EXHIBIT 4.14
MOBIL GUARANTY
among
MOBIL CORPORATION
and
DEUTSCHE MORGAN GRENFELL (CAYMAN) LIMITED,
Managing Trustee
and
STATE STREET BANK AND TRUST COMPANY,
Indenture Trustee
and
STATE STREET BANK AND TRUST COMPANY,
Pass Through Trustee and Loan Participant
and
QM TANKER CO. L.L.C.,
Owner Participant
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Dated as of December 5, 1997
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Lease Financing of One LR1 Crude Oil Tank Vessel
Hull No. 1178
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MOBIL GUARANTY
THIS Guaranty, dated as of December 5, 1997 (together with any
amendments or supplements hereto, this "Guaranty"), by and among MOBIL
CORPORATION, a Delaware corporation (together with any successor permitted by
Section 4.1 hereof, the "Guarantor"), and the Managing Trustee, in both its
individual capacity and as Managing Trustee, the Indenture Trustee, in both its
individual capacity and as Indenture Trustee, the Pass Through Trustee, in both
its individual capacity and as Pass Through Trustee and as Loan Participant, and
the Owner Participant (defined below) referred to in the Participation Agreement
described below (collectively, together with each other Indemnitee and their
successors and permitted assigns, the "Beneficiaries" and, individually, a
"Beneficiary").
W I T N E S S E T H:
WHEREAS, Mobil Equipment Finance Company Inc., a Delaware corporation
and wholly-owned subsidiary of the Guarantor (together with its successors and
permitted assigns, the "Charterer"), is entering into that certain Participation
Agreement dated as of December 5, 1997 (the "Participation Agreement"), among
the Charterer, the Owner Participant, the Owner Trust, Deutsche Morgan Grenfell
(Cayman) Limited, acting not in its individual capacity except as expressly set
forth therein, but solely as Managing Trustee, State Street Bank and Trust
Company, acting not in its individual capacity except as expressly provided
therein, but solely as Indenture Trustee, and State Street Bank and Trust
Company, acting not in its individual capacity except as expressly provided
therein, but solely as Pass Through Trustee and Loan Participant; 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 Guarantor. The
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Guarantor hereby represents and warrants that:
(a) 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 so to qualify
could reasonably be expected to materially adversely affect the financial
condition of the Guarantor and its subsidiaries on a consolidated basis or their
business or operations, or the Guarantor's ability to perform any of its
obligations under this Guaranty.
(b) 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.
(c) 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.
(d) 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 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.
(e) (e) 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.
(f) 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, 1996 and the
consolidated financial statements of the Guarantor set forth in its Quarterly
Report on Form 10-Q for each of the three month periods ended March 31, 1997,
June 30, 1997 and September 30, 1997 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
September 30, 1997,
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there has been no material adverse change in such consolidated financial
position of the Guarantor and its Subsidiaries, taken as a whole.
(g) Except as disclosed in the Guarantor's Annual Report on Form 10-K for the
year ended December 31, 1996 or the Guarantor's Quarterly Report on Form 10-Q
for the three month periods ended March 31, 1997, June 30, 1997 and September
30, 1997, there is no action, suit, investigation or proceeding pending or, to
the Actual Knowledge of the Guarantor threatened in writing against the
Guarantor or affecting it 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 the ability of the
Guarantor to perform its obligations hereunder or its business or financial
condition.
(h) The Guarantor owns, directly or indirectly, 100% of the equity interest
in the Charterer.
