<PAGE>
As filed with the Securities and Exchange Commission on May 8, 1996
Registration No. 333-__________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
==========================
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
==========================
MOBIL CORPORATION MOBIL G.B. 388 FINANCE INC.
(EXACT NAME OF REGISTRANT AS (EXACT NAME OF REGISTRANT AS
SPECIFIED IN ITS CHARTER) SPECIFIED IN ITS CHARTER)
Delaware Delaware
(STATE OR OTHER JURISDICTION (STATE OR OTHER JURISDICTION
OF INCORPORATION OR ORGANIZATION) OF INCORPORATION OR ORGANIZATION)
2911 2911
(Primary Standard Industrial (Primary Standard Industrial
Classification Code Number) Classification Code Number)
13-2850309 75-2577579
(I.R.S. EMPLOYER IDENTIFICATION NO.) (I.R.S. EMPLOYER IDENTIFICATION NO.)
3225 GALLOWS ROAD
FAIRFAX, VIRGINIA 22037-0001
(703) 846-3000
(ADDRESS INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
CHARLES H. DUBOIS
SECRETARY
MOBIL CORPORATION
3225 GALLOWS ROAD
FAIRFAX, VIRGINIA 22037-0001
(703) 846-3000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
RALPH N. JOHANSON, JR., ESQ. JONATHAN L. FREEDMAN, ESQ.
ASSISTANT GENERAL COUNSEL DEWEY BALLANTINE
MOBIL CORPORATION 1301 AVENUE OF THE AMERICAS
3225 GALLOWS ROAD NEW YORK, NEW YORK 10019-6092
FAIRFAX, VIRGINIA 22037-0001
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box:
[ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Amount Proposed Proposed
Title of Each Class of to be Maximum Maximum Amount of
Securities to be Registered Registered Offering Price(1)(2) Aggregate Offering Registration Fee
- --------------------------- ---------- -------------------- ------------------ ----------------
<S> <C> <C> <C> <C>
Series 1995-B1-B6 $92,185,000 100% $92,185,000 $31,787.93
Mobil Guaranty NA NA NA NA
Total $92,185,000 100% $92,185,000 $31,787.93
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) No separate consideration will be received for the New Certificates
issuable upon exchange of the outstanding Old Certificates.
(2) No separate consideration will be received for the Mobil Guaranty.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
<PAGE>
MOBIL CORPORATION
MOBIL G.B. 388 FINANCE INC.
CROSS REFERENCE SHEET
(PURSUANT TO ITEM 501(b) OF REGULATION S-K SHOWING LOCATION
IN PROSPECTUS OF INFORMATION REQUIRED BY ITEMS OF PART I OF FORM S-4)
<TABLE>
<CAPTION>
REGISTRATION STATEMENT
ITEM NUMBER AND CAPTION CAPTION OR LOCATION IN PROSPECTUS
<S> <C>
1. Forepart of Registration Statement and
Outside Front Cover Page of Prospectus.......... Outside Front Cover Page
2. Inside Front and Outside Back Cover Inside Front Cover Page; Outside Back Cover
Pages of Prospectus............................. Page
Summary; Ratio of Earnings to Fixed Charges;
3. Risk Factors, Ratio of Earnings to Selected Consolidated Financial Data; The
Fixed Charges and Other Information............. Exchange Offer; Tax Considerations
Outside Front Cover Page: Summary; The
Exchange Offer; Description of the New
4. Terms of the Transaction........................ Certificates; Tax Considerations
5. Pro-Forma Financial Information................. Inapplicable
6. Material Contracts with the Company
Being Acquired.................................. Inapplicable
7. Additional Information Required for
Reoffering by Persons and Parties
Deemed to be Underwriters....................... Inapplicable
8. Interests of Named Experts and Counsel.......... Legal Matters; Experts
9. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities..................................... Inapplicable
10. Information with Respect to S-3
Registrants..................................... Documents Incorporated by Reference
11. Incorporation of Certain Information by
Reference....................................... Documents Incorporated by Reference
12. Information with Respect to S-2 or S-3
Registrants..................................... Inapplicable
13. Incorporation of Certain Information by
Reference....................................... Inapplicable
14. Information with Respect to Registrants other
than S-3 or S-2 Registrants..................... Inapplicable
15. Information with Respect to S-3
Companies....................................... Inapplicable
16. Information with Respect to S-3 or S-2
Companies....................................... Inapplicable
17. Information with respect to Companies
Other Than S-3 or S-2 Companies................. Inapplicable
18. Information if Proxies, Consents or
Authorizations are to be Solicited.............. Inapplicable
19. Information if Proxies, Consents or
Authorizations are not to be Solicited or
in an Exchange Offer............................ Documents Incorporated by Reference
</TABLE>
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Information contained herein is subject to completion or amendment. A
Registration Statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the Registration Statement becomes
effective. This Prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
PROSPECTUS SUBJECT TO COMPLETION, DATED MAY 8, 1996
MOBIL CORPORATION
MOBIL G.B. 388 FINANCE INC.
TENDER FOR ALL OUTSTANDING PASS THROUGH CERTIFICATES,
SERIES 1995-A1 THROUGH 1995-A6 OF MOBIL CORPORATION IN EXCHANGE FOR
PASS THROUGH CERTIFICATES, SERIES 1995-B1 THROUGH 1995-B6
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ___________
1996, UNLESS EXTENDED.
__________________________
Mobil Corporation, a Delaware corporation ("Mobil"), and Mobil G.B. 388
Finance Inc., a Delaware corporation ("MGB"), hereby offer, upon the terms and
subject to the conditions set forth in this Prospectus (the "Prospectus") and
the accompanying Letter of Transmittal (the "Letter of Transmittal" which,
together with the Prospectus, constitute the "Exchange Offer"), to cause the
Pass Through Trustee (as defined herein) to exchange the Pass Through
Certificates, Series 1995-B1 through 1995-B6 (the "New Certificates"), which
have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), pursuant to the Registration Statement of which this
Prospectus is a part, for a like principal amount of issued and outstanding
Pass Through Certificates, Series 1995-A1 through 1995-A6 (the "Old
Certificates"), of which an aggregate of $92,185,000 in principal amount is
outstanding. The New Certificates will evidence the same fractional undivided
interest in one of six Mobil Corporation 1995-A Pass Through Trusts (the "Pass
Through Trusts") which were formed pursuant to six separate pass through trust
agreements (the "Agreements") among Mobil, MGB and First Security Bank of
Utah, National Association, as Pass Through Trustee (the "Pass Through
Trustee") as was evidenced by the Old Certificates (which they replace) and
will be entitled to the benefits of the Agreements. The Old Certificates and
the New Certificates are referred to herein collectively as the
"Certificates." The Old Certificates were offered and sold in the Original
Offering (as defined herein) that closed on December 12, 1995. The form and
terms of the New Certificates will be identical in all material respects to
the form and terms of the Old Certificates except that the New Certificates
will have been registered under the Securities Act and, therefore, will not
bear legends restricting the transfer thereof and will not contain certain
provisions included in the terms of the Old Certificates relating to a
contingent increase in the interest rate and holders of the New Certificates
will not be entitled to any rights under the Registration Rights Agreement.
See "The Exchange Offer" and "Description of the New Certificates." Because
the Exchange Offer has been commenced prior to June 12, 1996, holders of Old
Certificates, whether or not tendered, will not be entitled to the contingent
increase in the interest rate provided for in the Old Certificates.
The property of the Pass Through Trusts consists of secured notes (the
"Secured Notes") issued on a nonrecourse basis by the Owner Trustee (as
defined herein) of an owner trust pursuant to a leveraged lease transaction
which financed 72.83% of the Lessor's Cost (as hereinafter defined) of a 40%
undivided interest (the "Undivided Interest") in an oil and gas drilling and
production system (the "Production System") that was acquired by the Owner
Trustee from MGB and leased to MGB. Although neither the Certificates nor the
Secured Notes are direct obligations of, or guaranteed by, MGB or Mobil, the
amounts unconditionally payable by MGB for the lease of the Undivided Interest
will be at least sufficient to pay in full when due all payments of principal
of, premium, if any, or interest on the Secured Notes held in the Pass Through
Trusts. Mobil has fully and unconditionally guaranteed to the holders from
time to time of Certificates the full and prompt payment of all amounts
payable by MGB under the Lease (as hereinafter defined) when and as the same
shall become due and payable.
The Secured Notes issued by the Owner Trustee were issued in six series.
Each of the Pass Through Trusts purchased Secured Notes of one series from the
Owner Trustee, and all of the Secured Notes held in each Pass Through Trust
have an interest rate corresponding to the interest rate applicable to
Certificates issued by such Pass Through Trust. The maturity dates of the
Secured Notes acquired by each Pass Through Trust occur on or before the final
distribution date applicable to the Certificates issued by such Pass Through
Trust. The Secured Notes are secured by a security interest in the Undivided
Interest and in the Lease relating thereto, including the right to receive
rentals payable in respect of the Undivided Interest by MGB. Interest paid on
the Secured Notes held in the Pass Through Trusts will be passed through to
the Certificateholders (as hereinafter defined) on each January 2 and July 2
of each year, commencing July 2, 1996, at the rate per annum set forth herein
for each Pass Through Trust until the final distribution date. Principal
payments on the Secured Notes held in Pass Through Trusts 1995-A1 through
1995-A5 will be passed through to the Certificateholders of each such Pass
Through Trust in full at their respective maturity dates. Principal payments
on the Secured Notes held in Pass Through Trust 1995-A6 will be passed through
to the Certificateholders of such Pass Through Trust in scheduled amounts on
January 2 or July 2, or both, of each year, commencing on January 2, 2002, and
continuing until the final distribution date, for such Pass Through Trust set
forth herein. For
(Continued on next page)
__________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE
COMMISSION OR BY ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
__________________________
________________, 1996
<PAGE>
(Cover Page Continued)
circumstances under which distributions to the Certificateholders may be made
prior to the final distribution date, see "Description of the New
Certificates--Payments and Distributions."
Any and all Old Certificates validly tendered (and not timely withdrawn)
prior to 5:00 p.m., New York City time, during the period ending on the date
that is 60 days after the date upon which notice of effectiveness of the
Registration Statement is mailed to each Certificateholder, unless extended by
Mobil and MGB (such date, or such later date to which the Exchange Offer may
be extended, the "Expiration Date") will be accepted for exchange. Tenders of
Old Certificates may be withdrawn at any time prior to 5:00 p.m., New York
City time, on the Expiration Date. The Exchange Offer is not conditioned upon
any minimum aggregate principal amount of Old Certificates being tendered for
exchange. However, the Exchange Offer is subject to certain customary
conditions, which may be waived by Mobil and MGB. See "The Exchange Offer."
Any waiver, extension or termination of the Exchange Offer will be publicly
announced by Mobil and MGB through a release to the Dow Jones News Service and
as otherwise required by applicable law or regulations.
Based on no-action letters issued by the staff of the Securities and
Exchange Commission (the "Commission") to unrelated parties, Mobil and MGB
believe that New Certificates issued pursuant to the Exchange Offer in
exchange for Old Certificates may be offered for resale, resold, and otherwise
transferred by a holder thereof (other than broker-dealers, as set forth
below, and any holder that is an "affiliate" of Mobil within the meaning of
Rule 405 under the Securities Act) without compliance with the registration
and prospectus delivery provisions of the Securities Act, provided that the
holder is acquiring the New Certificates in the ordinary course of its
business and has no arrangement or understanding with any person to
participate in the distribution of the New Certificates. Eligible holders of
Old Certificates wishing to accept the Exchange Offer must represent to Mobil
and MGB in the Letter of Transmittal that such conditions have been met. See
"The Exchange Offer--Purpose and Effect of the Exchange Offer." Each broker-
dealer that receives New Certificates for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such New Certificates. The Letter of
Transmittal states that by so acknowledging and by delivering such prospectus,
such broker-dealer will not be deemed to admit that it is an "underwriter"
within the meaning of the Securities Act. This Prospectus, as it may be
amended or supplemented from time to time, may be used by such broker-dealer
in connection with resale of New Certificates received for such broker-
dealer's own account in exchange for Old Certificates where such Old
Certificates were acquired by such broker-dealer as a result of market-making
activities or other trading activities. Mobil and MGB have agreed that, for a
period of 90 days after the Expiration Date, they will make this Prospectus
available to any such broker-dealer for use in connection with any such
resale. See "Plan of Distribution."
The New Certificates constitute a new issue of securities with no
established trading market. Mobil and MGB do not intend to list the New
Certificates on any securities exchange or to seek approval for quotation
through any automated quotation system. Morgan Stanley & Co. Incorporated
("MS&Co.") has indicated to Mobil and MGB that it intends to effect offers and
sales of the New Certificates in market-making transactions at negotiated
prices related to prevailing market prices at the time of sales, but is not
obligated to do so and such market-making activities may be discontinued at
any time. MS&Co. may act as principal or agent in such transactions. There
can be no assurance that an active market for the New Certificates will
develop. Any Old Certificates not tendered and accepted in the Exchange Offer
will remain outstanding and will continue to accrue interest and be entitled
to distributions of principal and interest. Following consummation of the
Exchange Offer, the holders of Old Certificates will continue to be subject to
the existing restrictions upon transfer thereof and Mobil and MGB will have no
further obligation to such holders to provide for the registration under the
Securities Act of the Old Certificates held by them. To the extent that Old
Certificates are tendered and accepted in the Exchange Offer, a holder's
ability to sell untendered Old Certificates could be adversely affected. It
is not expected that an active market for the Old Certificates will develop
while they are subject to restrictions on transfer.
This Prospectus, together with the Letter of Transmittal, is being sent to
all registered holders of Old Certificates as of ___________, 1996.
2
<PAGE>
AVAILABLE INFORMATION
Mobil and MGB have filed with the Commission a Registration Statement on
Form S-4 (together with any amendments thereto, the "Registration Statement")
under the Securities Act covering the New Certificates offered hereby. This
Prospectus, which constitutes a part of the Registration Statement, omits
certain information contained in the Registration Statement as permitted by
the rules and regulations of the Commission. For further information with
respect to Mobil, MGB and the Exchange Offer, reference is made to the
Registration Statement and the exhibits and the financial statements, notes
and schedules filed as a part thereof, which may be inspected at the public
reference facilities of the Commission, at the addresses set forth below.
With respect to each such contract, agreement or other document filed as an
exhibit to the Registration Statement, the material terms of each of which are
summarized in this Prospectus, reference is made to the exhibit for a more
complete description of the document or matter involved, and each such
statement shall be deemed qualified in its entirety by such reference.
Mobil is subject to the reporting requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and in accordance therewith
files reports and other information with the Commission. The Registration
Statement, as well as such reports and other information filed by Mobil
pursuant to the Exchange Act, may be inspected and copied (at prescribed
rates) at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Regional
Offices of the Commission at 75 Park Place, New York, New York 10007 and at
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. In addition, reports, proxy statements and other information
may be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005, upon which the common stock of Mobil is
traded.
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE EXCHANGE OFFER MADE BY THIS PROSPECTUS, AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON
AS HAVING BEEN AUTHORIZED BY THE COMPANY. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE
ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY
SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR A
SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER
OR SOLICITATION.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
AVAILABLE INFORMATION........................... 3
SUMMARY......................................... 4
USE OF PROCEEDS................................. 14
THE ORIGINAL OFFERING........................... 14
MOBIL CORPORATION............................... 17
MOBIL G.B. 388 FINANCE INC...................... 17
RATIO OF EARNINGS TO FIXED CHARGES OF MOBIL
CORPORATION................................... 18
SELECTED CONSOLIDATED FINANCIAL INFORMATION
OF MOBIL CORPORATION.......................... 18
THE EXCHANGE OFFER.............................. 19
DESCRIPTION OF THE NEW CERTIFICATES............. 26
DESCRIPTION OF THE SECURED NOTES................ 38
FEDERAL INCOME TAX CONSEQUENCES................. 53
CERTAIN UTAH TAXES.............................. 56
ERISA CONSIDERATIONS............................ 57
PLAN OF DISTRIBUTION............................ 58
LEGAL MATTERS................................... 58
EXPERTS......................................... 59
DOCUMENTS INCORPORATED BY REFERENCE............. 59
GLOSSARY OF CERTAIN TERMS....................... 60
</TABLE>
3
<PAGE>
SUMMARY
The following summary does not purport to be complete and is qualified in
its entirety by the detailed information appearing elsewhere or incorporated
by reference herein.
Mobil
Mobil was incorporated in March, 1976 in the State of Delaware and operates
primarily as a holding company. Mobil's principal business, which is
conducted primarily through wholly owned subsidiaries, is in the United States
and international energy industries. Mobil is also a manufacturer and
marketer of petrochemicals, packaging films and specialty chemical products.
Mobil, through its subsidiaries, has business interests in over 125 countries
as of December 31, 1995. Mobil's principal executive offices are located at
3225 Gallows Road, Fairfax, Virginia 22037-0001, and its telephone number is
(703) 846-3000.
MGB
MGB is a wholly-owned special purpose finance subsidiary of Mobil. MGB was
incorporated in the State of Delaware on March 10, 1994 under the name RTC
Two, Inc. On December 4, 1995 MGB filed a Certificate of Amendment with the
State of Delaware changing its name to Mobil G.B. 388 Finance Inc. MGB has no
business activities other than leasing the Undivided Interest (as defined
herein) and subleasing the Undivided Interest as permitted by the Lease (as
defined herein). MGB's offices are located at 3225 Gallows Road, Fairfax,
Virginia 22037-0001, and its telephone number is (703) 846-3000.
The Original Offering
Glossary............................ Included at the end of this Prospectus as
Appendix I is a Glossary of certain of
the significant defined terms used
herein.
Old Certificates.................... The Old Certificates were issued by
Mobil and MGB on December 12, 1995 to
MS&Co. (in such capacity, the "Placement
Agent") pursuant to a Placement
Agreement, dated as of December 6, 1995
(the "Placement Agreement"). The
Placement Agent subsequently resold the
Old Certificates within the United States
to qualified institutional buyers (as
defined in Rule 144A under the Securities
Act) ("QIBs") in compliance with Rule
144A and to a limited number of
institutional accredited investors that
agreed to comply with certain transfer
restrictions and other conditions and
outside the United States to persons
other than U.S. persons in reliance upon
Regulation S under the Securities Act
(the "Original Offering"). For the terms
of the Old Certificates, including the
principal amount and interest rate for
each series of the Old Certificates, see
"The Original Offering."
Registration Rights Agreement....... Pursuant to the Placement Agreement,
Mobil, MGB and the Placement Agent
entered into a Registration Rights
Agreement, dated as of December 12, 1995
(the "Registration Rights Agreement"),
which grants the holders of the Old
Certificates certain exchange and
registration rights. The Exchange Offer
is being made pursuant to the
Registration Rights Agreement and such
exchange rights terminate upon the
consummation of the Exchange Offer.
4
<PAGE>
The Exchange Offer
Securities Offered.................. $92,185,000 aggregate principal amount of
Pass Through Certificates, Series 1995-B1
through 1995-B6 (the "New Certificates"),
which have been registered under the
Securities Act.
The Exchange Offer.................. $1,000 principal amount of New Certificates
in exchange for each $1,000 principal
amount of Old Certificates duly tendered
and not withdrawn prior to acceptance
thereof. The Pass Through Trustee will
deliver the New Certificates to holders
(who have properly tendered and not
withdrawn their Old Certificates) as
promptly as practicable after the
Expiration Date.
Transferability of New Certificates
Under Federal Securities Laws..... Based on an interpretation by the staff of
the Commission set forth in no-action
letters issued to unrelated parties,
Mobil and MGB believe that the New
Certificates issued pursuant to the
Exchange Offer in exchange for Old
Certificates may be offered for resale,
resold and otherwise transferred by any
holder thereof (other than broker-
dealers, as set forth below, and any such
holder that is an "affiliate" of Mobil
within the meaning of Rule 405 under the
Securities Act) without compliance with
the registration and prospectus delivery
provisions of the Securities Act,
provided that such New Certificates are
acquired in the ordinary course of such
holder's business, that such holder has
no arrangement or understanding with any
person to participate in the distribution
of such New Certificates and that such
holder is not engaging in or intending to
engage in the distribution of the New
Certificates. Each broker-dealer that
receives New Certificates for its own
account in exchange for Old Certificates
that were acquired as a result of market-
making or other trading activity must
acknowledge that it will deliver a
prospectus in connection with any resale
of such New Certificates. The Letter of
Transmittal states that by so
acknowledging and by delivering a
prospectus, such broker-dealer will not
be deemed to admit that it is an
"underwriter" within the meaning of the
Securities Act. This Prospectus, as it
may be amended or supplemented from time
to time, may be used by such broker-
dealer in connection with resales of New
Certificates received in exchange for Old
Certificates where such New Certificates
were acquired by such broker-dealer as a
result of market-making activities or
other trading activities. Mobil and MGB
have agreed that, for a period of 90 days
after the Expiration Date, they will make
this Prospectus available to any such
broker-dealer for use in connection with
any such resale. See "Plan of
Distribution." Any holder who tenders in
the Exchange Offer with the intention to
participate, or for the purpose of
participating, in a distribution of the
New Certificates or who is an affiliate
of Mobil or MGB may not rely on the
position of the staff of the Commission
enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988) or
similar no-action letters and, in the
absence of an exemption therefrom, must
comply with the registration and
prospectus delivery requirements of the
Securities Act in connection with a
secondary resale transaction. Failure to
comply with such requirements in such
instance may result in such holder
incurring liability under the Securities
Act for which the holder is not
indemnified by Mobil or MGB.
5
<PAGE>
This Exchange Offer is not being made to,
nor will the Pass Through Trustee accept
surrenders for exchange from, any holder
of Old Certificates in any jurisdiction
in which this Exchange Offer or the
acceptance thereof would not be in
compliance with the securities or blue
sky laws of such jurisdiction.
Expiration Date..................... 5:00 p.m., New York City time, on the date
that is 60 days after the date upon which
notice of effectiveness of the
Registration Statement is mailed to each
Certificateholder, unless the Exchange
Offer is extended by Mobil and MGB, in
which case the term "Expiration Date"
means the latest date and time to which
the Exchange Offer is extended. Mobil and
MGB have no current intention to extend
the Exchange Offer. Any extension, if
made, will be publicly announced through
a release to the Dow Jones News Services
and as otherwise required by applicable
law or regulations.
Accrued Interest on the New
Certificates and Old Certificates. Holders of Old Certificates that are
accepted for exchange will not receive
any accrued interest thereon. However,
each New Certificate will bear interest
from the most recent date to which
interest has been paid on the Old
Certificate for which such New
Certificate was exchanged.
Conditions to the Exchange Offer.... The Exchange Offer is subject to certain
customary conditions, which may be waived
by Mobil and MGB. See "The Exchange
Offer--Conditions to the Exchange Offer"
and "--Terms of the Exchange Offer."
Procedures for Tendering
Certificates...................... Each holder of an Old Certificate wishing
to accept the Exchange Offer must
complete, sign and date the Letter of
Transmittal, or a facsimile thereof, in
accordance with the instructions
contained herein and therein, and mail or
otherwise deliver such Letter of
Transmittal, or such facsimile, together
with the Old Certificates and any other
required documentation to the Exchange
Agent (as defined herein) at the address
set forth herein prior to 5:00 p.m., New
York City time, on the Expiration Date or
comply with the procedure for book-entry
transfer or the guaranteed delivery
procedures described herein and in the
Letter of Transmittal. See "The Exchange
Offer--Procedures for Tendering."
By executing a Letter of Transmittal,
each holder represents to Mobil and MGB
that, among other things, the New
Certificates acquired pursuant to the
Exchange Offer are being obtained in the
ordinary course of business of the person
receiving such new Certificates, whether
or not such person is the holder, that
neither the holders nor any such other
person has any arrangement or
understanding with any person to
participate in the distribution of such
New Certificates, that such holder is not
engaging in or intending to engage in the
distribution of the New Certificates and
that neither the holder nor any such
other person is an "affiliate" of Mobil,
as defined under Rule 405 of the
Securities Act. See "The Exchange Offer--
Purpose and Effect of the Exchange
Offer."
6
<PAGE>
Special Procedure for Beneficial
Owners............................ Any beneficial owner whose Old Certificates
are registered in the name of a broker,
dealer, commercial bank, trust company or
other nominee and who wishes to tender
should contact such registered holder
promptly and instruct such registered
holder to tender on such beneficial
owner's behalf. If such beneficial owner
wishes to tender on such owner's own
behalf, such owner must, prior to
completing and executing a Letter of
Transmittal and delivering Old
Certificates, either make appropriate
arrangements to register ownership of the
Old Certificates in such owner's name or
obtain a properly completed bond power
from the registered holder. The transfer
of registered ownership may take
considerable time and may not be able to
be completed prior to the Expiration
Date. See "The Exchange Offer--Procedures
for Tendering."
Guaranteed Delivery Procedures...... Holders of Old Certificates who wish to
tender their Old Certificates and whose
Old Certificates are not immediately
available or who cannot deliver their Old
Certificates, a Letter of Transmittal or
any other documents required by the
Letter of Transmittal to the Exchange
Agent prior to the Expiration Date, must
tender their Old Certificates according
to the guaranteed delivery procedures set
forth in "The Exchange Offer--Procedures
for Tendering."
Withdrawal Rights................... Subject to the conditions set forth
herein, tenders of Old Certificates may
be withdrawn at any time prior to 5:00
p.m., New York City time, on the
Expiration Date. See "The Exchange Offer
--Withdrawal of Tenders."
Acceptance of Old Certificates
and Delivery of New Certificates.. Subject to the terms and conditions of the
Exchange Offer, including the reservation
of certain rights by Mobil and MGB, the
Pass Through Trustee will accept for
exchange any and all Old Certificates
which are properly tendered in the
Exchange Offer, and not withdrawn, prior
to 5:00 p.m., New York City time, on the
Expiration Date. Subject to such terms
and conditions, New Certificates issued
pursuant to the Exchange Offer will be
delivered promptly following the
Expiration Date. See "The Exchange Offer
--Terms of the Exchange Offer" and
"--Conditions to the Exchange Offer."
Exchange Agent...................... The First Security Bank of Utah, National
Association, is serving as Exchange Agent
(the "Exchange Agent") in connection with
the Exchange Offer. The Exchange Agent's
telephone number is (801) 246-5630.
Certain Federal Income
Tax Considerations................ Each Pass Through Trust is classified
as a grantor trust for federal income tax
purposes. Thus, each Certificateholder
will be treated as the owner of a pro
rata undivided interest in the Secured
Notes and any other property held in the
related Pass Through Trust and will be
required to report on its federal income
tax return its pro rata share of income
from such Secured Notes and any other
property held in such Pass Through Trust
in accordance with such
Certificateholder's method of accounting.
Certificateholders will not recognize
gain or loss for federal income tax
7
<PAGE>
purposes in respect of the exchange of
Old Certificates for New Certificates.
Each Certificateholder will have the same
adjusted tax basis in the New Certificate
as it had in the Old Certificate
exchanged therefor. Moreover, its holding
period of each New Certificate will
include its holding period for the Old
Certificate exchanged therefor. Persons
considering the exchange of Old
Certificates for New Certificates should
consult their tax advisors with regard to
the application of the United States
federal income tax laws to their
particular situations as well as any tax
consequences arising under the laws of
any state, local or foreign taxing
jurisdiction. See "Federal Income Tax
Consequences."
Untendered Certificates............. Following the consummation of the Exchange
Offer, holders of Old Certificates will
not have any further registration rights
and such Old Certificates will continue
to be subject to certain restrictions on
transfer. Accordingly, the liquidity of
the market for such Old Certificates will
be adversely affected. Old Certificates
that are not exchanged pursuant to the
Exchange Offer will remain outstanding
and continue to accrue interest and be
entitled to distributions of principal
and interest.
Consequences of Failure
to Exchange....................... Old Certificates that are not exchanged
pursuant to the Exchange Offer will
remain restricted securities.
Accordingly, such Old Certificates may be
resold only (i) to Mobil or MGB, (ii)
inside the United States pursuant to Rule
144A or Rule 144 under the Securities Act
or pursuant to some other exemption from
registration under the Securities Act,
(iii) outside the United States to a
foreign person pursuant to the
requirements of Regulation S under the
Securities Act or (iv) pursuant to an
effective registration statement under
the Securities Act. In addition, the
provisions in the Old Certificates
providing for an increase in the interest
rate if the Exchange Offer is not timely
commenced will no longer be applicable.
See "The Exchange Offer--Other."
New Certificates
General............................. The form and terms of the New Certificates
are the same as the form and terms of the
Old Certificates (which they replace)
except that (i) the New Certificates have
been registered under the Securities Act
and, therefore, will not bear legends
restricting the transfer thereof, (ii)
the New Certificates do not include
certain provisions providing for an
increase in the interest rate if the
Exchange Offer is not timely commenced
and (iii) the holders of New Certificates
will not be entitled to any rights under
the Registration Rights Agreement, which
rights will terminate when the Exchange
Offer is commenced. New Certificates will
evidence the same fractional undivided
interest in one of six Mobil Corporation
1995-A Pass Through Trusts as Old
Certificates and will be issued under and
entitled to the benefits of the
Agreements. See "Description of New
Certificates."
Securities Offered.................. $92,185,000 aggregate principal amount of
Pass Through Certificates, Series 1995-B1
through 1995-B6, which have been
registered under the Securities Act.
8
<PAGE>
Pass Through Trusts................. Each of the six Mobil Corporation 1995-A
Pass Through Trusts (each a "Pass Through
Trust"; collectively, the "Pass Through
Trusts") was formed pursuant to one of
six separate Pass Through Trust
Agreements (the "Agreements") among
Mobil, MGB and First Security Bank of
Utah, National Association (the "Pass
Through Trustee"), as trustee under each
Pass Through Trust.
Pass Through Trust Property......... The property of each Pass Through Trust
consists of one or more secured notes
(each a "Secured Note"; collectively the
"Secured Notes") issued on a nonrecourse
basis by the owner trustee of an owner
trust pursuant to a leveraged lease
transaction which financed 72.83% of the
Lessor's Cost of a 40% undivided interest
(the "Undivided Interest") in an oil and
gas drilling and production system (the
"Production System") which was acquired
by such owner trustee from MGB and leased
to MGB. MGB has subleased the Undivided
Interest to Mobil Producing Texas & New
Mexico ("MPTN"). The remaining 60%
undivided interest in the Production
System is leased by Enserch Exploration,
Inc., ("Enserch") pursuant to an
unrelated transaction. Enserch also acts
as the Operator (the "Operator") for the
Production System pursuant to a Unit
Operating Agreement between the Operator
and MPTN (the "Unit Operating
Agreement").
The Undivided Interest securing the
Secured Notes is described under "The
Original Offering -- Use of Proceeds."
Each Pass Through Trust acquired those
Secured Notes having an interest rate
corresponding with the interest rate
applicable to the Old Certificates that
were issued and the New Certificates that
are issuable by such Pass Through Trust.
The Secured Notes were issued in six
series. The maturity dates of the Secured
Notes acquired by each Pass Through Trust
will occur on or before the final
distribution date applicable to the New
Certificates that are issuable by such
Pass Through Trust. The aggregate
principal amount of the Secured Notes
purchased and held in each Pass Through
Trust is the same as the aggregate
principal amount of the New Certificates
issuable by such Pass Through Trust.
New Certificates;
Book-Entry Registration........... Each New Certificate will represent a
fractional undivided interest in the
related Pass Through Trust. The New
Certificates will be issued in fully
registered form and will be registered in
the name of Cede & Co. ("Cede") as
nominee of the Depository Trust Company
("DTC"). Certificateholders who are not
permitted to hold New Certificates
through DTC will be issued definitive New
Certificates registered in the name of
such person or their nominee. See
"Description of New Certificates--Book-
Entry; Delivery and Form."
Denominations....................... The New Certificates will be issued only in
integral multiples of $1,000. The
denomination signifies a
Certificateholder's pro rata share of the
aggregate principal amount of the Secured
Notes held in the related Pass Through
Trust. See "Description of the New
Certificates."
Regular Distribution Dates.......... Each January 2 and July 2.
Special Distribution Dates.......... The second day of any month.
9
<PAGE>
Record Dates........................ The fifteenth day preceding a Regular
Distribution Date or a Special
Distribution Date.
Distributions....................... All payments of principal, premium, if
any, or interest received by the Pass
Through Trustee on the Secured Notes held
in the related Pass Through Trust will be
distributed by the Pass Through Trustee
to the Certificateholders on the date
such receipt is confirmed by the Pass
Through Trustee, except in certain cases
where such Secured Notes are in default.
