EXHIBIT 1.1
MOBIL CORPORATION
MOBIL CHEMICAL FINANCE (TEXAS) INC.
1997-A PASS THROUGH TRUST
PASS THROUGH CERTIFICATES,
SERIES 1997-A
UNDERWRITING AGREEMENT
Dated: May 22, 1997
May 22, 1997
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Mobil Chemical Finance (Texas) Inc., a Delaware corporation (the
"Company"), in connection with the financing of the debt portion of a leveraged
lease transaction with respect to certain paraxylene production facility assets
located in Beaumont, Texas, proposes that State Street Bank and Trust Company
("SSB&T"), as trustee (the "Pass Through Trustee"), will issue and sell to you
its Pass Through Certificates, Series 1997-A, in the principal amount and with
the interest rate and final distribution date set forth on Schedule A hereto
(the "Offered Certificates") on the terms and conditions stated herein. The
Offered Certificates will be issued under the Pass Through Trust Agreement,
dated as of October 4, 1996 (the "Basic Agreement") among Mobil Corporation, a
Delaware corporation (the "Guarantor"), the Company, the Pass Through Trustee,
and the other parties described therein, as supplemented by the Pass Through
Trust Supplement No. 1997-A, dated as of May 28, 1997 (the "Trust Supplement"),
among the Guarantor, the Company and the Pass Through Trustee (the Basic
Agreement as supplemented by the Trust Supplement being referred to herein as
the "Designated Agreement"). Capitalized terms used herein without definition
shall have the respective meanings ascribed to such terms in the Designated
Agreement or in the Trust Indenture, Deed of Trust, Assignment of Lease and
Security Agreement, dated effective as of May 28, 1997 ("the Indenture"),
between Wilmington Trust Company, as owner trustee (the "Owner Trustee") and
SSB&T, as Indenture Trustee (the "Indenture Trustee").
The Guarantor and the Company and certain other subsidiaries of the
Guarantor have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-13457),
relating to certain pass through certificates, including the Offered
Certificates, and the offering thereof from time to time in accordance with Rule
415 of the Securities Act of 1933, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Securities Act"). The
registration statement as amended at the date hereof, including the exhibits
thereto and the documents incorporated by reference therein, is herein referred
to as the "Registration Statement". The Registration Statement includes a basic
prospectus referred to below which, as supplemented from time to time, will be
used in connection with all offerings of such pass through certificates. A
prospectus supplement reflecting the terms of the Offered Certificates, the
terms of the offering thereof and other matters relating to the Offered
Certificates has been prepared and has been or will be filed (or mailed for
filing) together with the basic prospectus referred to below pursuant to Rule
424 under the Securities Act
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(such prospectus supplement, in the form first filed on or after the date hereof
pursuant to Rule 424, is herein referred to as the "Prospectus Supplement" and
any such prospectus supplement in the form or forms filed prior to the
Prospectus Supplement is herein referred to as a "Preliminary Prospectus
Supplement"). The basic prospectus included in the Registration Statement and
relating to all offerings of pass through certificates under the Registration
Statement, as supplemented by the Prospectus Supplement, is herein called the
"Prospectus", except that, if such basic prospectus is amended on or prior to
the date on which the Prospectus Supplement is first filed (or mailed for
filing) pursuant to Rule 424, the term "Prospectus" shall refer to such basic
prospectus as so amended and as supplemented by the Prospectus Supplement, in
either case including the documents filed by the Guarantor with the Commission
pursuant to the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act"),
that are incorporated by reference therein. Any reference herein to the terms
"amendment" or "supplement" with respect to the Registration Statement, to the
Prospectus, any Preliminary Prospectus Supplement or to any preliminary
prospectus shall be deemed to refer to and include any documents filed with the
Commission under the Exchange Act after the date hereof, the date the Prospectus
is filed (or mailed for filing) with the Commission, or the date of such
Preliminary Prospectus Supplement or preliminary prospectus, as the case may be,
and incorporated therein by reference pursuant to Item 12 of Form S-3 under the
Securities Act.
I.
The Guarantor and the Company represent and warrant to, and agree with, you
that:
(a) The Guarantor and the Company meet the requirements for use of
Form S-3 under the Securities Act; the Registration Statement has become
effective; (i) on the original effective date of the Registration
Statement, on the effective date of the most recent post-effective
amendment thereto, if any, and on the date of the filing by the Guarantor
of any annual report on Form 10-K after the original effective date of the
Registration Statement, the Registration Statement and any amendments and
supplements thereto complied in all material respects with the requirements
of the Securities Act and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and (ii) on the
date hereof and at all times subsequent thereto up to the Closing Date
referred to below, neither the Prospectus nor any amendment or supplement
thereto will include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that neither the Guarantor nor the Company makes any representation
or warranty as to statements
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or omissions made in reliance upon and in conformity with information
furnished in writing to the Guarantor and/or the Company by or on behalf of
you expressly for use in the Registration Statement or the Prospectus or to
statements or omissions in that part of the Registration Statement which
shall constitute the Statement of Eligibility on Form T-1 (the "Statement
of Eligibility") under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), of the Pass Through Trustee.
(b) The documents incorporated by reference in the Prospectus pursuant
to Item 12 of Form S-3 under the Securities Act, at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act.
(c) The Guarantor and the Company have been informed by Ernst & Young
LLP ("E&Y"), who have reported upon the audited consolidated financial
statements and the financial statement schedules, if any, included or
incorporated by reference in the Registration Statement, that E&Y are
independent public accountants as required by the Securities Act.
(d) This Agreement has been duly authorized, executed and delivered by
the Guarantor and the Company.
(e) The consolidated financial statements included or incorporated by
reference in the Registration Statement present fairly the consolidated
financial position of the Guarantor and its subsidiaries as of the dates
indicated and the consolidated results of operations and cash flows or
changes in financial position of the Guarantor and its subsidiaries for the
periods specified. Such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved, except as may be
indicated therein. The financial statement schedules, if any, included or
incorporated by reference in the Registration Statement present fairly the
information required to be stated therein. The selected consolidated
financial data included in the Prospectus (if any) present fairly the
information shown therein and have been compiled on a basis consistent with
that of the audited consolidated financial statements included or
incorporated by reference in the Registration Statement.
