EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
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[________________________________], ISSUER
MOBIL CORPORATION, GUARANTOR
Pass Through Certificates
Series 199_-____
UNDERWRITING AGREEMENT
Dated: __________, 199_
[Date]
To the [Underwriter[s] named in Schedule I]
[Representative[s] named in Schedule I
of the Underwriters named in Schedule I]
Dear Sirs:
[__________], a Delaware corporation (the "Company"), in connection
with the financing or refinancing of the debt portion of _____ leveraged lease
transactions in which the Company, as lessee, proposes that [___________], as
trustee (the "Trustee"), will issue and sell to the underwriter or underwriters
named in Schedule I hereto its pass through certificates in [__] separate series
in the aggregate principal amounts and with the interest rates and final
distribution dates set forth on Schedule A hereto (the "Offered Certificates")
on the terms and conditions stated herein and in Schedule II. The aggregate
principal amount of Offered Certificates due on each such final distribution
date is referred to as a "Pass Through Certificate Designation". Each series of
the Offered Certificates will be issued under a Pass Through Trust Agreement
dated as of _________ __, 1996 (the "Basic Agreement") among Mobil Corporation,
a Delaware corporation (the "Guarantor"), the Company and the Trustee, and the
other parties described therein, as supplemented by a Pass Through Trust
Supplement, dated as of _________ __, 199_ (each, a "Trust Supplement"), among
the Guarantor, the Company and the Trustee (the Basic Agreement as supplemented
by a Trust Supplement being referred to herein as the "Designated Agreement").
As used herein, unless the context otherwise requires, the term "Underwriters"
shall mean the firm or firms named as Underwriter or Underwriters in Schedule I
and the term "you" shall mean the Underwriter or Underwriters, if no
underwriting syndicate is purchasing the Offered Certificates, or the
representative or representatives of the Underwriters, if an underwriting
syndicate is purchasing the Offered Certificates, as indicated in Schedule I.
As used in this Agreement, the terms "Certificate Owner", "Guaranty",
"Lease", "Loan Trustee", "Operative Documents", "Owner Trustee", "Participation
Agreement", "Note Purchase Agreements", "Secured Notes", "Transfer Date" and
"Trust" shall have the meanings specified in the _____ Trust Indenture and
Security Agreements, dated as of ________, 199__, between the related Owner
Trustee and the Loan Trustee (each an "Indenture") or the Designated Agreement.
The Guarantor and the Company have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-_____), 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
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"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 or supplements
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 (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, each of the Underwriters 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
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Securities Act and did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and (ii) on the date hereof
and at all times subsequent thereto up to the Closing Date referred to
below, neither the Prospectus nor any amendment or supplement thereto will
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
neither the Guarantor nor the Company makes any representation or warranty
as to statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Guarantor 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 under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), on
Form T-1 of the 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.
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(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 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 in good standing in each
other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification necessary,
except to the extent that the failure to so qualify or be in good standing
would not have a material adverse effect on the Guarantor and its
subsidiaries, taken as a whole or on the power or ability of the Guarantor
or the Company, as the case may be, to perform its obligations under this
Agreement, the Designated Agreement or the Operative Agreements 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, 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 Leases may be limited by applicable law which may
affect the remedies provided therein, which laws, however, do not make such
remedies inadequate for the practical realization of the rights and
benefits intended to be provided thereby. The Basic Agreement as executed
is substantially in the form filed as an exhibit to the Registration
Statement and has been duly qualified under the Trust Indenture Act. The
Offered Certificates, the Secured Notes, the Indentures, the
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Designated Agreement and the Leases and other Operative Documents to which
the Guarantor and/or the Company is, or is to be, a party will conform in
all material respects to the descriptions thereof in the Prospectus.