Payments of principal and interest on the
Secured Notes held in such Pass Through
Trust are scheduled to be received in
specified amounts by the Pass Through
Trustee on the Regular Distribution Dates
specified above and will be distributed
to the Certificateholders when received
on the corresponding Regular Distribution
Date. Payments of principal of, premium,
if any, and interest on the Secured Notes
held in the related Pass Through Trust
resulting from prepayments thereof, if
any, will be distributed on a Special
Distribution Date after not less than 20
days' notice from the Pass Through
Trustee to the Certificateholders. For a
discussion of distributions upon an Event
of Default, see "Description of the New
Certificates--Events of Default and
Certain Rights Upon an Event of Default."
Method of Distributions............. Distributions by the Pass Through Trustee
to Certificateholders, other than the
final distribution, will be made (i) by a
check mailed to the Certificateholder at
such Certificateholder's registered
address or (ii) upon application to the
Pass Through Trustee, by wire transfer in
immediately available funds to an account
maintained by a Certificateholder with a
bank. See "Description of the New
Certificates--Payments and
Distributions."
Principal........................... The Secured Notes purchased by Pass Through
Trusts 1995-A1 through 1995-A5 pay
interest only until they mature on
January 2, 1997, January 2, 1998, January
2, 1999, January 2, 2000 and January 2,
2001, respectively. Pass Through Trust
1995-A6 holds Secured Notes the principal
of which is payable in scheduled amounts
on January 2 or July 2 or both,
commencing January 2, 2002, in accordance
with the principal repayment schedule set
forth below under "Description of the
Secured Notes--Principal Payments."
Interest............................ Interest with respect to the New
Certificates accrues from the last date
on which interest is paid on the Old
Certificate surrendered in exchange
therefor. Interest is calculated on the
basis of a 360-day year consisting of
twelve 30-day months.
Initial Average Life Dates.......... Pass Through Trusts 1995-A1 through
1995-A5 hold Secured Notes the principal
of which is payable in full at their
respective maturity dates. The initial
average life date for New Certificates
issuable by Pass Through Trust 1995-A6 is
March 23, 2005. The average life date for
New Certificates issuable by Pass Through
Trust 1995-A6 will change after principal
repayments of the related underlying
Secured Notes commence.
10
<PAGE>
Prepayment of the Secured Notes at
a Premium......................... (a) Secured Notes held in Pass Through
Trust 1995-A6 may be prepaid in whole
on any Special Distribution Date,
including upon the termination of the
Lease, at a price equal to the
aggregate unpaid principal amount
thereof, together with accrued interest
thereon, plus, if such prepayment is
made prior to March 23, 2005, a premium
equal to the Make-Whole Amount (as
defined below), if any. See
"Description of the Secured Notes--
Prepayments" for a description of the
events allowing the Lessee to terminate
the Lease and the manner of computing
the Make-Whole Amount. The Secured
Notes held in Pass Through Trusts 1995-
A1 through 1995-A5 are not subject to
voluntary prepayment by MGB prior to
maturity.
(b) Secured Notes held in Pass Through
Trust 1995-A6 may be prepaid in part on
any Special Distribution Date upon the
termination of the Lease with respect
to a Significant Portion of the
Undivided Interest, in a principal
amount of Secured Notes which is equal
to the product of (x) the entire
principal amount of Secured Notes then
outstanding and (y) a fraction, the
numerator of which shall be the
Original Cost of the Significant
Portion and the denominator of which
shall be the aggregate Lessor's Cost of
the Undivided Interest, at a price
equal to the aggregate unpaid principal
amount thereof, together with accrued
interest thereon, plus, if such
prepayment is made prior to March 23,
2005, a premium equal to the Make-Whole
Amount (if any). See "Description of
the Secured Notes--Prepayments."
(c) If an Indenture Event of Default
resulting from one or more Lease Events
of Default shall have occurred and be
continuing for less than 270 days
during which time the Secured Notes
could, but shall not, have been
accelerated, the Owner Trustee (as
hereinafter defined) or the Owner
Participant (as hereinafter defined)
may elect to purchase all of the
outstanding Secured Notes at a price
equal to the aggregate unpaid principal
amount thereof, together with accrued
interest thereon plus, if such
prepayment is made prior to March 23,
2005, a premium equal to the Make-Whole
Amount (if any). See "Description of
the Secured Notes--Prepayments."
Prepayment of the Secured Notes
at Par............................ (a) Upon the occurrence of an Event of Loss
with respect to the Production System
or a Significant Portion thereof, then,
unless, in the case of an Event of Loss
with respect to a Significant Portion
where such Significant Portion is
rebuilt or replaced or the Lessee has
elected to purchase the Undivided
Interest, the Owner Trustee shall (i)
if the Event of Loss shall have
occurred with respect to the entire
Production System, redeem the entire
unpaid principal amount of the Secured
Notes and (ii) if the Event of Loss
shall have occurred with respect to a
Significant Portion of the Production
System, redeem such of the unpaid
principal amount of the Secured Notes
which is equal to the product of (x)
the entire principal amount of Secured
Notes then outstanding and (y) a
fraction, the numerator of which shall
be the Original Cost of the
11
<PAGE>
Significant Portion of the Undivided
Interest suffering such Event of Loss
and the denominator of which shall be
the aggregate Lessor's Cost of the
Undivided Interest, plus in each case
accrued and unpaid interest in respect
of the principal amount to be prepaid
on such loss payment date, but without
the payment of any Make-Whole Amount or
other premium. See "Description of the
Secured Notes--Prepayments."
(b) If (i) an Indenture Event of Default
resulting from one or more Lease Events
of Default shall have occurred and be
continuing for more than 270 days
during which time the Secured Notes
could, but shall not, have been
accelerated, (ii) the Indenture Trustee
(as defined herein) has given the Owner
Trustee or the Owner Participant notice
of its intent to accelerate the Secured
Notes or (iii) the Secured Notes have
been accelerated, the Owner Trustee or
the Owner Participant may elect to
purchase all of the then outstanding
Secured Notes at a price equal to the
aggregate unpaid principal amount
thereof, together with accrued interest
thereon, but without any Make-Whole
Amount or other premium. See
"Description of the Secured Notes--
Prepayments."
Security for the Secured Notes...... The Secured Notes are secured by a
mortgage on and security interest in the
Undivided Interest and an assignment of
the Owner Trustee's rights under the
Lease, including the right to receive
rentals payable in respect of the
Undivided Interest and the Owner
Trustee's rights under the Guaranty. See
"Description of the New Certificates" and
"Description of the Secured Notes--
Security."
Although the Secured Notes are not direct
obligations of, or guaranteed by, MGB or
Mobil, the amounts unconditionally
payable by MGB pursuant to the Lease of
the Undivided Interest, which amounts are
guaranteed by Mobil pursuant to the
Guaranty, will be sufficient to pay in
full when due all payments of principal
of, premium, if any, and interest on the
Secured Notes. See "Description of the
Secured Notes--General."
Additional Notes.................... Under certain circumstances, additional
notes ("Additional Notes") may be issued
to persons or entities other than holders
of the New Certificates to finance the
Owner Trustee's 40% share of the cost of
certain alterations, modifications,
additions or improvements to the
Production System. Such Additional Notes,
if issued pursuant to the Trust
Indenture, Mortgage, Assignment of Lease
and Security Agreement, dated as of
December 12, 1995, between the Owner
Trustee and First Security Bank of Utah,
National Association, as Indenture
Trustee (the "Indenture Trustee") (the
"Indenture"), will be equally and ratably
secured with all outstanding Secured
Notes. No holder of New Certificates, as
such, will have any right to, or interest
in, any Additional Note. See "Description
of the Secured Notes--Additional Notes"
and "--The Lease--Net Lease; Use and
Maintenance" and "--Modifications and
Additions."
Assumption of the Notes............. Under certain limited circumstances, MGB
shall have the right (and under certain
limited circumstances the obligation) to
assume the obligations of the Lessor (as
hereinafter defined) under the Secured
Notes subject to, among other things,
Mobil entering into a guaranty of the
Secured Notes. In such event, the Secured
Notes will become full recourse notes and
will continue to be secured by a mortgage
on the Undivided
12
<PAGE>
Interest. See "Description of the Secured
Notes--Assumption of Secured Notes Under
Certain Circumstances."
The Guaranty........................ Mobil has entered into the Guaranty
pursuant to which it has irrevocably and
unconditionally guaranteed all
obligations of MGB under the Lease and
the other Operative Documents. See
"Description of Secured Notes--The
Guaranty."
Use of Proceeds..................... Mobil and MGB will not receive any cash
proceeds from the Exchange Offer. The net
proceeds from the Original Offering were
approximately $92.2 million and were used
to purchase the Secured Notes from the
Owner Trustee in order to finance 72.83%
of the Lessor's Cost of the Undivided
Interest, representing in the aggregate
the entire debt portion of the leveraged
lease transaction. See "The Original
Offering--Use of Proceeds."
Pass Through Trustee................ First Security Bank of Utah, National
Association, acts as trustee, paying
agent and registrar for the New
Certificates to be issued by each Pass
Through Trust. First Security Bank of
Utah, National Association, is indenture
trustee for the Secured Notes.
ERISA Considerations................ New Certificates, with certain exceptions,
are eligible for purchase by
employee benefit plans. See "ERISA
Considerations."
13
<PAGE>
USE OF PROCEEDS
There will be no cash proceeds from the Exchange Offer. The net proceeds
of the Original Offering were approximately $92.2 million and were used to
finance the debt portion of a leverage lease transaction that was entered
into by MGB with respect to the Undivided Interest. See "The Original
Offering--Use of Proceeds."
THE ORIGINAL OFFERING
The Original Offering of the Old Certificates was made pursuant to the
Placement Agreement dated as of December 6, 1995 and closed on December 12,
1995. The Pass Through Trusts were formed pursuant to six separate
Agreements among the Pass Through Trustee, Mobil and MGB. Concurrently with
the execution and delivery of the Agreements, the Pass Through Trustee, on
behalf of each Pass Through Trust, entered into a participation agreement
with respect to the Undivided Interest (the "Participation Agreement"),
pursuant to which the Pass Through Trustee, on behalf of each Pass Through
Trust, purchased Secured Notes of one Series having an interest rate equal to
the interest rate of the Old Certificates issued by the related Pass Through
Trust as indicated below. The maturity date of the Secured Notes held in
each Pass Through Trust will occur on or prior to the final distribution date
of the Old Certificates issued by the related Pass Through Trust. A
Certificateholder only has an ownership interest in the related Pass Through
Trust which is the issuer of such Certificate. The Pass Through Trusts hold
all of the Secured Notes originally issued, representing in the aggregate the
entire debt portion of the leveraged lease transaction. The Pass Through
Trustee distributes the amount of payments of principal, premium, if any, and
interest received by it as holder of the Secured Notes to the
Certificateholders of the Pass Through Trust in which such Secured Notes are
held.
<TABLE>
<CAPTION>
Principal Interest Initial Scheduled Final
Old Certificates Amount Rate Principal Distribution Date Distribution Date
- ---------------- ----------- -------- --------------------------- -----------------
<S> <C> <C> <C> <C>
1995-A1 $ 4,917,000 5.52% January 2, 1997 January 2, 1997
1995-A2 5,173,000 5.57 January 2, 1998 January 2, 1998
1995-A3 5,462,000 5.65 January 2, 1999 January 2, 1999
1995-A4 5,770,000 5.74 January 2, 2000 January 2, 2000
1995-A5 6,101,000 5.79 January 2, 2001 January 2, 2001
1995-A6 64,762,000 6.15 January 2, 2002 July 2, 2008
</TABLE>
14
<PAGE>
Description of Payment Flows
The following diagram illustrates certain aspects of the payment flows in
the Original Offering among Mobil, MGB, the Owner Trustee, the Indenture
Trustee, the Pass Through Trustee and the Certificateholders.
MGB leased the Undivided Interest from the Owner Trustee under a Lease.
Secured Notes were issued by the Owner Trustee and are secured by the
Undivided Interest and by an assignment of the Lease and the Guaranty. Rent
is payable under the Lease to the Owner Trustee; however, as a result of the
assignment of the Lease, MGB makes rental payments directly to the Indenture
Trustee. From these rental payments the Indenture Trustee first makes
payments to the Pass Through Trustee on the Secured Notes held in the related
Pass Through Trust and pays the remaining balance to the Owner Trustee for
the benefit of the Owner Participant. The Pass Through Trustee distributes
to the Certificateholders of each Pass Through Trust payments received on the
Secured Notes held in the related Pass Through Trust. First Security Bank of
Utah, National Association, currently acts as the Pass Through Trustee of
each of the Pass Through Trusts and as Indenture Trustee under the Indenture.
Mobil has entered into the Guaranty pursuant to which it irrevocably and
unconditionally guarantees all obligations of MGB under the Lease.
MGB (with Mobil Guaranty)
Lease Rental Payments Assigned
by Owner Trustee
Indenture Trustee
Excess Payments Secured Note Payments
Owner Trustee for Trustees for
Trustee Pass Through Pass Through
Trust 1995-A1 Trusts 1995-A2
through -A6*
Excess 1995-A Old Certificate
Payments Distributions
Owner Holders of Old Certificates Holders of Old Certificates
Participant Series 1995-A1 Series 1995-A2 through -A6*
* Each of the 1995-A2 through 1995-A6 Trusts are separate Pass Through
Trusts, pursuant to which distributions are made in the manner shown for
the 1995-A1 Trust.
Use of Proceeds
The Old Certificates were issued and sold in order to facilitate the
financing of the debt portion of a leveraged lease transaction which was
entered into by MGB, as Lessee, with respect to the Undivided Interest. MGB
sold the Undivided Interest to Fleet National Bank of Connecticut, not in its
individual capacity but solely as owner trustee (the "Owner Trustee") of a
separate trust for the benefit of an institutional investor (the "Owner
Participant"). The Owner Trustee leased the Undivided Interest to MGB
pursuant to a Production System Lease Agreement (the "Lease") between the
Owner Trustee and MGB. The Owner Participant financed 27.17% of the total
cost to the Owner Trustee (such total cost is referred to herein as the
"Lessor's Cost") of the Undivided Interest purchased by the Owner Trustee
from MGB for a total purchase price of $126,569,018, and 72.83% of such cost
was financed through the issuance by the Owner Trustee of Secured Notes
pursuant to a separate Trust Indenture, Mortgage, Assignment of Lease and
Security Agreement with respect to the Undivided Interest (the "Indenture")
between the Owner Trustee and First Security Bank of Utah, National
Association, as indenture trustee (in such capacity, the "Indenture
Trustee"). The proceeds from the sale of the Old Certificates were used by
the Pass Through Trustee, on behalf of each Pass Through Trust, to purchase
the Secured Notes that were issued by the Owner Trustee pursuant to the
Indenture.
Production System
The Production System consists of a floating production and drilling
platform (the "Platform"), a subsea template (the "Template"), a free
standing production system (the "FSPR"), a subsea pipeline (the "Pipeline")
and a shallow water processing facility (the "SWF").
15
<PAGE>
Floating Production and Drilling Platform
The Platform, designed by the Offshore Drilling and Exploration Company,
was originally named the Glomar Biscay I and was built in Norway in 1974.
Enserch purchased the rig from Exxon Corporation USA in December 1992 and had
it towed from its location in Malta to be refurbished in Pascagoula,
Mississippi. In order to reduce the cost of expensive drilling platforms and
increase operating flexibility, the Platform was converted to allow for
simultaneous drilling and production capabilities. In order to accommodate
the added weight of the production equipment on the rig, pontoon extensions
were added to the semisubmersible. The mooring system has been updated with
a state-of-the-art 12 point mooring system to insure stability of operation
in deep water. The Platform is capable of handling up to 40,000 barrels of
oil per day ("BOPD") and 120 million cubic feet of gas per day ("MMCF/D").
As reconfigured, it can house 117 persons which accommodates personnel
connected with the planned drilling and production activities of the
Platform. The Platform was towed to the field location in May 1995 and its
mooring system has been deployed.
Subsea Template
The Template was built and installed on the sea floor in the Unit Area in
August 1994. The Template provides the following functions: (1) a connection
hub for the template and satellite wells; (2) a flow path for produced fluids
and gasses to the FSPR; (3) a base for the FSPR; and (4) guidance for the
drilling of development wells.
The Template is designed to accommodate up to 24 wells, with the
flexibility to handle 14 of those wells as satellite completions. The
Template's dimensions are 180 feet long, 90 feet wide and 25 feet tall. The
Template weighs 1,280 tons. The Template was set in 2,190 feet of water and
fastened to the seabed using eight 42-inch piles. The piles provide a solid
foundation for development wells and the FSPR.
Free Standing Production Riser System
The FSPR is a Cooper/Cameron design that was used by Enserch and Placid
Oil Company in the Green Canyon 29 project, also in the Gulf of Mexico.
Since then, the FSPR has been completely refurbished. Eleven new joints have
been manufactured to make the FSPR usable in 2,200 feet of water. The FSPR
is attached to the Platform and the Template.
The FSPR is connected to the Template at the riser base. It provides two
flow-lines per well and supports the subsea control umbilical. The FSPR is
called "free standing" because it is buoyant and does not need the Platform
for support. The FSPR is connected to the Platform by a tether system which
insures that the top of the FSPR stays properly positioned below the Platform
regardless of weather conditions. The top of the FSPR is 150 feet below the
surface of the water. Production is transported through flexible flow-lines
to the Platform from the top of the FSPR.
Subsea Pipeline
The Pipeline was completed in the summer of 1994 with the installation of
two 54-mile, 12-inch pipelines. The pipelines, one for oil production and
one for natural gas production, run from the Template to the SWF located in
the Eugene Island Block 315. The pipelines and export pipelines connecting
the SWF to commercial pipelines were installed by the McDermott International
Corporation.
Shallow Water Processing Facility
The SWF was built in April 1995 to process oil and natural gas arriving
through the pipelines from the Platform. The process equipment on the SWF is
designed to handle 40,000 BOPD and 120 MMCF/D of natural gas. The oil will
be de-watered and stabilized to the oil sales specifications, and then pumped
through the oil
16
<PAGE>
export line to a commercial transport line near the SWF. Gas from the
gathering line will flow through the gas export line to a commercial
transport line, also near the SWF.
The SWF was installed in the Eugene Island Block 315 because of the
shallow water depth and its close proximity to both oil and gas commercial
sales lines. The SWF has living accommodations for 22 persons.
Operation of the Production System
MGB subleased the Undivided Interest to Mobil Producing Texas & New
Mexico Inc. ("MPTN") pursuant to a Production System Sublease Agreement dated
as of December 12, 1995 (the "Initial Sublease"). The remaining 60%
undivided interest in the Production System is owned by State Street Bank and
Trust Company of Connecticut, National Association ("State Street"), as
trustee of the Garden Banks Trust under a separate funding agreement pursuant
to which lenders made loans to the trustee to fund the acquisition and
further construction of the Production System. Enserch leases this 60%
undivided interest from the Garden Banks Trust. Exploration and production
operations involving the Production System, are conducted by Enserch pursuant
to the Unit Operating Agreement between MPTN and Enserch dated as of April
12, 1995. The Unit Operating Agreement prescribes the procedures under which
decisions concerning the development and production of reserves in the Garden
Banks 388 Unit Area (the "Unit Area") and management of facilities built for
that purpose, including the Production System, are to be made. The Unit Area
is located in the waters of the federally owned outer continental shelf (the
"OCS"), approximately 250 miles southwest of New Orleans, Louisiana. The
Unit Area is comprised of six contiguous leased blocks totaling 34,560 acres.
Water depth throughout the Unit Area ranges between 2,100 feet and 2,400
feet. Enserch is obligated to perform its duties under the Unit Operating
Agreement in a good and workmanlike manner, as would a prudent operator under
the same or similar circumstances.
The Unit Operating Agreement permits the financing by Mobil described
herein, and requires that transferees of interests in the Production System,
including the Owner Trustee, agree that the Production System remains subject
to the Unit Operating Agreement and that they will not interfere with the use
of the Production System in the production of reserves produced from the Unit
Area. The Unit Operating Agreement will remain in effect, unless sooner
terminated by agreement of the parties, until the agreement pursuant to which
the Unit Area was created is cancelled and there is no longer any oil or gas
production contractually committed to use the Production System.
MOBIL CORPORATION
Mobil was incorporated in the State of Delaware in March 1976 and
operates primarily as a holding company. Mobil's principal business, which
is conducted primarily through wholly-owned subsidiaries, is in the United
States and international energy industries. Mobil is also a manufacturer and
marketer of petrochemicals, packaging films and specialty chemical products.
Mobil, through its subsidiaries, has business interests in over 125 countries
as at December 31, 1995. The principal executive offices of Mobil are
located at 3225 Gallows Road, Fairfax, Virginia 22037-0001, and its telephone
number is (703) 846-3000.
MOBIL G.B. 388 FINANCE INC.
MGB is a wholly-owned special purpose finance subsidiary of Mobil. MGB
was incorporated in the State of Delaware on March 10, 1994 under the name
RTC Two, Inc. On December 4, 1995, MGB filed a Certificate of Amendment with
the State of Delaware changing its name to Mobil G.B. 388 Finance Inc. MGB
has no business activities other than leasing the Undivided Interest and
subleasing the Undivided Interest as permitted by the Lease. MGB's offices
are located at 3225 Gallows Road, Fairfax, Virginia 22037-0001, and its
telephone number is (703) 846-3000.
17
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES OF MOBIL CORPORATION
<TABLE>
<CAPTION>
Year Ended December 31,
1991 1992 1993 1994 1995
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges 4.6 3.9 5.7(a) 5.3 5.9
</TABLE>
(a) Excludes the favorable effect of $205 million of interest
benefits from the resolution of prior-period tax issues.
For the purpose of computing the consolidated ratio of earnings to fixed
charges, earnings represent income before change in accounting principle(s)
decreased or increased by the excess or short-fall of earnings over dividends
from equity affiliates plus income taxes and fixed charges, excluding
capitalized interest. Fixed charges represent interest and amortization of
debt discount expense (including capitalized interest) and the portion of
rents deemed representative of the interest factor.
SELECTED CONSOLIDATED FINANCIAL INFORMATION OF MOBIL CORPORATION
The following selected financial data of Mobil for the five years ended
December 31, 1995 are derived from its audited consolidated financial
statements. The data should be read in conjunction with the consolidated
financial statements, related notes, and other financial information
incorporated by reference herein.
<TABLE>
<CAPTION>
Year Ended December 31,
-------------------------------------------------------
1991 1992 1993 1994 1995
(In millions, except for per-share amounts)
<S> <C> <C> <C> <C> <C>
Revenues $63,311 $64,456 $63,975 $67,383 $75,370
Income Before Change in
Accounting Principle(s) $ 1,920 $ 1,308 $ 2,084 $ 1,759 $ 2,376
Cumulative Effect of Change in
Accounting Principle(s) -- (446)(a) -- (680)(b) --
--------------------------------------------------------
Net Income $ 1,920 $ 862 $ 2,084 $ 1,079 $ 2,376
Income per Common Share
Income Before Change in
Accounting Principle(s) $ 4.65 $ 3.13 $ 5.07 $ 4.28 $ 5.87
Cumulative Effect of Change
in Accounting Principle(s) -- (1.12)(a) -- (1.71)(b) --
--------------------------------------------------------
Net Income $ 4.65 $ 2.01 $ 5.07 $ 2.57 $ 5.87
Total Assets $42,187 $40,561 $40,733 $41,542 $42,138
Long-term Debt $ 4,715 $ 5,042 $ 5,027 $ 4,714 $ 4,629
Common Stock Dividends per Share $ 3.125 $ 3.20 $ 3.25 $ 3.40 $ 3.625
</TABLE>
_____________
Note:
(a) Effective January 1, 1992, Mobil adopted FAS 106, Employers' Accounting
for Postretirement Benefits Other Than Pensions, and FAS 109, Accounting
for Income Taxes.
(b) Effective January 1, 1994, Mobil changed the method of accounting it
uses to apply the lower of cost or market test for its crude oil and
product inventories.
18
<PAGE>
THE EXCHANGE OFFER
Purpose and Effect of the Exchange Offer
The Old Certificates were issued by Mobil and MGB to the Placement Agent
on December 12, 1995 pursuant to the Placement Agreement. The Placement
Agent subsequently resold the Old Certificates within the United States to
QIBs in compliance with Rule 144A and to a limited number of institutional
accredited investors that agreed to comply with certain transfer restrictions
and other conditions, and outside the United States to persons other than
U.S. persons in reliance upon Regulation S under the Securities Act. In
connection therewith, Mobil and MGB entered into the Registration Rights
Agreement, which grants the holders of the Old Certificates certain exchange
and registration rights. Mobil and MGB agreed to commence the Exchange Offer
promptly after the Registration Statement has been declared effective. A
copy of the form of Registration Rights Agreement has been filed as an
exhibit to the Registration Statement and is available from Mobil and MGB
upon request. See "Available Information." Unless the context requires
otherwise, the term "Certificateholder" with respect to the Exchange Offer
means any person in whose name Old Certificates are registered on the books
of the Pass Through Trustee or any other person who has obtained a properly
completed bond power from the registered holder, or any person whose Old
Certificates are held of record by DTC who desires to deliver such Old
Certificates by book-entry transfer at DTC.
Mobil and MGB have not requested, and do not intend to request, an
interpretation by the staff of the Commission with respect to whether the New
Certificates issued pursuant to the Exchange Offer in exchange for the Old
Certificates may be offered for sale, resold or otherwise transferred by any
holder without compliance with the registration and prospectus delivery
provisions of the Securities Act. Based on an interpretation by the staff of
the Commission set forth in no-action letters issued to unrelated parties,
Mobil and MGB believe that the New Certificates issued pursuant to the
Exchange Offer in exchange for Old Certificates may be offered for resale,
resold and otherwise transferred by any Certificateholder of such New
Certificates (other than any such Certificateholder that is an "affiliate" of
Mobil within the meaning of Rule 405 under the Securities Act and except in
the case of broker-dealers, as set forth below) without compliance with the
registration and prospectus delivery provisions of the Securities Act,
provided that such New Certificates are acquired in the ordinary course of
such Certificateholder's business, that such holder has no arrangement or
understanding with any person to participate in the distribution of such New
Certificates and that such holder is not engaging in or intending to engage
in the distribution of the New Certificates. Any Certificateholder who
tenders in the Exchange Offer for the purpose of participating in a
distribution of the New Certificates or who is an affiliate of Mobil may not
rely on such interpretation by the staff of the Commission and must comply
with the registration and prospectus delivery requirements of the Securities
Act in connection with any secondary resale transaction. Each broker-dealer
that receives New Certificates for its own account in exchange for Old
Certificates, where such Old Certificates were acquired by such broker-dealer
as a result of market-making activities or other trading activities, must
acknowledge that it will deliver a prospectus in connection with any resale
of such New Certificates. Any resales or other transfers of New Certificates
must also be conducted in compliance with applicable state securities or blue
sky laws. See "Plan of Distribution."
By tendering in the Exchange Offer, each Certificateholder of Old
Certificates will represent to Mobil and MGB that, among other things,
(i) the New Certificates acquired pursuant to the Exchange Offer are being
obtained in the ordinary course of business of the person receiving such New
Certificates, whether or not such person is such Certificateholder,
(ii) neither the Certificateholder of Old Certificates nor any such other person
has an arrangement or understanding with any person to participate in the
distribution of such New Certificates, (iii) such Certificateholder is not
engaging in or intending to engage in the distribution of the New
Certificates and (iv) neither the Certificateholder nor any such other person
is an "affiliate" of Mobil or MGB within the meaning of Rule 405 under the
Securities Act or, if such Certificateholder is an "affiliate," that such
Certificateholder will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable. If the
tendering Certificateholder is a broker-dealer (whether or not it is also an
"affiliate") that will receive New Certificates for its own account in exchange
for Old Certificates that were acquired as a result of market-making activities
or other trading activities, it will be required to acknowledge that it will
deliver a prospectus in connection with any resale of such New Certificates.
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<PAGE>
Following the consummation of the Exchange Offer, Certificateholders of
Old Certificates not tendered will not have any further registration rights
and the Old Certificates will continue to be subject to certain restrictions
on transfer. Accordingly, the liquidity of the market for the Old
Certificates will be adversely affected.
This Prospectus, together with the Letter of Transmittal, is being sent
to all registered Certificateholders as of ______________, 1996.
Terms of The Exchange Offer
Upon the terms and subject to the conditions set forth in this Prospectus
and in the Letter of Transmittal, the Pass Through Trustee will accept any
and all Old Certificates validly tendered and not withdrawn prior to
5:00 p.m., New York City time, on the Expiration Date. Subject to the minimum
denomination requirements of the New Certificates, the Pass Through Trustee
will issue $1,000 principal amount of New Certificates in exchange for each
$1,000 principal amount of outstanding Old Certificates accepted in the
Exchange Offer. Certificateholders may tender some or all of their Old
Certificates pursuant to the Exchange Offer. However, Old Certificates may
be tendered only in integral multiples of $1,000. The Exchange Offer is not
conditioned upon any minimum aggregate principal amount of Old Certificates
being tendered for exchange. As of the date hereof, an aggregate of
$92,185,000 principal amount of the Old Certificates are outstanding.
The form and terms of the New Certificates will be identical in all
material respects to the form and terms of the Old Certificates except that
(i) the New Certificates will have been registered under the Securities Act
and, therefore, will not bear legends restricting the transfer thereof, (ii)
the New Certificates will not contain certain provisions included in the
terms of the Old Certificates providing for an increase in the interest rate
if the Exchange Offer is not timely commenced and (iii) the
Certificateholders of New Certificates will not be entitled to any rights
under the Registrations Rights Agreement. The New Certificates will evidence
the same fractional undivided interest in one of the six Pass Through Trusts
as the Old Certificates and will be issued under and entitled to the benefits
of the Agreements.
Certificateholders of Old Certificates do not have any appraisal or
dissenters' rights under the General Corporation Law of the State of Delaware
or the Agreements in connection with the Exchange Offer. Mobil and MGB
intend to conduct the Exchange Offer in accordance with the applicable
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder.
The Pass Through Trustee shall be deemed to have accepted validly
tendered Old Certificates when, as and if Mobil and MGB have given oral or
written notice thereof to the Exchange Agent. The Exchange Agent will act as
agent for the tendering Certificateholders for the purpose of receiving the
New Certificates from the Pass Through Trustee. If any tendered Old
Certificates are not accepted for exchange because of an invalid tender, the
occurrence of certain other events set forth herein or otherwise, any such
unaccepted Old Certificates will be returned, without expense, to the
tendering Certificateholder thereof as promptly as practicable after the
Expiration Date.
Certificateholders who tender Old Certificates in the Exchange Offer will
not be required to pay brokerage commissions or fees or, subject to the
instructions in the Letter of Transmittal, transfer taxes with respect to the
exchange of Old Certificates pursuant to the Exchange Offer. Mobil and MGB
will pay certain charges and expenses in connection with the Exchange Offer
as set forth more fully in "--Fees and Expenses."
20
<PAGE>
Expiration Date; Extensions; Amendments
The term "Expiration Date" shall mean 5:00 p.m., New York City time, on
the date that is 60 days after the date upon which notice of effectiveness of
the Registration Statement is mailed to each Certificateholder, unless Mobil
and MGB, in their sole discretion, extend the Exchange Offer, in which case
the term "Expiration Date" shall mean the latest date and time to which the
Exchange Offer is extended. Although Mobil and MGB have no current intention
to extend the Exchange Offer, Mobil and MGB reserve the right to extend the
Exchange Offer at any time and from time to time by giving oral or written
notice to the Exchange Agent and by timely public announcement communicated,
unless otherwise required by applicable law or regulation, by making a
release to the Dow Jones New Service. During any extension of the Exchange
Offer, all Old Certificates previously tendered pursuant to the Exchange
Offer and not withdrawn will remain subject to the Exchange Offer.
Mobil and MGB expressly reserve the right (i) to terminate the Exchange
Offer and to cause the Pass Through Trustee to not accept for exchange any
Old Certificates if any of the events set forth below under "Conditions to
the Exchange Offer" shall have occurred and shall not have been waived by
Mobil and MGB and (ii) to amend the terms of the Exchange Offer in any
manner.
