowledge as to proceedings threatened.
18
(f) On the Commencement Date and on each Settlement Date, the Company and the
ESOP Trust shall have furnished to the relevant Agents such appropriate further
information, certificates and documents as they may reasonably request
6. Additional Agreements of the Company and the ESOP Trust. (a) Each time the
Registration Statement or Prospectus is amended or supplemented (other than by
an amendment or supplement that merely sets forth the terms or a description of
particular Notes or providing solely for a change in the interest rates,
redemption provisions, amortization schedules or maturities offered on the Notes
or for a change the Agents deem to be immaterial), the Company and the ESOP
Trust will deliver or cause to be delivered forthwith to each Agent certificates
signed by an executive officer of the Company and a Vice President of the ESOP
Trustee, respectively, dated the date of such amendment or supplement, as the
case may be, in form reasonably satisfactory to the Agents, of the same tenor as
the certificate referred to in Section 6 relating to the Registration Statement
or the Prospectus as amended or supplemented to the time of delivery of such
certificate.
(b) Each time the Company and the ESOP Trust furnish certificates pursuant to
Section 6(a), the Company and the ESOP Trust will furnish or cause to be
furnished forthwith to each Agent written opinions of counsel for the Company
and the ESOP Trust. Any such opinions shall be dated the date of such amendment
or supplement, as the case may be, shall be in a form satisfactory to the Agents
and shall be of the same tenor as the opinion referred to in Sections 5(b)(i)
and 5(b)(ii), but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinions.
In lieu of such opinion, counsel last furnishing such an opinion to an Agent may
furnish to each Agent a letter to the effect that such Agent may rely on such
last opinion to the same extent as though it were dated the date of such letter
(except that statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended or supplemented to the time
of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is amended or
supplemented to set forth amended or supplemental financial information or such
amended or supplemental information is incorporated by reference in the
Prospectus, the Company shall cause its independent public accountants forthwith
to furnish each Agent with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to the Agents, of the same
tenor as the letter referred to in Section 5(d), with regard to the amended or
supplemental financial information included or incorporated by reference in the
Registration Statement or the Prospectus as amended or supplemented to the date
of such letter; provided, however, each time amended or supplemented financial
information is incorporated by reference in the Prospectus to the Company's
current report on Form 8-K, the letter required to be
19
delivered pursuant to this Section 6(c) shall only be delivered to an Agent upon
its reasonable request.
7. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls such Agent 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 (including, without limitation, any legal or other expenses
reasonably incurred by you or any such controlling person in connection with
investigating or defending any such claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or in any amendment thereof or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to such Agent
furnished to the Company in writing by such Agent expressly for use therein.
(b) Each Agent agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act,
the ESOP Trust, the ESOP Trustee, its officers who sign the Registration
Statement, each person, if any, who controls the ESOP Trust or the ESOP Trustee
within the meaning of Section 15 of the Securities Act or Section 20 of Exchange
Act and any named fiduciary (as defined in ERISA) of the ESOP Trust ("Named
Fiduciary") to the same extent as the foregoing indemnity from the Company to
such Agent, but only with reference to information relating to such Agent
furnished to the Company in writing by such Agent expressly for use in the
Registration Statement or the Prospectus or any amendments or supplements
thereto.
(c) 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 paragraph 7(a) or 7(b) above, 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 reasonable
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
20
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 respect of the legal expenses of any
indemnified party 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. Such firm shall be designated in writing by Morgan Stanley or, if
Morgan Stanley is not an indemnified party and is not reasonably likely to
become an indemnified party, by the Agents that are indemnified parties, in the
case of parties indemnified pursuant to Section 7(a) above, and by the Company,
in the case of parties indemnified pursuant to Section 7(b) above. 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 .
(d) If the indemnification provided for in Section 7(a) or 7(b) is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein in connection with any
offering of Notes, 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 ESOP Trust and the Company on the one hand and
each Agent on the other hand from the offering of such Notes or (ii) if the
allocation provided by clause 7(d)(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 7(d)(i) above but also the relative fault of the ESOP
Trust and the Company on the one hand and each Agent 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 ESOP Trust and the Company
on the one hand and each Agent on the other hand in connection with the offering
of such Notes shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of such Notes (before deducting expenses)
received by the ESOP Trust bear
21
to the total discounts and commissions received by each Agent in respect
thereof. The relative fault of the ESOP Trust and the Company on the one hand
and of each Agent on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the ESOP Trust or the Company or by such Agent and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Each Agent's obligation to
contribute pursuant to this Section 7 shall be several in the proportion that
the principal amount of the Notes the sale of which by or through such Agent
gave rise to such losses, claims, damages or liabilities bears to the aggregate
principal amount of the Notes the sale of which by or through any Agent gave
rise to such losses, claims, damages or liabilities and not joint.
