Exhibit 4.3
[FORM OF GUARANTY]
MOBIL CORPORATION
THIS GUARANTY, dated as of ______ __, 199_ (together with any amendments
or supplements hereto, this "Guaranty"), by and among MOBIL CORPORATION, a
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Delaware corporation (together with any successor permitted by Section 4.1
hereof, the "Guarantor"), and the [insert references to Corporate Owner Trustee
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and, if applicable, the Individual Owner Trustee], the [insert references to
Corporate Indenture Trustee and, if applicable, Individual Indenture Trustee],
the Pass Through Trustee, in both its individual capacity and as Pass Through
Trustee under each of the Pass Through Trust Agreements (the "Pass Through
Trustee") and as Loan Participants, the Holders of Certificates from time to
time, and the Owner Participant referred to in the Participation Agreement
described below (collectively, together with each other Indemnitee and their
successors and permitted assigns, the "Beneficiaries" and, individually, a
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"Beneficiary").
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W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, [insert reference to Lessee], a Delaware corporation, and wholly-
owned subsidiary of the Guarantor (together with its successors and permitted
assigns, the "Lessee"), is entering into that certain Participation Agreement
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dated as of _______ __, 199_ (the "Participation Agreement"), among the Lessee,
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the Owner Participant, [insert reference to Owner Trustee and Indenture Trustee]
and [__________] acting not in its individual capacity except as expressly
provided therein, but solely as Pass Through Trustee and Loan Participants; and
WHEREAS, it is a condition precedent to the obligations of the
Beneficiaries to consummate the transactions contemplated by the Participation
Agreement that the Guarantor execute and deliver this Guaranty,
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, the Guarantor does hereby covenant and agree with the
Beneficiaries from and after the execution and delivery of the Participation
Agreement as follows (capitalized terms used herein (including those used in the
foregoing preamble and recitals) and not
otherwise defined herein having the meanings ascribed to them in Appendix A to
the Participation Agreement):
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF GUARANTOR
Section 1.1. Representations and Warranties of
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Guarantor. The Guarantor hereby represents and warrants that:
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(1) The Guarantor is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, has the corporate power
and authority to carry on its business as presently conducted, to own or hold
under lease its properties, and to enter into and perform its obligations under
this Guaranty, and is duly qualified to do business in each jurisdiction in
which it has operations or a principal office and where failure to so qualify
could reasonably be expected to materially adversely affect its consolidated
financial condition, business, or operations, or its ability to perform any of
its obligations under this Guaranty.
(2) The execution, delivery and performance by the Guarantor of this
Guaranty and the transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of the Guarantor.
(3) This Guaranty has been duly executed and delivered by the Guarantor
and constitutes the legal, valid and binding obligation of the Guarantor
enforceable against the Guarantor in accordance with the terms hereof, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, liquidation, moratorium or similar laws affecting creditors' or
lessors' rights generally and by the application of general equitable principles
which may limit the availability of certain remedies.
(4) The execution and delivery by the Guarantor of this Guaranty do not
and will not, and the performance by the Guarantor of its obligations hereunder
do not and will not, (i) violate or be inconsistent with its charter documents
or by-laws, (ii) contravene any Governmental Rule or Governmental Action
applicable to it (except that no representation or warranty is made herein with
respect
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to the Securities Act, the Trust Indenture Act and the securities or Blue Sky
laws of the various states), (iii) contravene any provision of, or constitute a
default under, any indenture, mortgage, contract or other instrument to which
the Guarantor is a party or by which it or any of its properties are bound or
(iv) result in or require the creation or imposition of any Lien (other than
Permitted Liens) upon any of its properties or assets.
(5) No Governmental Action and no consent of any other Person (including,
without limitation, any stockholder or creditor of the Guarantor) is required in
connection with the execution, delivery or performance of this Guaranty, except
such as are required under the Securities Act, the Trust Indenture Act and the
securities or Blue Sky laws of the various states.
(6) Each of the consolidated financial statements of the Guarantor set
forth in its Annual Report on Form 10-K for the year ended December 31, 199_ and
the consolidated financial statements of the Guarantor set forth in its
Quarterly Report on Form 10-Q for the quarter ended ________ __, 199_ fairly
presents the consolidated financial position of the Guarantor and its
Subsidiaries as at the respective dates thereof and the consolidated results of
operations and changes in financial position of the Guarantor and its
Subsidiaries for each of the periods covered thereby (subject, in the case of
any unaudited interim financial statements, to changes resulting from normal
year-end adjustments) in conformity with GAAP applied on a consistent basis
(except as disclosed in the notes thereto). Since ________ __, 199_, there has
been no material adverse change in such consolidated financial position of the
Guarantor and its Subsidiaries, taken as a whole.