(f) Each of the Guarantor and the Company is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware with corporate power and authority under such laws to
own, lease and operate its properties and conduct its business as described
in the Prospectus and to perform its obligations under this Agreement, the
Designated Agreement and the other Operative Documents to which it is, or
is to be, a party; and each of the Guarantor and the Company is duly
qualified to transact business as a foreign corporation and is
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in good standing in each other jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse effect on
the Guarantor and its subsidiaries, taken as a whole, or on the power or
ability of the Guarantor or the Company, as the case may be, to perform its
obligations under this Agreement, the Designated Agreement or the Operative
Documents to which it is, or is to be, a party or to consummate the
transactions contemplated hereby and thereby (any such material adverse
effect, whether with respect to the Guarantor or the Company, as
applicable, is referred to herein as a "Material Adverse Effect").
(g) Each subsidiary of the Guarantor (other than the Company) is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation with corporate power and
authority under such laws to own, lease and operate its properties and
conduct its business as described in the Prospectus, and is duly qualified
to transact business as a foreign corporation and is in good standing in
each other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification necessary,
except to the extent that the failure to so qualify or be in good standing
would not have a Material Adverse Effect.
(h) The Designated Agreement and the other Operative Documents to
which the Guarantor and/or the Company is, or is to be, a party, have each
been duly authorized by the Guarantor and/or the Company, as the case may
be, and, when duly executed and delivered by the Guarantor and/or the
Company, as the case may be, and assuming the due authorization, execution
and delivery thereof by the other parties thereto, will constitute valid
and binding obligations of the Guarantor and/or the Company, as the case
may be, except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally, and by general
principles of equity and (B) the enforceability of the Lease may be limited
by applicable laws which may affect the remedies provided therein, which
laws, however, do not make such remedies inadequate for the practical
realization of the rights and remedies provided thereby and that, as more
fully set forth in the opinion of Vinson & Elkins delivered pursuant to
Section 4.7(c) of the Participation Agreement, certain of the remedies
provided in the Lease with regard to the Facility Assets may not be
enforceable in accordance with their terms under the laws of the State of
Texas. The Basic Agreement as executed is substantially in the form filed
as an exhibit to the Registration Statement and has been duly qualified
under the Trust Indenture Act. The Offered Certificates, the Secured
Notes, the Indenture, the Designated Agreement and other Operative
Documents to which the Guarantor and/or the Company is, or is
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to be, a party will conform in all material respects to the descriptions
thereof in the Prospectus.
(i) The Offered Certificates, when duly executed, authenticated and
delivered by the Pass Through Trustee in accordance with the terms of the
Designated Agreement, this Agreement and any Delayed Delivery Contracts,
will be duly issued under the Designated Agreement and will constitute
valid and binding obligations of the Pass Through Trustee, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and by general principles of equity; and the
holders thereof will be entitled to the benefits of the Designated
Agreement.
(j) The Secured Notes to be issued under the Indenture, when duly
executed and delivered by the related Owner Trustee and duly authenticated
by the Indenture Trustee in accordance with the terms of the Indenture,
will be duly issued under the Indenture and will constitute the valid and
binding obligations of the Owner Trustee and the holders thereof will be
entitled to the benefits of the Indenture.
(k) In the event that any of the Offered Certificates are purchased
pursuant to Delayed Delivery Contracts, each of such Delayed Delivery
Contracts has been duly authorized by the Guarantor and the Company and,
when duly executed and delivered by the Guarantor and the Company, will
constitute a valid and binding obligation of the Guarantor and the Company.
(l) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, there has not been any material adverse
change, or any development involving a prospective material adverse change,
in the condition, financial or otherwise, or in the earnings, or business
operations of the Guarantor and its subsidiaries, taken as a whole.
(m) The execution and delivery by the Guarantor and/or the Company of
this Agreement, the Designated Agreement and the other Operative Documents
to which the Guarantor and/or the Company is, or is to be, a party, the
consummation by the Guarantor and the Company of the transactions
contemplated in this Agreement, the Designated Agreement and such Operative
Documents, and compliance by the Guarantor and the Company with the terms
of this Agreement, the Designated Agreement and such other Operative
Documents, do not and will not result in any violation of the charter or
by-laws of the Guarantor or the Company, and do not and will not conflict
with, or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance (other than Permitted Liens) upon any property
or
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assets of the Guarantor or the Company under (A) any indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to which the
Guarantor or any of its subsidiaries is a party or by which it may be bound
or to which any of its properties may be subject and which is material to
the Guarantor and its subsidiaries, taken as a whole, or to the Company or
(B) any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court, domestic
or foreign, having jurisdiction over the Guarantor or any of the
subsidiaries or any of their properties other than the securities or Blue
Sky or similar laws of the various states (except, in the case of either
clause (A) or (B), for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse
Effect).
(n) No authorization, approval, consent, order or license of or filing
with or notice to any government, governmental instrumentality or court,
domestic or foreign, is required for the valid authorization, issuance,
sale and delivery of the Offered Certificates, the valid authorization,
execution, delivery and performance by the Guarantor or the Company of this
Agreement, the Designated Agreement and the Guaranty and any Delayed
Delivery Contracts or the consummation by the Guarantor or the Company of
the transactions contemplated by this Agreement, the Designated Agreement
and the Guaranty, except (i) such as are required under the Securities Act,
the Trust Indenture Act and the securities or Blue Sky or similar laws of
the various states and (ii) those which if not obtained would not result in
a Material Adverse Effect.
(o) Except as disclosed in the Prospectus, there are no legal or
governmental proceedings pending or, to the knowledge of the Guarantor,
threatened to which the Guarantor or any of its subsidiaries is a party or
to which any of the properties of the Guarantor or any of its subsidiaries
is subject other than proceedings that if adversely determined would not
have a Material Adverse Effect.
(p) There are no contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described and filed as
required.
(q) Each of the Company, the Guarantor and its subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-
regulatory organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its business in
the manner described in the Prospectus, except to the extent that the
failure to so obtain or file would not have a Material Adverse Effect.
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(r) Neither the Guarantor nor the Company is an "investment company"
or a company "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "Investment Company
Act"); and the Pass Through Trust, after giving effect to the offering and
sale of the Offered Certificates and the application of proceeds thereof as
described in the Prospectus, will not be an "investment company" as defined
in the Investment Company Act.
(s) Neither the Guarantor nor the Company has taken or will take,
directly or indirectly, any actions prohibited by Regulation M under the
Exchange Act.
(t) The Guarantor and the Company have each complied with all
provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida), and all regulations promulgated thereunder relating to doing
business with the government of Cuba or with any person or affiliate
located in Cuba.
II.
Subject to the terms and conditions set forth herein and in reliance
upon the representations and warranties herein contained, the Guarantor and the
Company agree to cause the Pass Through Trustee to sell to you, and you agree to
purchase from the Pass Through Trustee, at a purchase price of 100% of the
principal amount thereof, the aggregate principal amount of Offered Certificates
set forth in Schedule A.
The Guarantor and the Company are advised by you that you propose to
make a public offering of the Offered Certificates as soon after this Agreement
has been entered into as in your judgment is advisable. The Guarantor and the
Company are further advised by you that the Offered Certificates are to be
offered to the public initially at 100% of their principal amount -- the public
offering price -- plus accrued interest, if any, and to certain dealers selected
by you at concessions not in excess of the concessions set forth in the
Prospectus, and that you may allow, and such dealers may reallow, concessions,
not in excess of the concessions set forth in the Prospectus, to certain other
dealers.
If specified in Schedule II, you may solicit offers from institutional
investors to purchase Offered Certificates pursuant to delayed delivery
contracts ("Delayed Delivery Contracts") substantially in the form of Schedule
III with such changes therein as the Company may approve. On the Closing Date,
the Guarantor and the Company will enter into Delayed Delivery Contracts (for
the minimum principal amount of Certificates per Delayed Delivery Contract
specified in Schedule II) with all purchasers proposed by you and previously
approved by the Guarantor and the Company as provided below, but not for an
aggregate principal amount of Offered Certificates less than the minimum or
greater than the
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maximum aggregate principal amounts specified in Schedule II. You will not have
any responsibility for the validity or performance of Delayed Delivery
Contracts.
You are to submit to the Guarantor and the Company, at least three
business days prior to the Closing Date, the names of any institutional
investors with which it is proposed that the Company enter into Delayed Delivery
Contracts, the principal amount of Offered Certificates to be purchased by each
of them and the date of delivery thereof, and the Company will advise you, at
least two business days prior to the Closing Date, of the names of the
institutions with which the making of Delayed Delivery Contracts is approved by
the Company and the principal amount of Offered Certificates to be covered by
each such Delayed Delivery Contract.
As compensation for arranging Delayed Delivery Contracts, the Company
will pay (by Federal funds check or other immediately available funds) to you on
the Closing Date, a fee equal to that percentage of the principal amount of
Offered Certificates for which Delayed Delivery Contracts are made on the
Closing Date as is specified in Schedule II or the amount of such fee may be
deducted from the check delivered by you pursuant to Article III.
As compensation to you for your commitments and obligations hereunder
in respect of the Offered Certificates, including your undertaking to distribute
Offered Certificates, the Guarantor will pay or cause to be paid by the Owner
Trustee to you an amount equal to that percentage of the aggregate principal
amount of the Offered Certificates purchased by you as set forth in Schedule A.
Such payment shall be made simultaneously with the payment by you to the Pass
Through Trustee of the purchase price of the Offered Certificates as specified
in Article III hereof. Payment of such compensation shall be made by Federal
funds check or other immediately available funds.
III.
Delivery of and payment for the Offered Certificates shall be made at
the offices of Debevoise & Plimpton, 875 Third Avenue, New York, New York, at
9:00 A.M. (New York time) May 28, 1997, or such other date, time and place as
may be agreed upon by the Guarantor, the Company and you (such date and time of
delivery and payment for the Offered Certificates being herein called the
"Closing Date"). Delivery of the Offered Certificates shall be made to your
account at The Depository Trust Company against payment by you of the purchase
price thereof to or upon the order of the Pass Through Trustee by Federal funds
check or other immediately available funds. The Offered Certificates shall be
registered in the name of Cede & Co. or in such other names, and in such
denominations as you may request in writing at least two full business days in
advance of the Closing Date.
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The Guarantor and the Company agree to have the Offered Certificates,
which may be in temporary form, available for inspection, checking and packaging
by you in New York, New York not later than 1:00 P.M. on the business day prior
to the Closing Date.
IV.
Your obligations hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued under the Securities Act and no
proceedings therefor shall have been instituted or threatened by the
Commission.