(i) The Offered Certificates, when duly executed, authenticated and
delivered by the 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 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 each Indenture, when duly
executed and delivered by the related Owner Trustee and duly authenticated
by the Loan Trustee in accordance with the terms of such Indenture, will be
duly issued under such Indenture and will constitute the valid and binding
obligations of such Owner Trustee and the holders thereof will be entitled
to the benefits of such 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, 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
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provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance (other than Permitted Liens)
upon any property or assets of the Guarantor or the Company under (A) any
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Guarantor or any of its subsidiaries is a party or
by which it may be bound or to which any of its properties may be subject
and which is material to the Guarantor and its subsidiaries, taken as a
whole, or to the Company or (B) any existing applicable law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Guarantor or any of 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 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
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manner described in the Prospectus, except to the extent that the failure
to so obtain or file would not have a Material Adverse Effect.
(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 none of the Trusts, after giving effect to the offering and sale
of the Offered Certificates and the application of proceeds thereof as
described in the Prospectus, will be an "investment company" as defined in
the Investment Company Act.
(s) Neither the Guarantor nor the Company has taken or will take,
directly or indirectly, any actions prohibited by Rule 10b-6 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 Schedule
II, if any, and in reliance upon the representations and warranties herein
contained (except as may be otherwise specified in Schedule II), the Guarantor
and the Company agree to cause the Trustee to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Trustee, at
a purchase price of 100% of the principal amount thereof, the aggregate
principal amount of Offered Certificates of each Pass Through Certificate
Designation set forth in Schedule A.
The Guarantor and the Company are advised by you that the Underwriters
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 the Underwriters at concessions not in excess of the concessions set
forth in the Prospectus, and that the Underwriters 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, the Underwriters 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
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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 the Underwriters 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 maximum
aggregate principal amounts specified in Schedule II. The Underwriters 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)] [(by
certified or official bank check in New York Clearing House or similar next day
funds)] to you on the Closing Date, for the accounts of the Underwriters, 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.
The principal amount of Offered Certificates agreed to be purchased by
each Underwriter shall be reduced by the principal amount of Offered
Certificates covered by Delayed Delivery Contracts, as to such Underwriter as
set forth in a notice delivered by you to the Company; provided, however, that
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the total principal amount of Offered Certificates to be purchased by all
Underwriters shall be the principal amount of Offered Certificates covered by
this Agreement, less the principal amount of Offered Certificates covered by all
Delayed Delivery Contracts.
As compensation to the Underwriters for their respective commitments
and obligations hereunder in respect of the Offered Certificates, including
their respective undertakings to distribute Offered Certificates, the Guarantor
will pay or cause to be paid by the Owner Trustees to each Underwriter an amount
equal to that percentage of the aggregate principal amount of each Pass Through
Certificate Designation purchased by it as set forth in Schedule A. Such
payment shall be made simultaneously with the payment by the Underwriters to the
Trustee of the purchase price of the Offered Certificates as specified in
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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 date, time and location or locations specified in Schedule II 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"). Unless otherwise specified in Schedule II,
delivery of the Offered Certificates shall be made to your account at The
Depository Trust Company for the respective accounts of the several Underwriters
against payment by the Underwriters of the purchase price thereof to or upon the
order of the Trustee by Federal funds check or other immediately available
funds. The Offered Certificates shall be registered in the name of Cede & Co.
or in such other names, and in such denominations as you may request in writing
at least two full business days in advance of the Closing Date.
The Company agrees 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.
It is understood that each Underwriter has authorized you for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Offered Certificates that it has agreed to purchase. You,
individually and not as a representative, may (but shall not be obligated to)
make payment of the purchase price for the Offered Certificates to be purchased
by any Underwriter whose check or checks shall not have been received by the
Closing Date.
IV.