(7) Except as disclosed in the Guarantor's Annual Report on Form 10-K for
the year ended December 31, 199_, the Guarantor's Quarterly Report on Form 10-Q
for the quarter ended ________ __, 199_ or the Guarantor's current reports on
Form 8-K, there is no action, suit, investigation or proceeding pending or, to
the Actual Knowledge of the Guarantor threatened in writing against the
Guarantor or its properties before any Governmental Authority which,
individually or in the aggregate (so far as the Guarantor now can reasonably
foresee), is reasonably likely materially and adversely to affect the
consummation of the transactions under this Guaranty or
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the ability of the Guarantor to perform its obligations hereunder or its
business or financial condition.
(8) The Guarantor owns, directly or indirectly, 100% of the equity interest
in the Lessee.
(9) The representations and warranties of the Lessee in Section __ of the
Participation Agreement are true and correct.
ARTICLE II
GUARANTEE OF OBLIGATIONS
Section 2.1. Guarantee of obligations. (a) The Guarantor hereby
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guarantees to each of the Beneficiaries, as primary obligor and not as surety,
the full and prompt payment by the Lessee [and, if applicable, insert operating
subsidiary] [(the "Operator"), as the case may be], when due, whether at the
stated payment date thereof, by acceleration or otherwise, of, and the faithful
performance of and compliance with, all payment obligations of the Lessee under
the Participation Agreement, the Lease and the other Operative Documents [and
the Operator under] [if applicable, insert reference to support agreements] owed
to the Beneficiaries strictly in accordance with the terms thereof, however
created, arising or evidenced, whether direct or indirect, primary or secondary,
absolute or contingent, joint or several, and whether now or hereafter existing
or due or to become due and the full, faithful and timely performance of, and
compliance with, all other obligations of the Lessee [and all other obligations
of the Operator] owed to the Beneficiaries thereunder strictly in accordance
with the terms thereof, however created, arising or evidenced, whether direct or
indirect, primary or secondary, absolute or contingent, joint or several, and
whether now or hereafter existing or due or to become due (such payment and
other obligations, the "Obligations"). Such guarantee is an absolute,
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unconditional, irrevocable, present and continuing guarantee of payment and
performance and not of collectability.
(b) If for any reason any Obligation to be performed or observed by the
Lessee [or the Operator] (whether affirmative or negative in character) shall
not be observed or performed or paid strictly in accordance with the terms
thereof, the Guarantor shall, no later than 15 Business Days following receipt
of written notice by the relevant Beneficiary of such non-observance, non-
performance or non-
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payment, and not less than 5 Business Days following receipt of such a notice in
the case of non-payment of Basic Rent, perform or observe or cause to be
performed or observed each such Obligation or shall pay the amount of each such
unpaid Obligation at the place and to the Person or entity entitled thereto
pursuant to the relevant Operative Documents [and the support agreement], as the
case may be, regardless of whether or not any Beneficiary or anyone on behalf of
any of them shall have instituted any suit, action or proceeding or exhausted
its remedies or taken any steps to enforce any rights against the Lessee [or the
Operator] or any other Person or entity to compel any such performance or
observance or to collect all or any part of such amount pursuant to the
provisions of the relevant Operative Documents [or the support agreement], as
the case may be, or at law or in equity, or otherwise, and regardless of any
other condition or contingency. Nothing in this Guaranty shall be construed to
be a guarantee of payment of the Secured Notes.
Section 2.2. Nature of Guarantee. The obligations, covenants, agreements
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and duties of the Guarantor hereunder shall remain in full force and effect
until the Obligations are finally, indefeasibly and unconditionally paid and
performed in full in accordance with the terms of the Operative Documents, and
the [support agreement], as the case may be, and, to the maximum extent
permitted by law, shall in no way be affected or impaired by reason of the
happening from time to time of any other event, including, without limitation,
the following, whether or not any such event shall have occurred without notice
to or the consent of the Guarantor:
(a) the waiver, compromise, settlement, termination or other release of the
performance or observance by the Guarantor, the Lessee [or the Operator] of any
or all of their respective agreements, covenants, terms or conditions contained
in this Guaranty (other than Section 2.1 hereof), the Participation Agreement,
the Lease, the other Operative Documents [or the support agreement];
(b) any failure, omission, delay or lack on the part of the Beneficiaries
to enforce, assert or exercise any right, power or remedy conferred on the
Beneficiaries in the Participation Agreement, the Lease, the other Operative
Documents, [the support agreement] or this Guaranty, or the inability of the
Beneficiaries to enforce any
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provision of the Participation Agreement, the Lease, the other Operative
Documents, [the support agreement] or this Guaranty for any reason, or any
other act or omission on the part of the Beneficiaries;
(c) the transfer, assignment or mortgaging, or the purported transfer,
assignment or mortgaging, of all or any part of the interest of the Lessee in
the Leased Property or the invalidity, unenforceability or termination of the
Participation Agreement, the Lease, any other Operative Document [or the support
agreement] or any defect in the title of the Leased Property or any part thereof
or any loss of possession, use or operational control of the Leased Property or
any part thereof by the Lessee [or the Operator];
(d) the modification or amendment (whether material or otherwise) of any
obligation, covenant or agreement set forth in the Participation Agreement, the
Lease, any other Operative Document [or the support agreement];
(e) the voluntary or involuntary liquidation, dissolution, sale of all or
substantially all of the assets, marshalling of assets and liabilities,
receivership, conservatorship, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of, or other similar proceedings affecting either of the Lessee [or the
Operator] or any of its assets or any allegation or contest of the validity of
the Guaranty, the Participation Agreement, the Lease, any other Operative
Document [or the support agreement] in any such proceeding;
(f) the surrender or impairment of any security for the performance or
observance of any of the Obligations;
(g) any failure of the Guarantor, the Lessee [or the Operator] to perform
and observe any agreement or covenant, or to discharge any duty or obligation,
arising out of or connected with this Guaranty, the Participation Agreement,
the Lease, any other Operative Document [or the support agreement] or the
occurrence or pendency of any Lease Default or Lease Event of Default or any
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proceedings or actions as a result of, or attendant upon, such Lease Default or
Lease Event of Default;
(h) the inability of the Guarantor, the Beneficiaries, the Lessee [or the
Operator] to enforce any provision of this Guaranty, the Participation
Agreement, the Lease, any other Operative Document [or the support agreement]
for any reason;
(i) the failure to give notice to the Guarantor, the Lessee [or the
Operator] of the occurrence of an event of default under the terms and
provisions of the Participation Agreement, the Lease or the other Operative
Documents [or the support agreement];
(j) the disposition by the Guarantor of any or all of its interest in any
capital stock of the Lessee [or the Operator] or any change, restructuring or
termination of the corporate structure, ownership or existence of the Lessee [or
the Operator];
(k) any set-off, counterclaim, reduction, or diminution of any Obligation,
or any defense of any kind or nature whatsoever (other than performance) which
the Guarantor, the Lessee [or the Operator] may have or assert against the
Beneficiaries; or
(l) any other circumstance (other than performance) that might otherwise
constitute a legal or equitable defense or discharge of a guarantor or surety
with respect to any Obligation.
Section 2.3. Waivers by Guarantor. The Guarantor waives notice of the
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acceptance of and reliance on this Guaranty by the Beneficiaries, and the
Guarantor also waives presentment, demand for payment, protest and notice of
nonpayment or dishonor and all other notices and demands whatsoever, except that
the Guarantor does not waive the notices provided for in Section 2.1(b) hereof.
The Guarantor further waives any right it may have to (a) require the
Beneficiaries to proceed against the Lessee [or the Operator], (b) require the
Beneficiaries to proceed against or exhaust any security granted by the Lessee
or the Owner Trustee or (c) require the Beneficiaries to pursue any other remedy
within the power of the Beneficiaries, and the Guarantor agrees that all of its
obligations under this Guaranty are independent of
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the Obligations and that a separate action may be brought against the Guarantor
whether or not an action is commenced against the Lessee [or the Operator] under
the Operative Documents [or the support agreement].
Section 2.4. Subrogation of Guarantor; Subordination. Notwithstanding any
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payment or payments made by the Guarantor, the Guarantor shall not be subrogated
to any rights of the Beneficiaries against the Lessee [or the Operator] until
all of the Obligations then due shall have been finally, indefeasibly and
unconditionally paid and performed in full. Any claim of the Guarantor against
the Lessee [or the Operator] arising from payments made by the Guarantor by
reason of this Guaranty shall be in all respects subordinated to the final,
indefeasible, unconditional, full and complete payment or discharge of all of
the Obligations guaranteed hereby, and no payment by the Guarantor shall give
rise to any claim of the Guarantor against the Beneficiaries.