(b) You shall have received on the Closing Date an opinion of
Debevoise & Plimpton, counsel for the Guarantor and the Company reasonably
acceptable to you, dated the Closing Date, in form satisfactory to you and
to your counsel, to the effect that:
(i) Assuming that the Offered Certificates have been duly
authorized and validly executed, authenticated, issued and delivered
by the Pass Through Trustee pursuant to the Designated Agreement, when
such Offered Certificates have been paid for in accordance with the
terms of this Agreement, such Offered Certificates will (x) be valid
and binding obligations of the Pass Through Trustee enforceable in
accordance with their terms except as may be limited by bankruptcy,
insolvency, moratorium, reorganization or similar laws affecting
creditors' rights generally and by general principles of equity and
(y) be entitled to the benefits of the Designated Agreement;
(ii) In the event that any of the Offered Certificates are to be
purchased pursuant to Delayed Delivery Contracts, each Delayed
Delivery Contract that has been executed by the Guarantor and the
Company has been duly authorized, executed and delivered by the
Guarantor and the Company and is a valid and binding obligation of the
Guarantor and the Company enforceable against the Guarantor and the
Company in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting enforcement of creditors' rights generally and by
general principles of equity;
(iii) The Offered Certificates, the Designated Agreement and the
Operative Documents conform in all material respects as to legal
matters to the descriptions thereof, if any, contained in the
Prospectus, and the description of
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the Offered Certificates conforms in all material respects to the
rights set forth in the instruments defining the same;
(iv) No authorization, approval, consent, order or license of or
filing with or notice to any government, governmental instrumentality,
regulatory body or authority or court is required for the valid
authorization, issuance and delivery of the Offered Certificates, the
valid authorization, execution, delivery and performance by the
Guarantor and the Company of this Agreement, the Designated Agreement
and the Guaranty, or the consummation by the Guarantor and/or the
Company of the transactions contemplated by this Agreement, the
Designated Agreement and/or the Guaranty, except (i) such as are
required under the Securities Act, the Trust Indenture Act and the
securities or Blue Sky laws of the various states (as to which such
counsel need express no opinion) and (ii) those which if not obtained
would not result in a Material Adverse Effect;
(v) The Registration Statement has become effective under the
Securities Act, the Basic Agreement has been duly qualified under the
Trust Indenture Act and, to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted
or threatened;
(vi) The Registration Statement, the Prospectus and each
amendment thereof or supplement thereto (except for the financial
statements and other financial data included or incorporated by
reference therein, the documents incorporated by reference in the
Prospectus, and the Statement of Eligibility, as to which such counsel
need express no opinion) comply as to form in all material respects
with the requirements of the Securities Act;
(vii) This Agreement has been duly authorized, executed and
delivered by the Guarantor and the Company;
(viii) The Participation Agreement has been duly authorized,
executed and delivered by the Company, and the Designated Agreement
has been duly authorized, executed and delivered by the Guarantor and
the Company and, assuming the due authorization, execution and
delivery thereof by the other parties thereto, each of the
Participation Agreement and the Designated Agreement is a valid and
binding obligation of the Guarantor and the Company enforceable
against the Guarantor and/or the Company in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting enforcement of creditors'
rights generally and by general principles of equity;
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(ix) The Guaranty has been duly authorized and upon due execution
and delivery by the Guarantor will be a valid and binding obligation
of the Guarantor enforceable against the Guarantor in accordance with
its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement
of creditors' rights generally and by general principles of equity;
(x) The statements in the Registration Statement and Prospectus
under the headings "Federal Income Tax Consequences" and "ERISA
Considerations", to the extent that they constitute matters of law or
legal conclusions with respect thereto, have been prepared or reviewed
by such counsel and are correct in all material respects;
(xi) Based upon an interpretation of analogous authorities under
currently applicable law, the Pass Through Trust created by the
Designated Agreement will be classified as a grantor trust (and not as
an association taxable as a corporation) for federal income tax
purposes and each Certificate Owner will be treated as the owner of a
pro rata undivided interest in each of the Secured Notes or any other
property held in the Pass Through Trust;
(xii) Although counsel is not aware of any judicial authority,
the Pass Through Trust is not required to be registered under the
Investment Company Act of 1940, as amended;
(xiii) Upon consummation of the transactions contemplated by the
Participation Agreement, on the Closing Date, assuming due
authorization, execution and delivery by the Owner Trustee and due
authentication by the Indenture Trustee, the Secured Notes will
constitute valid and binding obligations of the Owner Trustee,
enforceable against the Owner Trustee in accordance with their terms,
except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting enforcement of creditors'
rights generally and by general principles of equity; and the holders
of the Secured Notes will be entitled to the benefits of the
Indenture; and
(xiv) Assuming due authorization, execution and delivery of the
Designated Agreement by the Pass Through Trustee, the Designated
Agreement constitutes the valid and binding obligation of the Pass
Through Trustee, enforceable in accordance with its terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting enforcement of creditors' rights
generally and by general principles of equity;
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and to such further effect with respect to other legal matters relating to
this Agreement, the Designated Agreement, the Participation Agreement, the
Guaranty and other Operative Documents to which the Guarantor and/or the
Company is, or is to be, a party and the sale of the Offered Certificates
hereunder as your counsel may reasonably request.
Such opinion may state that, except with respect to the matters set
forth in clauses (iii) and (x) above, such counsel have not verified, and
are not passing upon and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, or the documents incorporated by
reference therein, and have not made an independent investigation of facts
for the purpose of rendering such opinion. Such opinion shall state,
however, that no facts came to such counsel's attention that caused them to
believe that the descriptions of the Offered Certificates, the Designated
Agreement and the Operative Documents set forth under the headings
"Description of the Certificates" and "Description of the Secured Notes" in
the Prospectus or any amendment or supplement thereto, at the time the
Prospectus Supplement was issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Date, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In addition, such counsel may rely upon the opinions of counsel for
the Owner Trustee and counsel for the Pass Through Trustee and the
Indenture Trustee, and may state that their opinion is limited to matters
governed by the laws of the State of New York, the corporate law of the
State of Delaware and the federal law of the United States, except that
such counsel expresses no opinion as to the securities laws of any state.
(c) You shall have received on the Closing Date an opinion of Ralph N.
Johanson, Jr., Managing Counsel, Corporate, Finance and Securities of the
Guarantor, dated the Closing Date, in form satisfactory to you and to your
counsel, to the effect that:
(i) Each of the Guarantor and the Company is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware with corporate power and authority under such laws
to own, lease and operate its properties and conduct its business as
described in the Prospectus and to perform its obligations under this
Agreement, the Designated Agreement, the Participation Agreement and
the other Operative Documents to which the Guarantor and/or the
Company is, or is to be, a party;
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(ii) Each of Mobil's Significant Subsidiaries (as defined under
Regulation S-X) has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus;
(iii) Each of the Guarantor and the Company is duly qualified to
transact business as a foreign corporation and is in good standing in
each other jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a Material Adverse
Effect;
(iv) Each of the Guarantor, the Company and the Guarantor's
Significant Subsidiaries (as defined under Regulation S-X) has all
necessary consents, authorizations, approvals, orders, certificates
and permits of and from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other tribunals,
to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, except
to the extent that, with respect to the Guarantor and its Significant
Subsidiaries, the failure to obtain or file would not have a material
adverse effect on the Guarantor and its subsidiaries, taken as a whole
and with respect to the Company, the failure to obtain or file would
not have a Material Adverse Effect;
(v) No authorization, approval, consent, order or license of or
filing with or notice to any government, governmental instrumentality,
regulatory body or authority or court is required for the valid
authorization, issuance and delivery of the Offered Certificates, the
valid authorization, execution, delivery and performance by the
Guarantor and/or the Company of this Agreement, the Designated
Agreement and the Guaranty, or the consummation by the Guarantor
and/or the Company of the transactions contemplated by this Agreement,
the Designated Agreement and the Guaranty, except (i) such as are
required under the Securities Act, the Trust Indenture Act and the
securities or Blue Sky laws of the various states (as to which such
counsel need express no opinion) and (ii) those which if not obtained
would not result in a Material Adverse Effect;
(vi) To the best of such counsel's knowledge, there are no
statutes or regulations, or any pending or threatened legal or
governmental proceedings, required to be described in the Prospectus
that are not described
14
as required, nor any contracts or documents of a character required to
be described or referred to in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described, referred to or filed as required;
(vii) The descriptions in the Prospectus of the statutes,
regulations, legal or governmental proceedings, contracts and other
documents therein described are accurate in all material respects and
fairly summarize the information required to be shown;
(viii) To such counsel's knowledge, no default exists in the
Guarantor's or the Company's performance or observance of any material
obligation, agreement, covenant or condition contained in any material
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed as an exhibit to the
Registration Statement;
(ix) This Agreement, the Designated Agreement, the Participation
Agreement and the Operative Documents to which the Guarantor and/or
the Company is a party have each been authorized, executed and
delivered by the Guarantor and/or the Company, as the case may be.