ARTICLE II
GUARANTY OF OBLIGATIONS
Section 2.1. Guaranty of Obligations. (a) The Guarantor hereby guarantees
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to each of the Beneficiaries, as primary obligor and not as surety, the full and
prompt payment by the Charterer, 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 Charterer under the
Participation Agreement, the Charter and the other Operative Documents owed to
the Beneficiaries strictly in accordance with the terms thereof, however
created, arising or evidenced, whether direct or indirect, primary or secondary,
absolute or contingent, joint or several, and whether now or hereafter existing
or due or to become due and the full, faithful and timely performance of, and
compliance with, all other obligations of the Charterer 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, 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
Charterer (whether affirmative or negative in character) shall not be observed
or performed 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 nonpayment, and
not less than 5 Business Days following receipt of notice in the case of non-
payment of Assigned Hire, perform or observe or cause to be performed or
observed each such Obligation and shall pay the amount of each such unpaid
Obligation at the place and to the Person or entity entitled thereto pursuant to
the relevant Operative Documents, as the case may be, regardless of whether or
not any Beneficiary or anyone on behalf of any of them shall have instituted any
suit, action or
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proceeding or exhausted its remedies or taken any steps to
enforce any rights against the Charterer or any other Person or entity to
compel any such performance or to collect all or any part of such amount
pursuant to the provisions of the relevant Operative Document 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 guaranty of payment of the
Secured Note.
Section 2.2. Nature of Guaranty. The obligations, covenants, agreements and
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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, to the
maximum extent permitted by law, shall in no way be affected or impaired by
reason of the happening from time to time of any other event, including, without
limitation, the following, whether or not any such event shall have occurred
without notice to or the consent of the Guarantor:
(a) the waiver, compromise, settlement, termination or other release of the
performance or observance by the Guarantor or the Charterer 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
Charter and the other Operative Documents;
(b) any failure, omission, delay or lack on the part of the Beneficiaries to
enforce, assert or exercise any right, power or remedy conferred on the
Beneficiaries in the Participation Agreement, the Charter, the other Operative
Documents or this Guaranty, or the inability of the Beneficiaries to enforce any
provision of the Participation Agreement, the Charter, the other Operative
Documents or this Guaranty for any reason, or any other act or omission on the
part of the Beneficiaries;
(c) the transfer, assignment or mortgaging, or the purported transfer,
assignment or mortgaging, of all or any part of the interest of the Charterer in
the Vessel Interest or the Vessel or the invalidity, unenforceability or
termination of the Participation Agreement, the Charter or any other Operative
Document or any defect in the title of the Vessel or any part thereof or any
loss of possession, use or operational control of the Vessel or any part thereof
by the Charterer or any Permitted Subcharterer;
(d) the modification or amendment (whether material or otherwise) of any
obligation, covenant or agreement set forth in the Participation Agreement, the
Charter, or any other Operative Document;
(e) the voluntary or involuntary liquidation, dissolution, sale of all or
substantially all of the assets, marshalling of assets and liabilities,
receivership, conservatorship, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of, or other similar proceedings affecting the Charterer or any of its assets or
any allegation or contest of the validity of this Guaranty, the Participation
Agreement, the Charter or any other Operative Document in any such proceeding;
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(f) the surrender or impairment of any security for the performance or
observance of any of the Obligations;
(g) any failure of the Guarantor or the Charterer 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 Charter or any
other Operative Document or the occurrence or pendency of any Charter Default or
Charter Event of Default or any proceedings or actions as a result of, or
attendant upon, such Charter Default or Charter Event of Default;
(h) the inability of the Guarantor, the Beneficiaries or the Charterer to
enforce any provision of this Guaranty, the Participation Agreement, the Charter
or any other Operative Document for any reason;
(i) the failure to give notice to the Guarantor or the Charterer of the
occurrence of an event of default under the terms and provisions of the
Participation Agreement, the Charter or the other Operative Documents;
(j) the disposition by the Guarantor of any or all of its interest in any
capital stock of the Charterer or any change, restructuring or termination of
the corporate structure, ownership or existence of the Charterer;
(k) any set-off, counterclaim, reduction, or diminution of any Obligation, or
any defense of any kind or nature whatsoever (other than performance) which the
Guarantor or the Charterer 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 Charterer, (b) require the Beneficiaries to
proceed against or exhaust any security granted by the Charterer or the Owner
Trust 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 the Obligations and that a separate
action may be brought against the Guarantor whether or not an action is
commenced against the Charterer under the Operative Documents.