The several obligations of the Underwriters 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 counsel
for the Guarantor and the Company reasonably acceptable to you, dated the
Closing Date,
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in form satisfactory to the Underwriters and to counsel for the
Underwriters, to the effect that:
(i) Assuming that the Offered Certificates have been duly
authorized and validly executed, authenticated, issued and delivered
by the Trustee pursuant to the Designated Agreement, when such
Certificates have been paid for in accordance with the terms of this
Agreement, such Certificates will (x) be valid and binding obligations
of the 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 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 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;
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(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 and except for the documents incorporated by
reference in the Prospectus, 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 Note Purchase Agreements and the Designated Agreement
have each been duly authorized, executed and delivered by the
Guarantor and the Company and each 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;
(ix) The Leases and other Operative Documents to which the
Guarantor and/or the Company is, or is to be, a party have been duly
authorized and, on the respective Transfer Dates, the related Leases
and other Operative Documents to which the Guarantor and/or the
Company is, or is to be, a party, upon due execution and delivery by
the Guarantor and/or the Company, as the case may be, will each be a
valid and binding obligation of the Guarantor and the Company
enforceable against the Guarantor and the Company in accordance with
its respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
enforcement of creditors' rights generally and by general principles
of equity and, except, in the case of each Lease, as limited by
applicable laws which may affect the remedies provided in such Lease,
which laws, however, do not in such counsel's opinion make the
remedies provided in such Lease inadequate for the practical
realization of the rights and benefits provided thereby;
(x) The statements in the Registration Statement and Prospectus
under the headings "Federal Income Tax Consequences" and "ERISA
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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, each 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 such Trust;
(xii) Although counsel is not aware of any judicial authority,
none of the Trusts is required to be registered under the Investment
Company Act of 1940, as amended;
(xiii) Upon consummation of the transactions contemplated by the
Note Purchase Agreements on the respective Transfer Dates, assuming
due authorization, execution and delivery by the related Owner Trustee
and due authentication by the Loan Trustee, the Secured Notes will
constitute valid and binding obligations of such Owner Trustee,
enforceable against such 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
respective Indentures; and
(xiv) Assuming due authorization, execution and delivery of the
Designated Agreement by the Trustee, the Designated Agreement
constitutes the valid and binding obligation of the 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;
and to such further effect with respect to other legal matters relating to
this Agreement, the Note Purchase Agreements, the Designated Agreement and
the Leases 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 counsel for the Underwriters 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
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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 Trustee and the Loan 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 the Underwriters
and to counsel for the Underwriters, 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 Note Purchase Agreements and
the Operative Documents to which the Guarantor and/or the Company is,
or is to be, a party;
(ii) each of Mobil's Significant Subsidiaries (as defined under
Regulation S-X) has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus;
(iii) Each of the Guarantor and the Company is duly qualified to
transact business as a foreign corporation and is in good standing in
each other jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such
qualification necessary, except to the
14
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 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;
15
(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 Note Purchase Agreements, the Designated
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 Note Purchase Agreements 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, the Note Purchase Agreements, 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 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 or
statistical 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
16
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, as to which such counsel need express no
opinion), as of the dates they were filed with the Commission, included an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading.
(d) You shall have received on the Closing Date an opinion of Bingham,
Dana & Gould LLP, counsel to the Trustee, dated the Closing Date to the effect
that:
(i) The Trustee 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 trustee, has full corporate
17
power and authority to execute, deliver and perform its obligations
under the Designated Agreement, the Note Purchase Agreements and the
other Operative Documents to which it is a party;
(ii) The Trustee has duly authorized, executed and delivered the
Designated Agreement, the Note Purchase Agreements and the other
Operative Documents to which it is a party, and the Designated
Agreement, the Note Purchase Agreements and the other Operative
Document to which it is a party constitute valid and binding
obligations of the Trustee enforceable against the Trustee in
accordance with their respective terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting enforcement of creditors' rights generally, and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
(iii) The Offered Certificates have been duly authorized and
validly executed, authenticated, issued and delivered by the Trustee
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
the Trustee of the Designated Agreement, the Note Purchase Agreements,
the other Operative Documents to which it is a party and the Offered
Certificates and the consummation of the transactions therein
contemplated and compliance with the terms thereof and issuance of the
Certificates thereunder do not and will not result in the violation of
the provisions of the Charter Documents or By-Laws of the Trustee 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 to which the Trustee is a party or by
which it or any of its property is bound, or any Massachusetts or