The execution and delivery by the Guarantor and/or the Company of this
Agreement, the Designated Agreement, the Participation Agreement and
the Operative Documents to which the Guarantor and/or the Company is a
party, the issuance and sale of the Certificates, the consummation by
the Guarantor and/or Company of the transactions contemplated in this
Agreement, the Designated Agreement and the Participation Agreement,
in the Registration Statement and in such Operative Documents and
compliance by the Guarantor and/or the Company, as the case may be,
with the terms hereof and thereof do not and will not result in any
violation of the charter or by-laws of the Guarantor or the Company,
and do not and will not conflict with, or result in a breach of any of
the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance
(except for Permitted Liens) upon any property or assets of the
Guarantor or the Company under (A) any indenture, mortgage, loan
agreement, note, lease or other agreement or instrument known to such
counsel, to which the Guarantor or the Company is a party or by which
it may be bound or to which any of its properties may be subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect), (B) any
existing law, rule or regulation applicable to the Guarantor or the
Company (other than the securities or Blue Sky laws of the various
states, as to which such counsel need express no opinion), or (C) any
judgment, order
15
or decree of any government, governmental instrumentality or court,
domestic or foreign, known to such counsel having jurisdiction over
the Guarantor or the Company or any of their properties;
(x) The documents incorporated by reference in the Prospectus
(except for the financial statements and other financial data included
or incorporated by reference therein or omitted therefrom, as to which
such counsel need express no opinion), as of the dates they were filed
with the Commission, complied as to form in all material respects with
the requirements of the Exchange Act and the rules and regulations
thereunder; and
(xi) Neither the Guarantor nor the Company is an "investment
company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
Such opinion shall also state that such counsel or lawyers on his
staff have participated in the preparation of the Registration Statement,
the Prospectus and the documents incorporated by reference therein and that
no facts have come to his attention to lead him to believe (A) that the
Registration Statement or any amendment thereto (except for (i) the
financial statements and other financial data included therein or omitted
therefrom, (ii) the Statement of Eligibility and Qualification of the
Trustee on Form T-1 and (iii) the descriptions of the Offered Certificates,
the Designated Agreement and the Operative Documents set forth under the
headings "Description of the Certificates" and "Description of the Secured
Notes", as to which such counsel need express no opinion), at the time the
Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, (B) that the Prospectus or any amendment or supplement
thereto (except for the financial statements and other financial data
included therein or omitted therefrom and the descriptions of the Offered
Certificates, the Designated Agreement and the Operative Documents set
forth under the headings "Description of the Certificates" and "Description
of the Secured Notes", as to which such counsel need express no opinion),
at the time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Date, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading
or (C) that the documents incorporated by reference in the Prospectus
(except for the financial statements and other financial data included
therein or omitted therefrom and the Statement of Eligibility, as to which
such counsel need express no opinion), as of the dates they were filed with
the Commission, included an untrue statement of a material
16
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(d) You shall have received on the Closing Date an opinion of Bingham,
Dana & Gould LLP, counsel to SSB&T, individually and as Pass Through
Trustee and Indenture Trustee, dated the Closing Date to the effect that:
(i) SSB&T is a state chartered trust company duly organized and
validly existing in good standing under the laws of the Commonwealth
of Massachusetts and, in its individual capacity or as Pass Through
Trustee or Indenture Trustee, as the case may be, has full corporate
power and authority to execute, deliver and perform its obligations
under the Designated Agreement, the Offered Certificates, the
Participation Agreement and the other Operative Documents to which it
is a party;
(ii) SSB&T, in its individual capacity or as Pass Through Trustee
or as Indenture Trustee, as the case may be, has duly authorized the
Designated Agreement, the Participation Agreement, the Indenture and
the other Operative Documents to which it is a party, and has duly
executed and delivered the Designated Agreement, the Participation
Agreement and the Indenture which constitute, and on the Closing Date
the other Operative Documents to which it is a party upon due
execution and delivery thereof will constitute, valid and binding
obligations of SSB&T, in its individual capacity or as Pass Through
Trustee or Indenture Trustee, as the case may be, enforceable against
SSB&T, in its individual capacity or as Pass Through Trustee or
Indenture Trustee, as the case may be, in accordance with their
respective terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
enforcement of creditors' rights generally, and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at
law);
(iii) The Offered Certificates have been duly authorized and
validly executed, authenticated, issued and delivered pursuant to the
Designated Agreement by SSB&T in its capacity as Pass Through Trustee,
pursuant to the Designated Agreement and the Offered Certificates
constitute valid and binding obligations of SSB&T, in its capacity as
Pass Through Trustee, enforceable against SSB&T, as Pass Through
Trustee, in accordance with their respective terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting enforcement of
creditors' rights generally, and except as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered
17
in a proceeding in equity or at law); pursuant to the Designated
Agreement, and the holders of the Offered Certificates are entitled to
the benefits of the Designated Agreement;
(iv) The authorization, execution, delivery and performance by
SSB&T, in its individual capacity or as Pass Through Trustee or
Indenture Trustee, as the case may be, of the Designated Agreement,
the Participation Agreement, the Indenture or the other Operative
Documents to which it is, or is to be, a party and the consummation of
the transactions therein contemplated and compliance with the terms
thereof and issuance of the Offered Certificates under the Designated
Agreement do not and will not result in the violation of the
provisions of the charter documents or by-laws of the SSB&T and do not