Interest on the New Certificates
Certificateholders of Old Certificates that are accepted for exchange
will not receive accrued interest thereon. However, each New Certificate will
bear interest from the most recent date to which interest has been paid on
the Old Certificate for which such New Certificate was exchanged.
Procedures for Tendering
The tender to the Pass Through Trustee of Old Certificates by a
Certificateholder thereof pursuant to one of the procedures set forth below
will constitute an agreement among such Certificateholder, the Pass Through
Trustee and Mobil and MGB in accordance with the terms and subject to the
conditions set forth herein and in the Letter of Transmittal. A
Certificateholder of the Old Certificates may tender the same by (i) properly
completing and signing the Letter of Transmittal or a facsimile thereof (all
references in this Prospectus to the Letter of Transmittal shall be deemed to
include a facsimile thereof) and delivering the same, together with the
certificate or certificates representing the Old Certificates being tendered
(if in certificated form) and any required signature guarantees, to the
Exchange Agent at its address set forth in the Letter of Transmittal on or
prior to the Expiration Date (or complying with the procedure for book-entry
transfer described below) or (ii) complying with the guaranteed delivery
procedures described below.
If tendered Old Certificates are registered in the name of the signer of
the Letter of Transmittal and the New Certificates to be issued in exchange
therefor are to be issued (and any untendered Old Certificates are to be
reissued) in the name of the registered Certificateholder (which term, for
the purposes described herein, shall include any participant in DTC whose
name appears on a security listing as the owner of Old Certificates), the
signature of such signer need not be guaranteed. In any other case, the
tendered Old Certificates must be endorsed or accompanied by written
instruments of transfer in form satisfactory to Mobil and MGB and duly
executed by the registered Certificateholder and the signature on the
endorsement or instrument of transfer must be guaranteed by a commercial bank
or trust company located or having an office, branch, agency or correspondent
in the United States, or by a member firm of a national securities exchange
or of the National Association of Securities Dealers, Inc. (any of the
foregoing hereinafter referred to as an "Eligible Institution"). If the New
Certificates and/or Old Certificates not exchanged are to be delivered to an
address other than that of the registered Certificateholder appearing on the
register for the Old Certificates, the signature in the Letter of Transmittal
must be guaranteed by an Eligible Institution.
21
<PAGE>
THE METHOD OF DELIVERY OF OLD CERTIFICATES AND ALL OTHER DOCUMENTS IS AT
THE ELECTION AND RISK OF THE CERTIFICATEHOLDER. IF SENT BY MAIL, IT IS
RECOMMENDED THAT REGISTERED MAIL, RETURN RECEIPT REQUESTED, BE USED, PRIOR
INSURANCE OBTAINED, AND THE MAILING BE MADE SUFFICIENTLY IN ADVANCE OF THE
EXPIRATION DATE TO PERMIT DELIVERY TO THE EXCHANGE AGENT ON OR BEFORE THE
EXPIRATION DATE. AS AN ALTERNATIVE TO DELIVERY BY MAIL, CERTIFICATEHOLDERS
MAY WISH TO CONSIDER OVERNIGHT OR HAND DELIVERY SERVICE. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE DELIVERY TO THE EXCHANGE AGENT
BEFORE THE EXPIRATION DATE. NO LETTER OF TRANSMITTAL OR OLD CERTIFICATES
SHOULD BE SENT TO MOBIL OR MGB. CERTIFICATEHOLDERS MAY REQUEST THEIR
RESPECTIVE BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES OR NOMINEES TO
EFFECT THE ABOVE TRANSACTIONS FOR SUCH CERTIFICATEHOLDERS.
Any beneficial owner whose Old Certificates are registered in the name of
a broker, dealer, commercial bank, trust company or other nominee and who
wishes to tender should contact the registered holder promptly and instruct
such registered holder to tender on such beneficial owner's behalf. See
"Instruction to Registered Certificateholder and/or Book-Entry Transfer
Facility Participant from Beneficial Owner" included with the Letter of
Transmittal.
Mobil and MGB understand that the Exchange Agent will make a request
promptly after the date of this Prospectus to establish an account with
respect to the Old Certificates at DTC for the purpose of facilitating the
Exchange Offer, and subject to the establishment thereof, any financial
institution that is a participant in DTC's system may make book-entry
delivery of Old Certificates by causing DTC to transfer such Old Certificates
into the Exchange Agent's account with respect to the Old Certificates in
accordance with DTC's procedure for such transfer. Although delivery of the
Old Certificates may be effected through book-entry transfer into the
Exchange Agent's account at DTC, an appropriate Letter of Transmittal with
any required signature guarantee and all other required documents must in
each case be transmitted to and received or confirmed by the Exchange Agent
at the address set forth in the Letter of Transmittal on or prior to the
Expiration Date, or, if the guaranteed delivery procedures described below
are complied with, within the time period provided under such procedures.
If the Certificateholder desires to accept the Exchange Offer and time
will not permit a Letter of Transmittal or Old Certificates to reach the
Exchange Agent before the Expiration Date or the procedure for book-entry
transfer cannot be completed on a timely basis, a tender may be effected if
the Exchange Agent has received at its office on or prior to the Expiration
Date, a letter, telegram or facsimile transmission from an Eligible
Institution setting forth the name and address of the tendering
Certificateholder, the name(s) in which the Old Certificates are registered
and, if possible, the certificate number(s) of the Old Certificates to be
tendered, and stating that the tender is being made thereby and guaranteeing
that within three New York Stock Exchange trading days after the date of
execution of such letter, telegram or facsimile transmission by the Eligible
Institution, the Old Certificates, in proper form for transfer (or a
confirmation of book-entry transfer of such Old Certificates into the
Exchange Agent's account at DTC), will be delivered by such Eligible
Institution together with a properly completed and duly executed Letter of
Transmittal (and any other required documents). Unless Old Certificates
being tendered by the above-described method are deposited with the Exchange
Agent within the time period set forth above (accompanied or preceded by a
properly completed Letter of Transmittal and any other required documents),
Mobil and MGB may, at their option, cause the Pass Through Trustee to reject
the tender. Copies of a Notice of Guaranteed Delivery which may be used by
Eligible Institutions for the purposes described in this paragraph are
available from the Exchange Agent.
A tender will be deemed to have been received as of the date when (i) the
tendered Certificateholder's properly completed and duly signed Letter of
Transmittal (accompanied by the Old Certificates or a confirmation of book-
entry transfer of such Old Certificates into the Exchange Agent's account at
DTC) is received by the Exchange Agent, or (ii) a Notice of Guaranteed
Delivery or letter, telegram or facsimile transmission to similar effect (as
provided above) from an Eligible Institution is received by the Exchange
Agent. Issuances of New Certificates in exchange for Old Certificates
tendered pursuant to a Notice of Guaranteed Delivery or letter,
22
<PAGE>
telegram or facsimile transmission to similar effect (as provided above) by
an Eligible Institution will be made only against deposit of the Letter of
Transmittal (and any other required documents) and the tendered Old
Certificates.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance for exchange of any tender of Old Certificates will
be determined by Mobil and MGB, whose determination will be final and
binding. Mobil and MGB reserve the absolute right to reject any or all
tenders not in proper form or the acceptance for exchange of which may, in
the opinion of Mobil's and MGB's counsel, be unlawful. Mobil and MGB also
reserve the absolute right to waive any of the conditions of the Exchange
Offer or any defect or irregularity in the tender of any Old Certificates.
None of Mobil, MGB, the Exchange Agent or any other person will be under any
duty to give notification of any defects or irregularities in tenders or
incur any liability for failure to give any such notification.
In addition, Mobil and MGB reserve the right in their sole discretion to
(a) purchase or make offers for any Old Certificates that remain outstanding
subsequent to the Expiration Date and (b) to the extent permitted by
applicable law, purchase Old Certificates in the open market, in privately
negotiated transactions or otherwise. The terms of any such purchases or
offers will differ from the terms of the Exchange Offer.
Terms and Conditions of the Letter of Transmittal
The Letter of Transmittal contains, among other things, the following
terms and conditions, which are part of the Exchange Offer.
The party tendering Old Certificates for exchange (the "Transferor")
exchanges, assigns and transfers the Old Certificates to the Pass Through
Trustee and irrevocably constitutes and appoints the Exchange Agent as the
Transferor's agent and attorney-in-fact to cause the Old Certificates to be
assigned, transferred and exchanged. The Transferor represents and warrants
that it has full power and authority to tender, exchange, assign and transfer
the Old Certificates and to acquire New Certificates issuable upon the
exchange of such tendered Old Certificates, and that, when the same are
accepted for exchange, the Pass Through Trustee will acquire good and
unencumbered title to the tendered Old Certificates, free and clear of all
liens, restrictions, charges and encumbrances and not subject to any adverse
claim. The Transferor also warrants that it will, upon request, execute and
deliver any additional documents deemed by Mobil and MGB to be necessary or
desirable to complete the exchange, assignment and transfer of tendered Old
Certificates or transfer ownership of such Old Certificates on the account
books maintained by DTC. All authority conferred by the Transferor will
survive the death, bankruptcy or incapacity of the Transferor and every
obligation of the Transferor shall be binding upon the heirs, legal
representatives, successors, assigns, executors and administrators of such
Transferor.
By executing the Letter of Transmittal, each Certificateholder will make
to Mobil, MGB and the Pass Through Trustee the representations set forth
above under the heading "Purpose and Effect of the Exchange Offer."
Withdrawal of Tenders
Tenders of Old Certificates pursuant to the Exchange Offer are
irrevocable, except that Old Certificates tendered pursuant to the Exchange
Offer may be withdrawn at any time prior to the Expiration Date.
To be effective, a written telegram, telex or facsimile transmission
notice of withdrawal must be received by the Exchange Agent at the address
set forth in the Letter of Transmittal not later than the close of business
on the Expiration Date. Any such notice of withdrawal must specify the
Certificateholder named in the Letter of Transmittal as having tendered Old
Certificates to be withdrawn, the numbers of the Old Certificates to be
withdrawn and the principal amount thereof, a statement that such
Certificateholder is withdrawing his election to have such Old Certificates
exchanged, and the name of the registered Certificateholder of such Old
Certificates, and must be signed by the Certificateholder in the same manner
as the original signature on the
23
<PAGE>
Letter of Transmittal (including any required signature guarantees) or be
accompanied by evidence satisfactory to Mobil and MGB that the person
withdrawing the tender has succeeded to the beneficial ownership of the Old
Certificates being withdrawn. The Exchange Agent will return the properly
withdrawn Old Certificates promptly following receipt of notice of
withdrawal. If Old Certificates have been tendered pursuant to the procedure
for book-entry transfer, any notice of withdrawal must specify the name and
number of the account at DTC to be credited with the withdrawn Old
Certificates or otherwise comply with DTC procedure. All questions as to the
validity of notices of withdrawal, including time of receipt, will be
determined by Mobil and MGB, and such determination will be final and binding
on all parties.
Conditions to the Exchange Offer
Notwithstanding any other provision of the Exchange Offer, or any
extension of the Exchange Offer, the Pass Through Trustee will not be
required to issue New Certificates in exchange for any properly tendered Old
Certificates not previously accepted and Mobil and MGB may terminate the
Exchange Offer (by oral or written notice to the Exchange Agent and by timely
public announcement communicated, unless otherwise required by applicable law
or regulation, by making a release to the Dow Jones News Service), or, at
their option, modify or otherwise amend the Exchange Offer, if either of the
following events occur:
(a) any statute, rule or regulation shall have been enacted, or any
action shall have been taken by any court or governmental authority,
including the staff of the Commission, which, in the sole judgment of Mobil
and MGB, would prohibit, restrict or otherwise render illegal consummation
of the Exchange Offer, or
(b) there shall occur a change in the current interpretation by the
staff of the Commission which permits the New Certificates issued pursuant
to the Exchange Offer in exchange for Old Certificates to be offered for
resale, resold and otherwise transferred by Certificateholders thereof
(other than broker-dealers and any such Certificateholder which is an
"affiliate" of Mobil or MGB within the meaning of Rule 405 under the
Securities Act) without compliance with the registration and prospectus
delivery provisions of the Securities Act provided that such New
Certificates are acquired in the ordinary course of such Certificateholders'
business and such Certificateholders have no arrangement or understanding
with any person to participate in the distribution of such New Certificates.
Mobil and MGB expressly reserve the right to terminate the Exchange Offer
and not accept for exchange any Old Certificates upon the occurrence of
either of the foregoing conditions. In addition, Mobil and MGB may amend the
Exchange Offer at any time prior to the Expiration Date if either of the
conditions set forth above occurs. Moreover, regardless of whether either of
such conditions has occurred, Mobil and MGB may amend the Exchange Offer in
any manner which, in their good faith judgment, is advantageous to
Certificateholders of the Old Certificates.
The foregoing conditions are for the sole benefit of Mobil and MGB and
may be waived by Mobil and MGB, in whole or in part, in their sole
discretion. The foregoing conditions must be either satisfied or waived
prior to termination of the Exchange Offer. Any determination made by Mobil
and MGB concerning an event, development or circumstance described or
referred to above will be final and binding on all parties.
Exchange Agent
First Security Bank of Utah, National Association, has been appointed as
Exchange Agent for the Exchange Offer. Questions and requests for
assistance, requests for additional copies of this Prospectus or of the
Letter of Transmittal and requests for Notices of Guaranteed Delivery should
be directed to the Exchange Agent addressed as follows:
24
<PAGE>
By Mail (registered or certified mail recommended):
By Overnight Courier or By Hand:
First Security Bank of Utah, First Security Bank of Utah,
National Association National Association
79 South Main Street 79 South Main Street
Salt Lake City, Utah 84111 Salt Lake City, Utah 84111
By Facsimile: Confirm by Telephone:
801-246-5053 801-246-5630
Delivery to an address other than as set forth above, or transmission of
instructions via a facsimile number other than the one set forth above, will
not constitute a valid delivery.
Fees and Expenses
Mobil and MGB have agreed in the Registration Rights Agreement to pay all
fees and expenses incident to the performance of the Registration Rights
Agreement, including, without limitation, federal registration and filing
fees with the SEC, stock exchange or National Association of Securities
Dealers, Inc., fees and expenses incurred in connection with compliance with
state securities or blue sky laws (including reasonable fees and
disbursements not to exceed $10,000 of counsel for any underwriters or
holders in connection with blue sky qualification of any of the New
Certificates), all expenses of any persons preparing the Registration
Statement, any and all rating agency fees and the reasonable fees and
disbursements of counsel for Mobil and MGB, Special Counsel to the holders of
New Certificates (which shall not exceed $25,000) and of the independent
auditors of Mobil, including the expenses of any special audits or "cold
comfort" letters required by or incident to such performance and compliance,
but neither of Mobil or MGB shall pay any fees of counsel to the underwriters
or underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of Certificates by Certificateholders in
an underwritten offering. The principal solicitation is being made by mail;
however, additional solicitation may be made by telephone or in person by
officers and regular employees of Mobil and MGB and their affiliates. No
additional compensation will be paid to any such officers and employees who
engage in soliciting tenders.
Mobil and MGB have not retained any dealer-manager or other soliciting
agent in connection with the Exchange Offer and will not make any payments to
brokers, dealers or others soliciting acceptances of the Exchange Offer.
Mobil and MGB, however, will pay the Exchange Agent reasonable and customary
fees for its services and will reimburse it for its reasonable out-of-pocket
expenses in connection therewith.
Accounting Treatment
The New Certificates will be recorded at the same carrying value as the Old
Certificates as reflected in Mobil's and MGB's accounting records on the date
of the exchange. Accordingly, no gain or loss for accounting purposes will
be recognized.
Other
Participation in the Exchange Offer is voluntary and Certificateholders
should carefully consider whether to accept. Certificateholders of the Old
Certificates are urged to consult their financial advisor in making their own
decisions on what action to take.
No person has been authorized to give any information or to make any
representations in connection with the Exchange Offer other than those
contained in this Prospectus. If given or made, such information or
representations should not be relied upon as having been authorized by Mobil
or MGB. Neither the delivery of
25
<PAGE>
this Prospectus nor any exchange made hereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of Mobil or MGB since the respective dates as of which information is
given herein. The Exchange Offer is not being made to (nor will tenders be
accepted from or on behalf of) Certificateholders of Old Certificates in any
jurisdiction in which the making of the Exchange Offer or the acceptance
thereof would not be in compliance with the laws of such jurisdiction.
However, Mobil and MGB may, at their discretion, take such action as they may
deem necessary to make the Exchange Offer in any such jurisdiction and cause
the Pass Through Trustee to extend the Exchange Offer to Certificateholders
of Old Certificates in such jurisdiction. In any jurisdiction the securities
laws or blue sky laws of which require the Exchange Offer to be made by a
licensed broker or dealer, the Exchange Offer is being made on behalf of
Mobil and MGB by one or more registered brokers or dealers which are licensed
under the laws of such jurisdiction.
As a result of the making of the Exchange Offer, Mobil and MGB will have
fulfilled a covenant in the terms of the Old Certificates and contained in
the Registration Rights Agreement. Certificateholders of the Old
Certificates who do not tender their certificates in the Exchange Offer will
continue to hold such certificates and will be entitled to all the rights,
and limitations applicable thereto under the Agreements except for certain
registration rights under the Registration Rights Agreement and except that
the Old Certificates will not be entitled to the increase in the interest
rate provided for in the Old Certificates in the event of a failure to
commence the Exchange Offer on a timely basis, and Certificateholders of New
Certificates will not be entitled to any rights under the Registration Rights
Agreement. All untendered Old Certificates will continue to be subject to
the restrictions on transfer set forth in the Agreements and the Old
Certificates. To the extent that Old Certificates are tendered and accepted
in the Exchange Offer, liquidity in the trading market, if any, for
untendered Old Certificates will be adversely affected.
FOR INFORMATION CONCERNING THE TAX CONSEQUENCES OF THE EXCHANGE OFFER AND
OF HOLDING THE NEW CERTIFICATES, SEE "FEDERAL INCOME TAX CONSIDERATIONS."
DESCRIPTION OF THE NEW CERTIFICATES
The Old Certificates were issued and the New Certificates are issuable
pursuant to six separate Agreements which were entered into among Mobil, MGB
and the Pass Through Trustee. Each Agreement contains substantially the same
terms and conditions, except that the interest rate and the maturity date
applicable to the Secured Notes held in each Pass Through Trust, the
aggregate principal amount of Secured Notes held in each Pass Through Trust,
the principal amortization schedule of the Secured Notes held in each Pass
Through Trust and the final distribution date applicable to each Pass Through
Trust differ. The form and terms of the New Certificates will be identical
in all material respects to the form and terms of the Old Certificates except
that the New Certificates will have been registered under the Securities Act
and, therefore, will not bear legends restricting the transfer thereof and
will not contain certain provisions included in the Old Certificates relating
to an increase in the interest rate in the event of a failure to commence the
Exchange Offer on a timely basis, and Certificateholders of New Certificates
will not be entitled to certain rights under the Registration Rights
Agreement. The statements under this caption are a summary only and do not
purport to be complete. The summary makes use of terms defined in and is
qualified in its entirety by reference to all of the provisions of the
Agreements, the Indenture, the Lease, the Participation Agreement and the
other Operative Documents, the forms of each of which have been filed as an
exhibit to the Registration Statement. Except as otherwise indicated, the
following summaries relate to each of the six Agreements, the six Pass
Through Trusts formed thereby and the Old Certificates issued and the New
Certificates issuable by each Pass Through Trust. Citations to the relevant
sections of the Agreements appear below in parentheses unless otherwise
indicated.
General
The Old Certificates were issued and the New Certificates are issuable in
fully registered form. Each Old Certificate represents and each New
Certificate will represent the same fractional, undivided interest in the
Pass Through Trust created by the Agreement pursuant to which the Old
Certificate was issued. The property
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<PAGE>
of each Pass Through Trust includes one or more Secured Notes held in such
Pass Through Trust, all monies at any time paid thereon, all monies due and
to become due thereunder and funds from time to time deposited with the Pass
Through Trustee in accounts relating to such Pass Through Trust. Each New
Certificate corresponds to a pro rata share of the outstanding principal
amount of the Secured Notes held in the related Pass Through Trust and is
issuable in minimum denominations of $1,000 or any integral multiple of
$1,000 in excess thereof. (Agreements, Sections 2.01 and 3.01) No person
acquiring a beneficial interest in the New Certificates (a "Certificate
Owner") will be entitled to receive a definitive certificate representing
such person's interest in the New Certificates, except as set forth below
under "--Registered Certificates." Unless and until Registered Certificates
(as defined below) are issued under the limited circumstances described
herein, all references to actions by Certificateholders shall refer to
actions taken by DTC upon instructions from DTC Participants (as defined
below), and all references herein to distributions, notices, reports and
statements to Certificateholders shall refer, as the case may be, to
distributions, notices, reports and statements to DTC or its nominee, Cede,
as the registered holder of the Certificates, or to DTC Participants for
distribution to Certificate Owners in accordance with DTC procedures. See
"--Book-Entry; Delivery and Form." (Agreements, Sections 3.01 and 3.09)
Interest will be passed through to Certificateholders of each of the Pass
Through Trusts at the rate per annum set forth below, calculated on the basis
of a 360-day year of twelve 30-day months.
The Certificates are subject to redemption when and to the extent that the
related Secured Notes are redeemed. See "Description of the Secured Notes--
Prepayments."
The Certificates represent interests in the Pass Through Trusts and do not
represent an interest in or obligation of Mobil, MGB, the Pass Through
Trustee, the Owner Trustee in its individual capacity, or any affiliate
thereof. (Agreements, Section 3.08)
The Agreements and the Indenture do not contain any (i) financial or
operating covenants or (ii) "event risk" provisions specifically designed to
afford Certificateholders protection in the event of a highly leveraged
transaction that may or may not result in a change of control of Mobil or
MGB. However, the Certificateholders have the benefit of a lien on the
Undivided Interest securing the Secured Notes.
Book-Entry; Delivery and Form
DTC is a limited-purpose trust company organized under the laws of the
State of New York, a "banking organization" within the meaning of the New
York Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934. DTC holds securities that its participants
("Direct Participants") deposit with DTC. DTC also facilitates the
settlement among Participants of securities transactions, such as transfers
and pledges, in deposited securities through electronic computerized book-
entry changes in Participants' accounts, thereby eliminating the need for
physical movement of securities certificates. Direct Participants include
securities brokers and dealers (including MS&Co.), banks, trust companies,
clearing corporation and certain other organizations. DTC is owned by a
number of its Direct Participants and by the New York Stock Exchange, Inc.,
the American Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others, such as
securities brokers and dealers, banks and trust companies that clear through
or maintain a custodial relationship with a Direct Participant, either
directly or indirectly ("Indirect Participants"). The rules applicable to
DTC and its Participants are on file with the Commission.
The certificates representing the Old Certificates were issued in fully
registered form without interest coupons. Old Certificates sold in offshore
transactions in reliance on Regulation S are represented by a single,
permanent global Old Certificate for each Pass Through Trust, in definitive,
fully registered form without interest coupons (the "Regulation S Global Old
Certificates") and were deposited with the Pass Through Trustee as custodian
for DTC and registered in the name of Cede for the accounts of Morgan
Guaranty Trust Company of
27
<PAGE>
New York, Brussels Office, as operator of the Euroclear System ("Euroclear"),
and Centrale de Livraison de Valeurs Mobilieres S.A. ("Cedel"). New
Certificates replacing the Regulation S Global Old Certificates will be
represented by a single, permanent global New Certificate for each Pass
Through Trust, in definitive, fully registered form without interest coupons
(the "Regulation S Global New Certificates").
Old Certificates sold in reliance on Rule 144A were represented by a
single, permanent global Old Certificate for each Pass Through Trust, in
definitive, fully registered form without interest coupons (the "Restricted
Global Old Certificates"), which were deposited with the Pass Through Trustee
as custodian for DTC and registered in the name of Cede. New Certificates
replacing the Restricted Global Old Certificates will be represented by a
single, permanent global New Certificate for each Pass Through Trust, in
definitive, fully registered form without interest coupons (the "Registered
Global New Certificates") and will be similarly deposited. Except in the
limited circumstances described below under "--The Global New Certificates,"
owners of beneficial interests in Global New Certificates will not be
entitled to receive physical delivery of Certificated New Certificates (as
defined below). The New Certificates will not be issuable in bearer form.
Old Certificates originally held in or transferred to Institutional
Accredited Investors who are not QIBs ("Non-Global Purchasers") were issued
in registered form without coupons ("Certificated Old Certificates"). New
Certificates replacing the Certificated Old Certificates will be issued in
registered form without coupons ("Certificated New Certificates").
Certificated New Certificates replacing Certificated Old Certificates that
were initially issued to a Non-Global Purchaser and were transferred to a QIB
or in accordance with Regulation S, will, unless the relevant Global New
Certificate has previously been exchanged in whole for Certificated New
Certificates, be exchanged for an interest in the appropriate Global New
Certificate.
Purchases of New Certificates under the DTC system must be made by or
through Direct Participants, which will receive a credit for the New
Certificates on DTC's records. The ownership interest of each Certificate
Owner is in turn to be recorded on the Direct and Indirect Participants'
records. Certificate Owners will not receive written confirmation from DTC
of their purchase, but Certificate Owners are expected to receive written
confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Certificate Owner entered into the transaction. Transfers of
ownership interests in the New Certificates are to be accomplished by entries
made on the books of Participants acting on behalf of Certificate Owners.
To facilitate subsequent transfers, all New Certificates deposited by
Participants with DTC are registered in the name of Cede. The deposit of New
Certificates with DTC and their registration in the name of Cede effect no
change in beneficial ownership. DTC has no knowledge of the actual
Certificate Owners; DTC's records reflect only the identity of the Direct
Participants to whose accounts such New Certificates are credited, which may
or may not be the Certificate Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Certificate Owners will be governed
by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time. Redemption notices shall
be sent to Cede.
Payments of principal, interest and premium, if any, on the New
Certificates will be made to DTC. DTC's practice is to credit Direct
Participants' accounts on the payable date in accordance with their
respective holdings shown on DTC's records unless DTC has reason to believe
that it will not receive payment on such date. Payments by Participants to
Certificate Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers
in bearer form or registered in "street name," and will be the responsibility
of such Participant and not of DTC, the Pass Through Trustee, MGB or Mobil,
subject to any statutory or regulatory requirements as may be in effect from
time to time. Payment of principal, interest and premium, if any, to DTC is
the responsibility of the Pass Through Trustee, disbursement
28
<PAGE>
of such payments to Direct Participants shall be the responsibility of DTC,
and disbursement of such payments to the Certificate Owners shall be the
responsibility of Direct and Indirect Participants.
Because DTC can act only on behalf of Direct Participants, who in turn act
on behalf of Indirect Participants and Certificate Owners, the ability of a
Certificate Owner to pledge New Certificates to persons or entities that do
not participate in the DTC system, or to otherwise act with respect to such
New Certificates, may be limited due to the lack of a physical certificate
for such New Certificates.
Transfers between Participants will be effected in the ordinary way in
accordance with DTC rules and will be settled in same-day funds. If a
Certificateholder requires physical delivery of a Certificated New
Certificate for any reason, including to sell New Certificates to persons in
states which require such delivery of such New Certificates or to pledge such
New Certificates, such holder must transfer its interest in the Registered
Global New Certificate in accordance with the normal procedures of DTC and
the procedures set forth in the Agreements. Transfers between participants
in Euroclear and Cedel will be effected in the ordinary way in accordance
with their respective rules and operating procedures.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that Mobil and MGB believe to be reliable, but
neither Mobil nor MGB takes any responsibility for the accuracy thereof.
None of Mobil, MGB or any Pass Through Trustee will have any liability for
any aspect of the records relating to or payments made on account of
beneficial ownership interests of the New Certificates held by Cede, as
nominee for DTC, or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
Although DTC, Euroclear and Cedel have agreed to the foregoing procedures
in order to facilitate transfers of interests in the Global New Certificates
among participants of DTC, Euroclear and Cedel, they are under no obligation
to perform or continue to perform such procedures, and such procedures may be
discontinued at any time. None of Mobil, MGB or any Pass Through Trustee
will have any responsibility for the performance by DTC, Euroclear or Cedel
or their respective participants or indirect participants of their respective
obligations under the rules and procedures governing their operations.
The Global New Certificates
Upon the issuance of each Regulation S Global New Certificate and each
Registered Global New Certificate with respect to each Pass Through Trust
(each a "Global New Certificate" and together the "Global New Certificates"),
DTC or its custodian will credit, on its internal system, the respective
principal amount of the individual beneficial interests represented by such
Global New Certificates to the accounts of persons who have accounts with
such depositary. Such accounts initially will be designated by or on behalf
of MS&Co. Ownership of beneficial interests in a Global New Certificate
will be limited to Direct Participants or persons who hold interests through
Direct Participants. Ownership of beneficial interests in a Global New
Certificate will be shown on, and the transfer of that ownership will be
effected only through records maintained by DTC or its nominee (with respect
to interests of Direct Participants) and the records of Direct Participants
(with respect to interests of persons other than Direct Participants). QIBs
may hold their interests in a Global New Certificate directly through DTC if
they are Direct Participants or indirectly through organizations which are
Direct Participants.
Investors may hold their interest in a Regulation S Global New Certificate
directly through Cedel or Euroclear, if they are participants in such system,
or indirectly through organizations that are participants in such system.
Investors may also hold such interests through organizations other than Cedel
or Euroclear that are Participants. Cedel and Euroclear will hold interests
in a Regulation S Global New Certificate on behalf of their participants
through DTC.
So as long as DTC, or its nominee, is the registered owner or holder of a
Global New Certificate, DTC or such nominee, as the case may be, will be
considered the sole owner or holder of the New Certificates
29
<PAGE>
represented by such Global New Certificate for all purposes under the
Agreements and the New Certificates. No beneficial owner of an interest in a
Global New Certificate will be able to transfer that interest except in
accordance with DTC's applicable procedures, in addition to those provided
for under the Indenture and, if applicable, those of Euroclear and Cedel.
Payments of the principal of, premium, if any, and interest on, each Global
New Certificate will be made to DTC or its nominee, as the case may be, as
the registered owner thereof. None of Mobil, MGB, the Pass Through Trustee
or any Paying Agent will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial
ownership interests in the Global New Certificates or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Registered Certificates
The New Certificates will be issued in fully registered, certificated form
("Registered Certificates") to Certificate Owners or their nominees, rather
than to DTC or its nominee, only if (i) MGB advises the Pass Through Trustee
in writing that DTC is no longer willing or able to discharge properly its
responsibilities as depository with respect to the New Certificates and MGB
is unable to locate a qualified successor, (ii) MGB, at its option, elects to
terminate the book-entry system through DTC or (iii) after the occurrence of
an Event of Default, Certificate Owners of New Certificates evidencing
fractional undivided interests aggregating not less than a majority in
interest in the applicable Pass Through Trust advise the Pass Through Trustee
and DTC through Direct Participants in writing that the continuation of a
book-entry system through DTC (or a successor thereto) is no longer in the
Certificate Owners' best interests. (Agreements, Section 3.09)
Upon the occurrence of any event described in the immediately preceding
paragraph, the Pass Through Trustee will be required to notify all
Certificate Owners through Direct Participants of the availability of
Registered Certificates. Upon surrender by DTC of the certificates
representing the Certificates and receipt of instructions for re-
registration, the Pass Through Trustee will reissue the Certificates as
Registered Certificates to Certificate Owners. (Agreements, Section 3.09)
Distributions of principal of, premium, if any, or interest on the New
Certificates will thereafter be made by the Pass Through Trustee directly to
holders of Registered Certificates in accordance with the procedures set
forth in the Agreements. Such distributions will be made (i) by check mailed
to the address of such holder as it appears on the register maintained by the
Pass Through Trustee or (ii) upon application to the Pass Through Trustee, by
wire transfer in immediately available funds to an account maintained by a
holder of a Registered Certificate with a bank. The final payment on any New
Certificate, however, will be made only upon presentation and surrender of
such New Certificate at the office or agency specified in the notice of final
distribution to certificateholders. (Agreements, Sections 4.02 and 11.01)
Registered Certificates will be transferable and exchangeable at the office
of the Pass Through Trustee upon compliance with the requirements set forth
in the applicable Agreements. No service charge will be imposed for any
registration of transfer or exchange, but payment of a sum sufficient to
cover any transfer tax or other governmental charge payable in connection
therewith may be required. (Agreements, Section 3.04)
Same-Day Settlement and Payment
All payments made by MGB under the Lease to the Indenture Trustee (as
assignee of the Lessor) will be in immediately available funds and will be
passed through to DTC in immediately available funds.