Section 2.5. Reinstatement. This Guaranty shall continue to be
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effective, or be automatically reinstated, as the case may be, if at any time
payment, or any part thereof, made by or on behalf of the Lessee [or the
Operator] of any of the Obligations is rescinded or must otherwise be restored
or returned by any Beneficiary for any reason whatsoever, whether upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the Lessee
[or the Operator], or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, either of the
Lessee or the Operator or any substantial part of its property, or otherwise,
all as though such payments had not been made.
Section 2.6. Place and Manner of Payments. All payments to be made by the
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Guarantor under this Guaranty to a Beneficiary shall be paid to such
Beneficiary at the address provided for in Schedule 1 of the Participation
Agreement or, if no address, at the address and to the account specified in the
notice demanding payment by the Guarantor; provided, however, that the Guarantor
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consents to the assignment by the Owner Trustee to the Indenture Trustee of the
Owner Trustee's right, title and interest in, to and under this Guaranty to the
extent set forth in the Indenture and, notwithstanding anything herein to the
contrary, the Guarantor shall make all payments (other than Excepted Payments)
hereunder directly to the Indenture Trustee until such time as the Indenture
Trustee shall give notice to the Guarantor that the Lien of the Indenture has
been fully discharged, and thereafter to the Owner Trustee. The Guarantor
agrees that it will make all
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payments due hereunder by wire transfer at or before [____], New York time, on
the date due in immediately available funds to the party to which such payment
is to be made.
ARTICLE III
DEFAULT AND REMEDIES
Section 3.1. Enforcement Provisions. The Beneficiaries shall have the
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right, power and authority to do all things, including instituting or appearing
in any suit or proceeding, not inconsistent with the express provisions of the
Operative Documents, [the support agreement] or this Guaranty, which they may
deem necessary or advisable to enforce the provisions of this Guaranty and
protect the interests of the Beneficiaries. Each and every default in the
payment or performance of the Obligations shall give rise to a separate cause of
action hereunder, and separate suits may be brought hereunder as each cause of
action arises.
Section 3.2. No Remedy Exclusive. No remedy conferred upon or reserved to
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the Beneficiaries herein or in the Operative Documents [or in the support
agreement] is intended to be exclusive of any other available remedy or
remedies, but each and every such remedy shall be cumulative and shall be in
addition to every other remedy given under this Guaranty or now or hereafter
existing at law or in equity.
Section 3.3. Right to Proceed Against Guarantor. In the event of a default
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in any payment or performance of any Obligation owed to any Beneficiaries when
and as the same shall become due, whether at the stated maturity thereof, by
acceleration or otherwise, such Beneficiaries may proceed to enforce their
respective rights hereunder and such Beneficiaries shall have the right to
proceed first and directly against the Guarantor under this Guaranty without
proceeding against any other Person or exhausting any other remedies which they
may have and without resorting to any collateral security relating thereto. The
provisions of Section 6.7 of the Pass Through Trust Agreement and Section __ of
the Indenture shall apply to any actions proposed to be commenced hereunder
against the Guarantor by the Certificateholders or by the Pass Through Trustee
in its capacity as a Loan Participant.
Section 3.4. Guarantor to Pay Costs of Enforcement. The Guarantor agrees
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to pay all costs, expenses
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and fees, including, without limitation, all reasonable attorneys' fees, which
may be incurred by the Beneficiaries in enforcing or attempting to enforce this
Guaranty or protecting the rights of the Beneficiaries hereunder following any
default on the part of the Guarantor hereunder, whether the same shall be
enforced by suit or otherwise.
Section 3.5. No Waiver of Rights. No delay in exercising or omission to
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exercise any right or power accruing upon any default, omission or failure of
performance hereunder shall impair any such right or power or shall be construed
to be a waiver thereof, but any such right and power may be exercised from time
to time and as often as may be deemed expedient.
ARTICLE IV
COVENANTS OF GUARANTOR
Section 4.1. Maintenance of Corporate Existence. So long as any of the
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Obligations remain outstanding or any amounts due and owing by the Lessee with
respect thereto remain unpaid, the Guarantor will maintain its corporate
existence and will not merge or consolidate with any other corporation nor
dissolve or otherwise sell or dispose of all or substantially all of its assets
as an entirety, unless the successor or transferee corporation (if other than
the Guarantor) shall expressly and unconditionally assume, in a written
instrument delivered to the Owner Participant, the Owner Trustee, the Corporate
Indenture Trustee and the Pass Through Trustee, the punctual performance and
observance of all covenants, conditions and obligations of this Guaranty to be
performed by the Guarantor.