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 Charterer 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 Charterer
arising from payments made by the Guarantor
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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. The Guarantor
further agrees that any right of subrogation it may have against the Owner Trust
by reason of any guaranty by it of obligations of the Owner Trust under the U.K.
Documents shall in all respects be subject and subordinate to the Owner Trust's
obligations under the Indenture and the Secured Notes, and the Guarantor agrees
that it will not exercise such subrogation right or any similar right until all
of the Obligations then due shall have been finally, indefeasibly and
unconditionally paid and performed in full.
Section 2.5. Reinstatement. This Guaranty shall continue to be effective,
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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 Charterer 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 Charterer, 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 Charterer 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 consents to the
assignment by the Owner Trust to the Indenture Trustee of the Owner Trust's
right, title and interest in, to and under this Guaranty to the extent set forth
in the Indenture, and agrees to 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 Trust. The Guarantor agrees
that it will make all payments due hereunder by wire transfer at or before 12
Noon, 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 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 is intended to be
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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. Section 3.3. Right to Proceed Against Guarantor. In the
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event of a default in any payment or performance of any Obligation owed to a
Beneficiary when and as the same shall become due, whether at the stated
maturity thereof, by acceleration or otherwise, such Beneficiary may proceed to
enforce its rights hereunder and such Beneficiary shall have the right to
proceed first and directly against the Guarantor under this Guaranty without
proceeding against any other Person or exhausting any other remedies which they
may have and without resorting to any collateral security relating thereto. The
provisions of Section 6.7 of the Pass Through Trust Agreement and Section 5.11
of the Indenture shall apply to actions proposed to be commenced hereunder
against the Guarantor by the Certificateholders or by the Pass Through Trustee
in its capacity as Loan Participant.
Section 3.4. Guarantor to Pay Costs of Enforcement. The Guarantor agrees to
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pay all costs, expenses and fees, including, without limitation, all reasonable
attorneys' fees, which may be incurred by the Beneficiaries in enforcing or
attempting to enforce this Guaranty or protecting the rights of the
Beneficiaries hereunder following any default on the part of the Guarantor
hereunder, whether the same shall be enforced by suit or otherwise.
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 Charterer
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 Trust, the Indenture
Trustee and the Pass Through Trustee, the punctual performance and observance of
all covenants, conditions and obligations of this Guaranty to be performed by
the Guarantor.
Section 4.2. Financial Statements. The Guarantor shall provide to the Owner
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Participant and the Indenture Trustee, within 30 days after the Guarantor is
required to file the same with the Securities and Exchange Commission (the
"SEC") or any
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successor agency, a copy of each annual report and any amendment to an annual
report, filed by the Guarantor with the SEC pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934 (currently Form 10-K), 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 equity securities and all regular and
periodic reports filed by the Guarantor with the SEC except for reports on SEC
Forms 3, 4 or 5 or any comparable reports.
Section 4.3. No Petition. Unless otherwise agreed in writing by both the
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Indenture Trustee and the Owner Participant, the Guarantor hereby agrees to the
fullest extent permitted by law that it will not at any time institute against
the Owner Trust, or join in the institution against the Owner Trust of any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under any United States Federal or state bankruptcy or similar law.
ARTICLE V
GENERAL
Section 5.1. Benefited 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 in 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; Counterparts; Amendments; Governing Law; Etc.
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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 by
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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 all
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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 proceeding
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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 the Guarantor to the extent permitted by applicable
law 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.
MOBIL CORPORATION
By: ____________________
Name:
Title:
ACCEPTED:
DEUTSCHE MORGAN GRENFELL (CAYMAN) LIMITED, in its
individual capacity
By: ____________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, in its
individual capacity and as Indenture Trustee
By: ____________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, in its
individual capacity and as Pass Through Trustee
under the Pass Through Trust Agreement and as the
Loan Participant
By: ____________________
Name:
Title:
QM TANKER CO., LLC
By: ____________________
Name:
Title:
QM TANKER 1178 TRUST
By: Deutsche Morgan Grenfell (Cayman)
Limited, as Managing Trustee
By: ____________________
Name:
Title: