EXHIBIT 4.8
GUARANTY
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MOBIL CORPORATION
THIS GUARANTY, dated as of May 28, 1997 (together with any
amendments or supplements hereto, this "Guaranty"), by and among MOBIL
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CORPORATION, a Delaware corporation (together with any successor permitted by
Section 4.1 hereof, the "Guarantor"), and WILMINGTON TRUST COMPANY, both in
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its individual capacity and as Owner Trustee, the Indenture Trustee, both in its
individual capacity and as Indenture Trustee, the Pass Through Trustee, in its
individual capacity and as Pass Through Trustee under the Pass Through Trust
Documents and as Loan Participant, the Certificateholders from time to time, and
the Owner Participant referred to in the Participation Agreement described below
(collectively, together with each other Indemnitee and their successors and
permitted assigns, the "Beneficiaries" and, individually, a "Beneficiary").
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W I T N E S S E T H:
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A. Mobil Chemical Finance (Texas) Inc., a Delaware corporation, and
wholly-owned subsidiary of the Guarantor (together with its successors and
permitted assigns as further defined in Appendix A to the Participation
Agreement, the "Lessee"), is entering into that certain Participation Agreement
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dated as of May 28, 1997 (the "Participation Agreement"), among the Lessee,
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Fleet National Bank, as Owner Participant, Wilmington Trust Company, not in its
individual capacity except to the extent expressly set forth therein but solely
as Owner Trustee, State Street Bank and Trust Company not in its individual
capacity except to the extent expressly set forth therein but solely as
Indenture Trustee and State Street Bank and Trust Company acting not in its
individual capacity except as expressly provided therein, but solely as Pass
Through Trustee and as Loan Participant.
B. It is a condition precedent to the obligations of the
Beneficiaries to consummate the transactions contemplated by the Participation
Agreement that the Guarantor execute and deliver this Guaranty.
Accordingly, in consideration of the premises and of other good and
valuable consideration, the Guarantor does hereby covenant and agree with the
Beneficiaries from and after the execution and delivery of the Participation
Agree-
ment as follows (capitalized terms used herein (including those used in
the foregoing preamble and recitals) and not otherwise defined herein having the
meanings ascribed to them in Appendix A to the Participation Agreement):
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF GUARANTOR
Section 1.1. Representations and Warranties of Guarantor. The
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Guarantor hereby represents and warrants that:
(1) The Guarantor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, has the
corporate power and authority to carry on its business as presently
conducted, to own or hold under lease its properties and to enter into and
perform its obligations under this Guaranty, and is duly qualified to do
business in each jurisdiction in which it has operations or a principal
office and where failure to so qualify could reasonably be expected to
materially adversely affect its consolidated financial condition, business
or operations, or its ability to perform any of its obligations under this
Guaranty.
(2) The execution, delivery and performance by the Guarantor of this
Guaranty and the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of the Guarantor.
(3) This Guaranty has been duly executed and delivered by the
Guarantor and constitutes the legal, valid and binding obligation of the
Guarantor enforceable against the Guarantor in accordance with the terms
hereof, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, liquidation, moratorium or similar
laws affecting creditors' or lessors' rights generally and by the
application of general equitable principles which may limit the
availability of certain remedies.
(4) The execution and delivery by the Guarantor of this Guaranty do
not and will not, and the performance by the Guarantor of its obligations
hereunder does not and will not, (i) violate or be inconsistent with its
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charter documents or by-laws; (ii) contravene
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any Governmental Rule or Governmental Action applicable to it (except that
no representation or warranty is made herein with respect to the Securities
Act, the Trust Indenture Act and the securities or Blue Sky laws of the
various states); (iii) contravene any provision of, or constitute a default
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under, any indenture, mortgage, contract or other instrument to which the
Guarantor is a party or by which it or any of its properties are bound or
(iv) result in or require the creation or imposition of any Lien (other
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than Permitted Liens) upon any of its properties or assets.
(5) No Governmental Action and no consent of any other Person
(including, without limitation, any stockholder or creditor of the
Guarantor) is required in connection with the execution, delivery or
performance of this Guaranty, except such as are required under the
Securities Act, the Trust Indenture Act and the securities or Blue Sky
laws of the various states.