Secondary trading in long-term notes and debentures of corporate issuers is
generally settled in clearinghouse or next-day funds. In contrast, secondary
trading in pass through certificates (such as the New Certificates offered
hereby) is generally settled in immediately available funds. The New
Certificates will trade in DTC's Same-Day Funds Settlement System until
maturity, and secondary market trading activity in such New Certificates will
therefore be required by DTC to settle in immediately available funds. No
assurance can be
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<PAGE>
given as to the effect, if any, of settlement in immediately available funds
on trading activity in the New Certificates.
Payments and Distributions
All Scheduled Payments (as defined below) of principal and interest on the
Secured Notes held in the Pass Through Trusts received by the Pass Through
Trustee will be distributed by the Pass Through Trustee to Certificateholders
on the date such receipt is confirmed, except in certain cases when some or
all of such Secured Notes are in default. See "--Events of Default and
Certain Rights Upon an Event of Default." Payments of interest on the unpaid
principal amount of the Secured Notes held in the Pass Through Trusts are
scheduled to be received by the Pass Through Trustee on each January 2 and
July 2 of each year, commencing July 2, 1996, at the applicable rate per
annum for such Pass Through Trust until the final distribution date for each
Pass Through Trust. The Secured Notes purchased by Pass Through Trusts
1995-A1 through 1995-A5 will pay interest only until they mature on January 2,
1997, January 2, 1998, January 2, 1999, January 2, 2000 and January 2, 2001,
respectively. Payments of principal on the Secured Notes held in Pass
Through Trust 1995-A6 are scheduled to be received in specified amounts by
the Pass Through Trustee on January 2 or July 2, or both, of each year,
commencing January 2, 2002 (such scheduled payments of interest and
principal on the Secured Notes are herein referred to as "Scheduled
Payments," and each January 2 and July 2 of each year, commencing July 2,
1996, are herein referred to as "Regular Distribution Dates"). Each
Certificateholder is entitled to receive a pro rata share of any distribution
in respect of Scheduled Payments of principal and interest made on the
Secured Notes held in the related Pass Through Trust. Scheduled Payments of
principal on the Secured Notes held in the Pass Through Trusts are set forth
below under "Description of the Secured Notes--Principal Payments." The Pass
Through Trustee will distribute on each Regular Distribution Date to the
Certificateholders all Scheduled Payments the receipt of which is confirmed
by the Pass Through Trustee on such Regular Distribution Date. Each such
distribution of Scheduled Payments will be made by the Pass Through Trustee
to the holders of record of the related New Certificates on the fifteenth day
preceding such Regular Distribution Date, subject to certain exceptions.
(Agreements, Sections 4.01, 4.02 and 4.03) If a Scheduled Payment is not
received by the Pass Through Trustee on a Regular Distribution Date but is
received within five days thereafter, it will be distributed on the date
received to such holders of record. If it is received after such five-day
period, it will be treated as a Special Payment and distributed as described
below.
In addition to Scheduled Payments with respect to principal, the Secured
Notes, and consequently the New Certificates, are subject to partial or full
prepayment under certain circumstances. See "Description of Secured Notes--
Prepayments." Payments of principal, premium, if any, and interest received
by the Pass Through Trustee on account of a partial or full prepayment, if
any, of the Secured Notes held in the related Pass Through Trust, and
payments received by the Pass Through Trustee following a default in respect
of the Secured Notes held in the related Pass Through Trust (including
payments received by the Pass Through Trustee on account of the purchase by
the Owner Trustee of such Secured Notes or payments received on account of
the sale of such Secured Notes by the Pass Through Trustee) ("Special
Payments") will be distributed on the second day of a month (a "Special
Distribution Date"). The Pass Through Trustee will mail notice to the
Certificateholders of record not less than 20 days prior to the Special
Distribution Date on which any Special Payment is scheduled to be distributed
by the Pass Through Trustee for each Pass Through Trust stating such
anticipated Special Distribution Date. (Agreements, Section 4.02) Each
distribution of a Special Payment on a Special Distribution Date for each
Pass Through Trust will be made by the Pass Through Trustee to the holders of
record of such New Certificates on the fifteenth day preceding such Special
Distribution Date. See "Description of the Secured Notes--Prepayments" and
"--Events of Default and Certain Rights Upon an Event of Default."
After partial or full prepayment or default in respect of some or all of
the Secured Notes or other Special Distribution, a Certificateholder should
refer to the information with respect to the Pool Balance and the Pool Factor
for the related Pass Through Trust reported periodically by the Pass Through
Trustee. See "--Pool Factors" and "--Reports to Certificateholders."
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<PAGE>
The Agreements require that the Pass Through Trustee establish and maintain
with itself, for the Pass Through Trusts and for the benefit of the
Certificateholders, one or more accounts (the "Certificate Account") for the
deposit of payments representing Scheduled Payments on the Secured Notes held
in the related Pass Through Trust. (Agreements, Section 4.01) The
Agreements also require that the Pass Through Trustee establish and maintain
with itself, for each Pass Through Trust and for the benefit of the
Certificateholders, one or more accounts (the "Special Payments Account") for
the deposit of payments representing Special Payments. Pursuant to the terms
of the Agreements, the Pass Through Trustee is required to deposit any
Scheduled Payments received by it in the Certificate Account and to deposit
any Special Payments so received by it in the Special Payments Account.
(Agreements, Section 4.01) All amounts so deposited will be distributed by
the Pass Through Trustee on a Regular Distribution Date or a Special
Distribution Date, as appropriate. (Agreements, Section 4.02)
Distributions by the Pass Through Trustee from the Certificate Account or
the Special Payments Account of the related Pass Through Trust on a Regular
Distribution Date or a Special Distribution Date will be made by (i) check
mailed to each Certificateholder of record on the applicable record date at
its address appearing on the register maintained for the related Pass Through
Trust or (ii) upon application to the Pass Through Trustee, by wire transfer
in immediately available funds to an account maintained by a
Certificateholder with a bank. (Agreements, Section 4.02) The final
distribution for each Pass Through Trust, however, will be made only upon
presentation and surrender of the New Certificates at the office or agency of
the Pass Through Trustee specified in the notice given by such Pass Through
Trustee of such final distribution. The applicable Pass Through Trustee will
mail such notice of the final distribution to the Certificateholders,
specifying the date set for such final distribution and the amount of such
distribution. (Agreements, Section 11.01) See "--Termination of the Pass
Through Trust."
If any Regular Distribution Date or Special Distribution Date is not a
Business Day, distributions scheduled to be made on such Regular Distribution
Date or Special Distribution Date may be made on the next succeeding Business
Day without any additional interest accruing during the intervening period.
(Agreements, Section 12.09)
Pool Factors
Unless there has been a prepayment or a default in respect of the Secured
Notes held in the related Pass Through Trust, the Pool Factor for such Pass
Through Trust will decline in proportion to the scheduled repayments of
principal on the Secured Notes held in such Pass Through Trust, as described
under "Description of the Secured Notes--Principal Payments." In the event
of partial or full prepayment or default or a Special Payment, if any, the
Pool Factor and the Pool Balance of such Pass Through Trust will be
recomputed after giving effect thereto and notice thereof will be mailed to
Certificateholders.
The "Pool Balance" for each Pass Through Trust indicates, as of any Regular
Distribution Date or Special Distribution Date, if any, the aggregate unpaid
principal amount of the Secured Notes held in the related Pass Through Trust
on such date plus any amounts in respect of principal on such Secured Notes
held by the Pass Through Trustee and not yet distributed. The Pool Balance
for each Pass Through Trust as of any Regular Distribution Date or Special
Distribution Date, if any, shall be computed after giving effect to the
payment of principal, if any, of the Secured Notes held in the related Pass
Through Trust and distribution thereof to be made on that date.
The "Pool Factor" for each Pass Through Trust as of any regular
Distribution Date or Special Distribution Date, if any, is the quotient
(rounded to the seventh decimal place) computed by dividing (i) the aggregate
unpaid principal amount of the Secured Notes held in such Pass Through Trust
on such date plus any amounts in respect of principal on such Secured Notes
held by the Pass Through Trustee and not yet distributed by (ii) the
aggregate original principal amount of Certificates issued by such Pass
Through Trust. The Pool Factor for each Pass Through Trust as of any Regular
Distribution Date or Special Distribution Date, if any, shall be computed
after giving effect to the payment of principal, if any, on the Secured Notes
held in such Pass Through Trust and distribution thereof to be made on that
date. The amount of a Certificateholder's pro rata
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<PAGE>
share of the Pool Balance of such Pass Through Trust can be determined by
multiplying the original denomination of the holder's Certificate by the Pool
Factor as of the applicable Regular Distribution Date or Special Distribution
Date, if any. The Pool Factor and the Pool Balance for each Pass Through
Trust will be mailed to Certificateholders of record on each Regular
Distribution Date and Special Distribution Date, if any.
As of the date of issuance of the Old Certificates and assuming that no
early redemption, default or purchase of any Secured Notes shall occur, the
Pool Factor for each Pass Through Trust will initially be 1.0000000 and (i)
with respect to Pass Through Trusts 1995-A1 through 1995-A5, will not decline
until the single payment of principal of Secured Notes held in each such Pass
Through Trust is distributed on the final distribution date applicable to
such Pass Through Trust and (ii) the aggregate scheduled repayment of
principal of the Secured Notes to be held in Pass Through Trust 1995-A6 and
the resulting Pool Factor for such Pass Through Trust after taking into
account each such repayment will be as follows:
<TABLE>
<CAPTION>
Pass Through Trust 1995-A6
Regular Secured Notes Pass Through Trust 1995-A6
Distribution Dates Scheduled Payments of Principal Pool Factor
- ------------------ ------------------------------- --------------------------
<S> <C> <C>
January 2, 2002...................... $ 6,462,445...............................0.9002124
January 2, 2003........................ 9,171,023...............................0.7586012
January 2, 2004........................ 9,735,041...............................0.6082810
January 2, 2005........................10,333,746...............................0.4487160
January 2, 2006........................ 3,509,092...............................0.3945316
July 2, 2006........................... 9,343,261...............................0.2502608
July 2, 2007...........................12,123,211...............................0.0630645
July 2, 2008........................... 4,084,181...............................0.0000000
</TABLE>
The Pool Factors will be unaffected by the Exchange Offer or the exchange
of Old Certificates for New Certificates pursuant thereto.
Reports to Certificateholders
On each Regular Distribution Date and Special Distribution Date, if any,
the Pass Through Trustee will include with each distribution of a Scheduled
Payment or Special Payment, if any, to Certificateholders of record of the
related Pass Through Trust a statement, giving effect to such distribution to
be made on such Regular Distribution Date or Special Distribution Date, as
the case may be, setting forth the following information (per $1,000 in
aggregate principal amount New Certificate, as to (i) and (ii) below):
(i) the amount of such distribution allocable to principal and the
amount allocable to premium, if any;
(ii) the amount of such distribution allocable to interest; and
(iii) the Pool Balance and the Pool Factor for such Pass Through Trust.
In addition, within a reasonable time after the end of each calendar year,
the Pass Through Trustee will furnish to each Certificateholder of record at
any time during the preceding calendar year a statement containing the sum of
the amounts determined pursuant to clauses (i) and (ii) above with respect to
the related Pass Through Trust for such calendar year or, in the event such
person was a Certificateholder of record during a portion of such calendar
year, for the applicable portion of such calendar year, and such other items
as are readily available to the Pass Through Trustee and which a
Certificateholder shall reasonably request as necessary for the purpose of
such Certificateholder's preparation of its federal income tax returns.
(Agreements, Section 4.03) Such report and such other items shall be
prepared on the basis of information supplied to the Pass Through Trustee by
the
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DTC Participants, and shall be delivered by the Pass Through Trustee to such
DTC Participants to be available for forwarding by such DTC Participants to
Certificate Owners.
At such time, if any, as the New Certificates are issued in the form of
Registered Certificates, each Pass Through Trustee will prepare and deliver
the information described above to each Certificateholder of record as the
name and period of beneficial ownership of such Certificateholder appears on
the records of the Registrar of the New Certificates.
Mobil and MGB are each required to furnish annually to the Pass Through
Trustee a statement as to the fulfillment of its covenants and obligations
under the Agreements. (Agreements, Section 5.03)
Voting of Secured Notes
The Pass Through Trustee of each Pass Through Trust, as holder of the
Secured Notes in such Pass Through Trust, has the right under certain
circumstances to vote and give consents and waivers in respect of the Secured
Notes held in such Pass Through Trust under the Indenture. Each Agreement
sets forth the circumstances in which the related Pass Through Trustee shall
direct any action or cast any vote as the holder of the Secured Notes at its
own discretion and the circumstances in which such Pass Through Trustee shall
seek instructions from the Certificateholders. Prior to an Event of Default
(as defined below) with respect to any Pass Through Trust, the principal
amount of the Secured Notes held in the Pass Through Trust directing any
action or being voted for or against any proposal shall be in proportion to
the principal amount of Certificates held by the Certificateholders taking
the corresponding position. (Agreements, Sections 6.01, 6.04, 6.05 and
10.01)
Events of Default and Certain Rights Upon an Event of Default
An event of default under the Agreements (an "Event of Default") is defined
as the occurrence and continuance of an event of default under the Indenture
(an "Indenture Event of Default"). For a description of the Indenture Events
of Default, see "Description of the Secured Notes--Indenture Events of
Default, Notice and Waiver." A continuing Indenture Event of Default will
result in an Event of Default under the Agreements. Under the Indenture, the
Lessor has the right under certain circumstances to cure Indenture Events of
Defaults that result from the occurrence of a Lease Event of Default. If the
Lessor chooses to exercise such cure right, the Indenture Events of Default
and consequently the Event of Default will be deemed to be cured.
Each Agreement provides that, as long as an Indenture Event of Default
shall have occurred and be continuing, the Pass Through Trustee may vote all
of the Secured Notes that are held in the related Pass Through Trust, and
upon the direction of the holders of Certificates evidencing fractional
undivided interests aggregating not less than a majority in interest of the
related Pass Through Trust, the Pass Through Trustee shall vote a
corresponding majority of such Secured Notes in favor of directing the
Indenture Trustee to declare the unpaid principal amount of all Secured Notes
then outstanding and any accrued and unpaid interest thereon to be due and
payable. Each Agreement in addition provides that, if an Indenture Event of
Default shall have occurred and be continuing, the Pass Through Trustee may,
and upon the direction of the holders of Certificates evidencing fractional
undivided interests aggregating not less than a majority in interest of such
Pass Through Trust shall, vote all of the Secured Notes that are held in such
Pass Through Trust in favor of directing the Indenture Trustee as to the
time, method and place of conducting any proceeding for any remedy available
to the Indenture Trustee or of exercising any trust or power conferred on the
Indenture Trustee, provided that if an Indenture Event of Default shall have
occurred and be continuing, such direction by the Certificateholders shall
not obligate the Pass Through Trustee to vote more than a corresponding
majority of the Secured Notes held by the related Pass Through Trust in favor
of directing any action by the Indenture Trustee with respect to such
Indenture Event of Default. (Agreements, Sections 6.01 and 6.04)
The Indenture provides that, if an Indenture Event of Default shall occur
and be continuing thereunder, the Indenture Trustee will declare the unpaid
principal amount of the Secured Notes to be due and payable,
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together with any accrued and unpaid interest thereon, upon the instructions
of the holders of a majority in aggregate principal amount of the Secured
Notes outstanding. (Indenture, Section 5.04) The Indenture further provides
that, if an Indenture Event of Default shall occur and be continuing
thereunder, the holders of a majority in aggregate principal amount of the
Secured Notes outstanding may direct the Indenture Trustee with respect to
the exercise of remedies thereunder. See "Description of the Secured Notes--
Remedies." Accordingly, the ability of the holders of the Certificates
issued with respect to any one Pass Through Trust to cause the Indenture
Trustee to accelerate the Secured Notes issued under the Indenture or to
direct the exercise of remedies by the Indenture Trustee under the Indenture
will depend, in part, upon the proportion between the aggregate principal
amount of the Secured Notes issued under the Indenture and held in such Pass
Through Trust and the aggregate principal amount of all Secured Notes issued
under the Indenture. Each Pass Through Trust holds Secured Notes with
different terms from the Secured Notes held in the other Pass Through Trusts
and therefore the Certificateholders of one Pass Through Trust may have
divergent or conflicting interests from those of the Certificateholders of
the other Pass Through Trusts. In addition, so long as the same institution
acts as Pass Through Trustee of each Pass Through Trust, in the absence of
instructions from the Certificateholders of any such Pass Through Trust, the
Pass Through Trustee for such Pass Through Trust could for the same reason be
faced with a potential conflict of interest upon an Indenture Event of
Default.
As an additional remedy, if an Indenture Event of Default shall have
occurred and be continuing, the Agreements provide that the Pass Through
Trustee may, and upon the direction of the Certificateholders evidencing
fractional undivided interests aggregating not less than a majority in
interest of the related Pass Through Trust shall, sell all or part of the
Secured Notes that are held in such Pass Through Trust for cash to any
person. (Agreements, Sections 6.01 and 6.02) In addition, if the Lessor
elects to purchase or redeem the Secured Notes, the Pass Through Trustee
shall sell the Secured Notes held in the related Pass Through Trust to the
Lessor at a price equal to the unpaid principal amount thereof, together with
accrued but unpaid interest thereon, plus any other amounts then due and
payable with respect to the Secured Notes held in the related Pass Through
Trust, plus, if such redemption is made prior to the Premium Termination
Date, the Make-Whole Amount, if any; provided that no Make-Whole Amount shall
be payable after the earlier of (i) the expiration of 270 days after an
Indenture Event of Default has occurred during which time the Secured Notes
held in the related Pass Through Trust could, but shall not, have been
accelerated, (ii) the Indenture Trustee has given the Owner Trustee or Owner
Participant notice of its intent to accelerate the Secured Notes and (iii)
the Indenture Trustee has declared the unpaid amount of the Secured Notes to
be immediately due and payable. (Indenture, Section 3.06). Any proceeds
received by the Pass Through Trustee upon any such sale shall be deposited in
the Special Payments Account with respect to such Pass Through Trust and
shall be distributed to the Certificateholders with respect to such Pass
Through Trust on a Special Distribution Date. The market for Secured Notes
in default may be very limited and there can be no assurance that they could
be sold for a reasonable price. If a Pass Through Trustee sells any such
Secured Notes held in the related Pass Through Trust with respect to which an
Indenture Event of Default exists for less than their outstanding principal
amount, the Certificateholders with respect to such Pass Through Trust will
receive a smaller amount of principal distributions than anticipated and will
not have any claim for the shortfall against MGB, the Owner Trustee or the
Pass Through Trustee. Neither the Pass Through Trustee nor the
Certificateholders, furthermore, could take any action with respect to any
remaining Secured Notes held in the related Pass Through Trust so long as no
Indenture Events of Default existed with respect thereto. (Agreements,
Sections 4.01, 4.02 and 6.02)
Any amount distributed to the Pass Through Trustee by the Indenture Trustee
on account of the Secured Notes held in the related Pass Through Trust
following an Indenture Event of Default shall be deposited in the Special
Payments Account with respect to such Pass Through Trust and shall be
distributed to the Certificateholders with respect to such Pass Through Trust
on a Special Distribution Date. In addition, if, following an Indenture
Event of Default, the Owner Trustee or the Owner Participant exercises its
option to purchase the outstanding Secured Notes held in the related Pass
Through Trust as described below under "Description of the Secured Notes--
Prepayments," the purchase price paid by the Owner Trustee or the Owner
Participant to the Pass Through Trustee for the Secured Notes held in such
Pass Through Trust shall be deposited in the Special Payments Account with
respect to such Pass Through Trust and shall be distributed to the
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<PAGE>
Certificateholders with respect to such Pass Through Trust on a Special
Distribution Date. (Agreements, Sections 4.01 and 4.02)
Any funds representing payments received with respect to any Secured Notes
held in a Pass Through Trust in default, or the proceeds from the sale by the
Pass Through Trustee of any such Secured Notes held by the Pass Through
Trustee in the Special Payments Account with respect to such Pass Through
Trust shall, to the extent practicable, be invested and reinvested by the
Pass Through Trustee in Permitted Investments pending the distribution of
such funds on a Special Distribution Date. Permitted Investments are defined
as being obligations of the United States maturing in not more than 90 days
or such lesser time as is required for the distribution of any such funds on
a Special Distribution Date. (Agreements, Sections 4.01 and 4.04)
Each Agreement provides that the Pass Through Trustee shall, within 90 days
after the occurrence of a default (as defined below) in respect of the Pass
Through Trust created under the Agreement, give to the Certificateholders
notice, transmitted by mail, of all uncured or unwaived defaults under the
Agreement known to it; provided that, except in the case of default in the
payment of principal, premium, if any, or interest on any of the Secured
Notes held in such Pass Through Trust, the Pass Through Trustee shall be
protected in withholding such notice if it in good faith determines that the
withholding of such notice is in the interests of such Certificateholders
with respect to such Pass Through Trust. The term "default," for the purpose
of the provision described in this paragraph only, shall mean the occurrence
of any Event of Default under the Agreements specified above, except that in
determining whether any Event of Default has occurred any grace period or
notice in connection therewith shall be disregarded. (Agreements, Section
7.02)
Each Agreement contains a provision entitling the Pass Through Trustee,
subject to the duty of the Pass Through Trustee during a default to act with
the required standard of care, to be indemnified by the Certificateholders
before proceeding to exercise any right or power under the Agreement at the
request of such Certificateholders. (Agreements, Sections 7.01 and 7.03)
In certain cases, Certificateholders of a Pass Through Trust evidencing
fractional undivided interests aggregating not less than a majority in
interest of such Pass Through Trust may on behalf of all Certificateholders
with respect to such Pass Through Trust waive any past default or Event of
Default under the Agreement with respect to such Pass Through Trust and
thereby annul any direction given by such holders to the Indenture Trustee
with respect thereto, except (i) a default in the deposit of any Scheduled
Payment or Special Payment or in the distribution of any such payment, (ii) a
default in payment of the principal of, premium, if any, or interest on, any
of the Secured Notes and (iii) a default in respect of any covenant or
provision of the Agreement that cannot be modified or amended without the
consent of each Certificateholder affected thereby. (Agreements, Section
6.05) The Indenture provides that, with certain exceptions, the holders of a
majority in aggregate unpaid principal amount of the Secured Notes may on
behalf of all such holders waive any past default or Indenture Event of
Default. (Indenture, Section 5.08) For a discussion of waivers of Indenture
Events of Default, see "Description of the Secured Notes--Indenture Events of
Default, Notice and Waiver."
Modification of the Agreements
Each Agreement contains provisions permitting Mobil, MGB and the Pass
Through Trustee to enter into a supplemental trust agreement, without the
consent of any Certificateholders, (i) to evidence the succession of another
corporation to Mobil or MGB and the assumption by such corporation of Mobil's
or MGB's obligations under such Agreement, (ii) to add to the covenants of
Mobil or MGB for the benefit of such Certificateholders, or (iii) to cure any
ambiguity in, or to correct or supplement any defective or inconsistent
provision of, the Agreement or any supplemental trust agreement, or to make
such provisions with respect to matters or questions arising under the
Agreement as may be necessary or desirable, provided such actions shall not
adversely affect the interest of such Certificateholders. (Agreements,
Section 9.01)
Each Agreement also contains provisions permitting Mobil, MGB and the Pass
Through Trustee, with the consent of the holders of Certificates evidencing
fractional undivided interests aggregating not less than a
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majority in interest of the related Pass Through Trust, and with the consent
of the Owner Trustee (such consent not to be unreasonably withheld), to
execute supplemental trust agreements adding any provisions to or changing or
eliminating any of the provisions of the Agreement or modifying the rights of
the Certificateholders, except that no such supplemental trust agreement may,
without the consent of each Certificateholder so affected, (a) reduce in any
manner the amount of, or delay the timing of, any receipt by the Pass Through
Trustee of payments on the Secured Notes held in such Pass Through Trust, or
distributions in respect of any Certificate, or make distributions payable in
coin or currency other than that provided for in the Certificates, or impair
the right of any Certificateholder to institute suit for the enforcement of
any such payment when due, (b) permit the disposition of any Secured Note
held in the related Pass Through Trust, except as provided in such Agreement,
or (c) reduce the percentage of the aggregate fractional undivided interest
of the related Pass Through Trust provided for in the Agreement, the consent
of the holders of which is required for any such supplemental trust agreement
or for any waiver provided for in the Agreement. (Agreements, Section 9.02)
Modification of Leveraged Lease Agreements
In the event that the Pass Through Trustee, as the holder of the Secured
Notes held in a Pass Through Trust, receives a request for its consent to any
amendment, modification, waiver or supplement under the Indenture, the Lease
or other related document, the Pass Through Trustee shall mail a notice of
such proposed amendment, modification, waiver or supplement to each
Certificateholder of such Pass Through Trust of record as of such date. The
Pass Through Trustee shall request instructions from the Certificateholders
of such Pass Through Trust as to whether or not to consent to such amendment,
modification, waiver or supplement. The Pass Through Trustee shall vote or
consent with respect to the Secured Notes held in the related Pass Through
Trust in the same proportion as the Certificates were actually voted by the
Certificateholders of such Pass Through Trust by a certain date.
Notwithstanding the foregoing, if an Event of Default under the Agreement
shall have occurred and be continuing, the Pass Through Trustee, subject to
the voting instructions referred to under "--Events of Default and Certain
Rights Upon an Event of Default," may in its own discretion consent to such
amendment, modification, waiver or supplement, and may so notify the
Indenture Trustee. (Agreements, Section 10.01)
Termination of the Pass Through Trusts
The obligations of Mobil, MGB and the Pass Through Trustee created by the
Agreements, and the Pass Through Trusts, will terminate upon the distribution
to Certificateholders of all amounts required to be distributed to them
pursuant to the Agreements and the disposition of all property held in the
Pass Through Trusts. The Pass Through Trustee will mail to each
Certificateholder of record notice of the termination of the related Pass
Through Trust, the amount of the proposed final payment and the proposed date
for the distribution of such final payment for such Pass Through Trust. The
final distribution to any Certificateholder will be made only upon surrender
of such Certificateholder's Certificates at the office or agency of the Pass
Through Trustee specified in such notice of termination. (Agreements,
Section 11.01)
The Pass Through Trustee
First Security Bank of Utah, National Association is the Pass Through
Trustee for each Pass Through Trust. The Pass Through Trustee and any of its
affiliates may hold Certificates in their own names. (Agreements, Section
7.05) With certain exceptions, the Pass Through Trustee makes no
representations as to the validity or sufficiency of the Agreements, the New
Certificates, the Secured Notes, the Indenture, the Lease or other related
documents. (Agreements, Section 7.04) First Security Bank of Utah, National
Association is also the Indenture Trustee for the Secured Notes issued with
respect to the Undivided Interest under the Indenture.
The Pass Through Trustee may resign with respect to any or all of the Pass
Through Trusts at any time, in which event Mobil and MGB will be obligated to
appoint a successor trustee. If the Pass Through Trustee ceases to be
eligible to continue as such under the Agreements or becomes insolvent, Mobil
and MGB may
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remove such Pass Through Trustee, or any Certificateholder which has held
such Certificate for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the removal of such Pass Through Trustee and the appointment of a successor
trustee. Any resignation or removal of the Pass Through Trustee and
appointment of a successor trustee for a Pass Through Trust does not become
effective until acceptance of the appointment by the successor trustee.
(Agreements, Sections 7.09 and 7.10)
Each Agreement provides that Mobil and MGB will pay the Pass Through
Trustee's fees and expenses. (Agreements, Section 7.07) Each Agreement
further provides that the Pass Through Trustee will be entitled to
indemnification by Mobil and MGB for, and will be held harmless against, any
loss, liability or expense incurred by the Pass Through Trustee (other than
through its own willful misconduct, bad faith or negligence or by reason of a
breach of any of its representations or warranties set forth in the
Agreement), except to the extent that such loss, liability or expense is for
or with respect to taxes, in which case the Pass Through Trustee may be
entitled to be reimbursed by the related Pass Through Trust. (Agreements,
Section 7.07)
DESCRIPTION OF THE SECURED NOTES
The statements under this caption are summaries and do not purport to be
complete. The summaries make use of terms defined in and are qualified in
their entirety by reference to all of the provisions of the Secured Notes,
the Indenture, the Lease, and the Participation Agreement. Except as
otherwise indicated, the following summaries relate to the Secured Notes, the
Indenture, the Lease and the Participation Agreement.
General
The Secured Notes were issued in six series under an Indenture between
Fleet National Bank of Connecticut, as Owner Trustee of a Trust for the
benefit of the Owner Participant who is the beneficial owner of the Undivided
Interest, and First Security Bank of Utah, National Association, as Indenture
Trustee.
The Owner Trustee leased the Undivided Interest to MGB pursuant to a Lease
between the Owner Trustee and MGB. MGB is obligated to make or cause to be
made rental and other payments to the Owner Trustee under the Lease in
amounts that will be at least sufficient to pay the principal of, premium, if
any, and interest on the Secured Notes when and as due and payable, (except
principal and interest payable upon an Indenture Event of Default that is not
caused by a Lease Event of Default and except any premium payable by the
Owner Participant or the Owner Trustee in connection with the election by the
Owner Trustee or the Owner Participant to purchase or redeem the Secured
Notes upon the occurrence of a Lease Event of Default as described below in
"Voluntary Prepayments"). The Secured Notes are not, however, direct
obligations of, or guaranteed by, MGB (except to the extent that MGB may, in
certain circumstances described herein, assume the obligations of the Owner
Trustee thereunder) or Mobil. Payments under the Lease in excess of the
amounts required to make required payments on the Secured Notes will be paid
by the Indenture Trustee to the Owner Trustee for distribution to the Owner
Participant and will not be available for distribution to the
Certificateholders of the Pass Through Trusts except in certain cases upon
the occurrence of an Indenture Event of Default. MGB's rental obligations
under the Lease and the other Operative Documents to which it is a party are
general obligations of MGB and are irrevocably and unconditionally guaranteed
by Mobil under the Guaranty.
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Principal Payments
The aggregate principal amount of the Secured Notes held in each of the
Pass Through Trusts are as follows:
<TABLE>
<CAPTION>
Pass Pass Pass Pass Pass Pass
Through Through Through Through Through Through
Trust Trust Trust Trust Trust Trust
1995-A1 1995-A2 1995-A3 1995-A4 1995-A5 1995-A6
5.52% 5.57% 5.65% 5.74% 5.79% 6.15%
Secured Secured Secured Secured Secured Secured
Notes Notes Notes Notes Notes Notes Total
---------- ---------- ---------- ---------- ---------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Total $4,917,000 $5,173,000 $5,462,000 $5,770,000 $6,101,000 $64,762,000 $92,185,000
========== ========== ========== ========== ========== =========== ===========
</TABLE>
Interest will be payable on each Secured Note at the rate applicable to
such Secured Note on the unpaid principal amount thereof on each January 2
and July 2 in each year, commencing July 2, 1996. Such interest will be
computed on the basis of a 360-day year of twelve 30-day months.
The principal of each Secured Note held in Pass Through Trusts 1995-A1
through 1995-A5 will be paid in full at maturity on January 2, 1997, January
2, 1998, January 2, 1999, January 2, 2000 and January 2, 2001, respectively.
The principal of each Secured Note held in Pass Through Trust 1995-A6 will be
payable as set forth below:
Pass Through Trust 1995-A6
6.15% Secured Notes
Regular Distribution Dates Amount
-------------------------- ------
January 2, 2002.............. $ 6,462,445
January 2, 2003.............. 9,171,023
January 2, 2004.............. 9,735,041
January 2, 2005.............. 10,333,746
January 2, 2006.............. 3,509,092
July 2, 2006................. 9,343,261
July 2, 2007................. 12,123,211
July 2, 2008................. 4,084,181
-----------
Total................ $64,762,000
===========
If any date scheduled for any payment of principal of, premium, if any, or
interest on the Secured Notes is not a Business Day, such payment may be made
on the next succeeding Business Day without any additional interest.