and will not conflict with, or result in a breach of any terms or
provisions of, or constitute a default under, or result in the
creation or the imposition of any lien, charge or encumbrance upon any
property or assets of the Trustee under any indenture, mortgage or
other agreement or instrument known to such counsel to which SSB&T is
a party or by which it or any of its property is bound, or any
Massachusetts or federal law, rule or regulation governing SSB&T's
banking or trust powers, or of any judgment, order or decree known to
such counsel to be applicable to SSB&T of any court, regulatory body,
administrative agency, government or governmental body having
jurisdiction over SSB&T or its properties;
(v) No authorization, approval, consent, license or order of,
giving of notice to, registration with, or taking of any other action
in respect of, any federal or state governmental authority or agency
pursuant to any federal or Massachusetts law governing the banking or
trust powers of SSB&T is required for the authorization, execution,
delivery and performance by SSB&T, in its individual capacity or as
Pass Through Trustee or Indenture Trustee, as the case may be, of the
Designated Agreement, the Participation Agreement, the Indenture or
the other Operative Documents to which it is, or is to be, a party or
the consummation of any of the transactions by SSB&T, in its
individual capacity or as Pass Through Trustee or Indenture Trustee,
as the case may be, contemplated thereby or the issuance of the
Offered Certificates under the Designated Agreement (except as shall
have been duly obtained, given or taken); and such authorization,
execution, delivery, performance, consummation and issuance do not
conflict with or result in a breach of the provisions of any such law;
(vi) There are no taxes, fees or other governmental charges
payable under the laws of the Commonwealth of Massachusetts or any
political subdivision of such State in connection with the execution
and delivery by
18
SSB&T, of the Designated Agreement, the Note Purchase Agreements and
the other Operative Documents or in connection with the issuance,
execution and delivery of the Offered Certificates by SSB&T pursuant
to the Designated Agreement;
(vii) The statements in the Registration Statements and in the
Prospectus under the caption "Certain Massachusetts Taxes", to the
extent that they constitute matters of law or legal conclusions with
respect thereto, have been prepared and reviewed by such counsel and
are correct in all material respects; and
(viii) To such counsel's knowledge, there are no proceedings
pending or threatened against or affecting SSB&T in any court or
before any governmental authority, agency, arbitration board or
tribunal which, if adversely determined, individually or in the
aggregate, would materially and adversely affect the Pass Through
Trust or any trust related to any Indenture or question the right,
power and authority of SSB&T, in its individual capacity or as Pass
Through Trustee or Indenture Trustee as the case may be, to enter into
or perform its obligations under the Designated Agreement, the
Participation Agreement and the other Operative Documents to which it
is, or is to be, a party or to issue the Offered Certificates.
(e) You shall have received on the Closing Date an opinion of Shearman
& Sterling, your counsel, dated the Closing Date, to the effect that the
opinions delivered pursuant to paragraphs (b), (c) and (d) appear on their
face to be appropriately responsive to the requirements of this Agreement
except, specifying the same, to the extent waived by you and with respect
to the issuance and sale of the Offered Certificates, the Registration
Statement, the Prospectus and other related matters as you may reasonably
require.
(f) There shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations, of the Guarantor and its
subsidiaries, taken as a whole, from that set forth in the Prospectus, that
is material and adverse and that would, in your reasonable judgment after
consultation with the Guarantor, prevent or materially impair the
marketing or enforcement of contracts for sale of the Offered Certificates
on the terms and in the manner contemplated in the Prospectus.
(g) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have been any downgrading, nor
any notice given either publicly or directly to the Guarantor of any
intended or potential downgrading or any review with possible negative
implications, in the rating accorded any of the
19
Guarantor's or the Company's securities, including the Offered
Certificates, by Standard & Poor's Rating Group or Moody's Investors
Service, Inc.
(h) You shall have received on the Closing Date (i) a certificate,
dated the Closing Date and signed by the President, a Vice President, the
Treasurer or the Controller of the Guarantor, to the effect set forth in
paragraph (g) above and to the effect that the representations and
warranties of the Guarantor contained in this Agreement shall be true and
correct as of the Closing Date and that the Guarantor shall have performed
all of its obligations to be performed hereunder on or prior to the Closing
Date and (ii) a certificate, dated the Closing Date and signed by the
President, a Vice President, the Treasurer or the Controller of the
Company, to the effect that the representations and warranties of the
Company contained in this Agreement shall be true and correct as of the
Closing Date and that the Company shall have performed all of its
obligations to be performed hereunder on or prior to the Closing Date.
(i) You shall have received on the Closing Date a letter from E&Y,
dated the Closing Date, in form and substance satisfactory to you, from the
Guarantor's independent auditors, containing statements and information of
the type ordinarily included in auditors' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in or incorporated by reference into the Prospectus.
(j) All conditions specified in the Participation Agreement with
respect to the Pass Through Trustee's purchase of the Secured Notes on the
Closing Date shall have been satisfied on the Closing Date; the
representations and warranties of the Company contained in the
Participation Agreement shall be accurate as of the Closing Date (except to
the extent that they relate solely to an earlier date in which case they
shall be accurate as of such earlier date) and you shall have received a
certificate of a Vice President or Treasurer of the Company, dated as of
the Closing Date, to such effect; and you shall have received each opinion
referred to in Section 4.7 of the Participation Agreement.
(k) The representations and warranties of the Guarantor contained in
the Guaranty shall be accurate as of the Closing Date (except to the extent
that they relate solely to an earlier date in which case they shall be
accurate as of such earlier date) and you shall have received a certificate
of a Vice President or Treasurer of the Guarantor, dated as of the Closing
Date, to such effect.