(6) The consolidated financial statements of the Guarantor set forth
in its Annual Report on Form 10-K for the year ended December 31, 1996 and
the consolidated financial statements of the Guarantor set forth in its
Quarterly Report on Form 10-Q for the quarter ended March 31, 1997 fairly
present the consolidated financial position of the Guarantor and its
Subsidiaries as at the date thereof and the consolidated results of
operations and changes in financial position of the Guarantor and its
Subsidiaries for each of the periods covered thereby (subject, in the case
of any unaudited interim financial statements, to changes resulting from
normal year-end adjustments) in conformity with GAAP applied on a
consistent basis (except as disclosed in the notes thereto). Since March
31, 1997, there has been no material adverse change in such consolidated
financial position of the Guarantor and its Subsidiaries, taken as a whole.
(7) Except as disclosed in the Guarantor's Annual Report on Form 10-K
for the year ended December 31, 1996, the Guarantor's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1997 or the Guarantor's current
reports on Form 8-K, there is no action, suit, investigation or proceeding
pending or, to the Actual Knowledge of the Guarantor threatened in writing
against the Guarantor or its properties before any Governmental Authority
which, individually or in the aggregate (so far as the Guarantor now can
reasonably
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foresee), is reasonably likely materially and adversely to affect the
consummation of the transactions under this Guaranty or the ability of the
Guarantor to perform its obligations hereunder or its business or
financial condition.
(8) The Guarantor owns, directly or indirectly, 100% of the equity
interest in the Lessee.
(9) The representations and warranties of the Lessee in Section 5 of
the Participation Agreement are true and correct.
ARTICLE II
GUARANTEE OF OBLIGATIONS
Section 2.1. Guarantee of Obligations. (a) The Guarantor hereby
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guarantees to each of the Beneficiaries, as primary obligor and not as surety,
the full and prompt payment by the Lessee, when due, whether at the stated
payment date thereof, by acceleration or otherwise, of, and the faithful
performance of and compliance with, all payment obligations of the Lessee under
the Participation Agreement, the Lease and the other Operative Documents owed to
the Beneficiaries strictly in accordance with the terms thereof, however
created, arising or evidenced, whether direct or indirect, primary or secondary,
absolute or contingent, joint or several, and whether now or hereafter existing
or due or to become due and the full, faithful and timely performance of, and
compliance with, all other obligations of the Lessee owed to the Beneficiaries
thereunder strictly in accordance with the terms thereof, however created,
arising or evidenced, whether direct or indirect, primary or secondary, absolute
or contingent, joint or several, and whether now or hereafter existing or due or
to become due (such payment and other obligations, the "Obligations"). Such
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guarantee is an absolute, unconditional, irrevocable, present and continuing
guarantee of payment and performance and not of collectability.
(b) If for any reason any Obligation to be performed or observed by
the Lessee (whether affirmative or negative in character) shall not be observed
or performed or paid strictly in accordance with the terms thereof, the
Guarantor shall, no later than fifteen (15) Business Days following the
Guarantor's receipt of written notice by the relevant Beneficiary of such non-
observance, non-performance or non-payment, and no earlier than five (5)
Business Days
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following the Guarantor's receipt of such a notice in the case of non-payment of
Basic Rent, perform or observe or cause to be performed or observed each such
Obligation or shall pay the amount of each such unpaid Obligation at the place
and to the Person or entity entitled thereto pursuant to the relevant Operative
Documents, as the case may be, regardless of whether or not any Beneficiary or
anyone on behalf of any of them shall have instituted any suit, action or
proceeding or exhausted its remedies or taken any steps to enforce any rights
against the Lessee or any other Person or entity to compel any such performance
or observance or to collect all or any part of such amount pursuant to the
provisions of the relevant Operative Documents, as the case may be, or at law or
in equity, or otherwise, and regardless of any other condition or contingency;
provided that notwithstanding the foregoing no notice shall be required if the
Guarantor is subject to any bankruptcy or similar proceeding. Nothing in this
Guaranty shall be construed to be a guarantee of payment of the Secured Notes.