(Indenture, Section 2.03(b))
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Prepayments
Mandatory Prepayments. Upon the occurrence of an Event of Loss with respect
to the Production System or a Significant Portion thereof, then, unless, in
the case of an Event of Loss with respect to a Significant Portion where such
Significant Portion is rebuilt or replaced or the Lessee has elected to
purchase the Undivided Interest, the Owner Trustee shall (i) if the Event of
Loss shall have occurred with respect to the entire Production System, redeem
the entire unpaid principal amount of the Secured Notes and (ii) if the Event
of Loss shall have occurred with respect to a Significant Portion, redeem
such of the unpaid principal amount of the Secured Notes which is equal to
the product of (x) the entire principal amount of Secured Notes then
outstanding and (y) a fraction, the numerator of which shall be the Original
Cost of the Significant Portion of the Undivided Interest suffering such
Event of Loss and the denominator of which shall be the aggregate Lessor's
Cost of the Undivided Interest, plus in each case accrued and unpaid interest
in respect of the principal amount to be prepaid on the loss payment date,
but without the payment of any Make-Whole Amount or other premium.
(Indenture, Section 3.02)
Voluntary Prepayment. Secured Notes held in Pass Through Trust A-6 are
subject to prepayment prior to maturity, in whole only, at any time (i) after
January 1, 2001 if MGB notifies the Lessor that it has determined that the
Undivided Interest is obsolete, uneconomic or surplus to the needs of MGB for
any reason or the parties to the Operating Agreement have determined to
withdraw from or to terminate the Operating Agreement, (ii) at the option of
MGB following its acquisition of the Undivided Interest, other than in
connection with an Event of Loss described above and (iii) on any Special
Distribution Date after January 1, 2001 upon the agreement of MGB and the
Owner Trustee. Secured Notes held in Pass Through Trust A-6 are also subject
to prepayment, in part, prior to maturity at any time after January 1, 2001,
if MGB notifies the Lessor that it has determined that a Significant Portion
of the Undivided Interest is obsolete, uneconomic or surplus to the needs of
MGB for any reason, in which case the principal amount of Secured Notes to be
redeemed will be equal to the product of (x) the entire principal amount of
Secured Notes then outstanding and (y) a fraction, the numerator of which
shall be the Original Cost of the Significant Portion and the denominator of
which shall be the aggregate Lessor's Cost of the Undivided Interest. The
prepayment price of the Secured Notes in any such events shall be equal to
the unpaid principal amount thereof, together with accrued but unpaid
interest thereon, plus if such redemption is prior to the Premium Termination
Date, the Make-Whole Amount, if any. (Indenture, Section 3.02; Lease,
Sections 6 and 7)
In addition, the Secured Notes are subject to purchase or prepayment in
whole by the Owner Trustee or the Owner Participant, on any Special
Distribution Date, if (i) an Indenture Event of Default resulting from one or
more Lease Events of Default shall have occurred and be continuing for less
than 270 days during which time the Secured Notes could, but shall not have
been, accelerated, at a price equal to the aggregate unpaid principal amount
thereof, together with accrued interest thereon plus a premium equal to the
Make-Whole Amount (if any) or (ii) (x) an Indenture Event of Default
resulting from one or more Lease Events of Default shall have occurred and be
continuing for more than 270 days during which time the Secured Notes could,
but shall not have been, accelerated, (y) the Indenture Trustee has given the
Owner Trustee or Owner Participant notice of its intent to accelerate the
Secured Notes, or (z) the Secured Notes have been accelerated, at a price
equal to the aggregate unpaid principal amount thereof, together with accrued
interest thereon, but without any Make-Whole Amount or other premium.
(Indenture, Section 3.06)
The "Make-Whole Amount," if any, with respect to the Secured Notes, shall
be determined as of the fourth Business Day prior to the applicable
Redemption Date and shall equal (a) with respect to any Secured Note to be
redeemed in whole or purchased, the excess, if any, of (i) the sum of the
present values of all remaining scheduled payments of principal and interest
from the applicable Redemption Date to maturity of the Secured Notes,
discounted semiannually on each January 2 and July 2 at a rate equal to the
Treasury Rate (as defined below) plus .10%, based on a 360-day year of twelve
30-day months, over (ii) the aggregate unpaid principal amount of the Secured
Notes plus accrued but unpaid interest on the Secured Notes (but not any
accrued interest in default) to the Redemption Date and (b) with respect to
the principal amount of any Secured Notes to be redeemed, in part, the
excess, if any, of (x) the sum of that portion of all of the remaining
scheduled
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<PAGE>
payments of principal and interest from the Redemption Date to maturity of
such Secured Notes representing the principal that is to be redeemed on such
Redemption Date and the interest that would have accrued thereon, discounted
semi-annually on each January 2 and July 2 at a rate equal to the Treasury
Rate plus .10%, based on a 360-day year of twelve 30-day months, over (y) an
amount equal to the principal amount of such Secured Notes to be redeemed
plus accrued but unpaid interest on such principal amount (but not any
accrued interest in default) to the Redemption Date. The Make-Whole Amount
premium, if any, payable with respect to the Secured Notes will be determined
by an independent investment banking institution of national standing (the
"Investment Banker") selected by MGB.
The "Treasury Rate" means, with respect to each Secured Note to be prepaid,
a per annum rate (expressed as a semiannual equivalent and as a decimal and,
in the case of United States Treasury bills, converted to a bond equivalent
yield) determined to be the per annum rate equal to the semiannual yield to
maturity of United States Treasury securities maturing on the Average Life
Date (as defined below) of such Secured Note, as determined by interpolation
between the most recent weekly average yields to maturity for two series of
United States Treasury securities (A) one maturing as close as possible to,
but earlier than, the Average Life Date of such Secured Note and (B) the
other maturing as close as possible to, but later than, the Average Life Date
of such Secured Note, in each case as published in the most recent H.15(519)
(or, if a weekly average yield to maturity for United States Treasury
securities maturing on the Average Life Date of such Secured Note is reported
in the most recent H.15(519), as published in H.15(519)). H.15(519) means
"Statistical Release H.15(519), Selected Interest Rates," or any successor
publication, published by the Board of Governors of the Federal Reserve
System. The most recent H.15(519) means the latest H.15(519) which is
published prior to the close of business on the fourth Business Day prior to
the prepayment date.
The "Average Life Date" for any Secured Note to be prepaid shall be the
date which follows the prepayment date by a period equal to the Remaining
Weighted Average Life at the prepayment date of such Secured Note. The
"Remaining Weighted Average Life" of such Secured Note, at the prepayment
date of such Secured Note, is the number of days determined by dividing
(A) the sum of the products obtained by multiplying (1) the amount of each
remaining principal payment on such Secured Note by (2) the number of days
from and including the prepayment date to but excluding the scheduled payment
date of such principal payment by (B) the then unpaid principal amount of
such Secured Note.
Security
The Secured Notes are secured by, among other things, (i) an assignment by
the Lessor to the Indenture Trustee of the Lessor's rights under the Lease
including the right to receive payments of Rent thereunder (other than
certain Excepted Payments reserved to the Lessor) and the Lessor's rights
under the Guaranty and (ii) a mortgage of the Undivided Interest. (Indenture,
Granting Clause)
So long as no Indenture Event of Default shall have occurred and be
continuing, the Lessor is entitled to exercise all of the rights of the
Lessor under the Operative Documents, subject to certain specific exceptions
(including with respect to amendments, waivers, modifications and consents
under specified provisions of certain of the Operative Documents). The
Lessor's rights, however, do not include the right to receive payments of
Basic Rent and Supplemental Rent (other than Excepted Payments) due under the
Lease, which payments will be made directly to the Indenture Trustee. The
assignment by the Lessor to the Indenture Trustee of its rights under the
Lease and the other Operative Documents also excludes certain rights of the
Lessor, including rights relating to indemnification by the Lessee for
certain matters and insurance proceeds payable to the Lessor under liability
insurance maintained by the Lessee under the Lease. (Indenture, Granting
Clause) For a description of certain other rights of the Lessor, see "--The
Lease--Lease Events of Default."
Funds, if any, held from time to time by the Indenture Trustee pursuant to
the Operative Documents will be invested and reinvested by the Indenture
Trustee, so long as no Indenture Event of Default has occurred and is
continuing, at the direction of MGB acting as agent of the Lessor in
Permitted Investments. MGB, on behalf and as agent of the Lessor, is required
on demand to pay to the Indenture Trustee the amount of any loss
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resulting from any such investment. So long as no Lease Event of Default has
occurred and is continuing, MGB is entitled to receive any profit made from
any such investment. (Lease, Section 19.7; Indenture, Section 7.04)
Additional Notes
Additional Notes may be issued under and secured by the Indenture, at any
time and from time to time, for the purpose of providing funds to finance the
cost of the Lessor's Share of certain modifications, alterations, additions
and improvements to the Production System (the "Modifications"). The Owner
Participant will have the right to participate in the financing of any such
Modifications on terms and conditions mutually acceptable to the Owner
Participant and MGB. If mutually acceptable terms and conditions are not
agreed to by the Owner Participant and MGB, MGB may cause the financing of
such cost through the issuance and sale by the Owner Trustee of Additional
Notes provided that certain conditions set forth in the Participation
Agreement and the Indenture are satisfied, including, among other things,
that (i) the principal amount of all Secured Notes after the issuance of such
Additional Notes shall not exceed 85% of the Fair Market Sales Value of the
Undivided Interest (taking into account such Modifications), (ii) the date of
maturity of such Additional Notes shall not extend beyond the end of the
Basic Term of the Lease (January 2, 2011), (iii) the Owner Participant will
not suffer any adverse consequences resulting from the issuance of such
Additional Notes or the Owner Participant shall have received an indemnity
from the Lessee with respect to any such adverse consequences, (iv) no Lease
Event of Default or Indenture Event of Default shall have occurred and be
continuing on the date of issuance of the Additional Notes, (v) the Owner
Participant shall have received an opinion to the effect that the issuance of
the Additional Notes will not result in any unindemnified adverse tax
consequences to the Owner Participant and (vi) the terms of such Additional
Notes, except for the terms of payment, shall be substantially the same as
the Secured Notes. (Indenture, Section 2.08; Participation Agreement, Section
14)
The terms, conditions and designations of such Additional Notes will be set
forth in a supplement to the Indenture. (Indenture, Section 2.08) In
addition, Basic Rent and other amounts payable by MGB under the Lease will be
adjusted to the extent necessary to provide for Basic Rent payments and
certain other payments sufficient to provide for the payment, when due, of
all scheduled payments of principal of, premium (except for those instances
where MGB shall not be responsible for such premium), if any, and interest on
the Secured Notes as well as any Additional Notes. (Participation Agreement,
Section 14) All Secured Notes issued and outstanding under the Indenture,
including any Additional Notes, will be equally and ratably secured
thereunder, without preference, priority or distinction. (Indenture, Section
2.10)
Limitation of Liability
The Secured Notes are not direct obligations of, or guaranteed by, Mobil,
MGB or the Owner Trustee. None of the Owner Trustee, the Owner Participant or
the Indenture Trustee, or any affiliates thereof, shall be personally liable
to any holder of a Secured Note or, in the case of the Owner Trustee and the
Owner Participant, to the Indenture Trustee for any amounts payable under the
Secured Notes or, except as provided in the Indenture, for any liability
under the Indenture. All payments of principal of, premium, if any, and
interest on the Secured Notes (other than payments made in connection with an
optional redemption or purchase by the Owner Trustee or the Owner
Participant) will be made only from the assets subject to the Lien of the
Indenture or the income and proceeds received by the Indenture Trustee
therefrom (including Rent payable by MGB under the Lease and payments made by
Mobil under the Guaranty). (Indenture, Section 2.02)
Except as otherwise provided in the Indenture, neither the Indenture
Trustee nor the Owner Trustee in its individual capacity shall be answerable
or accountable under the Indenture or under the Secured Notes under any
circumstances except for, when applicable to either the Indenture Trustee or
the Owner Trustee (a) its own willful misconduct or gross negligence,
(b) failure to exercise reasonable care in safeguarding securities held by it
under the Indenture, (c) in case of any inaccuracy of any representation or
warranty made by the Indenture Trustee under the Operative Documents, (d) for
any tax based on or measured by any fees, commissions or compensation
received by it for acting as trustee, (e) subject to certain exceptions, for
failure to use reasonable care in disbursing funds in accordance with the
Indenture and (f) for failure to remove certain liens in accordance
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with the Participation Agreement. (Indenture, Sections 7.01 and 7.03;
Participation Agreement, Sections 11.4 and 17.10). The Owner Participant will
not have any duty or responsibility under the Indenture or the Secured Notes
to the Indenture Trustee or to any holder of any Secured Notes. (Indenture,
Section 2.02)
Merger, Consolidation and Transfer of Assets
MGB is prohibited from consolidating with or merging into any other
corporation or transferring substantially all of its assets to another
corporation unless MGB is the continuing corporation or, among other things,
(a) the successor corporation shall be a corporation organized and existing
under the laws of the United States or any State or the District of Columbia,
(b) shall expressly assume the due and punctual performance and observance of
all the covenants and conditions of the Operative Documents to which MGB is a
party and which are to be performed by MGB, (c) immediately after giving
effect to such transaction, no Lease Event of Default shall be continuing,
and (d) after giving effect to such transaction the Guaranty remains in full
force and effect and constitutes a full and unconditional guaranty of the
successor corporation's obligation under the Operative Documents to which it
is a party. (Participation Agreement, Section 10.4)
Indenture Events of Default, Notice and Waiver
Indenture Events of Default include: (a) a Lease Event of Default (other
than nonpayment of any Excepted Payment) that shall have occurred and be
continuing, (b) default by the Owner Trustee in making payments when due of
principal of, premium, if any, or interest on any Secured Note and continuance
of that default for 10 Business Days, (c) failure by the Owner Trustee or the
Owner Participant to perform or observe in any material respect any covenant
or agreement contained in the Indenture or any other Operative Document
(other than the Tax Indemnity Agreement) which shall have continued for a
period of 30 days after receipt of notice by the Owner Trustee or the Owner
Participant from the Indenture Trustee or the Pass Through Trustee specifying
such failure and requiring it to be remedied (or if such failure is
remediable and the Owner Participant or the Owner Trustee is diligently
attempting to remedy such failure, such failure shall continue for a period
of 180 days after receipt of notice thereof), (d) any representation or
warranty made by the Owner Trustee or the Owner Participant in the
Participation Agreement being inaccurate in any material respect as of the
date made unless such inaccurate representation or warranty shall not be
material to the recipient thereof at the time the notice referred to below is
received by the Owner Participant or the Owner Trustee or any material
adverse effect is cured or corrected within 30 days after receipt of written
notice by the Owner Trustee and the Owner Participant from the Indenture
Trustee; provided that if such material adverse effect is capable of being
remedied and the Owner Participant or the Owner Trustee is diligently
attempting to remedy such effect, the Owner Participant or Owner Trustee
shall have 90 days after receipt of written notice thereof to remedy such
material adverse effect, and (e) the occurrence of certain events of
bankruptcy, reorganization or insolvency of the Owner Participant or the
Owner Trustee. (Indenture, Section 5.02)
If MGB fails to make any Basic Rent payment within ten Business Days after
the same shall become due, the Indenture Trustee shall not exercise remedies
under the Lease or declare the Secured Notes to be due and payable or
exercise other remedies under the Indenture until eleven days after the tenth
Business Day of such failure. If the Lessor furnishes to the Indenture
Trustee the amount of such Basic Rent payment, together with any interest
thereon on account of the delayed payment thereof, within such eleven day
period, the Indenture Trustee and the holders of outstanding Secured Notes
may not exercise any remedies otherwise available under the Indenture or the
Lease as the result of such failure to make such rental payment. The Lessor's
rights to cure an Indenture Event of Default resulting from the failure by
MGB to pay Basic Rent is limited to the right to cure an aggregate of six
such defaults, or three consecutive such defaults, under the Lease and may
only be exercised as long as no other Indenture Event of Default has occurred
and is continuing. The Lessor may also cure any other default by MGB in the
performance of its obligations under the Lease and the other Operative
Documents and any other Lease Event of Default if (but only if) the
performance or observance of such obligations or the cure of such Lease Event
of Default can be effected by the payment of money alone. Such cure rights
may be exercised as long as no other Indenture Event of Default has occurred
and is continuing at any time prior to the day which is the later of (x) the
11th day subsequent to notice of such default or such Lease Event of Default
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by the Indenture Trustee to the Owner Trustee or the Owner Participant and
(y) the 11th day subsequent to the expiration of the grace period, if any,
provided with respect to such default or such Lease Event of Default. During
such eleven day period, the Indenture Trustee may not exercise remedies under
the Lease or declare the Secured Notes payable or exercise other remedies
under the Indenture. Neither the Lessor nor the Owner Participant shall have
the right to cure any such Lease Event of Default if the total amount
outstanding and not reimbursed to such parties exceeds in the aggregate
$10,000,000. (Indenture, Section 5.03)
During the occurrence and continuance of an Indenture Event of Default of
which the Indenture Trustee has actual knowledge, the Indenture Trustee shall
withhold any portion of the Basic Rent otherwise payable to the Lessor until
the earlier to occur of (i) the first Business Day following the date that is
180 days after the Indenture Trustee shall have received such amount and
(ii) the date there shall no longer be continuing an Indenture Event of Default
(in each of which cases described in clauses (i) and (ii) such Basic Rent
shall be distributed to the Lessor, unless, prior thereto, the Secured Notes
shall have been accelerated or the Indenture Trustee has given notice to
declare the Lease to be in default (in which case such amounts shall be
applied as provided in the Indenture)). (Indenture, Section 4.01(c))
The holders of a majority in aggregate principal amount of the outstanding
Secured Notes, by written directive to the Indenture Trustee, may on behalf
of all holders of Secured Notes direct the Indenture Trustee to waive any
past default under the Indenture, except a default in the payment of the
principal of, premium, if any, interest on, or other amounts due under, any
Secured Note or a default in respect of any covenant or provision of the
Indenture that cannot be modified or amended without the consent of each
holder of a Secured Note. (Indenture, Section 5.08)
The Indenture provides that the Owner Trustee shall, upon the occurrence of
any subsisting event known to it that is an Indenture Event of Default, or
that after notice or lapse of time or both would become an Indenture Event of
Default give notice thereof to MGB, the Indenture Trustee and the Owner
Trustee. (Indenture, Section 5.01)
Remedies
If an Indenture Event of Default (other than certain Lease Events of
Default) shall occur and be continuing, the Indenture Trustee may, and when
instructed by the holders of a majority in aggregate principal amount of the
Secured Notes outstanding under such Indenture shall, declare the unpaid
principal of all such Secured Notes issued thereunder due and payable,
together with all accrued but unpaid interest thereon. (Indenture, Section
5.04) The holders of a majority in aggregate principal amount of Secured
Notes outstanding under such Indenture may rescind and annul any such
declaration by the Indenture Trustee at any time before any judgment or
decree for the payment of the moneys due, or any portion thereof, shall be
entered, if (i) there has been paid to or deposited with the Indenture
Trustee an amount sufficient to pay all overdue installments of principal of,
premium, if any, and interest on any Secured Notes that have become due
otherwise than by such declaration of acceleration and (ii) all other
Indenture Events of Default have been cured or waived. (Indenture, Section
5.04(c))
The Indenture provides that, if an Indenture Event of Default has occurred
and is continuing, the Indenture Trustee may exercise certain rights or
remedies available to it under applicable law, including (if the Lease has
been declared in default) one or more of the remedies under the Indenture or
the Lease with respect to the Indenture Estate subject to the Lease. The
Indenture Trustee's right to exercise foreclosure remedies under the
Indenture is subject in certain circumstances to its having proceeded to
exercise one or more material remedies under the Lease seeking to dispossess
the Lessee under the Lease, unless at the time, the Indenture Trustee is
stayed or otherwise prevented from doing so by operation of law, in which
case the Indenture Trustee has agreed to refrain from exercising remedies
under the Indenture for a period of 180 days from the date of the
commencement of such prohibition. If MGB were a debtor in a proceeding under
Title 11, United States Code (the "Bankruptcy Code") during a Lease Event of
Default, the condition described in the immediately preceding sentence could
not be met by the Indenture Trustee during the period when certain actions
against the bankrupt
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Lessee, including action to dispossess the Lessee, would be barred by the
automatic stay provisions of the Bankruptcy Code. See "--The Lease--Lease
Events of Default." In addition, the Indenture Trustee is not allowed to
sell, assign, transfer or deliver any of the Indenture Estate or take
possession of the Indenture Estate unless the Secured Notes shall have been
accelerated. The Indenture Trustee is required to give the Owner Trustee 10
Business Days' advance notice (five Business Days' advance notice of its
intent to accelerate the Secured Notes except in the case of certain
bankruptcy accelerations) of its intent to exercise remedies. Remedies under
the Lease may be exercised by the Indenture Trustee to the exclusion of the
Owner Trustee. The sale of the Indenture Estate in the exercise of such
remedies will be free and clear of any rights of those parties including the
rights of MGB under the Lease with respect to the Undivided Interest;
provided that no exercise of any remedies by the Indenture Trustee may affect
the rights of MGB under the Lease unless a Lease Event of Default has
occurred and is continuing and the Lease shall have been declared in default
in accordance therewith. (Indenture, Sections 5.04, 5.05 and 5.09; Lease,
Sections 9 and 16.1)
The holders of a majority in aggregate principal amount of the Secured
Notes outstanding under the Indenture may instruct the Indenture Trustee to
give such notice, direction or consent, or exercise such right, remedy or
power under the Indenture or Lease or in respect of the Indenture Estate or
take such other action as shall be specified in such instructions, but in
such event the Indenture Trustee shall not be required to take or refrain
from taking any action in connection therewith if it shall have reasonable
grounds for believing that adequate indemnity against such risk is not
assured to it. (Indenture, Sections 6.02 and 6.04)
If an Indenture Event of Default occurs and is continuing and the Indenture
Trustee (as security assignee) has declared the Lease to be in default or the
Secured Notes have been accelerated, any sums held or received by the
Indenture Trustee may be applied to reimburse the Indenture Trustee for any
tax, expense or other loss incurred by it and to pay any other amounts then
due the Indenture Trustee prior to any payments to holders of the Secured
Notes. (Indenture, Section 4.03)
Although the Lessor has been structured as a special-purpose entity the
activities of which are expressly limited to the sale-leaseback transaction
contemplated by the Operative Documents, it is not impossible that the Lessor
could become the subject of a proceeding under the Bankruptcy Code. In such
event, receipt of payments by the Indenture Trustee under the Lease and the
Secured Notes may be interrupted and the exercise of remedies by the
Indenture Trustee, including foreclosure of the Indenture, would be stayed
during the pendency of the bankruptcy proceedings. Subject to certain
procedural and substantive safeguards provided by the Bankruptcy Code (such
as the requirement that the debtor-in-possession or trustee provide adequate
protection of the interests of the holders of the Secured Notes), a
bankruptcy court could permit the use or disposition of Rent payments and the
Indenture Estate for purposes other than making payments on the Secured Notes
or could modify the interest rate, maturity and payment terms of the Secured
Notes.
In the event of the bankruptcy of the Owner Participant, it is possible
that, notwithstanding that the Undivided Interest is owned by the Owner
Trustee in trust, such Undivided Interest, the Lease, the Guaranty and the
Secured Notes might become part of the bankruptcy proceeding. In such event,
payments under the Lease or the Guaranty or on the Secured Notes might be
interrupted and the ability of the Indenture Trustee to exercise its remedies
under the Indenture might be restricted, although the Indenture Trustee would
retain its status as a secured creditor in respect of the Lease, the Guaranty
and the Undivided Interest.
Possible Rejection of the Lease by a Trustee in Bankruptcy
If MGB were to become a debtor in a liquidation or reorganization case
under the Bankruptcy Code, MGB or its bankruptcy trustee could seek to reject
the Lease. Rejection of the Lease would constitute a breach of the Lease and,
as provided in applicable nonbankruptcy law, deprive MGB of the use of the
Undivided Interest. If the Lease were rejected, rental payments thereunder
would terminate, thereby leaving the Lessor or the Indenture Trustee without
regular rent payments and with a claim for damages for breach of the Lease.
There can be no assurance that any such claim for damages that would, if the
bankruptcy court treated the Lease as a true lease and authorized its
rejection, be sufficient to provide for the repayment of the Secured Notes.
Section
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502(b)(6) of the Bankruptcy Code limits the claim of lessors under unexpired
leases of real property. If the argument were made and sustained that the
Lease is a lease of real property, the Owner Trustee's claim in the
bankruptcy proceeding of MGB would be limited to an amount equal to the rent
reserved under the Lease, without acceleration, for the greater of one year
or 15% (but not more than three years) of the remaining term of the Lease,
plus rent already due but unpaid. The Indenture Trustee could also, subject
to the limitation discussed below, realize upon its lien on and security
interest in the Undivided Interest, which would not be affected by such
rejection, to recover any additional unpaid amounts on the Secured Notes.
Since the Undivided Interest represents a 40% undivided interest in the
Production System, any realization upon the lien and security interest of the
Indenture Trustee in the Undivided Interest would be limited because the
Undivided Interest is subject to the rights of Enserch under the Operating
Agreement pursuant to which the parties have agreed to waive their right to
any partition of the property included in the Production System and have
covenanted that the financing arrangements made by one party thereto with
respect to the Production System will not interfere with the other party's
use of the Production System or with their ability to provide clear title to
their respective interests in the Production System in connection with any
withdrawal, abandonment or termination under the Operating Agreement. Mobil
has guaranteed the obligations of MGB under the Lease, and therefore, the
bankruptcy of MGB should not affect the ability of the Lessor or Indenture
Trustee to receive rental payments from Mobil.
Modification of Lease, Indenture and Participation Agreement
Without the consent of holders of a majority in aggregate principal amount
of the Secured Notes outstanding under the Indenture, the provisions of the
Indenture and the Lease and the Participation Agreement may not be amended or
modified, except to the extent indicated below.
Certain provisions of the Indenture, the Lease and the Participation
Agreement may be amended or modified by the parties thereto without the
consent of any holders of the Secured Notes outstanding under the Indenture
so long as no Indenture Event of Default shall have occurred and be
continuing. In the case of the Lease, such provisions include, among others,
provisions relating to (i) rental payments and other payments, except to the
extent indicated in clause (a) of the following paragraph, (ii) the
maintenance of the Undivided Interest, modifications to the Production System
and the return to the Owner Trustee of the Undivided Interest at the end of
the term of the Lease and (iii) the renewal of the Lease. (Indenture, Section
9.02)
Without the consent of the holder of each Secured Note outstanding under
the Indenture, no amendment or modification of the Indenture may (a) reduce
the principal amount of, or premium, if any, or interest payable on any
Secured Notes issued under the Indenture or impair the right to institute
suit for the enforcement of any such payment or change the date on which any
principal or premium, if any, or interest is due and payable, (b) create any
lien with respect to the property subject to the Lien of the Indenture
ranking prior to or on a parity with the security interest created by the
Indenture, except as permitted in the Indenture, or deprive any holder of a
Secured Note issued under the Indenture of the benefit of the Lien of the
Indenture or (c) reduce the percentage in principal amount of outstanding
Secured Notes issued under the Indenture necessary to modify or amend any
provision of the Indenture or to waive compliance therewith. (Indenture,
Section 9.02(b))
Assumption of Secured Notes Under Certain Circumstances
If MGB purchases the Undivided Interest upon the exercise of its purchase
options described below under "--The Lease--MGB Purchase Options," MGB may
(and if it purchases the Undivided Interest prior to January 2, 2001, shall)
assume all of the rights and obligations of the Lessor under the Indenture
with respect to the Secured Notes. Such assumption shall be subject to
certain terms and conditions, including, among other things, that (i) MGB
shall pay all Rent and any other amounts due to the Lessor under the
Operative Documents through the date of such assumption; (ii) MGB shall
execute, acknowledge and deliver to the Indenture Trustee, and cause to be
recorded, a supplement to the indenture (the "Indenture Supplement") whereby,
among other things, MGB shall assume all the obligations of the Lessor with
respect to the Secured Notes as full recourse obligations of MGB and MGB will
agree that it is purchasing the Undivided Interest subject to the mortgage
lien
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and security interest on the Undivided Interest in favor of the Indenture
Trustee; (iii) MGB shall deliver or cause to be delivered to the Indenture
Trustee an opinion of counsel to the effect that, among other things, the
Indenture, as amended by the Indenture Supplement, has been accomplished and
all filings and recordings and other actions necessary or appropriate to
protect the interests of the Indenture Trustee have been accomplished; and
(iv) Mobil shall have entered into a full and unconditional guaranty of MGB's
obligations under the Secured Notes. After giving effect to such assumption,
no lien, other than certain permitted liens, shall exist on the Undivided
Interest. In such event, certain relevant provisions of the Lease, including
(among others) provisions relating to maintenance, possession and use of the
Undivided Interest, Liens, insurance and events of default will be
incorporated into the Indenture, and the outstanding Secured Notes issued
under the Indenture will not be redeemed and will continue to be secured by
the Undivided Interest. Upon such assumption the Lessor will be released from
all obligations with respect to the Secured Notes. MGB may not effect such
assumption if any event which constitutes an Indenture Event of Default shall
be continuing after giving effect to such assumption. (Indenture, Section
3.04; Participation Agreement, Section 11.6)
The Guaranty
Pursuant to the Guaranty, Mobil has irrevocably and unconditionally
guaranteed the full and prompt payment of all amounts payable by MGB under
the Lease, the Participation Agreement and the other Operative Documents when
and as the same shall become due and payable. The Guaranty is enforceable
without any need first to enforce the Lease against MGB.
The Lease
Term and Rent. The Lessor leased the Undivided Interest to MGB pursuant to
the Lease for a term commencing on December 12, 1995 and expiring on January
2, 2011, unless earlier terminated as described herein or extended as
described herein. (Lease, Section 2.1) MGB has, subject to Mobil's
obligations under the Guaranty, the sole responsibility and obligation to
make all payments due under the Lease, including any and all payments of
Basic Rent, Supplemental Rent, Stipulated Loss Value and Termination Value.
(Lease, Section 3.6)
Interest expense on the Secured Notes accrued during the Interim Lease Term
was paid by the Owner Trustee from amounts contributed by the Owner
Participant and not derived from Basic Rent under the Lease. Payments of
Basic Rent under the Lease will be payable on January 2 and July 2 (or, if
such day is not a Business Day, on the next succeeding Business Day without
interest) commencing July 2, 1996, and will be paid directly to the Indenture
Trustee as assignee of the Lessor. (Lease, Section 3.1) Such payments will be
used to make payments of principal (other than principal due by reason of
prepayment or acceleration) and accrued interest (as well as interest on
overdue principal) then due and unpaid on the Secured Notes, which in turn
will furnish the funds to be distributed to the Pass Through Trustee and
thereafter to the Certificateholders. Amounts payable under the Lease will be
sufficient to pay in full all payments of principal of, premium, if any, and
interest on, the Secured Notes (except where MGB is not responsible for such
payments as described in "--General" above). In certain cases, the semi-
annual Basic Rent payments under the Lease may be adjusted, but adjusted
Basic Rent payments may never be less than the scheduled payments of
principal of and interest on the Secured Notes. (Lease, Sections 4.1 and 4.2)
The balance of any payments of Basic Rent under the Lease, after payment of
the principal and interest payments on the Secured Notes, will be paid by the
Indenture Trustee to the Lessor or as the Lessor may direct. (Indenture,
Section 4.01) MGB's obligation to pay Rent and to cause other payments to be
made under the Lease is an absolute, irrevocable and unconditional obligation
of MGB, not subject to any set-off, abatement, defense or counterclaim
(except as expressly provided in the Lease). (Lease, Section 3.6)
Net Lease; Use and Maintenance. The obligations of MGB under the Lease are
those of a lessee under a "net lease," and MGB is obligated, at its expense,
to pay all costs and expenses of operating and maintaining the Production
System. (Lease, Section 11.1) MGB must, so long as the Operating Agreement is
in effect, cause MPTN to use reasonable efforts to enforce the Operator's
obligations thereunder with respect to the maintenance and operation of the
Production System. At all other times, MGB must maintain the Production
System as may
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be required to (a) comply with all Government Rules and Government Actions
(except to the extent (i) MGB is permitted to contest such Government Rules
and Government Actions, (ii) an exemption from compliance therewith is
obtained, (iii) good faith efforts and appropriate steps to comply are taken
and such compliance is effected prior to the date the Undivided Interest is
returned to the Lessor, or (iv) noncompliance does not result in any material
adverse consequence to the Lessee; so long as, in the case of clauses
(i)-(iv), that such contest or failure or failure of compliance does not result
in any material risk of (x) the sale, forfeiture or loss of any material part
of or interest in the Production System or the Undivided Interest, the Trust
Estate or the Indenture Estate, (y) interference of Rent Payments when due or
(z) any criminal liability on the part of or other material adverse effect on
the Lessor, the Owner Participant, the Trust Estate, the Indenture Estate or
the Undivided Interest) and (b) keep the Undivided Interest in good working
order and condition (ordinary wear and tear excepted). (Lease, Section 11.1)
Modifications and Additions--Alterations to the Property. So long as the
Operating Agreement is in effect, MGB shall have the right to propose or
approve all Modifications to the Production System in accordance with the
provisions of the Operating Agreement, and MGB shall cause to be taken all
actions thereunder which may be required to permit the Operator to make (or
cause to be made) all Severable and Nonseverable Modifications to the
Production System as may be required from time to time to comply in all
material respects with the requirements of all applicable Governmental Rules
and Governmental Actions. At all other times, MGB shall make (or cause to be
made) all Modifications to the Production System as may be required from time
to time to meet its maintenance requirements under the Lease or to maintain
any insurance coverage required under the Lease unless MGB shall have elected
to terminate the Lease. So long as the Operating Agreement is in effect, MGB
shall, at its own expense, use reasonable efforts to cause MPTN to enforce
the obligations of the Operator thereunder with respect to such
Modifications. At all other times, MGB shall complete all such Modifications
in a good and workmanlike manner, with reasonable dispatch and in a manner
which does not decrease the Fair Market Sales Value of the Production System
or decrease the remaining useful life or utility of the Production System or
cause the Production System to become "limited use property." MGB may make
(or allow to be made) other Modifications to the Production System, at its
own cost and expense and without the consent of the Lessor, provided that
(i) such other Modifications do not reduce the Fair Market Sales Value of the
Production System below such value immediately prior to the other
Modifications being made and (ii) such Modifications do not cause the
Production System to become "limited use property" or reduce its useful life.