federal law, rule or regulation governing the trustee's banking or
trust powers, or of any judgment, order or decree known to such
counsel to be applicable to the Trustee of any court, regulatory body,
administrative agency, government or governmental body having
jurisdiction over the Trustee 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 the Trustee is required for the authorization,
execution, delivery and performance by the
18
Trustee of the Designated Agreement, the Note Purchase Agreements or
the other Operative Documents to which it is a party or the
consummation of any of the transactions by the Trustee contemplated
thereby or the issuance of the 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 the Trustee 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 the Trustee pursuant to the Designated Agreement;
(vii) The statements in the Registration Statements and in the
Prospectus under the caption "Certain Massachusetts Taxes", to the
extent that they constitute matters of law or legal conclusions with
respect thereto, have been prepared and reviewed by such counsel and
are correct in all material respects; and
(viii) To such counsel's knowledge, there are no proceedings
pending or threatened against or affecting the Trustee 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 any Trust or question
the right, power and authority of the Trustee to enter into or perform
its obligation under the Designated Agreement, the Note Purchase
Agreements and the Operative Documents to which it is a party or to
issue the Offered Certificates.
(e) You shall have received on the Closing Date an opinion of Shearman
& Sterling, counsel for the Underwriters, 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
19
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 Guarantor's or the
Company's securities, including the Offered Certificates, by Standard &
Poor's Rating Service 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 date of this Agreement and on the
Closing Date letters, dated the date of this Agreement and the Closing
Date, respectively, 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 each of the Note Purchase Agreements
and each of the Participation Agreements with respect to the Trustee's
purchase of the Secured Notes on the Transfer Date shall have been
satisfied on the Closing Date; the representations and warranties of the
Guarantor and the Company contained in each of the Note Purchase Agreements
and Participation Agreements shall be accurate as of the Closing Date
(except to the extent that they relate solely to an earlier date in which
case they shall be accurate as of such earlier date) and you shall have
received a certificate of a Vice President or Treasurer of each of the
Guarantor and the
20
Company, dated as of the Closing Date, to such effect; and you shall have
received each opinion referred to in Section 3 of each of the Note Purchase
Agreements.
(k) The Guarantor and the Company shall have furnished to you and to
counsel for the Underwriters, in form and substance satisfactory to them,
such other documents, certificates and opinions as such counsel may
reasonably request in order to evidence the accuracy and completeness of
any of the representations, warranties or statements, the performance of
any covenant by the Guarantor or the Company theretofore to be performed,
or the compliance with any of the conditions herein contained.
V.
In further consideration of the agreements of the Underwriters herein
contained, the Guarantor and the Company covenant as follows:
(a) To furnish each of 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 such Underwriter may reasonably
request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish each Underwriter a copy of each such proposed
amendment or supplement, and to file no such proposed amendment or
supplement to which you reasonably object.
(c) If, during such period after the first date of the public offering
of the Offered Certificates as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or 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 the Underwriters
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 the Underwriters 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
21
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 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.
22
VI.
The Guarantor and the Company, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter 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 or alleged omission based upon information relating
to any Underwriter furnished to the Guarantor or the Company in writing by such
Underwriter through 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 any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Offered Certificates, or any person controlling such Underwriter, if a copy of
the Prospectus (as then amended or supplemented if the Guarantor or the Company
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of such Underwriter 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.
Each Underwriter agrees, severally and not jointly, 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 each Underwriter, but
only with reference to information relating to such Underwriter furnished to the
Guarantor or the Company in writing by such Underwriter through 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
23
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 the Underwriters and such control persons
of Underwriters, 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 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 the
Underwriters 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 the Underwriters 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 the Underwriters on the other hand shall be deemed to be in
the same respective proportions as the net proceeds from
24
the offering of the Offered Certificates (before deducting expenses) received by
the Trustee and the total underwriting commissions received by the Underwriters,
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 the Underwriters 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 the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Guarantor, the Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Article VI were
determined by pro rata allocation (even if the Underwriters were treated as one
--- ----
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
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, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Certificates underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has 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 Underwriters' respective
obligations to contribute pursuant to this Article VI are several in proportion
to the respective principal amount of Offered Certificates purchased by each of
such Underwriters and not joint. 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 any Underwriter or any person controlling any Underwriter 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.
25
VII.
This Agreement shall be subject to termination in your absolute
discretion, by notice given to the Guarantor or the Company, if (a) after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Guarantor or the Company shall
have been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your judgment, is material
and adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event singly or together with any other such event would, in
your reasonable judgement after consultation with the Guarantor, prevent or
materially impair the marketing, or enforcement of contracts for sale, of the
Offered Certificates on the terms and in the manner contemplated in the
Prospectus.
VIII.
If, on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase Offered Certificates that it has or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of Offered
Certificates which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Offered Certificates to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the principal
amount of Offered Certificates specified to be purchased by them in Schedule A
bears to the aggregate principal amount of Offered Certificates specified to be
purchased by all such non-defaulting Underwriters, or in such other proportions
as you may specify, to purchase the Offered Certificates which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the principal amount of Offered
--------
Certificates that any Underwriter has agreed to purchase pursuant to Article II
be increased pursuant to this Article VIII by an amount in excess of one-ninth
of such principal amount of Offered Certificates without the written consent of
such Underwriter. If on the Closing Date any Underwriter or Underwriters shall
fail or refuse to purchase Offered Certificates and the aggregate principal
amount of Offered Certificates with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Offered Certificates to be
purchased on such date, and arrangements satisfactory to you and the Company for
the purchase of such Offered Certificates are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any
26
non-defaulting Underwriter, the Guarantor or the Company. In any such case
either you, the Company or the Guarantor shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, 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 the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters 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.
27
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Very truly yours,
[ ]
By:
_____________________________
Name:
Title:
MOBIL CORPORATION
By:
_____________________________
Name:
Title:
Accepted as of the date first
above written:
[Insert signature block(s) for
the Representative(s) acting
on behalf of the Underwriters
or for each Underwriter if no
syndicate.]
SCHEDULE A
Pass Through Aggregate Final
Certificate Principal Distribution Underwriting
Designation Amount Interest Rate Date Commissions
- -------------- --------- ------------- ------------ ------------
SCHEDULE I
to
Underwriting
Agreement
Dated: _______________
[_____________________________________]
MOBIL CORPORATION, GUARANTOR
[List Underwriter or Underwriters, indicating which, if any, are acting as the
Representative or Representatives of the Underwriters, principal amount being
purchased, and how and to whom notices to the Underwriter or Underwriters may be
given.]
SCHEDULE II
to
Underwriting
Agreement
Dated:_________
[__________________________________________]
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:______________
[__________________________________________], ISSUER
MOBIL CORPORATION, GUARANTOR
Pass Through Certificates
DELAYED DELIVERY CONTRACT
-------------------------
[________________________________]
3225 Gallows Road
Fairfax, Virginia 22037
Dear Sirs:
The undersigned hereby agrees with [_________________________],
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 [___________________________], not in its
individual capacity but solely as trustee under a Pass Through Trust Agreement
dated _________, 199_ to issue and sell to the undersigned on _________, 199_
(the "Delivery Date"), $_________ aggregate principal amount of the Trustee's
[Title of Security] (the "Offered Certificates"), offered by the Company's
Prospectus dated ________, 199_, as supplemented by its Prospectus Supplement
dated __________, 199_, 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 ____________, 199_ 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 [___________________________] 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 Date (or in such other funds and/or at such
other place as the Guarantor, the
2
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 ____________, 199__, 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 excess of $_________ and that the acceptance of any
Delayed Delivery Contract is in the sole
3
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.
[___________________]
By: ________________________
Mobil Corporation
By: ________________________
4
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)
- ---- -------------------