Section 2.2. Nature of Guarantee. The obligations, covenants,
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agreements and duties of the Guarantor hereunder shall remain in full force and
effect and enforceable until the Obligations are finally, indefeasibly and
unconditionally paid and performed in full in accordance with the terms of the
Operative Documents and, to the maximum extent permitted by law, shall in no
way be affected or impaired by reason of the happening from time to time of any
other event, including, without limitation, the following, whether or not any
such event shall have occurred without notice to or the consent of the
Guarantor:
(a) the waiver, compromise, settlement, termination or other release
of the performance or observance by the Guarantor or the Lessee of any or
all of their respective agreements, covenants, terms or conditions
contained in this Guaranty (other than Section 2.1 hereof), the
Participation Agreement, the Lease or the other Operative Documents;
(b) any failure, omission, delay or lack on the part of the
Beneficiaries to enforce, assert or exercise any right, power or remedy
conferred on the Beneficiaries in the Participation Agreement, the Lease,
the other Operative Documents or this Guaranty in accordance with its terms
or the inability of the Beneficiaries to enforce any provision of the
Participation Agreement, the Lease, the other Operative
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Documents or this Guaranty for any reason, or any other act or omission on
the part of the Beneficiaries;
(c) the transfer, assignment or mortgaging, or the purported transfer,
assignment or mortgaging, of all or any part of the interest of the Lessee
in the Facility or the invalidity, unenforceability or termination for
any reason whatsoever of the Participation Agreement, the Lease or any
other Operative Document or any term, condition, provision of any thereof
or any remedy thereunder or any defect in the title of the Facility or any
part thereof or any loss of possession, use or operational control of the
Facility or any part thereof by the Lessee;
(d) the modification or amendment (whether material or otherwise) of
any obligation, covenant or agreement set forth in the Participation
Agreement, the Lease or any other Operative Document;
(e) the voluntary or involuntary liquidation, dissolution, sale of all
or substantially all of the assets, marshalling of assets and liabilities,
receivership, conservatorship, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of, or other similar proceedings affecting the Lessee or any
of its assets or any allegation or contest of the validity of the Guaranty,
the Participation Agreement, the Lease or any other Operative Document in
any such proceeding;
(f) the surrender or impairment of any security for the performance or
observance of any of the Obligations;
(g) any failure of the Guarantor or the Lessee or any other Person to
perform and observe any agreement or covenant, or to discharge any duty or
obligation, arising out of or connected with this Guaranty, the
Participation Agreement, the Lease or any other Operative Document or the
occurrence or pendency of any Lease Default or Lease Event of Default or
any proceedings or actions as a result of, or attendant upon, such Lease
Default or Lease Event of Default;
(h) the inability of the Guarantor, the Beneficiaries or the Lessee
or any other Person to enforce any provision of this Guaranty, the
Participation
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Agreement, the Lease or any other Operative Document for any reason;
(i) the failure to give notice to the Guarantor or the Lessee of the
occurrence of an event of default under the terms and provisions of the
Participation Agreement, the Lease or the other Operative Documents;
(j) the disposition by the Guarantor of any or all of its interest in
any capital stock of the Lessee or any change, restructuring or termination
of the corporate structure, ownership or existence of the Lessee;
(k) any set-off, counterclaim, reduction, or diminution of any
Obligation, or any defense of any kind or nature whatsoever (other than
performance), which the Guarantor or the Lessee may have or assert against
the Beneficiaries; or
(l) any other circumstance (other than performance) that might
otherwise constitute a legal or equitable defense or discharge of the
Guarantor under this Guaranty or of a guarantor or surety with respect to
any Obligation.
Section 2.3. Waivers by Guarantor. The Guarantor waives notice of
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the acceptance of and reliance on this Guaranty by the Beneficiaries, and the
Guarantor also waives presentment, demand for payment, protest and notice of
nonpayment or dishonor and all other notices and demands whatsoever, except that
the Guarantor does not waive the notices provided for in Section 2.1(b) hereof.
The Guarantor waives any and all right to assert any set-off, counterclaim,
reduction, or diminution of any Obligation, or any defense of any kind or nature
whatsoever (other than performance), which the Guarantor or the Lessee may
have or assert against the Beneficiaries. The Guarantor further waives any
right it may have to (a) require the Beneficiaries to proceed against the
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Lessee, (b) require the Beneficiaries to proceed against or exhaust any security
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granted by the Lessee or the Owner Trustee or (c) require the Beneficiaries to
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pursue any other remedy within the power of the Beneficiaries, and the Guarantor
agrees that all of its obligations under this Guaranty are independent of the
Obligations and that a separate action may be brought against the Guarantor
whether or not an action is commenced against the Lessee under the Operative
Documents.
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Section 2.4. Subrogation of Guarantor; Subordination.