(e) The ESOP Trust, the Company and the Agents agree that it would not be
just or equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Agents were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph 7(d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in paragraph 7(d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7 no Agent shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes referred to in paragraph 7(d)
above that were offered and sold to the public through such Agent exceeds the
amount of any damages that such Agent has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 7 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.
8. Position of the Agents. In acting under this Agreement and in connection
with the sale of any Notes by the ESOP Trust (other than Notes sold to an Agent
as principal), each Agent is acting solely as agent of the ESOP Trust and does
not assume any obligation towards or relationship of agency or trust with any
purchaser of Notes. An Agent shall make reasonable efforts to assist the
Company and the ESOP Trust in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and accepted by the
Company on behalf of the ESOP Trust, but such Agent shall not have any liability
to the Company or the ESOP Trust in the event any such purchase is not
consummated for any reason.
22
If the ESOP Trust shall default in its obligations to deliver Notes to a
purchaser whose offer it has accepted, the Company shall hold the relevant Agent
harmless against any loss, claim, damage or liability arising from or as a
result of such default and shall, in particular, pay to such Agent the
commission it would have received had such sale been consummated.
9. Termination. This Agreement may be terminated at any time by the ESOP
Trust or the Company or, as to any Agent, by the ESOP Trust or the Company or
such Agent upon the giving of written notice of such termination to the other
parties hereto, but without prejudice to any rights, obligations or liabilities
of any party hereto accrued or incurred prior to such termination. The
termination of this Agreement shall not require termination of any agreement by
an Agent to purchase Notes as principal, and the termination of any such
agreement shall not require termination of this Agreement. If this Agreement is
terminated, the provisions of the third paragraph of Section 3(a), Section 3(e),
the last sentence of Section 4(b) and Sections 4(c)), 4(b), 7, 8, 10, 12 and 15
shall survive; provided that if at the time of termination an offer to purchase
Notes has been accepted by the Company but the time of delivery to the purchaser
or its agent of such Notes has not occurred, the provisions of Sections 3(b),
3(c), 4(a), 4(e), 4(f), 4(g), 4(i), 5 and 6 shall also survive until such
delivery has been made.
10. Representations and Indemnities to Survive. The respective indemnity
and contribution agreements, representations, warranties and other statements of
the ESOP Trustee, the ESOP Trust, the Company, or their officers and the Agents
set forth in or made pursuant to this Agreement or any agreement by an Agent to
purchase Notes as principal will remain in full force and effect, regardless of
any termination of this Agreement or any such agreement, any investigation made
by or on behalf of an Agent, the ESOP Trust or the Company or any of the
officers, directors or controlling persons referred to in Section 7 and delivery
of and payment for the Notes.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to Morgan Stanley, will be mailed,
delivered or telefaxed and confirmed to Morgan Stanley at 1585 Broadway, New
York, New York 10036, Attention: Manager, Credit Department (telefax number:
212-762-9181), with a copy to 1585 Broadway, New York, New York 10036,
Attention: Managing Director, Debt Syndicate (telefax number: 212-761-0781),
Goldman, Sachs & Co. at 85 Broad Street, New York, New York 10004, Attention:
MTN Desk (telefax number: 212-902-0658), J.P. Morgan Securities Inc. at 60 Wall
Street, New York, New York 10260, Attention: Medium-Term Note Trading Desk, 3rd
Floor (telefax number: 212-648-5909), Salomon Smith Barney Inc., 388 Greenwich
Street, New York, New York 10013, Attention: Mr. John Ciolek, Global Energy
Group (telefax number 212-816-7457), and Warburg Dillon Read LLC, 677 Washington
Blvd., Stamford,
23
Connecticut 06901, Attention: Mr. John Doherty (telefax number 203-719-7139) or,
if sent to the Company, will be mailed, delivered or telefaxed and confirmed to
the Company at 3225 Gallows Road, Fairfax, Virginia 22037, Attention: Treasurer
(telefax number 703-846-1460) or if sent to the ESOP Trust will be mailed,
delivered or telefaxed and confirmed to the ESOP Trustee at 280 Park Avenue, 8W,
New York, New York 10017, Attention: Senior Vice President, Global Fiduciary
Services, with a copy to the Company.
12. Successors. This Agreement and any Terms Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to in
Section 7 and the purchasers of Notes (to the extent expressly provided in
Section 5), and no other person will have any right or obligation hereunder.
13. Amendments. This Agreement may be amended or supplemented if, but only
if, such amendment or supplement is in writing and is signed by the Company, the
ESOP Trust and each Agent; provided that the Company or the ESOP Trust may from
time to time, on seven days prior written notice to the Agents but without the
consent of any Agent, amend this Agreement to add as a party hereto one or more
additional firms registered under the Exchange Act, whereupon each such firm
shall become an Agent hereunder on the same terms and conditions as the other
Agents that are parties hereto. The Agents shall sign any amendment or
supplement giving effect to the addition of any such firm as an Agent under this
Agreement.
14. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
15. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York.
16. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
24
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
MOBIL OIL CORPORATION
EMPLOYEES STOCK OWNERSHIP PLAN TRUST
BY: Bankers Trust Company, not in its individual
corporate capacity but solely as ESOP Trustee
(except as otherwise provided herein)
By: ____________________________
Title:
MOBIL CORPORATION
By ______________________________
Title:
25
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
MORGAN STANLEY & CO. INCORPORATED
By _______________________________
Title:
GOLDMAN, SACHS & CO.
___________________________________
J.P. MORGAN SECURITIES INC.
By _______________________________
Title:
26
SALOMON SMITH BARNEY INC.
By _______________________________
Title:
WARBURG DILLION READ LLC
By _______________________________
Title:
27
EXHIBIT A
MOBIL OIL CORPORATION
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
MEDIUM-TERM NOTES
TERMS AGREEMENT
_________________, 199_
Mobil Corporation
3225 Gallows Road
Fairfax, VA 22037-0001
Attention: Treasurer
Re: Sale and Distribution Agreement dated [ ], 1999
(the "Distribution Agreement")
We agree to purchase your Medium-Term Notes having the following terms:
[We agree to purchase, severally and not jointly, the principal amount of
Notes set forth below opposite our names:
Principal Amount
Name of Notes
- -------------------------------------------------
[Insert syndicate list]/1/
Total $
=========
- ---------
/1/ Delete if the transaction will not be syndicated.
A-1
The Notes shall have the following terms:
All Notes: Fixed Rate Notes: Floating Rate Notes:
Principal amount: Interest Rate: Base rate:
Purchase price: Applicability of Index maturity:
modified payment
upon acceleration:
Price to public: If yes, state issue price: Spread:
Settlement date and Amortization schedule: Spread multiplier:
time:
Place of delivery: Alternate rate event
spread:
Specified currency: Initial interest rate:
Maturity date: Initial interest reset
date:
Initial accrual period Interest reset dates:
OID:
Total amount of OID: Interest reset period:
Original yield to Maximum interest rate:
maturity:
Optional repayment Minimum interest rate:
date(s):
Optional redemption Interest payment period:
date(s):
Initial redemption date: Interest payment dates:
Initial redemption Calculation agent:
percentage:
Annual redemption
percentage decrease:
Other terms:
The provisions of Sections 1, 2, 3(b), 3(c), 4 through 7 and 10 through 15
of the Distribution Agreement and the related definitions are incorporated by
reference
A-2
herein and shall be deemed to have the same force and effect as if set
forth in full herein.
This Agreement is also subject to termination on the terms incorporated by
reference herein. If this Agreement is terminated, the provisions of Sections
4(h), 7, 10, 12 and 15 of the Distribution Agreement shall survive for the
purposes of this Agreement.
A-3
The following information, opinions, certificates, letters and documents
referred to in Section 5 of the Distribution Agreement will be required:
________________
[NAME OF RELEVANT AGENT(S)]
By:
Name:
Title:
Accepted:
MOBIL OIL CORPORATION
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
By:
Name:
Title:
A-4