Sublease and Assignment. MGB may, without the consent of the Lessor, the
Indenture Trustee, the Owner Participant or the Pass Through Trustee, at any
time and from time to time, assign the Lease and its interests and rights
thereunder to any Person so long as, (i) after giving effect to such
assignment, the Guaranty remains in full force and effect and constitutes a
full and unconditional guaranty of the obligations of the assignee under the
Lease to the same extent as the guaranty of MGB's obligations under the Lease
prior to giving effect to any such assignment, (ii) certain material Lease
Events of Default and bankruptcy Lease Defaults are not continuing on the
date any such assignment to any Affiliate of MGB is effected and no Lease
Event of Default is continuing on the date such assignment to any other
Person is effected and (iii) such assignment does not result in any
unindemnified tax on the Lessor or the Owner Participant or subject the
Lessor or the Owner Participant to regulation by any Governmental Authority
to which the Owner Participant would not have been subject but for such
assignment. MGB may, without the consent of the Lessor, the Indenture
Trustee, the Owner Participant or the Pass Through Trustee, at any time and
from time to time, sublease the Undivided Interest to another Person;
provided that (i) such sublease is expressly subject and subordinate to the
Lease (and such sublease contains a provision providing that any sublease
permitted thereunder shall be so subject and subordinate) and in no event
continues beyond the Lease Term, (ii) MGB remains primarily liable under the
Lease as though no such sublease was in existence, (iii) the Guaranty remains
in full force and effect, (iv) such sublease does not result in any
unindemnified tax on the Lessor or the Owner Participant or subject the
Lessor or the Owner Participant to regulation by any Governmental Authority
to which the Owner Participant would not have been subject but for such
sublease and (v) certain Lease Events of Default and bankruptcy Lease
Defaults are not continuing at the commencement of such sublease. Any
sublessee under a sublease permitted under the Lease may sub-sublease the
Undivided Interest to another Person under a sub-sublease that otherwise
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complies with the provisions of the Lease applicable to a sublease
thereunder. MGB has subleased the Undivided Interest to MPTN pursuant to the
Initial Sublease.
Liens. The Undivided Interest will be maintained free of Liens other than
(a) the respective rights and interests of MGB, the Owner Participant, the
Lessor, the Indenture Trustee and the holders of the Secured Notes, as
provided in the Operative Documents, (b) Lessor's Liens, Owner Participant's
Liens and Indenture Trustee's Liens, (c) Liens for Taxes either not
delinquent or being contested in good faith and by appropriate proceedings,
so long as such proceedings do not involve any material danger of the sale,
forfeiture or loss of any part of the Production System, the Trust Estate or
the Indenture Estate, or title thereto or any interest therein or any
material danger of the interference with the payment of Rent,
(d) materialmen's, mechanics', workers', repairmen's, employees' or other like
Liens, arising in the ordinary course of business, or arising in the course
of constructing, repairing, equipping or installing, modifying or expanding
the Production System or any part thereof, for amounts either not more than
60 days past due or being contested in good faith and by appropriate
proceedings so long as such proceedings do not involve any material danger of
the sale, forfeiture or loss of any part of the Production System, the Trust
Estate or the Indenture Estate, or title thereto or any interest therein and
any material danger of the interference with the payment of Rent, (e) Liens
arising out of judgments or awards against MGB with respect to which at the
time an appeal or proceeding for review is being prosecuted in good faith so
long as such judgment, award or appeal does not involve any material danger
of the sale, forfeiture or loss of any part of the Production System, the
Trust Estate or the Indenture Estate, or title thereto or any interest
therein or any material danger of the interference with the payment of Rent,
(f) the rights and interests of any Governmental Authority of the United
States pursuant to the Federal Leases, (g) Liens for current crew's wages,
for general average or salvage (including contract salvage) or for wages of
stevedores employed directly by MGB, MPTN, the Operator, or the operator,
agent or master of the Platform which in each case (A) are unclaimed or
covered by insurance or (B) for amounts either not more than 60 days past due
or being contested in good faith and by appropriate proceedings so long as
such proceedings do not involve any material danger of the sale, forfeiture
or loss of any part of the Production System, the Trust Estate or the
Indenture Estate, or title thereto or any interest therein or any material
danger of the interference with the payment of Rent and Liens which, under
the laws of Panama, take priority over a duly registered first naval mortgage
and which are for amounts either not more than 60 days past due or being
contested in good faith and by appropriate proceedings so long as such
proceedings do not involve any material danger of the sale, forfeiture or
loss of any part of the Production System, the Trust Estate or the Indenture
Estate, or title thereto or any interest therein and any material danger of
the interference with the payment of Rent, (h) Liens, assignments and
subleases permitted by the Lease and the rights of MPTN under the Initial
Sublease and the rights of any other sublessee or any sub-sublessor under any
other sublease (or sub-sublease) permitted by the Lease and (i) the Operating
Agreement and the rights of the Operator and the other owner of the undivided
interest in the Production System thereunder and the rights of their
successors, assigns or mortgagees.
Insurance. MGB will, at its cost and expense, maintain (i) "all-risk"
(including fire and lightning) property insurance with respect to the
Undivided Interest, in such amounts and forms consistent with MPTN's practice
for similar properties owned or leased by MPTN and (ii) public liability,
including personal injury and property damage, and comprehensive general
liability insurance applicable to the Undivided Interest, including, without
limitation, environmental claims arising out of or connected with the
possession, use, leasing, operation or condition of the Undivided Interest in
such amounts and in such forms as is consistent with MPTN's practice for
other properties similar to the Undivided Interest owned or leased by MPTN.
Any insurance policy maintained by or on behalf of MGB shall name the
Indenture Trustee and the Pass Through Trustee as Additional Insureds, unless
such endorsement will result in material cost to MGB or the Operator. All
proceeds of insurance on account of any damage or destruction of the
Undivided Interest or any part thereof shall be paid over to MGB or as it may
direct. In addition, the Lessor, MGB, the Owner Participant and the Indenture
Trustee are each entitled to maintain additional insurance coverage with
respect to the Undivided Interest for its own benefit and at its own expense.
(Lease, Section 13)
Voluntary Termination. (i) Obsolescence Termination. At any time
following January 1, 2001 MGB has the right, upon at least 90 days' prior
written notice to the Lessor, to terminate the Lease with respect to the
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Undivided Interest or, subject to certain constraints, a Significant Portion
thereof, on any Basic Rent Payment Date (a "Termination Date") if MGB
determines in good faith that the Undivided Interest or such Significant
Portion thereof is obsolete, uneconomic or surplus to the needs of MGB for
any reason. If MGB elects so to terminate the Lease, MGB shall, as agent for
the Lessor, use reasonable efforts to solicit bids for the cash purchase of
the Undivided Interest or the Significant Portion thereof, as the case may
be, on the Termination Date. On the Termination Date, the Lessor is
obligated to transfer its interest in the Undivided Interest or the
Significant Portion thereof to the highest bona fide cash bidder, unless in
the case of MGB's election to terminate the Lease with respect to the
Undivided Interest, the Lessor has duly elected to retain its interest in the
Undivided Interest. If the Undivided Interest or a Significant Portion
thereof is sold, the Lessor retains the total net sales price thereof and in
addition MGB is obligated to pay to the Lessor an amount equal to the excess
of the Termination Value of the Undivided Interest or the Significant Portion
thereof over the net proceeds realized from the sale thereof. MGB is also
obligated to pay to the Lessor (or, in the case of Supplemental Rent, to the
Person entitled thereto) on the Termination Date all accrued, due and unpaid
Basic Rent and all Supplemental Rent then due and owing (including the Make-
Whole Amount, if any). If the Lessor elects to retain the Undivided
Interest, MGB is only obligated to pay all accrued, due and unpaid Basic Rent
and all Supplemental Rent then due and owing (including the Make-Whole
Amount, if any), and the Lessor is obligated to pay to the Indenture Trustee
an amount equal to the unpaid principal on the Secured Notes. If the Lessor
fails to make such payment, MGB's termination election is deemed to have been
revoked. All funds to be paid or deposited with the Lessor as described in
this paragraph shall, so long as the Indenture shall not have been discharged
be deposited directly with the Indenture Trustee and shall be applied to
prepay all or a portion of the Secured Notes as provided in the Indenture.
Amounts in excess of amounts applied to prepay the Secured Notes in
accordance with the Indenture will be distributed by the Indenture Trustee in
accordance with the terms of the Indenture. The Lien of the Indenture will
terminate with respect to the Undivided Interest or the Significant Portion
thereof after full payment of the Termination Value thereof and all other
amounts then due and payable have been paid and, if all amounts due the Owner
Participant have also been paid, the Lease shall also terminate with respect
to the Undivided Interest or such Significant Portion. MGB is entitled,
subject to certain limitations to revoke its termination election prior to
the Termination Date.
If no sale or retention of the Undivided Interest or the Significant
Portion thereof shall have occurred by the Termination Date, the Lease will
continue in full force and effect.
(ii) Special Terminations. At any time following January 2, 2001, MGB
shall have the right, upon 90 days' prior written notice to the Lessor, to
terminate the Lease with respect to the Undivided Interest if the parties to
the Operating Agreement have determined to withdraw from or terminate the
Operating Agreement. If MGB elects so to terminate the Lease, on the
Termination Date, the Lessor is obligated to transfer the Undivided Interest
to MGB (or its designee) upon receipt by the Lessor (or, in the case of
Supplemental Rent, to the Person entitled thereto) of the Termination Value
for the Undivided Interest, the payment of all accrued, due and unpaid Basic
Rent, and the payment of all Supplemental Rent then due (including the Make-
Whole Amount, if any). All funds to be paid or deposited with the Lessor as
described in this paragraph shall, so long as the Indenture shall not have
been discharged be deposited directly with the Indenture Trustee and shall be
applied to prepay all or a portion of the Secured Notes as provided in the
Indenture. Amounts in excess of amounts applied to prepay the Secured Notes
in accordance with the Indenture will be distributed by the Indenture Trustee
in accordance with the terms of the Indenture. The Lien of the Indenture
will terminate with respect to the Undivided Interest after full payment of
the Termination Value thereof and all other amounts then due and payable have
been paid and, if all amounts due the Owner Participant have also been paid,
the Lease shall also terminate with respect to the Undivided Interest. Any
election by MGB to terminate the Lease as described in this paragraph is,
subject to certain limitations, revocable.
(iii) MGB Purchase Options. MGB has several options to purchase the
Undivided Interest including the right to purchase the Undivided Interest:
(i) on January 2, 2001, January 2, 2006 or January 2, 2008;
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(ii) on any one of several Special Distribution Dates following
notice by MGB to the Lessor that certain Modifications are proposed to
be made with respect to the Production System and either (x) such
Modifications will not be financed through the issuance of Additional
Notes, or (y) the issuance of Additional Notes with respect to such
Modifications would result in an unfavorable adjustment of the Basic
Rent percentages due to certain tax constraints, or (z) such
Modifications are prohibited by the terms of the Lease or are not
permitted by a certain published Revenue Procedure;
(iii) on any one of several Special Distribution Dates following the
Production System or any portion thereof having suffered
material damage not constituting an Event of Loss with respect to which
the Operator has elected not to repair, restore or rebuild the
Production System as required by the Lease; or
(iv) on certain Basic Rent Payment Dates following the
election by MGB to pay Stipulated Loss Value with respect to a
Significant Portion of the Undivided Interest that has suffered an
Event of Loss if such election is deemed revoked pursuant to the Lease
due to the constraints set forth therein.
In each case the purchase price payable by MGB, together with the other
amounts payable by MGB in connection with such purchase shall be sufficient
to pay the unpaid principal of, accrued interest on and the Make-Whole
Amount, if any, on the Secured Notes.
Upon the exercise by MGB of any of the purchase options set forth above,
the Lessor is obligated to transfer the Undivided Interest to MGB upon
receipt by the Lessor (or, in the case of Supplemental Rent, by the Person
entitled thereto) of the purchase price therefor, all accrued, due and unpaid
Basic Rent and all Supplemental Rent then due and owing (including, the Make-
Whole Amount, if any, on the Secured Notes, provided that no Make-Whole
Amount or other premium shall be payable in connection with the purchase
options described in (iv) above). In the case of the exercise of the
purchase option on the second date set forth in paragraph (i) above, MGB is
entitled to pay the purchase price in installments. The first installment
will be sufficient to pay in full all unpaid principal and interest accrued
on the Secured Notes.
Event of Loss. In the event the Undivided Interest suffers an Event of
Loss, MGB is obligated to purchase the Undivided Interest for the applicable
Stipulated Loss Value thereof. In the event a Significant Portion of the
Undivided Interest suffers an Event of Loss, MGB is obligated either to (i)
restore or repair the portion of the Production System suffering the Event of
Loss or (ii) purchase the Significant Portion of the Undivided Interest
suffering the Event of Loss at the Stipulated Loss Value thereof. MGB is
obligated to determine whether it will repair or restore the Production
System or purchase such Significant Portion within 120 days of the occurrence
of the Event of Loss. MGB's right to repair or restore the Production System
is conditioned on the absence of certain Lease Events of Default and Lease
Defaults. In addition, MGB's right to purchase such Significant Portion is
subject to certain constraints. If an Event of Default shall be continuing
and MGB is prohibited from purchasing such Significant Portion due to such
constraints, the Undivided Interest will be deemed to have suffered an Event
of Loss. All funds to be paid or deposited with the Lessor as described in
this paragraph shall, so long as the Indenture shall not have been discharged
be deposited directly with the Indenture Trustee and shall be applied to
prepay all or a portion of the Secured Notes as provided in the Indenture.
Amounts in excess of amounts applied to prepay the Secured Notes in
accordance with the Indenture will be distributed by the Indenture Trustee in
accordance with the terms of the Indenture. The Lien of the Indenture will
terminate with respect to the Undivided Interest or the Significant Portion
thereof after full payment of the Stipulated Loss Value thereof and all other
amounts then due and payable have been paid and, if all amounts due the Owner
Participant have also been paid, the Lease shall also terminate with respect
to the Undivided Interest or such Significant Portion.
Event of Loss is defined to include (a) the loss, theft, destruction or
disappearance of, or the occurrence of damage (which, in the Lessee's
reasonable, good faith opinion, renders repair or replacement uneconomic) to,
the Production System (or substantially the entirety of the Production
System) or a Significant Portion thereof;
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(b) the permanent condemnation, confiscation or seizure of, or requisition of
title to, the Production System or a Significant Portion thereof by any
Governmental Authority; (c) the requisition of use of the Production System
or a Significant Portion thereof by any Governmental Authority for a period
(i) which exceeds the remaining portion of the Lease Term or (ii) which is
longer than three years and which extends beyond the date which is twelve
months prior to the scheduled expiration of the Lease Term; (d) the receipt
of insurance proceeds based upon an actual or constructive total loss of the
Production System or a Significant Portion thereof; (e) at any time after
January 1, 2001, the parties to the Operating Agreement have determined to
abandon the Production System or a Significant Portion thereof; or (f) at any
time after January 1, 1998 and prior to January 2, 2001, the parties to the
Operating Agreement have determined to abandon the Production System or a
Significant Portion thereof after MPTN has taken all commercially reasonable
steps to exercise its rights under the Operating Agreement to prevent such
abandonment.
Lease Events of Default. Lease Events of Default include, among other
things: (a) the failure to make any payment of Basic Rent, Stipulated Loss
Value, Termination Value or purchase price payable pursuant to the Lease and
such failure shall continue for 10 Business Days after the date such payment
was due, (b) the failure to make payments of Supplemental Rent or any other
payment (other than Basic Rent, Stipulated Loss Value, Termination Value or
purchase price payable pursuant to the Lease or Excepted Payments (unless the
Lessor elects to make the failure to make such Excepted Payment constitute a
Lease Event or Default)) or any other amount payable under the Lease and such
failure continues for a period of 15 Business Days after notice of such
failure to MGB from the Lessor or the Indenture Trustee, (c) failure by MGB
to perform or observe any material covenant or agreement (not included in
clause (a) or (b) above) to be performed or observed by it under any
Operative Document other than any covenant or agreement to make an Excepted
Payment (unless the Lessor elects to make the failure to make such Excepted
Payment constitute a Lease Event of Default) and such failure shall continue
for a period of thirty (30) days after written notice thereof from the Lessor
or the Indenture Trustee (or 365 days after such notice, if such default is
susceptible of cure and MGB is diligently attempting to cure such default),
(d) failure by Mobil to perform or observe any covenant or agreement to be
performed or observed by it hereunder or under the Guaranty in any material
respect (other than any covenant or agreement in respect of the Lessee's
obligations under the Operative Documents) and such failure shall continue
for a period of 30 days after written notice thereof from the Lessor or the
Indenture Trustee (or 365 days after such notice, if such default is
susceptible of cure and Mobil is diligently attempting to cure such default),
(e) the occurrence of certain events of bankruptcy, reorganization or
insolvency of MGB or Mobil, (f) any material representation or warranty made
by MGB or Mobil in certain sections of the Participation Agreement or in the
Guaranty or in certain certificates delivered pursuant to the Participation
Agreement shall have been materially false when made and any material adverse
impact thereof shall remain incorrect for 30 days after notice thereof from
the Lessor or the Indenture Trustee (or 365 days after such notice if such
material adverse impact is susceptible of cure, so long as MGB or Mobil, as
applicable, is diligently attempting to cure such misrepresentation) unless
such inaccuracy shall not be material to the recipient of the representation
or warranty at the time such notice was received, (g) the Guaranty shall
cease to be in full force and effect or to be the valid, binding and
enforceable agreement of the Guarantor or (h) the Lessee shall fail to
maintain the insurance policies required by the Lease. (Lease, Section 15)
Upon the occurrence and continuance of any Lease Event of Default, the
Lessor may declare the Lease to be in default. Except as provided below, the
Lessor may at any time thereafter exercise one or more of the remedies set
forth in the Lease, including the right to terminate the Lease, repossess the
Undivided Interest, to sell the Undivided Interest or any part thereof free
and clear of MGB's rights, except MGB's rights under the Agency and Support
Agreement, and, under certain circumstances, retain the proceeds, and, so
long as the Undivided Interest has not been sold, to require MGB to pay as
liquidated damages unpaid Rent and accrued interest plus any one of the
following: (a) an amount equal to the excess of the Stipulated Loss Value
over the Fair Market Sales Value of the Undivided Interest, as of the payment
date specified by the Lessor by written notice to the Lessee (or the last day
of the Basic Lease Term, if earlier), (b) an amount equal to the excess of
the Stipulated Loss Value as of such date over the present value of the Fair
Market Rental Value of the Undivided Interest, for the balance of the Basic
Term (discounted semi-annually at the Debt Rate), (c) an amount equal to the
excess of the present value as of such date of all installments of Basic Rent
payable on or after such
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date during the remaining balance of the Basic Lease Term (or any Renewal
Term then in effect), (discounted semiannually at the Debt Rate) over the
present value as of such date of the Fair Market Rental Value of the
Undivided Interest during the remaining balance of the Basic Lease Term (or
any Renewal Term then in effect), (discounted semiannually at the Debt Rate),
or (d) an amount equal to the greatest of (A) Stipulated Loss Value for the
Undivided Interest determined as of such date, (B) the discounted Fair Market
Rental Value of the Undivided Interest for the remaining useful life thereof
(discounted semiannually at the Debt Rate), and (C) the Fair Market Sales
Value of the Undivided Interest upon which payment, in the case of this
clause (d), the Lessor shall convey the Undivided Interest to MGB. If the
Undivided Interest has been sold, the Lessor may require MGB to pay as
liquidated damages an amount equal to the sum of (x) all accrued and unpaid
Rent, plus (y) the amount of any excess of the Stipulated Loss Value over the
net proceeds of such sale, plus (z) interest at the Overdue Rate plus 3% on
all of the foregoing amounts from the date of such sale until the date of
payment. (Lease, Section 16)
The Ship Mortgage
The Platform is considered a ship under applicable law. The Owner Trustee
has granted to the Indenture Trustee a first priority naval mortgage (the
"Ship Mortgage") in the Owner Trustee's 40% undivided interest in the
Platform to secure the payment of the Secured Notes. Upon a default under
the Indenture, the Ship Mortgage gives the Indenture Trustee the rights and
remedies provided in the Indenture as well as the remedies established by the
laws of the Republic of Panama where the Platform is registered. The Ship
Mortgage and the estate and rights contained therein terminate upon the
satisfaction and discharge of the Secured Notes.
The Participation Agreement
MGB is required to indemnify the Owner Participant, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee for certain losses, fees and
expenses and for certain other matters. (Participation Agreement, Section
12.1) In addition, MGB is required to indemnify the Owner Participant for
certain taxes in connection with the ownership, lease, sale or use of the
Production System. (Participation Agreement, Section 12.2)
FEDERAL INCOME TAX CONSEQUENCES
The following is a general discussion of the anticipated material federal
income tax consequences of the exchange, purchase, ownership and disposition
of the New Certificates. This summary is based on laws, regulations, rulings
and decisions now in effect, all of which are subject to change by
legislative, administrative or judicial action. The discussion below does
not purport to address federal income tax consequences applicable to
particular categories of investors, some of which (for example, insurance
companies or foreign investors) may be subject to special rules. Investors
should consult their own tax advisors in determining the federal, state,
local, foreign and any other tax consequences to them of the purchase,
ownership and disposition of the New Certificates, including the advisability
of making any election discussed below. The Pass Through Trust is not
indemnified for any federal income taxes that may be imposed upon it, and the
imposition of any such taxes could result in a reduction in the amounts
available for distribution to the Certificateholders of a Pass Through Trust.
Dewey Ballantine, counsel to Mobil and MGB, is of the opinion that, based
upon currently applicable law, the following discussion properly describes in
general the principal United States federal income tax consequences of
acquiring, holding and disposing of the New Certificates. This discussion
applies only to a holder of Old Certificates that acquired such Old
Certificates in the Original Offering and that will be an initial holder of
New Certificates pursuant to the exchange of the Old Certificates for the New
Certificates hereunder.
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General
Each Pass Through Trust is classified as a grantor trust and each
Certificateholder is treated as the owner of a pro rata undivided interest in
the Secured Notes or any other property held in each such Pass Through Trust.
Each Certificateholder is required to report on its federal income tax return
its pro rata share of the entire income from the Secured Note and any other
property in the applicable Pass Through Trust, in accordance with such
Certificateholder's method of accounting. Thus, a Certificateholder using
the cash method of accounting should take into account its pro rata share of
income as and when received by the Pass Through Trustee in respect of the
applicable Pass Through Trust while a Certificateholder using an accrual
method of accounting should take into account its pro rata share of income as
it accrues or is received by the Pass Through Trustee in respect of the
applicable Pass Through Trust, whichever is earlier.
Exchange of Old Certificates for New Certificates
A holder of Old Certificates will not recognize gain or loss for federal
income tax purposes in respect of the exchange of Old Certificates for New
Certificates. Each New Certificate received in such exchange will have the
same adjusted tax basis as the Old Certificate exchanged therefor. The
holding period of each such New Certificate will include the holding period
of the Old Certificate exchanged therefor.
Sales of New Certificates
A Certificateholder that sells or exchanges a New Certificate will
recognize gain or loss (in the aggregate) equal to the difference between the
amount realized on the sale (except to the extent attributable to accrued
interest, which should be taxable as interest income) and its adjusted tax
basis in the New Certificate. Subject to the market discount provisions of
the Code (described below), any such gain or loss will be capital gain or
loss provided if the New Certificate was held as a capital asset and, if the
New Certificate was held for more than one year, will be long-term capital
gain or loss. Any long-term capital gains realized will be taxable to
corporate taxpayers at the rates applicable to ordinary income, and to
individual taxpayers at a maximum marginal rate of 28%. Any capital losses
realized will be deductible by a corporate taxpayer only to the extent of
capital gains and by an individual taxpayer only to the extent of capital
gains plus $3,000 of other income.
Market Discount
A purchaser of a Certificate (other than an original purchaser of an Old
Certificate) will be considered to have acquired an interest in the Secured
Notes held in the applicable Pass Through Trust at a "market discount" to the
extent the remaining principal amount of such Secured Notes allocable to such
Certificate exceeds the purchaser's tax basis allocable to such Note, unless
the excess does not exceed a prescribed de minimis amount. In the event such
excess exceeds the de minimis amount, the Certificateholder will be subject
to the market discount rules with regard to its interest in the Secured Note.
In the case of a sale or other disposition of indebtedness subject to the
market discount rules, gain, if any, from such sale or disposition is treated
as ordinary income to the extent such gain represents market discount that
has accrued during the period in which the indebtedness was held. If such
indebtedness is disposed of in a nontaxable transaction, the accrued market
discount (subject to certain exceptions) will be includible as ordinary
income as if the Certificateholder had sold the New Certificate at its then
market value.
In the case of a partial principal payment on indebtedness subject to the
market discount rules, such payment must be included in gross income as
ordinary income to the extent such payment does not exceed the market
discount that has accrued during the period such indebtedness was held. The
amount of any accrued market discount later required to be included in income
upon a disposition or subsequent partial principal payment will be reduced by
the amount of accrued market discount previously included in income.
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Generally, market discount accrues under a straight line method, or, at the
election of the taxpayer, under a constant interest method. However, in the
case of amortizing obligations (such as the Secured Notes held by Pass
Through Trust A-6), until Treasury regulations are issued, the explanatory
Conference Committee Report to the Tax Reform Act of 1986 (the "Conference
Report") indicates that holders of amortizing obligations with market
discount (that do not also have original issue discount) may elect to accrue
market discount either on the basis of a constant interest rate or as
follows: the amount of market discount that is deemed to accrue is the amount
of market discount that bears the same ratio to the total amount of remaining
market discount that the amount of stated interest paid in the accrual period
bears to the total amount of stated interest remaining to be paid on the
amortizing obligation as of the beginning of such period.
If in any taxable year interest paid or accrued on indebtedness incurred or
continued to purchase or carry indebtedness subject to the market discount
rules exceeds the interest currently includible in income with respect to
such indebtedness, deduction of the excess interest must be deferred to the
extent of the market discount allocable to the taxable year. The deferred
portion of any interest expense will generally be deductible when such market
discount is included in income upon the sale or other disposition (including
repayment) of the indebtedness.
A taxpayer may elect to include market discount in its gross income
currently. If such election is made, the rules described above relating to
deferral of interest expense will not apply to the taxpayer.
Premium
A Certificateholder will be considered to have acquired an interest in the
Secured Notes held in the applicable Pass Through Trust at a premium to the
extent the Certificateholder's tax basis allocable to such interest exceeds
the remaining principal amount of the Secured Notes allocable to such
interest. In that event, a Certificateholder who holds a New Certificate as
a capital asset may elect to amortize that premium as an offset to interest
income with corresponding reductions in the Certificateholder's tax basis in
its interest in the Secured Notes. This election is made by claiming the
bond premium on the Certificateholder's tax return. If the election is not
made, the premium represents an increase in the tax basis of the Certificate
and is therefore accounted for under general tax principles only when the
Certificate is sold or redeemed. Generally, if the foregoing election is
made such amortization is taken on a constant yield basis. However, in the
case of amortizing obligations (such as one of the Secured Notes) the
Conference Report indicates a Congressional intent that amortization should
be in accordance with the same rules that apply to the accrual of market
discount on amortizing obligations. See "Market Discount."
In the case of obligations that may be called at a premium prior to
maturity (such as the Secured Notes held by Pass Through Trust A-6),
amortizable bond premium may be determined by reference to an early call
date. Due to the complexities of the amortizable premium rules, particularly
where there is more than one possible call date and the amount of any premium
is uncertain, Certificateholders are urged to consult their own tax advisors
as to the amount of any such amortizable premium.
Assumption of Secured Notes
Under certain circumstances, beneficial ownership of the Undivided Interest
may be transferred by the original Owner Participant to another owner
participant. In addition, under certain limited circumstances, MGB may
assume the obligations of the Lessor under the Secured Notes. In such event,
the Secured Notes will become full recourse notes, will continue to be
secured by a mortgage on the Production System and will be guaranteed
directly by Mobil. See "Description of the Secured Notes--Assumption of
Secured Notes Under Certain Circumstances."
A number of federal income tax considerations are raised by such transfer
or assumption of the Secured Notes including whether that event would be a
taxable event in which a Certificateholder would recognize gain or loss, the
determination of the amount realized upon such events and whether any
original issue discount would
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arise upon such events. There is substantial support, including certain
proposed regulations (which are not yet effective, however), for the position
that the transfer of the interest of an Owner Participant in the Owner Trust
to another owner participant should not be treated as a taxable event to a
Certificateholder. Under the proposed regulations, an assumption of the
Secured Notes by MGB should not be treated as a taxable event. However, until
such time as these proposed regulations become effective, there is a material
risk that such assumption would be a taxable event to the Certificateholders.
In light of the foregoing, each Certificateholder should consult its own tax
advisor as to the potential tax consequences of such events.
Backup Withholding
Payments made on the New Certificates, and proceeds from the sale of the
New Certificates to or through certain brokers, may be subject to a "backup"
withholding tax of 31% unless the Certificateholder complies with certain
reporting procedures or is exempt from such requirements. Any such withheld
amounts are allowed as a credit against the Certificateholder's federal
income tax and may entitle such Certificateholder to a refund, provided the
required information is furnished to the Internal Revenue Service ("the
IRS"). Furthermore, certain penalties may be imposed by the IRS on a
Certificateholder who is required to supply information but who does not do
so in the proper manner.
Pending Legislation
The Revenue Reconciliation Act of 1995 ("RRA") would allow individuals a
deduction equal to 50 percent of net capital gain (which is the excess of net
long term capital gains over net short term capital losses for the taxable
year). The effect of this provision would be to reduce the tax rate on net
capital gains of individuals from a maximum rate of 28 percent to a maximum
rate of 19.8 percent. As described above, under current law up to $3,000 of
ordinary income of an individual may be offset, on a dollar-for-dollar basis,
by long term capital losses. The RRA would require that in allowing such
offset two dollars of such capital losses would be required to offset each
dollar of ordinary income ("2 for 1 rule"). The provisions would generally
be applicable to sales or exchanges after December 31, 1994, except that the
2 for 1 rule would not apply to capital losses arising in taxable years
beginning before 1996. At the present time, it is not clear whether the RRA
will be enacted, or, if it is not enacted, whether similar provisions will be
included in subsequent legislation.