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Notwithstanding any payment or payments made by the Guarantor, the Guarantor
shall not be subrogated to any rights of the Beneficiaries against the Lessee
until all of the Obligations then due shall have been finally, indefeasibly
and unconditionally paid and performed in full. Any claim of the Guarantor
against the Lessee arising from payments made by the Guarantor by reason of this
Guaranty shall be in all respects subordinated to the final, indefeasible,
unconditional, full and complete payment or discharge of all of the Obligations
guaranteed hereby, and no payment by the Guarantor shall give rise to any claim
of the Guarantor against the Beneficiaries.
Section 2.5. Reinstatement. This Guaranty shall continue to be
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effective, or be automatically reinstated, as the case may be, if at any time
payment, or any part thereof, made by or on behalf of the Lessee or the
Guarantor of any of the Obligations is rescinded or must otherwise be restored
or returned by any Beneficiary for any reason whatsoever, whether upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Lessee or Guarantor, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, either of the
Lessee or the Guarantor or the Operator or any substantial part of its property,
or otherwise, all as though such payments had not been made.
Section 2.6. Place and Manner of Payments. All payments to be made
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by the Guarantor under this Guaranty to a Beneficiary shall be paid to such
Beneficiary at the address provided for in Schedule 1 of the Participation
Agreement or, if no address, at the address and to the account specified in the
notice demanding payment by the Guarantor; provided, however, that the Guarantor
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consents to the assignment by the Owner Trustee to the Indenture Trustee of the
Owner Trustee's right, title and interest in, to and under this Guaranty to the
extent set forth in the Indenture and, notwithstanding anything herein to the
contrary, the Guarantor shall make all payments (other than Excepted Payments)
hereunder directly to the Indenture Trustee until such time as the Indenture
Trustee shall give notice to the Guarantor that the Lien of the Indenture has
been fully discharged, and thereafter to the Owner Trustee. The Guarantor
agrees that it will make all payments due hereunder by wire transfer at or
before 12:00 noon, New York time, on the date due in immediately available funds
to the party to which such payment is to be made.
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ARTICLE III
DEFAULT AND REMEDIES
Section 3.1. Enforcement Provisions. The Beneficiaries shall have
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the right, power and authority to do all things, including instituting or
appearing in any suit or proceeding, not inconsistent with the express
provisions of the Operative Documents or this Guaranty, which they may deem
necessary or advisable to enforce the provisions of this Guaranty and protect
the interests of the Beneficiaries. Each and every default in the payment or
performance of the Obligations shall give rise to a separate cause of action
hereunder, and separate suits may be brought hereunder as each cause of action
arises.
Section 3.2. No Remedy Exclusive. No remedy conferred upon or
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reserved to the Beneficiaries herein or in the Operative Documents is intended
to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy
given under this Guaranty or now or hereafter existing at law or in equity.
Section 3.3. Right to Proceed Against Guarantor. In the event of a
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default in any payment or performance of any Obligation owed to any
Beneficiaries when and as the same shall become due, whether at the stated
maturity thereof, by acceleration or otherwise, such Beneficiaries may proceed
to enforce their respective rights hereunder and such Beneficiaries shall have
the right to proceed first and directly against the Guarantor under this
Guaranty without proceeding against any other Person or exhausting any other
remedies which they may have and without resorting to any collateral security
relating thereto. The provisions of Section 6.7 of the Pass Through Trust
Agreement and Section 5.11 of the Indenture shall apply to any actions proposed
to be commenced hereunder against the Guarantor by the Certificateholders or by
the Pass Through Trustee in its capacity as a Loan Participant.
Section 3.4. Guarantor to Pay Costs of Enforcement. The Guarantor
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agrees to pay all costs, expenses and fees, including, without limitation, all
reasonable attorneys' fees, which may be incurred by the Beneficiaries in
enforcing or attempting to enforce this Guaranty or protecting the rights of the
Beneficiaries hereunder following any default on the part of the Guarantor
hereunder, whether the same shall be enforced by suit or otherwise.
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Section 3.5. No Waiver of Rights. No delay in exercising or omission
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to exercise any right or power accruing upon any default, omission or failure
of performance hereunder shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient.