Section 4.2. Financial Statements. The Guarantor shall provide to the
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Owner Participant and the [Corporate] Indenture Trustee, within 30 days after
the Guarantor is required to file the same with the Securities and Exchange
Commission (the "SEC") or any successor agency, a copy of each annual report and
any amendment to an annual report (currently Form 10-K), filed by the Guarantor
with the SEC pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as the same may be amended from time to time, and all financial statement
reports, notices, proxy statements or other documents that are sent or made
generally available by the Guarantor to holders of its registered securities and
all regular and periodic reports filed by the Guarantor with the
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SEC except for reports on SEC Forms 3, 4 or 5 or any comparable reports.
[Section 4.3. support agreement. The Guarantor will cause the Operator to
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enter into the support agreement as provided in Section ___ of the Lease.]
ARTICLE V
GENERAL
Section 5.1. Benefitted Parties. This Guaranty is entered into by the
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Guarantor for the benefit of the Beneficiaries in accordance with the provisions
of this Guaranty and the Operative Documents. This Guaranty shall not be
deemed to create any right in, or to be in whole or part for the benefit of, any
person other than the Beneficiaries and the Guarantor and their respective
permitted successors and assigns. The Guarantor may not assign any of its
rights or obligations hereunder except in accordance with Section 4.1 hereof.
Section 5.2. Interpretations. The article and section headings of this
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Guaranty are for reference purposes only and shall not affect its
interpretation in any respect.
Section 5.3. Entire Agreement; Counterpart; Amendments; Governing Law;
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Etc. This Guaranty (a) constitutes the entire agreement, and supersedes all
prior agreements and understandings, both written and oral, between the parties
with respect to the subject matter hereof; (b) may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument; (c) may be modified only
by an instrument in writing signed by the duly authorized representatives of the
parties hereto; and (d) shall be governed in all respects, including validity,
interpretation and effect by, and shall be enforceable in accordance with, the
laws of the State of New York. This Guaranty shall terminate when the
Obligations have been fully, indefeasibly and unconditionally paid and performed
in full.
If any provision of this Guaranty shall be held to be invalid by any court
of competent jurisdiction, the invalidity of such provisions shall not affect
any of the remaining provisions, and any such invalidity in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted
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by applicable law, the parties hereto hereby waive any provision thereof that
renders any term or provision hereof invalid or unenforceable in any respect.
Section 5.4. Further Assurances. The Guarantor will execute and deliver
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all such instruments and take all such actions as the Beneficiaries may from
time to time reasonably request in order fully to effectuate the purposes of
this Guaranty.
Section 5.5. Notices. All notices and other communications in respect of
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this Guaranty to the Guarantor or the Beneficiaries shall be given as provided
in the applicable provisions of the Participation Agreement.
Section 5.6. Consent to Jurisdiction. Any legal suit, action or
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proceeding arising out of or relating to this Guaranty or any transaction
contemplated hereby may be instituted in any state or Federal court in the
County of New York and State of New York and, to the extent permitted by
applicable law, the Guarantor waives any objection which it may now or hereafter
have to the laying of the venue of any such suit, action or proceeding and
irrevocably submits to the jurisdiction of any such court in any such suit,
action or proceeding.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
in its name and behalf and its corporate seal to be affixed hereto and attested
by its duly authorized officers, and the Beneficiaries have accepted the same,
as of the date first above written.
ATTEST: MOBIL CORPORATION
By: ______________________ By: _______________________
ACCEPTED:
__________________________, in its individual
capacity and as Corporate Owner Trustee
By: _________________________
Name:
Title:
__________________________, in its individual
capacity and as Corporate Indenture Trustee
By: _________________________
Name:
Title:
__________________________, in its individual
capacity and as Pass Through Trustee under each of
the Pass Through Trust Agreements and as Loan
Participants
By: _______________________
Name:
Title:
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__________________________, in his individual
capacity and as Individual Owner Trustee
By: _________________________
__________________________, in his individual
capacity and as Individual Indenture Trustee
By: _________________________
[OWNER PARTICIPANT]
By: _________________________
Name:
Title:
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