(l) The Guarantor and the Company shall have furnished to you and to
your counsel, in form and substance satisfactory to them, such other
documents, certificates and opinions as such counsel may reasonably request
in order to evidence
20
the accuracy and completeness of any of the representations, warranties or
statements, the performance of any covenant by the Guarantor or the Company
theretofore to be performed, or the compliance with any of the conditions
herein contained.
V.
In further consideration of the agreements of your agreement herein
contained, the Guarantor and the Company covenant as follows:
(a) To furnish to you, without charge, one signed copy of the
Registration Statement including exhibits and a conformed copy of the
Registration Statement without exhibits and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish you a copy of each such proposed amendment or
supplement, and to file no such proposed amendment or supplement to which
you reasonably object.
(c) If, during such period after the first date of the public offering
of the Offered Certificates as in the opinion your counsel the Prospectus
is required by law to be delivered in connection with sales by you or a
dealer, any event shall occur as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare and furnish, at its own
expense, to you and to the dealers (whose names and addresses you will
furnish to the Guarantor and the Company) to which Offered Certificates may
have been sold by you on behalf of you and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus, as so amended or supplemented,
will comply with law and to cause such amendments or supplements to be
filed promptly with the Commission.
(d) To endeavor to qualify the Offered Certificates for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request, to maintain such qualifications for so long as required
for the distribution of such Offered Securities and to pay all expenses
(including filing fees and reasonable fees
21
and disbursements of counsel) in connection with such qualification and in
connection with (i) the review (if any) of the offering of the Offered
Certificates by the National Association of Securities Dealers, Inc., (ii)
the determination of the eligibility of the Offered Certificates for
investment under the laws of such jurisdictions as you may designate and
(iii) the preparation of any Blue Sky or Legal Investment Memorandum;
provided, however, that neither the Guarantor nor the Company shall be
-------- -------
obligated to file any general consent to service of process or to qualify
as a foreign corporation or as a dealer in securities in any jurisdiction
in which it is not so qualified or to subject itself to taxation in respect
of doing business in any jurisdiction in which it is not otherwise so
subject.
(e) To make generally available to the Guarantor's security holders as
soon as practicable an earnings statement covering the twelve-month period
ending twelve months after the end of the Guarantor's fiscal quarter in
which the Closing Date occurs that satisfies the provisions of Section
11(a) of the Securities Act.
(f) Between the date of this Agreement and the Closing Date, neither
the Guarantor nor the Company will without your prior written consent
offer, sell, or enter into any agreement to sell, any public debt
securities registered under the Securities Act (other than the Offered
Certificates) or any debt securities which may be resold in a transaction
exempt from the registration requirements of the Securities Act in reliance
on Rule 144A thereunder and which are marketed through the use of a
disclosure document containing substantially the same information as a
prospectus for similar debt securities registered under the Securities Act.
(g) The Guarantor, during the period when a prospectus relating to the
Offered Certificates is required to be delivered under the Securities Act,
will file promptly all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
VI.
The Guarantor and the Company, jointly and severally, agree to
indemnify and hold harmless you and each person, if any, who controls you within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or allegedly untrue statement of a
material fact contained in the Registration Statement, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Guarantor or the
Company shall have furnished any amendments or supplements thereto) or caused by
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or allegedly untrue statement
22
or alleged omission based upon information relating to you furnished to the
Guarantor and/or the Company in writing by you expressly for use therein;
provided, however, that the foregoing indemnity agreement with respect to any
- -------- -------
Preliminary Prospectus Supplement shall not inure to the benefit of you or any
person controlling you with respect to any person asserting any such losses,
claims, damages or liabilities who purchased Offered Certificates from you or
any person controlling you, if a copy of the Prospectus (as then amended or
supplemented if the Guarantor and the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of you
to such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Offered Certificates to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities.
You agree to indemnify and hold harmless the Guarantor and the
Company, each of their directors, each of their officers who sign the
Registration Statement and each person, if any, who controls the Guarantor or
the Company within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Guarantor and the Company to you, but only with reference to
information relating to you furnished to the Guarantor and/or the Company in
writing by you expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all such indemnified parties, and
that all such fees and expenses shall be reimbursed as they are incurred. In
the case of any such separate firm for you and such control persons of you, such
firm shall be designated in writing by you. In the case of any such separate
firm for the Guarantor and the Company, and such directors, officers and control
persons of the
23
Guarantor and the Company, such firm shall be designated in writing by the
Guarantor or the Company, as the case may be. The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first or second paragraph
of this Article VI is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Guarantor and the Company on the one hand and you on
the other hand from the offering of the Offered Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Guarantor and
the Company on the one hand and of you on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Guarantor and the Company on the one hand and
you on the other hand shall be deemed to be in the same respective proportions
as the net proceeds from the offering of the Offered Certificates (before
deducting expenses) received by the Pass Through Trustee and the total
underwriting commissions received by you, in each case as set forth in the table
and footnotes thereto on the cover of the Prospectus Supplement, bear to the
aggregate public offering price of the Offered Certificates. The relative fault
of the Guarantor and the Company on the one hand and you on the other hand shall
be determined by reference to, among other things, whether the untrue or
allegedly untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Guarantor or the Company or by you and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Guarantor, the Company and you agree that it would not be just and
equitable if contribution pursuant to this Article VI were determined by pro
---
rata allocation or by any other method of allocation that does not take account
- ----
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the
24
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Article VI, you shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Offered Certificates underwritten by you and
distributed to the public were offered to the public exceeds the amount of any
damages that you have otherwise been required to pay by reason of such untrue or
allegedly untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided in this
Article VI are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Article VI
and the representations and warranties of the Guarantor and the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of you or any person controlling you or by or on behalf of the
Guarantor or the Company, its officers or directors or any other person
controlling the Guarantor or the Company and (iii) acceptance of and payment for
any of the Offered Certificates.
VII.
This Agreement shall be subject to termination in your absolute
discretion, by notice given to the Guarantor or the Company, if (a) after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Guarantor or the Company shall
have been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your judgment, is material
and adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event singly or together with any other such event would, in
your reasonable judgement after consultation with the Guarantor, prevent or
materially impair the marketing, or enforcement of contracts for sale, of the
Offered Certificates on the terms and in the manner contemplated in the
Prospectus.
25
VIII.
If this Agreement shall be terminated by you, because of any failure
or refusal on the part of the Guarantor or the Company to comply with the terms
or to fulfill any of the conditions of this Agreement, or if for any reason the
Guarantor or the Company shall be unable to perform its obligations under this
Agreement, the Guarantor and the Company, jointly and severally, will reimburse
you for all out-of-pocket expenses (including the fees and disbursements of your
counsel) reasonably incurred by you in connection with this Agreement or the
offering contemplated hereunder.
This Agreement may be signed in two or more counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Very truly yours,
MOBIL CHEMICAL FINANCE (TEXAS) INC.
By:
----------------------------------------
Name:
Title:
MOBIL CORPORATION
By:
----------------------------------------
Name:
Title:
Accepted as of the date first
above written:
GOLDMAN, SACHS & CO.
By:
------------------------------
Name:
Title:
SCHEDULE A
Pass Through Aggregate Final
Certificate Principal Interest Distribution Underwriting
Designation Amount Rate Date Commissions
- --------------- ----------- --------- --------------- ------------
Series 1997-A $95,331,000 7.29% January 2, 2014 $619,651.50
SCHEDULE II
to
Underwriting
Agreement
Dated: ______________
MOBIL CHEMICAL FINANCE (TEXAS) INC.
MOBIL CORPORATION, GUARANTOR
Underwriting fees, discounts, commissions or other compensation:
Closing date, time and location:
Location for checking Offered Certificates:
Delayed delivery contracts: [Authorized] [Not Authorized]
[Delivery date:
Minimum principal amount per contract:
Minimum aggregate principal amount:
Maximum aggregate principal amount:
Fee: %]
Listing requirement:
Other terms and conditions:
SCHEDULE III
to
Underwriting
Agreement
Dated: __________________
MOBIL CHEMICAL FINANCE (TEXAS) INC., ISSUER
MOBIL CORPORATION, GUARANTOR
PASS THROUGH CERTIFICATES
DELAYED DELIVERY CONTRACT
Mobil Chemical Finance (Texas) Inc.
3225 Gallows Road
Fairfax, Virginia 22037
Dear Sirs:
The undersigned hereby agrees with Mobil Chemical Finance (Texas)
Inc., a Delaware corporation (the "Company"), and Mobil Corporation, a Delaware
corporation (the "Guarantor"), to purchase and the Company and the Guarantor
agree with the undersigned to cause State Street Bank and Trust Company, not in
its individual capacity but solely as trustee under a Pass Through Trust
Agreement dated October 4, 1996, as supplemented by the Pass Through Trust
Supplement No. 1997-A, dated May 28, 1997 to issue and sell to the undersigned
on ________, 1997 (the "Delivery Date"), $___ aggregate principal amount of the
Trustee's Pass Through Certificates Series 1997-A (the "Offered Certificates"),
offered by the Company's Prospectus dated November 12, 1996, as supplemented by
its Prospectus Supplement dated May 22, 1997, relating to the Offered
Certificates, receipt of which is hereby acknowledged, at a purchase price of
__% of the principal amount thereof, plus interest accrued on the principal
amount thereof at a rate borne by the Offered Certificates from ___________,
1997 to the Delivery Date, and on the further terms and conditions set forth in
this contract.
Payment for the Offered Certificates which the undersigned has agreed
to purchase shall be made to State Street Bank and Trust as Trustee or its order
by Federal funds check or other immediately available funds, at the offices of
[____________], [__________________], New York, New York, at A.M., New York
time, on the Delivery
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Date (or in such other funds and/or at such other place as the Guarantor, the
Company, the Trustee and the undersigned may agree upon in writing) upon
delivery to the undersigned of the Offered Certificates to be purchased by the
undersigned and in such authorized denominations and registered in such names as
the undersigned may request in writing addressed to the Guarantor, the Company
and the Trustee not less than three business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Offered Certificates on the Delivery Date shall be subject only to the
conditions that (1) the purchase of the Offered Certificates to be made by the
undersigned shall not on the Delivery Date be prohibited under the laws of any
jurisdiction to which the undersigned is subject and which govern such
investment, and (2) the Trustee, on or before ___________, 1997, shall have sold
to the Underwriters of the Offered Certificates (the "Underwriters") such
principal amount of the Offered Certificates as is to be sold to them pursuant
to the Underwriting Agreement dated the date hereof among the Guarantor, the
Company and the Underwriters. The obligation of the undersigned to take delivery
of and make payment for the Offered Certificates shall not be affected by the
failure of any Underwriter or other purchaser to take delivery of and make
payment for the Offered Certificates pursuant to other contracts similar to this
contract.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below a notice
to such effect, accompanied by copies of the opinions of counsel for the
Guarantor and the Company and counsel for the Trustee delivered to the
Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to
the Guarantor and the Company that (1) its investment in the Offered
Certificates is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which govern such
investment, (2) all necessary corporate action for the due execution and
delivery of this contract and the payment for and purchase of the Offered
Certificates has been taken by it and no further authorization or approval of
any governmental or other regulatory authority is required for such execution,
delivery, payment or purchase and (3) upon the acceptance hereof by the
Guarantor and the Company and the mailing or delivery of a copy hereof as
provided below, this contract will constitute a valid and binding agreement of
the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that neither the Company nor the Guarantor will
accept Delayed Delivery Contracts for an aggregate principal amount of the
Offered Certificates in
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excess of $___ and that the acceptance of any Delayed Delivery Contract is in
the sole discretion of the Company and the Guarantor and, without limiting the
foregoing, need not be on a "first come, first served" basis. If this contract
is acceptable to the Company and the Guarantor, it is requested that the Company
and the Guarantor sign the form of acceptance on a copy hereof and mail or
deliver a signed copy hereof to the undersigned at its address set forth below.
This will become a binding contract among the Guarantor, the Company and the
undersigned when such copy is so mailed or delivered.
THIS CONTRACT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Yours very truly,
-----------------------
(Name of Purchaser)
By:
-------------------
Title:
-----------------------
-----------------------
(Address)
Accepted as of the date first above written.
Mobil Chemical Finance (Texas) Inc.
By:
---------------------------
Mobil Corporation
By:
---------------------------
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PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed is as
follows: (Please print)
Telephone No.
Name (including Area Code)
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