ARTICLE IV
COVENANTS OF GUARANTOR
Section 4.1. Maintenance of Corporate Existence. So long as any of
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the Obligations remain outstanding or any amounts due and owing by the Lessee
with respect thereto remain unpaid, the Guarantor will maintain its corporate
existence and will not merge or consolidate with any other corporation nor
dissolve or otherwise sell or dispose of all or substantially all of its assets
as an entirety, unless the successor or transferee corporation (if other than
the Guarantor) shall expressly and unconditionally assume, in a written
instrument delivered to the Owner Participant, the Owner Trustee, the Indenture
Trustee and the Pass Through Trustee, the punctual performance and observance of
all covenants, conditions and obligations of this Guaranty to be performed by
the Guarantor.
Section 4.2. Financial Statements. The Guarantor shall provide to
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the Owner Participant and the Indenture Trustee, within thirty (30) days after
the Guarantor is required to file the same with the Securities and Exchange
Commission (the "SEC") or any successor agency, a copy of each annual report and
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any amendment to an annual report (currently Form 10-K), filed by the Guarantor
with the SEC pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as the same may be amended from time to time, and all financial statement
reports, notices, proxy statements or other documents that are sent or made
generally available by the Guarantor to holders of its registered securities
and all regular and periodic reports filed by the Guarantor with the SEC except
for reports on SEC Forms 3, 4 or 5 or any comparable reports.
Section 4.3. Support Agreement. The Guarantor will cause one or more
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of the Lessee's Affiliates to enter into the Support Agreements as required by
Section 10.9 of the Participation Agreement.
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ARTICLE V
GENERAL
Section 5.1. Benefitted Parties. This Guaranty is entered into by
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the Guarantor for the benefit of the Beneficiaries in accordance with the
provisions of this Guaranty and the Operative Documents. This Guaranty shall
not be deemed to create any right in, or to be in whole or part for the benefit
of, any person other than the Beneficiaries and the Guarantor and their
respective permitted successors and assigns. The Guarantor may not assign any
of its rights or obligations hereunder except in accordance with Section 4.1
hereof.
Section 5.2. Interpretations. The article and section headings of
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this Guaranty are for reference purposes only and shall not affect its
interpretation in any respect.
Section 5.3. Entire Agreement; Counterpart; Amendments; Governing
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Law; Etc. This Guaranty (a) constitutes the entire agreement, and supersedes
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all prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof; (b) may be executed in
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several counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument; (c) may be modified
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only by an instrument in writing signed by the duly authorized representatives
of the parties hereto and (d) has been delivered in the State of New York and
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shall be governed in all respects, including validity, interpretation and effect
by, and shall be enforceable in accordance with, the laws of the State of New
York. Subject to Section 2.5 hereof, this Guaranty shall terminate when the
Obligations have been fully, indefeasibly and unconditionally paid and performed
in full.
If any provision of this Guaranty shall be held to be invalid by any
court of competent jurisdiction, the invalidity of such provisions shall not
affect any of the remaining provisions, and any such invalidity in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto hereby waive any provision thereof that renders any term or provision
hereof invalid or unenforceable in any respect.
Section 5.4. Further Assurances. The Guarantor will execute and
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deliver all such instruments and take all
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such actions as the Beneficiaries may from time to time reasonably request in
order fully to effectuate the purposes of this Guaranty.
Section 5.5. Notices. All notices and other communications in
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respect of this Guaranty to the Guarantor or the Beneficiaries shall be given as
provided in the applicable provisions of the Participation Agreement.
Section 5.6. Consent to Jurisdiction. Any legal suit, action or
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proceeding arising out of or relating to this Guaranty or any transaction
contemplated hereby may be instituted in any state or Federal court in the
County of New York and State of New York and, to the extent permitted by
applicable law, the Guarantor waives any objection which it may now or hereafter
have to the laying of the venue of any such suit, action or proceeding and
irrevocably submits to the jurisdiction of any such court in any such suit,
action or proceeding.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
executed in its name and behalf and its corporate seal to be affixed hereto and
attested by its duly authorized officers, and the Beneficiaries have accepted
the same, as of the date first above written.
ATTEST: MOBIL CORPORATION
By: ______________________ By: _______________________
Name: Name:
Title: Title:
ACCEPTED:
WILMINGTON TRUST COMPANY, in both its
individual capacity and as Owner Trustee
By: _________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, in
its individual capacity and as Indenture
Trustee
By: _________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, in
its individual capacity and as Pass
Through Trustee under each of the Pass
Through Trust Documents and as Loan
Participant
By: _______________________
Name:
Title:
FLEET NATIONAL BANK
By: _________________________
Name:
Title:
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