THE FOREGOING SUMMARY DOES NOT DISCUSS ALL ASPECTS OF FEDERAL INCOME
TAXATION THAT MAY BE RELEVANT TO A PARTICULAR CERTIFICATEHOLDER IN LIGHT OF
ITS CIRCUMSTANCES AND INCOME TAX SITUATION. EACH CERTIFICATEHOLDER SHOULD
CONSULT ITS TAX ADVISOR AS TO THE SPECIFIC TAX CONSEQUENCES TO SUCH
CERTIFICATEHOLDER OF THE OWNERSHIP AND DISPOSITION OF THE NEW CERTIFICATES,
INCLUDING THE PROPRIETY OF MAKING ANY ELECTION DESCRIBED ABOVE AND THE
APPLICATION AND EFFECT OF STATE, LOCAL, FOREIGN AND OTHER TAX LAWS.
CERTAIN UTAH TAXES
The Pass Through Trustee is a national banking association with its
corporate trust office at 79 South Main Street, Salt Lake City, Utah. Ray,
Quinney & Nebeker, counsel to the Pass Through Trustee, has advised Mobil
that, in its opinion, under currently applicable law, assuming that the Pass
Through Trust will not be taxable as a corporation, but, rather, will be
classified as a grantor trust for federal income tax purposes, (i) the Pass
Through Trust will not be subject to any tax (including, without limitation,
net or gross income, tangible or intangible property, net worth, capital,
franchise or doing business tax), fee or other governmental charge under the
laws of the State of Utah or any political subdivision thereof and (ii)
Certificateholders who are not residents of or otherwise subject to tax in
Utah will not be subject to any tax (including, without limitation, net or
gross income, tangible or intangible property, net worth, capital franchise
or doing business tax), fee or other governmental charge under the laws of
the State of Utah or any political subdivision thereof as a result of
acquiring pursuant to the Exchange Offer, purchasing, holding (including
receiving payments with respect to)
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or selling a New Certificate. Neither the Pass Through Trusts nor the
Certificateholders will be indemnified for any state or local taxes imposed
on them, and the imposition of any such taxes on any Pass Through Trust could
result in a reduction in the amounts available for distribution to the
Certificateholders of such Pass Through Trust. In general, should a
Certificateholder or the Pass Through Trust be subject to any state or local
tax which would not be imposed if the Pass Through Trustee were located in a
different jurisdiction in the United States, the Pass Through Trustee will
resign and a new Pass Through Trustee in such other jurisdiction will be
appointed.
ERISA CONSIDERATIONS
New Certificates may be purchased by an employee benefit plan (a "Plan")
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"). A fiduciary of a Plan must determine that the purchase of a New
Certificate is consistent with its fiduciary duties under ERISA and does not
result in a non-exempt prohibited transaction as defined in Section 406 of
ERISA or Section 4975 of the Code. Employee benefit plans which are
governmental plans (as defined in Section 3(32) of ERISA) and certain church
plans (as defined in Section 3(33) of ERISA) are not subject to the fiduciary
responsibility provisions of ERISA. Any Plan that purchases a New
Certificate must be an "accredited investor" as defined in Rule 501(a)(1) of
Regulation D of the Securities Act.
The United States Department of Labor (the "DOL") has granted to MS&Co. an
administrative exemption (Prohibited Transaction Exemption 90-24 et al.,
Exemption Application No. D-8019 et al., 55 Fed. Reg. 20,548 (1990)) (the
"Exemption") from certain of the prohibited transaction rules of ERISA and
the Code with respect to the initial purchase, the holding, and the
subsequent resale by a Plan (including an individual retirement account or
other plan subject to Section 4975 of the Code) of certificates in certain
pass through trusts, the assets of which pass through trusts consist of
obligations that bear interest or are purchased at a discount and which are
secured by commercial real property (including obligations secured by
leasehold interests on commercial real property) or by equipment. The
limited relief provided by the DOL in the Exemption from certain provisions
of ERISA and the Code is subject to several other conditions, including a
requirement that New Certificates acquired by a Plan under the Exemption have
received a rating at the time of acquisition by the Plan that is in one of
the three highest rating categories from either Standard & Poor's, Moody's
Investors Service, Inc., Fitch Investors Service, Inc. or Duff & Phelps Inc.
The New Certificates have received such a rating from Moody's and Standard &
Poor's. The Exemption also requires that the acquisition of New Certificates
by a Plan be on terms (including the price for the New Certificates) that are
at least as favorable to a Plan as they would be in an arm's length
transaction with an unrelated party.
Each fiduciary of a Plan should independently determine if its purchase or
holding of a New Certificate will require an exemption, and if so, whether
the Exemption applies to such purchase or holding, or whether any other
prohibited transaction exemption is available.
A fiduciary should also be aware that under regulations promulgated by the
DOL, 29 C.F.R. Section 2510.3-101 (the "Regulation"), if a Plan acquires a
New Certificate, then the Plan's assets may include both the New Certificate
it acquires and an undivided interest in the underlying assets of the related
Pass Through Trust (because such Pass Through Trust is deemed to hold assets
of the Plan) unless the actual level of investment by employee benefit plans
(and certain entities in which employee benefit plans invest) in the New
Certificates is not "significant" within the meaning of the Regulation.
Under the terms of the Regulation, if a Pass Through Trust were deemed to
hold assets of an employee benefit plan by reason of a Plan's investment in a
New Certificate, such plan assets would include an undivided interest in such
Pass Through Trust, the Secured Notes and other assets held by such Pass
Through Trust. In such an event, the persons providing services with respect
to the assets of such Pass Through Trust, including the Secured Notes, may be
subject to the fiduciary responsibility provisions of Title I of ERISA and be
subject to the prohibited transaction provisions of ERISA and the Code with
respect to transactions involving such assets
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unless such transactions are subject to a statutory or administrative
exemption. The Exemption may provide prohibited transaction relief under
these circumstances.
The foregoing discussion is general in nature and is not intended to be all
inclusive. Any fiduciary of a Plan considering the purchase of New
Certificates should consult its legal advisors regarding the consequences of
such purchase under ERISA and the Code (and, particularly in the case of non-
ERISA plans, concerning any state law consideration).
PLAN OF DISTRIBUTION
Except as described below, a broker-dealer may not participate in the
Exchange Offer in connection with a distribution of the New Certificates.
Such broker-dealer would be deemed an underwriter in connection with such
distribution, and such broker-dealer would be required to comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any secondary resale transactions. A broker-dealer may,
however, receive New Certificates for its own account pursuant to the
Exchange Offer in exchange for Old Certificates where such Old Certificates
were acquired as a result of market-making activities or other trading
activities. Each such broker-dealer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Certificates. This
Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer (other than an "affiliate" of Mobil or MGB) in
connection with resales of such New Certificates. Mobil and MGB have agreed
that, for a period of 90 days after the Expiration Date, they will make this
Prospectus available to any such broker-dealer for use in connection with any
such resale.
Mobil and MGB will not receive any proceeds from any sale of New
Certificates by broker-dealers. New Certificates received by broker-dealers
for their own account pursuant to the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the New
Certificates or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation
in the form of commissions or concessions from any such broker-dealer and/or
the purchasers of any such New Certificates. Any broker-dealer that resells
New Certificates that were received by it for its own account pursuant to the
Exchange Offer may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit on any such resale of New Notes and any
commissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of
Transmittal states that by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
For a period of 90 days after the Expiration Date, Mobil and MGB will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such
documents in the Letter of Transmittal.
MS&Co. has indicated to Mobil and MGB that it intends to effect offers and
sales of the New Certificates in market-making transactions at negotiated
prices related to prevailing market prices at the time of sale, but is not
obligated to do so and such market-making activities may be discontinued at
any time. MS&Co. may act as principal or agent in such transactions. There
can be no assurance that an active market for the New Certificates will
develop.
LEGAL MATTERS
Certain legal matters with respect to the New Certificates offered in
exchange hereby will be passed upon for Mobil and MGB by Ralph N. Johanson,
Jr., Assistant General Counsel of Mobil, and by Dewey Ballantine, New York,
New York, and by Ray, Quinney & Nebeker, Salt Lake City, Utah.
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EXPERTS
The consolidated financial statements of Mobil incorporated by reference in
Mobil's Annual Report (Form 10-K) for the year ended December 31, 1995, have
been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon incorporated by reference therein and incorporated
herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
DOCUMENTS INCORPORATED BY REFERENCE
Mobil's Annual Report on Form 10-K for the year ended December 31, 1995,
and its Current Reports on Form 8-K filed on January 22, 1996, February 14,
1996, February 29, 1996 and April 23, 1996 heretofore filed with the
Commission pursuant to the Exchange Act are hereby incorporated by reference.
All documents filed by Mobil pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the New Certificates offered hereby shall
be deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
Mobil will provide without charge to each person to whom this
Prospectus is delivered, upon the request of such person, a copy of any or
all of the foregoing documents incorporated herein by reference (other than
exhibits unless specifically incorporated therein). Requests for such
documents should be directed to Mobil Corporation, 3225 Gallows Road,
Fairfax, Virginia 22037-0001, Attention: Secretary (telephone
(703) 846-3000).
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APPENDIX I
GLOSSARY OF CERTAIN TERMS
The following is a glossary of certain terms used in this Prospectus. The
definitions of terms used in this glossary that are also used in the
Agreement, Indenture, Lease or Participation Agreement are qualified in their
entirety by reference to the definitions of such terms contained therein.
"Agreement" means each Pass Through Trust Agreement among First Security
Bank of Utah, National Association, as Pass Through Trustee, Mobil and MGB
pursuant to which the Mobil Corporation 1995-A Pass Through Trusts were
formed.
"Certificate Account" means the one or more accounts established and
maintained pursuant to the Agreement by the Pass Through Trustee with itself
for the related Pass Through Trust and for the benefit of the
Certificateholders, for the deposit of payments representing Scheduled
Payments on the Secured Notes held in such Pass Through Trust.
"Certificateholder" means any holder of a New Certificate or Old
Certificate.
"Code" means the United States Internal Revenue Code of 1986, as amended.
"Event of Default" means, with respect to the Agreement, the occurrence and
continuance of an Indenture Event of Default.
"Event of Loss" means each of the events designated as such in the Lease.
Certain other events specified in the Lease constitute a deemed Event of
Loss. Upon the occurrence of an Event of Loss or deemed Event of Loss with
respect to a Significant Portion of the Production System, MGB is obligated
to either rebuild such Significant Portion or pay the applicable Stipulated
Loss Value for such Significant Portion. For a description of certain events
constituting an Event of Loss or deemed Event of Loss, see "Description of
the Secured Notes--The Lease--Events of Loss."
"Guaranty" means the Guaranty entered into with respect to MGB's payment
and other obligations under the leveraged lease transaction by Mobil in favor
of the Owner Trustee, the Indenture Trustee, the Pass Through Trustee and the
holders from time to time of any New Certificate or Old Certificate.
"Indenture" means the Trust Indenture, Mortgage, Assignment of Lease and
Security Agreement entered into with respect to the Undivided Interest
between the Owner Trustee and the Indenture Trustee and pursuant to which the
Owner Trustee has issued the Secured Notes with respect to the Undivided
Interest, as such Trust Indenture, Mortgage, Assignment of Lease and Security
Agreement may from time to time be amended or supplemented.
"Indenture Estate" means a security interest in and mortgage on all the
right, title and interest of the Owner Trustee in certain property, rights,
interests and privileges, including without limitation the Undivided
Interest, the Lease and the Guaranty.
"Indenture Event of Default" means each of the events designated as an
event of default in the Indenture. For a description of certain events
constituting Indenture Events of Default, see "Description of the Secured
Notes--Indenture Events of Default, Notice and Waiver."
"Indenture Trustee" means First Security Bank of Utah, National
Association, in its capacity as Indenture Trustee under the Indenture, and
its successors and assigns thereunder.
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"Lease" means the Production System Lease Agreement entered into with
respect to the Undivided Interest between the Owner Trustee and MGB, as such
Lease Agreement may from time to time be amended or supplemented.
"Lease Event of Default" means each of the events designated as an event of
default in the Lease. For a description of certain events constituting Lease
Events of Default, see "Description of the Secured Notes--The Lease--Lease
Events of Default."
"Lessor's Cost" means the cost to the Owner Trustee of the Undivided
Interest purchased by it from MGB, as it may be adjusted as the result of a
termination of the Lease with respect to a Significant Portion of the
Undivided Interest in respect of which Stipulated Loss Value or Termination
Value has been paid.
"New Certificate" means the Pass Through Certificates, Series 1995-B that
were issued in exchange for the Pass Through Certificates, Series 1995-A
pursuant to the Exchange Offer.
"Old Certificate" means the Pass Through Certificates, Series 1995-A that
were issued by the Pass Through Trustee pursuant to the Agreements.
"Operator" means Enserch Exploration, Inc., as the operator of the
Production System pursuant to the Unit Operating Agreement.
"Owner Participant" means the owner participant for whose benefit the Owner
Trustee holds legal title to the Undivided Interest leased to MGB pursuant to
the Lease and its permitted successors and assigns.
"Owner Trustee" means Fleet National Bank of Connecticut, not in its
individual capacity but solely as trustee of the owner trust for the benefit
of the Owner Participant, and its successors and assigns.
"Participation Agreement" means the Participation Agreement entered into in
connection with the leveraged lease financing of the Undivided Interest.
"Pass Through Trusts" means the Mobil Corporation 1995-A Pass Through
Trusts formed pursuant to the Agreements.
"Pass Through Trustee" means First Security Bank of Utah, National
Association, in its capacity as Pass Through Trustee under each Agreement and
its successors and assigns thereunder.
"Pool Balance" means for each Pass Through Trust, as of any Regular
Distribution Date or Special Distribution Date, if any, the aggregate unpaid
principal amount of the Secured Notes held in such Pass Through Trust plus
any amounts in respect of principal on the Secured Notes held by the Pass
Through Trustee and not yet distributed. The Pool Balance as of any Regular
Distribution Date or Special Distribution Date, if any, shall be computed
after giving effect to the payment of principal, if any, of the Secured Notes
and distribution thereof to be made on that date.
"Pool Factor" means for each Pass Through Trust, as of any Regular
Distribution Date or Special Distribution Date, if any, the quotient (rounded
to the seventh decimal place) computed by dividing (i) the aggregate unpaid
principal amount of the Secured Notes held in such Pass Through Trust on such
date, plus any amounts in respect of principal on such Secured Notes held by
the Pass Through Trustee and not yet distributed by (ii) the aggregate
original principal amount of New Certificates issued by such Pass Through
Trust. The Pool Factor for each Pass Through Trust as of any Regular
Distribution Date or Special Distribution Date, if any, shall be computed
after giving effect to the payment of principal, if any, on the Secured Notes
held in such Pass Through Trust and distribution thereof to be made on that
date.
"Regular Distribution Date" means each January 2 and July 2 of each year,
commencing July 2, 1996.
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"Secured Notes" means the Secured Notes issued on a nonrecourse basis by
the Owner Trustee pursuant to the Indenture.
"Scheduled Payment" means each payment of principal of or interest on a
Secured Note scheduled to be received by the Pass Through Trustee on each
January 2 or July 2 of each year commencing July 2, 1996, until the final
distribution date for the relevant Pass Through Trust which payment
represents the payment of principal at stated maturity of, or the scheduled
repayment of principal of such Secured Note, or the regularly scheduled
payment of interest accrued on such Secured Note.
"Special Distribution Date" means the date on which a Special Payment will
be distributed, which date will be the second day of a month.
"Special Payment" means any payment of principal, premium, if any, and
interest received by the Pass Through Trustee on account of the prepayment,
if any, of the Secured Notes held in the related Pass Through Trust; any
payment received by the Pass Through Trustee following an Indenture Event of
Default in respect of the Secured Notes held in such Pass Through Trust,
including payments received by the Pass Through Trustee on account of the
purchase by the Owner Trustee of such Secured Notes and payments received by
the Pass Through Trustee on account of the sale by it of such Secured Notes;
and any Scheduled Payment which is not in fact paid within five days of the
Regular Distribution Date applicable thereto.
"Special Payments Account" means the one or more accounts established and
maintained pursuant to an Agreement by the Pass Through Trustee thereunder
with itself, for the Pass Through Trust created by such Agreement and for the
benefit of the Certificateholders of such Pass Through Trust, for the deposit
of payments representing Special Payments.
"Specified Investments" means (i) direct obligations of the United States
of America and agencies thereof for which the full faith and credit of the
United States is pledged, (ii) obligations fully guaranteed by the United
States of America, (iii) certificates of deposit issued by, or bankers'
acceptances of, or time deposits with any bank, trust company or national
banking association incorporated or doing business under the laws of the
United States of America or one of the states thereof having combined capital
and surplus and retained earnings of at least $500,000,000 (including any
Indenture Trustee or Owner Trustee if such conditions are met),
(iv) commercial paper of companies, banks, trust companies or national banking
associations incorporated or doing business under the laws of the United
States of America or one of the states thereof and in each case having a
rating assigned to such commercial paper by Standard & Poor's Corporation or
Moody's Investors Service, Inc. (or, if neither such organization shall rate
such commercial paper at any time, by any nationally recognized rating
organization in the United States of America) equal to the highest rating
assigned by such organization, and (v) purchase agreements with any financial
institution having a combined capital and surplus of at least $750,000,000
fully collateralized by obligations of the type described in clauses
(i) through (iv) above; provided that if all of the above investments are
unavailable, the entire amount to be invested may be used to purchase Federal
Funds from an entity described in (iii) above; and provided further that no
investment shall be eligible as a "Specified Investment" unless the final
maturity or date of return of such investment is 91 days or less from the
date of purchase thereof.
"Stipulated Loss Value" means the amount payable under the Lease upon the
occurrence of an Event of Loss with respect to the Production System or a
Significant Portion thereof, which amount shall in all circumstances be at
least sufficient together with other amounts then due under the Lease to pay
in full as of the date of payment thereof the aggregate unpaid principal of
the outstanding Secured Notes issued with respect to the Undivided Interest
(or in the case of an Event of Loss with respect to a Significant Portion of
the Undivided Interest, the portion of aggregate unpaid principal of the
outstanding Secured Notes relating to such Significant Portion), together
with all unpaid interest thereon accrued and to accrue to such date of
payment.
"Termination Value" means the amount required to be received by the Owner
Trustee under the Lease following certain early terminations of the Lease,
which amount shall in all circumstances be at least sufficient
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together with other amounts then due under the Lease to pay in full as of the
date of payment thereof the aggregate unpaid principal of the outstanding
Secured Notes with respect to the Undivided Interest (or, in the case of a
termination with respect to a Significant Portion of the Undivided Interest,
the portion of the aggregate unpaid principal of the outstanding Secured
Notes relating to such Significant Portion), together with all unpaid
interest thereon accrued and to accrue to such date of payment. The Owner
Trustee may receive Termination Value either from the proceeds of the sale of
the Undivided Interest or such Significant Portion upon termination of the
Lease or, if such proceeds are insufficient, from payments by MGB.
"Undivided Interest" means the 40% undivided interest in the Production
System.
"Unit Operating Agreement" means the agreement between the Operator and
MPTN, dated as of April 12, 1995, pursuant to which the Operator operates the
Production System.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to the provisions of Article VI of Mobil's By-Laws, as
amended to June 14, 1995, incorporated by reference to Exhibit 3(ii) to
Mobil's Form 8-K, dated as of July 6, 1995. Reference is also made to the
provisions of Article V of MGB's By-Laws, a copy of which is filed as Exhibit
3.2 hereto.
Section 145 of the General Corporation Law of Delaware (the "Delaware
Law"), to which reference is hereby made, contains provisions for the
indemnification of directors and officers on terms substantially identical to
those contained in Mobil's By-Laws. Article V of MGB's By-Laws provides for
indemnification of the directors and certain officers of MGB to the full extent
permitted by Section 145 of the Delaware Law.
Mobil has obtained a Directors and Officers liability insurance policy,
effective November 1, 1995, issued by National Union Fire Insurance Company,
and excess insurance policies issued by various commercial underwriters and
mutual insurers effective the same date, pursuant to which the directors and
certain officers of Mobil and the directors and officers of MGB are insured
against certain liabilities they may incur in their respective capacities.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
3.1 Certificate of Incorporation, as amended of Mobil G.B. 388 Finance
Inc.
3.2 By-Laws of Mobil G.B. 388 Finance Inc.
4.1(a) Form of Pass Through Trust Agreements 1995-A1 through A5, dated as
of December 12, 1995, among Mobil Corporation, Mobil G.B. 388
Finance Inc. and First Security Bank of Utah, National Association,
as Trustee for the Mobil Corporation 1995-A1 through A5 Pass
Through Trusts (including Form of Pass Through Certificates, Series
1995-A1 through A5).
4.1(b) Pass Through Trust Agreement, dated as of December 12, 1995, among
Mobil Corporation, Mobil G.B. 388 Finance Inc. and First Security
Bank of Utah, National Association, as Trustee for the Mobil
Corporation 1995-A6 Pass Through Trust (including Form of Pass
Through Certificate, Series 1995-A6).
4.2(a) Form of Pass Through Certificate, Series 1995-B1.
(b) Form of Pass Through Certificate, Series 1995-B2.
(c) Form of Pass Through Certificate, Series 1995-B3.
(d) Form of Pass Through Certificate, Series 1995-B4.
(e) Form of Pass Through Certificate, Series 1995-B5.
(f) Form of Pass Through Certificate, Series 1995-B6.
4.3 Trust Indenture, Mortgage, Assignment of Lease and Security
Agreement, dated as of December 12, 1995, among Fleet National Bank
of Connecticut, solely as Corporate Owner Trustee, Michael M.
Hopkins, solely as Individual Owner Trustee, First Security Bank of
Utah, National Association, solely as Corporate Indenture Trustee
and Val T. Orton, solely as Individual Indenture Trustee.
4.4(a) Form of Series 1995-A1 through A5 Secured Non-Recourse Notes dated
December 12, 1995.
4.4(b) Series 1995-A6 Secured Non-Recourse Note dated December 12, 1995.
4.5 Participation Agreement, dated as of December 12, 1995, among Mobil
G.B. 388 Finance Inc., General Electric Credit Corporation of
Georgia, as Owner Participant, First Security Bank of Utah,
National Association, as Pass Through Trustee and Loan Participant,
Fleet National Bank of Connecticut, solely as Corporate Owner
Trustee, Michael M. Hopkins, solely as Individual Owner Trustee,
First Security Bank of Utah, National Association, solely as
Corporate Indenture Trustee and Val T. Orton, Individual Indenture
Trustee and all exhibits attached thereto.
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4.6 Trust Agreement, dated as of December 12, 1995, among General Electric
Credit Corporation of Georgia, as Owner Participant and Fleet
National Bank of Connecticut, as Corporate Owner Trustee and
Michael M. Hopkins, as Individual Owner Trustee.
4.7 Mobil Guaranty, dated as of December 12, 1995, by and among Mobil
Corporation, Fleet National Bank of Connecticut, as the Corporate
Owner Trustee, in both its individual capacity and as Corporate
Owner Trustee, Michael M. Hopkins, in both his individual capacity and
as Individual Owner Trustee, First Security Bank of Utah, National
Association, in both its individual capacity and Corporate Indenture
Trustee, Val T. Orton, in both its individual capacity and as
Corporate Indenture Trustee, First Security Bank of Utah, National
Association, in both its individual capacity and as Pass Through
Trustee and as Loan Participants, and General Electric Credit
Corporation of Georgia, as Owner Participant, and Letter of Mobil
Corporation dated April 17, 1996, with respect to that certain Mobil
Guaranty dated as of December 12, 1995.
4.8 Production System Lease Agreement, dated as of December 12, 1995,
among Fleet National Bank of Connecticut, solely as Corporate Owner
Trustee and Michael M. Hopkins, solely as Individual Owner Trustee,
collectively, as Lessor and Mobil G.B. 388 Finance Inc., as Lessee.
4.9 First Priority Naval Mortgage, dated as of December 12, 1995, by Fleet
National Bank of Connecticut, not in its individual capacity but
solely as Owner Trustee under a Trust Agreement, dated as of December
12, 1995, for the benefit of the Owner Participant named therein, to
First Security Bank of Utah, National Association, not in its
individual capacity but solely as Indenture Trustee under a Trust
Indenture, dated as of December 12, 1995.
4.10 Placement Agreement, dated December 6, 1995, among Mobil Corporation,
Mobil G.B. 388 Finance Inc. and Morgan Stanley & Co. Incorporated.
4.11 Registration Rights Agreement, dated as of December 12, 1995, among
Mobil Corporation, Mobil G.B. 388 Finance Inc. and Morgan Stanley &
Co. Incorporated.
5.1 Opinion of Dewey Ballantine.
5.2 Opinion of Ralph N. Johanson, Jr., Assistant General Counsel of Mobil
Corporation.
5.3 Opinion of Ray, Quinney & Nebeker.
8.1 Tax Opinion of Dewey Ballantine - Included in Exhibit 5.1.
8.2 Tax Opinion of Ray, Quinney & Nebeker - Included in Exhibit 5.3.
12 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Dewey Ballantine - Included in Exhibit 5.1.
23.2 Consent of Ralph N. Johanson, Jr., Assistant General Counsel of Mobil
Corporation - Included in Exhibit 5.2.
23.3 Consent of Ernst & Young LLP, Independent Auditors.
23.4 Consent of Ray, Quinney & Nebeker - Included in Exhibit 5.3.
II-2
<PAGE>
24.1 Power of Attorney - Mobil Corporation.
24.2 Power of Attorney - Mobil G.B. 388 Finance Inc.
25 Statement of Eligibility of Pass Through Trustee on Form T-1.
99.1 Form of Letter of Transmittal.
99.2 Form of Instructions to Registered Certificateholder.
99.3 Form of Notice of Guaranteed Delivery.
99.4 Exchange Agent Agreement dated as of May 1, 1996, among Mobil
Corporation, Mobil G.B. 388 Finance Inc. and First Security Bank of
Utah, National Association.
(b) Financial Statement Schedules
Not Applicable.
ITEM 22. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act") unless the
information required to be included in such post-effective amendment is
contained in a periodic report filed by the registrant pursuant to section 13
or section 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in this registration
statement;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement, unless the information required to be included in
such post-effective amendment is contained in a periodic report filed by the
registrant pursuant to section 13 or section 15(d) of the Exchange Act, and
incorporated by reference in this registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-3
<PAGE>
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
(4) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this
Form, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of the registration statement through the date of responding
to the request.
(5) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein,
that was not the subject of and included in the registration statement when
it became effective.
(6) That, for purposes of determining any liability under the Securities
Act, each filing of Mobil's annual report pursuant to section 13(a) or
section 15(d) of the Exchange Act that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, and controlling persons of the
registrants pursuant to the foregoing provisions (except for the insurance
referred to in the third paragraph of Item 20), or otherwise, the registrants
have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the registrants
will, unless in the opinion of their counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-4
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, EACH REGISTRANT HAS
DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF FAIRFAX, COMMONWEALTH
OF VIRGINIA, ON MAY 8, 1996.
MOBIL G.B. 388 FINANCE MOBIL CORPORATION
By: /s/ Gordon G. Garney By: /s/ Gordon G. Garney
- ------------------------------------- --------------------------------
Gordon G. Garney, as Attorney-In-Fact Gordon G. Garney, as Attorney-In-Fact
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
MOBIL CORPORATION
PRINCIPAL EXECUTIVE OFFICER:
Director and Chairman of the Board,
Lucio A. Noto* President and Chief Executive Officer
PRINCIPAL FINANCIAL OFFICER:
Senior Vice President and Chief
Thomas C. DeLoach, Jr.* Financial Officer
PRINCIPAL ACCOUNTING OFFICER:
Acting Controller
George Broadhead*
DIRECTORS:
Lewis M. Branscomb*
Donald V. Fites*
Charles A. Heimbold, Jr.*
Paul J. Hoenmans*
Allen F. Jacobson*
Samuel C. Johnson*
Helene L. Kaplan*
J. Richard Munro*
Lucio A. Noto*
II-5
<PAGE>
MOBIL CORPORATION
Aulana L. Peters*
Eugene A. Renna*
Charles S. Sanford, Jr.*
Robert G. Schwartz*
Robert O. Swanson*
- -------------------------
* By power of attorney authorizing Gordon G. Garney to execute the
Registration Statement and amendments and/or post-effective amendments and
supplements thereto on behalf of Mobil and its Directors and Officers.
MOBIL G.B. 388 FINANCE INC.
PRINCIPAL EXECUTIVE OFFICER:
Walter R. Arnheim* Director and President
PRINCIPAL FINANCIAL OFFICER:
Richard E. Sliwinski* Treasurer
PRINCIPAL ACCOUNTING OFFICER:
George Broadhead* Controller
DIRECTORS:
Walter R. Arnheim*
Ralph N. Johanson, Jr.*
Richard E. Sliwinski*
- ------------------------
* By power of attorney authorizing Gordon G. Garney to execute the
Registration Statement and amendments and/or post-effective amendments and
supplements thereto on behalf of Mobil G.B. 388 Finance Inc. and its
Directors and Officers.
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT FILING
NUMBER DESCRIPTION METHOD
- ------- ----------- ------
<S> <C> <C>
3.1 Certificate of Incorporation, as amended of Mobil G.B. Finance Inc. ELECTRONIC
3.2 By-Laws of Mobil G.B. 388 Finance Inc. ELECTRONIC
4.1(a) Pass Through Trust Agreement 1995-A1 through A5, dated as of
December 12, 1995, among Mobil Corporation, Mobil G.B. 388 Finance Inc. and
First Security Bank of Utah, National Association, as Trustee for the Mobil
Corporation 1995-A1 through A5 Pass Through Trusts (including Form of Pass Through
Certificates, Series 1995-A1 through A5). ELECTRONIC
4.1(b) Pass Through Trust Agreement, dated as of December 12, 1995, among
Mobil Corporation, Mobil G.B. 388 Finance Inc. and First Security
Bank of Utah, National Association, as Trustee for the Mobil Corporation
1995-A6 Pass Through Trust (including Form of Pass Through Certificate,
Series 1995-A6) ELECTRONIC
4.2(a) Form of Pass Through Certificate, Series 1995-B1. ELECTRONIC
(b) Form of Pass Through Certificate, Series 1995-B2. ELECTRONIC
(c) Form of Pass Through Certificate, Series 1995-B3. ELECTRONIC
(d) Form of Pass Through Certificate, Series 1995-B4. ELECTRONIC
(e) Form of Pass Through Certificate, Series 1995-B5. ELECTRONIC
(f) Form of Pass Through Certificate, Series 1995-B6. ELECTRONIC
4.3 Trust Indenture, Mortgage, Assignment of Lease and Security Agreement,
dated December 12, 1995, among Fleet National Bank of Connecticut, solely
as Corporate Owner Trustee, Michael M. Hopkins, solely as Individual Owner
Trustee, First Security Bank of Utah, National Association, solely as Corporate
Indenture Trustee and Val T. Orton, solely as Individual Indenture Trustee. ELECTRONIC
4.4(a) Form of Series 1995-A1 through A5 Secured Non-Recourse Notes dated
December 12, 1995. ELECTRONIC
4.4(b) Series 1995-A6 Secured Non-Recourse Note dated December 12, 1995. ELECTRONIC
4.5 Participation Agreement, dated as of December 12, 1995, among Mobil G.B.
388 Finance Inc., General Electric Credit Corporation of Georgia, as Owner
Participant, First Security Bank of Utah, National Association, as Pass Through
Trustee and Loan Participant, Fleet National Bank of Connecticut, solely as
Corporate Owner Trustee, First Security Bank of Utah, National Association,
solely as Corporate Indenture Trustee, Michael M. Hopkins, solely as
Individual Owner Trustee, and Val Orton, Individual Indenture Trustee and all
exhibits attached thereto. ELECTRONIC
4.6 Trust Agreement, dated as of December 12, 1995, among General Electric
Credit Corporation of Georgia, as Owner Participant and Fleet National Bank
of Connecticut, as Corporate Owner Trustee and Michael M. Hopkins, as
Individual Owner Trustee. ELECTRONIC
4.7 Mobil Guaranty, dated as of December 12, 1995, by and among Mobil
Corporation, Fleet National Bank of Connecticut, as the Corporate Owner
Trustee, in both its individual capacity and as Corporate Owner Trustee,
Michael M. Hopkins, in both his individual capacity and as Individual Owner
Trustee, First Security Bank of Utah, National Association, in both its
individual capacity and as Corporate Indenture Trustee, Val T. Orton, in both
its individual capacity and as Corporate Indenture Trustee, First Security Bank
of Utah, National Association, in both its individual capacity and as Pass
Through Trustee and as Loan Participants, and General Electric Credit
Corporation of Georgia, as Owner Participant, and Letter of Mobil Corporation
dated April 17, 1996, with respect to that certain Mobil Guaranty
dated as of December 12, 1995. ELECTRONIC
4.8 Production System Lease Agreement, dated as of December 12, 1995, among
Fleet National Bank of Connecticut, solely as Corporate Owner Trustee and
Michael M. Hopkins, solely as Individual Owner Trustee, collectively, as
Lessor and Mobil G.B. 388 Finance Inc., as Lessee. ELECTRONIC
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
4.9 First Priority Naval Mortgage, dated as of December 12, 1995, by Fleet
National Bank of Connecticut, not in its individual capacity but solely as
Owner Trustee under a Trust Agreement, dated as of December 12, 1995, for
the benefit of the Owner Participant named therein, to First Security Bank of
Utah, National Association, not in its individual capacity but solely as
Indenture Trustee under a Trust Indenture, dated as of December 12, 1995. ELECTRONIC
4.10 Placement Agreement, dated December 6, 1995, among Mobil Corporation,
Mobil G.B. 388 Finance Inc. and Morgan Stanley & Co. Incorporated. ELECTRONIC
4.11 Registration Rights Agreement, dated as of December 12, 1995, among Mobil
Corporation, Mobil G.B. 388 Finance Inc. and Morgan Stanley & Co. ELECTRONIC
Incorporated.
5.1 Opinion of Dewey Ballantine. ELECTRONIC
5.2 Opinion of Ralph N. Johanson, Jr., Assistant General Counsel of Mobil
Corporation. ELECTRONIC
5.3 Opinion of Ray, Quinney & Nebeker. ELECTRONIC
8.1 Tax Opinion of Dewey Ballantine - Included in Exhibit 5.1. ELECTRONIC
8.2 Tax Opinion of Ray, Quinney & Nebeker - Included in Exhibit 5.3. ELECTRONIC
12 Computation of Ratio of Earnings to Fixed Charges. ELECTRONIC
23.1 Consent of Dewey Ballantine - Included in Exhibit 5.1. ELECTRONIC
23.2 Consent of Ralph N. Johanson, Jr., Assistant General Counsel of Mobil
Corporation - Included in Exhibit 5.2. ELECTRONIC
23.3 Consent of Ernst & Young LLP, Independent Auditors. ELECTRONIC
23.4 Consent of Ray, Quinney & Nebeker - Included in Exhibit 5.3. ELECTRONIC
24.1 Power of Attorney - Mobil Corporation. ELECTRONIC
24.2 Power of Attorney - Mobil G.B. 388 Finance Inc. ELECTRONIC
25 Statement of Eligibility of Pass Through Trustee on Form T-1. ELECTRONIC
99.1 Form of Letter of Transmittal. ELECTRONIC
99.2 Form of Instructions to Registered Certificateholder. ELECTRONIC
99.3 Form of Notice of Guaranteed Delivery. ELECTRONIC
99.4 Exchange Agent Agreement dated as of May 1, 1996, among Mobil Corporation,
Mobil G.B. 388 Finance Inc. and First Security Bank of Utah,
National Association. ELECTRONIC
</TABLE>
II-8
<PAGE>
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
RTC TWO, INC.
* * * * *
1. The name of the corporation is:
RTC TWO, INC.
2. The address of its registered office in the State of Delaware is 32
Loockerman Square, Suite L-100, in the City of Dover, County of Kent, State of
Delaware. The name of its registered agent at such address is The Prentice-Hall
Corporation System, Inc.
3. The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
4. The total number of share of stock which the corporation shall have the
authority to issue is One Thousand (1,000) shares with a par value of One Dollar
($1.00). All such shares are of one class and are shares of Common Stock.
5. The board of directors is authorized to make, alter or repeal the by-
laws of the corporation. Election of directors need not be by written ballot.
<PAGE>
6. The name and mailing address of the incorporator is:
NAME MAILING ADDRESS
---- ---------------
Sheila R. Hawkins 1090 Vermont Avenue, N.W.
Suite 430
Washington, D.C. 20005
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of
Delaware, do make this certificate, hereby declaring and certifying that this is
my act and deed and the facts herein stated are true, and accordingly have
hereunto set my hand this 19th day of October, 1994.
(SGD) Sheila R. Hawkins
-----------------------------------
<PAGE>
STATEMENT
OF
SOLE INCORPORATOR
OF
RTC TWO, INC.
* * * * *
The certificate of incorporation of this corporation having been filed
in the office of the Secretary of State, the undersigned, being the sole
incorporator named in said certificate, does hereby state that the following
actions were taken on this day for the purpose of organizing this corporation:
1. The following persons were elected as directors to hold office
until the first annual meeting of stockholders or until their respective
successors are elected and qualified:
W. D. Deihl
N. G. Greco
S. Pearson
2. The board of directors was authorized to make and adopt the by-
laws of the corporation and, in its discretion, to issue the shares of the
capital stock of this corporation to the full amount of number or shares
authorized by the certificate of incorporation, in such amounts and for such
considerations as from time to time shall be determined by the board of
directors and as may be permitted by law.
Dated October 24, 1994.
(SGD)Sheila R. Hawkins
-------------------------------
<PAGE>
CERTIFICATE OF AMENDMENT
OF RTC TWO, INC.
CERTIFICATE OF INCORPORATION
*****
RTC TWO, INC., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of RTC TWO, INC. by unanimous written
consent of its members, filed with the minutes of the board, duly adopted
resolutions setting forth a proposed amendment to the Certificate of
Incorporation of said corporation, declaring said amendment to be advisable:
RESOLVED, that the Certificate of Incorporation of this corporation be
amended by changing the first Article thereof so that, as amended,
said Article shall be and read as follows:
1. The name of the corporation is:
"MOBIL G.B. 388 FINANCE INC."
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given unanimous written consent to said amendment in
accordance with the provisions of Section 228 of the General Corporation Law of
the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Sections 242 and 228 of the General Corporation Law
of the State of Delaware.
<PAGE>
IN WITNESS WHEREOF, said RTC TWO, INC. Has caused this certificate to be
signed by N. G. Greco , its Vice President, and attested by P. A. Stevenson,
---------------
its Secretary, this 21st day of November, 1995.
RTC TWO, INC.
By: (SGD) N. G. Greco
-----------------------------
Vice President
ATTEST:
(SGD) P.A. Stevenson
- --------------------------
P.A. Stevenson, Secretary
<PAGE>
COMMONWEALTH OF VIRGINIA )
) ss:
COUNTY OF FAIRFAX )
BE IT REMEMBERED that, on November 21, 1995, before me, a Notary
Public duly authorized by law to take acknowledgment of deeds, personally came
N. G. Greco, Vice President of RTC TWO, INC., who duly signed the foregoing
instrument before me and acknowledged that such signing is his act and deed,
that such instrument as executed is the act and deed of said corporation, and
that the facts stated therein are true.
GIVEN under my hand on November 21, 1995.
(SGD) Patrick J. Dexter
----------------------------------
Notary Public
PATRICK J. DEXTER
Commission Expires June 30, 1997
Notary Public, Commonwealth of Virginia
<PAGE>
EXHIBIT 3.2
MOBIL G.B. 388 FINANCE, INC.
----------------------------
BY-LAWS
-------
Article I
OFFICES
Section 1.
The registered office of the Corporation in the State of Delaware
shall be in the City of Wilmington, County of New Castle, State of Delaware.
The Corporation shall have offices at such other places as the Board
of Directors may from time to time determine.
Article II
STOCKHOLDERS
Section 1. PLACE OF MEETINGS.
All meetings of the stockholders, both annual and special, shall be
held at such time and place within or without the State of Delaware as may be
determined by the President or Vice President and stated in the notice of
meeting, or indicated in a duly executed waiver of notice thereof.
Section 2. ANNUAL MEETING.
The annual meeting of the stockholders for the election of Directors
and for the transaction of such other business as may properly come before the
meeting, commencing with the year 1995 shall be held on the Third Wednesday of
October in each year, if not a legal holiday, and if a legal holiday then on the
business day next following at 2:30 o'clock P.M.
The meeting may be adjourned from time to time and place to place
until its business is completed.
Section 3. SPECIAL MEETINGS.
Special meetings of the stockholders may be called by the President,
the Board of Directors, or the holders of a majority of the shares entitled to
vote at the meeting, at any time and place.
<PAGE>
Section 4. NOTICE OF MEETING.
Notice of every meeting of the stockholders or waiver thereof shall be
executed in the manner prescribed by law.
Provided, however, that where action is authorized by written consent,
as set forth in Section 8, a meeting of the stockholders need not be called or
noticed.
Notice of any adjourned meeting need not be given unless the
adjournment is for more than thirty days or unless after the adjournment a new
record date is fixed for the adjourned meeting.
Section 5. QUALIFICATION OF VOTERS.
The Board of Directors (hereinafter sometimes referred to as the
"Board") may fix a day and hour not more than sixty nor less than ten days prior
to the day of holding any meeting of the stockholders as the time as of which
the stockholders entitled to notice of and to vote at such meeting shall be
determined. Only those persons who were holders of record of voting stock at
such time shall be entitled to notice of and to vote at such meeting. Each such
stockholder may vote by proxy as prescribed by law.
Section 6. QUORUM.
Except as otherwise required by law, the Certificate of Incorporation
or these By-Laws, the holders of a majority of the shares entitled to vote at
any meeting of the stockholders, present in person or by proxy, shall constitute
a quorum and the act of the majority of such quorum shall be deemed the act of
the stockholders.
If a quorum shall fail to attend any meeting, the chairman of the
meeting may adjourn the meeting to another place, date or time as provided by
the notice provisions of Section 4 above.
Section 7. PROCEDURE.
The order of business and all other matters of procedure at every
meeting of the stockholders may be determined by the chairman of the meeting.
Section 8. CONSENTS TO CORPORATE ACTION.
Unless otherwise provided in the Certificate of Incorporation any
action required or permitted to be taken at any meeting of the stockholders may
be taken without a meeting and without a vote, if a consent in writing, setting
forth the action so taken, shall be signed by the holders of a majority of the
shares issued and outstanding.
<PAGE>
Article III
DIRECTORS
Section 1. NUMBER AND ELECTION.
The number of Directors which shall constitute the entire Board of
Directors shall be such as from time to time shall be determined by resolution
of the Board of Directors, provided that the tenure of a Director shall not be
affected by any decrease in the number of Directors so made by the Board.
Each Director shall hold office until his successor is elected and
qualified or until his earlier resignation or removal.
The term "entire Board" as used in these By-Laws means the total
number of Directors which the Corporation would have if there were no vacancies.
Section 2. VACANCIES.
Any vacancy and any newly created Directorship resulting from any
increase in the authorized number of Directors may be filled by vote of a
majority of the Directors then in office, though less than a quorum, and any
Director so chosen shall hold office until the next annual election of Directors
by the stockholders and until his successor is duly elected and qualified or
until his earlier resignation or removal.
Section 3. REGULAR MEETINGS.
Regular meetings of the Board shall be held at such times and places
as the Board may from time to time determine.
Section 4. SPECIAL MEETINGS.
Special meetings of the Board may be called at any time, at any place
and for any purpose by the President, or by any officer of the Corporation upon
the request of a majority of the entire Board.
Section 5. NOTICE OF MEETING.
Notice of regular meetings of the Board need not be given.
<PAGE>
Notice of every special meeting of the Board shall be given to each
Director at his usual place of business, or at such other address as shall have
been furnished by him for the purpose. Such notice shall be given at least
twenty-four hours before the meeting by telephone or by being personally
delivered, mailed, transmitted electronically or telegraphed. Such notice need
not include a statement of the business to be transacted at, or the purpose of,
any such meeting.
Provided, however, that notice shall not be required of any special
meeting of the Board at which all the members of the Board are present.
Section 6. QUORUM.
Except as may be otherwise provided by law or in these By- Laws, the
presence of at least one-third of the entire Board but not less than two
Directors shall be necessary and sufficient to constitute a quorum for the
transaction of business at any meeting of the Board, and the act of a majority
of such quorum shall be deemed the act of the Board.
In the absence of a quorum at any meeting of the Board, a majority of
the Directors present may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present.
Section 7. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE.
Unless otherwise restricted by the Certificate of Incorporation,
members of the Board, or of any committee thereof, may participate in a meeting
of such Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other and such participation shall constitute presence in
person at such meeting. Each person participating in the meeting shall sign the
minutes thereof. The minutes may be signed in counterparts, all of which taken
together shall constitute a single instrument.
Section 8. ACTIONS OF BOARD OF DIRECTORS BY CONSENT.
Unless otherwise restricted by the Certificate of Incorporation, any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting if a written consent
thereto is signed by all the members of the Board or of such committee. Such
written consent may be signed in counterparts each of which shall be filed with
the minutes of proceedings of the Board or committee. All of said counterparts
when taken together shall constitute a single instrument.
<PAGE>
Section 9. POWERS.
The business, property and affairs of the Corporation shall be managed
by or under the direction of its Board of Directors, which shall have and may
exercise all the powers of the Corporation to do all such lawful acts and things
as are not by law, or by the Certificate of Incorporation, or by these By-Laws,
directed or required to be exercised or done by the stockholders.
Section 10. COMMITTEES OF DIRECTORS.
The Board of Directors may, by resolution passed by a majority of the
whole Board, designate one or more committees, each committee to consist of one
or more of the Directors of the Corporation, which, to the extent provided in
the resolution or in the By-Laws of the Corporation, shall have and may exercise
the powers of the Board of Directors in the management of the business and
affairs of the Corporation, and may have power to authorize the seal of the
Corporation to be affixed to all papers on which the Corporation desires to
place a seal.
Section 11. COMPENSATION OF DIRECTORS.
Directors may receive such compensation for their services as shall be
determined by a majority of the entire Board provided that Directors who are
serving the Corporation, its subsidiaries, or affiliates as officers or
employees and who receive compensation for their services as such officers or
employees shall not receive any salary or other compensation for their services
as Directors.
Article IV
OFFICERS
Section 1. NUMBER.
The officers of the Corporation shall be chosen by the Board of
Directors. The officers shall be a President, such number of vice presidents as
the Board may from time to time determine, a Secretary, and a Treasurer.
Section 2. ADDITIONAL OFFICERS.
The Board may appoint such other officers, agents and employees as it
shall deem appropriate.
<PAGE>
Section 3. TERMS OF OFFICE.
All officers, agents and employees of the Corporation shall hold their
respective offices or positions at the pleasure of the Board of Directors and
may be removed at any time by the Board of Directors with or without cause.
Section 4. DUTIES.
The officers, agents and employees shall perform the duties and
exercise the powers usually incident to the offices or positions held by them
respectively, and/or such other duties and powers as may be assigned to them
from time to time by the Board of Directors.
Article V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
Section 1.
The Corporation may indemnify to the full extent permitted by, and in
the manner permissible under, the laws of the State of Delaware any person made,
or threatened to be made, a party to an action or proceeding, whether criminal,
civil, administrative or investigative, by reason of the fact that he, his
testator or intestate is or was a director or officer of the Corporation or any
predecessor of the Corporation, or served any other enterprise as a director or
officer at the request of the Corporation or any predecessor of the Corporation.
The Board of Directors in its discretion shall have power on behalf of
the Corporation to indemnify any person, other than a director or officer, made
a party to any action, suit or proceeding by reason of the fact that he, his
testator or intestate, is or was an employee of the Corporation.
Article VI
SEAL
Section 1.
The Corporate seal shall bear the name of the Corporation, the year of
incorporation, and the state of incorporation.
<PAGE>
Article VII
AMENDMENTS
Section 1. AMENDMENTS OF BY-LAWS.
These By-Laws, or any of them, may from time to time be supplemented,
amended or repealed (a) by a majority vote of the entire Board of Directors, or
(b) at any annual or special meeting of the stockholders, by the affirmative
vote of a majority of the shares entitled to vote thereat provided that the
proposed amendment or a summary thereof is contained in the notice of such
stockholders' meeting.
<PAGE>
EXHIBIT 4.1(a)
Each of the Pass Through Trust Agreements dated December 12, 1995 relating to
each of the Mobil Corporation 1995-A2 through A5 Pass Through Trusts is the
same in all material respects as the Pass Through Trust Agreement dated December
12, 1995 among Mobil Corporation, Mobil G. B. 388 Finance Inc. and First
Security Bank of Utah, National Association, as Trustee, for the Mobil
Corporation 1995-A1 Pass Through Trust, except for the following information:
<TABLE>
<CAPTION>
Principal Interest Initial Scheduled Final
Pass Through Trusts Amount Rate Principal Distribution Date Distribution Date
- ------------------- ----------- -------- --------------------------- -----------------
<S> <C> <C> <C> <C>
1995-A1 $ 4,917,000 5.52% January 2, 1997 January 2, 1997
1995-A2 5,173,000 5.57 January 2, 1998 January 2, 1998
1995-A3 5,462,000 5.65 January 2, 1999 January 2, 1999
1995-A4 5,770,000 5.74 January 2, 2000 January 2, 2000
1995-A5 6,101,000 5.79 January 2, 2001 January 2, 2001
</TABLE>
<PAGE>
EXHIBIT 4.1(a)
MOBIL CORPORATION
MOBIL G. B. 388 FINANCE INC.
and
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION,
as Trustee
___________________________________________
PASS THROUGH TRUST AGREEMENT
Dated as of December 12, 1995
___________________________________________
$4,917,000
Mobil Corporation
1995-A1 Pass Through Trust
5.52% Pass Through Certificates,
Series 1995-A1
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE I
DEFINITIONS......................................................... 2
Section 1.01. Definitions.......................................... 2
Section 1.02. Compliance Certificates and Opinions................ 11
Section 1.03. Form of Documents Delivered to Trustee.............. 11
Section 1.04. Acts of Holders..................................... 12
ARTICLE II
ACQUISITION OF SECURED NOTES;
ORIGINAL ISSUANCE OF CERTIFICATES.................................. 13
Section 2.01. Issuance of Certificates; Acquisition of
Secured Notes................................................. 13
Section 2.02. Acceptance by Trustee............................... 14
Section 2.03. Limitation of Powers................................ 14
ARTICLE III
THE CERTIFICATES................................................... 14
Section 3.01. Form, Denomination and Execution of
Certificates........................................ 14
Section 3.02. Authentication of Certificates...................... 17
Section 3.03. Temporary Certificates.............................. 17
Section 3.04. Registration of Transfer and Exchange of
Certificates........................................ 17
Section 3.05. Mutilated, Destroyed, Lost or Stolen
Certificates........................................ 18
Section 3.06. Persons Deemed Owners............................... 19
Section 3.07. Cancellation........................................ 19
Section 3.08. Limitation of Liability for Payments................ 19
Section 3.09. Book-Entry Provisions for U.S. Global
Certificate and Offshore Global
Certificate......................................... 20
Section 3.10. Special Transfer Provisions......................... 22
Section 3.11. CUSIP Numbers....................................... 26
Section 3.12. Registration Rights................................. 26
ARTICLE IV
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<S> <C> <C>
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS................................................. 26
Section 4.01. Certificate Account and Special Payments
Account............................................. 26
Section 4.02. Distributions from Certificate Account
and Special Payments Account........................ 27
Section 4.03. Statements to Certificateholders.................... 28
Section 4.04. Investment of Special Payment Moneys................ 29
ARTICLE V
MOBIL.............................................................. 30
Section 5.01. Maintenance of Corporate Existence.................. 30
Section 5.02. Consolidation, Merger or Sale of Assets
Permitted........................................... 30
Section 5.03. Annual Statements as to Compliance by
Mobil and MGB....................................... 30
Section 5.04. Availability of Certain Information
Concerning Mobil and MGB............................ 31
Section 5.05. Notification of Certain Mobil and MGB
Acquisitions of Certificates........................ 31
ARTICLE VI
DEFAULT............................................................ 31
Section 6.01. Events of Default................................... 31
Section 6.02. Incidents of Sale of Secured Notes.................. 32
Section 6.03. Judicial Proceedings Instituted by
Trustee............................................. 33
Section 6.04. Control by Certificateholders....................... 34
Section 6.05. Waiver of Defaults.................................. 34
Section 6.06. Undertaking to Pay Court Costs...................... 35
Section 6.07. Right of Certificateholders to Receive
Payments Not to Be Impaired......................... 35
Section 6.08. Certificateholders May Not Bring Suit
Except Under Certain Conditions..................... 36
Section 6.09. Remedies Cumulative................................. 37
ARTICLE VII
THE TRUSTEE........................................................ 37
Section 7.01. Certain Duties and Responsibilities................. 37
Section 7.02. Notice of Defaults.................................. 38
</TABLE>
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<TABLE>
<S> <C> <C>
Section 7.03. Certain Rights of Trustee........................... 39
Section 7.04. Not Responsible for Recitals or
Issuance of Certificates............................ 40
Section 7.05. May Hold Certificates............................... 40
Section 7.06. Money Held in Trust................................. 40
Section 7.07. Compensation and Reimbursement...................... 40
Section 7.08. Corporate Trustee Required; Eligibility............. 41
Section 7.09. Resignation and Removal; Appointment of
Successor........................................... 42
Section 7.10. Acceptance of Appointment by Successor.............. 44
Section 7.11. Merger, Conversion, Consolidation or
Succession to Business.............................. 44
Section 7.12. Maintenance of Agencies............................. 44
Section 7.13. Money for Certificate Payments to Be Held
in Trust............................................ 46
Section 7.14. Registration of Secured Notes in
Trustee's Name...................................... 46
Section 7.15. Representations and Warranties of Trustee........... 47
Section 7.16. Withholding Taxes; Information Reporting............ 48
Section 7.17. Trustee's Liens..................................... 48
Section 7.18. Availability of Certain Information
Concerning the Trust................................ 48
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE................... 49
Section 8.01. Mobil and MGB to Furnish Trustee
with Names and Addresses of
Certificateholders.................................. 49
Section 8.02. Preservation of Information;
Communication to Certificateholders................. 49
Section 8.03. Reports by Mobil and MGB............................ 50
ARTICLE IX
SUPPLEMENTAL TRUST AGREEMENTS...................................... 51
Section 9.01. Supplemental Trust Agreement Without
Consent of Certificateholders....................... 51
Section 9.02. Supplemental Trust Agreements with
Consent of Certificateholders....................... 51
Section 9.03. Documents Affecting Immunity or
Indemnity........................................... 52
</TABLE>
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<PAGE>
<TABLE>
<S> <C> <C>
Section 9.04. Execution of Supplemental Trust
Agreements.......................................... 53
Section 9.05. Effect of Supplemental Trust Agreements............. 53
Section 9.06. Reference in Certificates to
Supplemental Trust Agreements....................... 53
ARTICLE X
AMENDMENTS TO INDENTURES AND NOTE DOCUMENTS........................ 53
Section 10.01. Amendments and Supplements to Indenture
and Other Note Documents............................ 53
ARTICLE XI
TERMINATION OF TRUST............................................... 54
Section 11.01. Termination of the Trust............................ 54
ARTICLE XII
MISCELLANEOUS PROVISIONS........................................... 55
Section 12.01. Limitation on Rights of
Certificateholders.................................. 55
Section 12.02. Certificates Nonassessable and Fully
Paid................................................ 55
Section 12.03. Notices............................................. 56
Section 12.04. Governing Law....................................... 56
Section 12.05. Severability of Provisions.......................... 56
Section 12.06. Effect of Headings and Table of
Contents............................................ 56
Section 12.07. Successors and Assigns.............................. 56
Section 12.08. Benefits of Trust Agreement......................... 57
Section 12.09. Legal Holidays...................................... 57
Section 12.10. Counterparts........................................ 57
</TABLE>
EXHIBIT A - Form of Pass Through Certificate
EXHIBIT B - Form of Regulation S Transfer Restriction Certificate
EXHIBIT C - Form of DTC Letter of Representations
EXHIBIT D - Form of Non-QIB Accredited Investors Transfer Certificate
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<PAGE>
EXHIBIT E - Form of Regulation S Transfer Certificate
Schedule A - Description of Secured Notes to be Purchased
- v -
<PAGE>
This PASS THROUGH TRUST AGREEMENT, dated as of December 12, 1995, is
made with respect to the formation of the Mobil Corporation 1995-A[1] Pass
Through Trust, between Mobil Corporation, a Delaware corporation ("Mobil"),
Mobil G. B. 388 Finance Inc., a Delaware corporation ("MGB") and First Security
Bank of Utah, National Association, a national banking association, as Trustee.
WITNESSETH:
WHEREAS, MGB has previously purchased the Undivided Interest (as such
term and certain other capitalized terms used herein are defined below);
WHEREAS, the Owner Trustee, acting on behalf of the Owner Participant,
will purchase the Undivided Interest from MGB and lease the Undivided Interest
to MGB pursuant to the Lease Transaction;
WHEREAS, pursuant to the Lease Transaction, the Owner Trustee will
issue, on a non-recourse basis, Secured Notes under the Indenture in order to
pay MGB a portion of the purchase price for such Undivided Interest;
WHEREAS, pursuant to the terms and conditions of this Trust Agreement
and the Participation Agreement, to be entered into by the Trustee
simultaneously with the execution and delivery of this Trust Agreement, the
Series [A-1] Secured Notes are to be sold to the Trustee by the Owner Trustee,
and the Trustee shall purchase the Series [A-1] Secured Notes and shall hold the
Series [A-1] Secured Notes in trust for the benefit of the Certificateholders;
WHEREAS, the Trustee, upon the execution and delivery of this Trust
Agreement, hereby declares the creation of this Trust for the benefit of the
Certificateholders, and the initial Certificateholders as the grantors of the
Trust and by their respective acceptances of the Certificates join in the
creation of this Trust with the Trustee; and
WHEREAS, to facilitate the sale of the Series [A-1] Secured Notes to
the Trustee and the purchase of the Series [A-1] Secured Notes by the Trustee,
Mobil and MGB are undertaking to perform certain administrative and ministerial
duties hereunder and are also undertaking to pay the fees and expenses of the
Trustee.
NOW, THEREFORE,
<PAGE>
In consideration of the mutual agreements herein contained, and of the
other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. (a) For all purposes of this Trust
-----------
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms used herein that are defined in this Article have the
meanings assigned to them in this Article, and include the plural as well
as the singular;
(2) all references in this Trust Agreement to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this Trust Agreement; and
(3) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
(b) For all purposes of this Trust Agreement, the following
capitalized terms have the following respective meanings:
Act: When used with respect to any Holder, has the meaning specified
---
in Section 1.04.
Affiliate: Of any specified Person, means any other Person which
---------
directly or indirectly controls or is controlled by, or is under common
control with, such specified Person. For the purposes of this definition,
"control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
- 2 -
<PAGE>
Authorized Agent: Means any Paying Agent or Registrar.
----------------
Business Day: Means any day other than a Saturday, a Sunday, or a day
------------
on which commercial banking institutions are authorized or obligated by
law, executive order, or govern mental decree to be closed in New York,
New York, the city and state in which the Corporate Trust Office of the
Indenture Trustee is located or the city and state in which the Corporate
Trust Office of the Trustee is located.
Certificate: Means any one of the certificates executed and
-----------
authenticated by the Trustee, substantially in the form of Exhibit A
hereto. For all purposes of this Trust Agreement, the term "Certificates"
shall include all Initial Certificates and all Exchange Certificates, and,
for purposes of this Trust Agreement, all Initial Certificates and all
Exchange Certificates shall vote together as one series of Certificates
under this Trust Agreement.
Certificate Account: Means the account or accounts created and
-------------------
maintained pursuant to Section 4.01(a).
Certificated Certificates: Has the meaning specified in Section 3.01.
-------------------------
Certificateholder or Holder: Means the Person in whose name a
---------------------------
Certificate is registered in the Register.
Clearing Agency: Means an organization registered as a "clearing
---------------
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.
Clearing Agency Participant: Means a broker, dealer, bank, other
---------------------------
financial institution or other Person for whom from time to time a Clearing
Agency effects, directly or indirectly, book-entry transfers and pledges of
securities deposited with the Clearing Agency.
Closing Date: Has the meaning specified in Section 2.4 of the
------------
Participation Agreement.
- 3 -
<PAGE>
Commission: Means the Securities and Exchange Commission, as from
----------
time to time constituted, created under the Securities Exchange Act of
1934.
Consideration: Has the meaning specified in Section 2.01.
-------------
Corporate Trust Office: With respect to the Trustee, the Owner
----------------------
Trustee and the Indenture Trustee, means the office of such trustee in the
city at which at any particular time its corporate trust business shall be
principally administered.
Default: Means any event which is, or after notice or lapse of time
-------
or both would become, an Event of Default.
Direction: Has the meaning specified in Section 1.04(c).
---------
Distribution Date: With respect to distributions of Scheduled
-----------------
Payments, means January 3, 1996 and thereafter each January 2 and July 2,
commencing July 2, 1996 until payment of all the Scheduled Payments to be
made under the Secured Notes has been made.
DTC: Means The Depository Trust Company and any successor clearing
---
agency.
Event of Default: Means an event described in Section 6.0l.
----------------
Exchange Certificates: means any Certificate executed and
---------------------
authenticated by the Trustee containing terms substantially identical to
the Initial Certificates (except that such Exchange Certificates shall not
contain terms with respect to transfer restrictions) that are issued and
exchanged for the Initial Certificates in the Exchange Offer pursuant to
the Registration Rights Agreement and this Trust Agreement.
Exchange Offer: means the exchange offer that may be effected
--------------
pursuant to the Registration Rights Agreement.
- 4 -
<PAGE>
Fractional Undivided Interest: Means the fractional undivided
-----------------------------
interest in the Trust that is evidenced by a Certificate.
Global Certificate: Has the meaning specified in Section 3.01.
------------------
Guaranty: Means the Guaranty issued by Mobil, pursuant to which Mobil
--------
will irrevocably and unconditionally guarantee all obligations of MGB under
the Lease and other agreements to which MGB is a party.
Holder: See Certificateholder.
------ -----------------
Initial Securities: means the Certificates originally issued on the
------------------
date hereof and any Certificates issued in exchange or replacement thereof
pursuant to the terms of this Trust Agreement, other than the Exchange
Certificates.
Indenture: Means the Trust Indenture, Mortgage, Assignment of Lease
---------
and Security Agreement dated as of December 12, 1995, between the Owner
Trustee and First Security Bank of Utah, National Association, as Indenture
Trustee; as such Indenture may be amended or supplemented in accordance
with its terms.
Indenture Event of Default: Means any Indenture Event of Default (as
--------------------------
such term is defined in the Indenture).
Indenture Trustee: Means First Security Bank of Utah, National
-----------------
Association, as indenture trustee under the Indenture; and any successor to
such Indenture Trustee as such trustee.
Lease: Means the Production System Lease Agreement dated as of
-----
December 12, 1995 between the Owner Trustee, as the lessor, and MGB, as the
lessee; as such Lease may be amended or supplemented in accordance with its
respective terms.
Lease Transaction: Means the sale-leaseback transaction in respect of
-----------------
the Undivided Interest between MGB and the Owner Trustee provided for in
the Participation Agreement.
- 5 -
<PAGE>
Letter of Representations: Means the agreement among Mobil, MGB, the
-------------------------
Trustee and DTC, dated as of December 12, 1995, substantially in the form
attached hereto as Exhibit C.
MGB: Means Mobil G. B. 388 Finance Inc., a Delaware corporation, or
---
its successor in interest pursuant to Section 5.02.
Mobil: Means Mobil Corporation, a Delaware corporation, or its
-----
successor in interest pursuant to Section 5.02.
Note Documents: Means, with respect to any Secured Note, the
--------------
Indenture, the Participation Agreement and the Lease.
Offshore Certificates Exchange Date: Has the meaning provided in
-----------------------------------
Section 3.01.
Offshore Global Certificates: Has the meaning provided in Section
----------------------------
3.01.
Offshore Physical Certificates: Has the meaning provided in Section
------------------------------
3.01.
Officer's Certificate: means a certificate signed (i) in the case of
---------------------
a corporation by the President, any Vice President or the Treasurer, of
such corporation, (ii) in the case of a partnership by the Chairman of the
Board, the President or any Vice President, the Treasurer or an Assistant
Treasurer of a corporate general partner, and (iii) in the case of the
Owner Trustee or the Indenture Trustee, a certificate signed by a
Responsible Officer of the Owner Trustee or Indenture Trustee.
Opinion of Counsel: Means an opinion in writing, signed by legal
------------------
counsel, who may be (a) the General Counsel, Assistant General Counsel or
other appropriate internal counsel of Mobil or (b) such other counsel
designated by Mobil, the Owner Trustee or the Indenture Trustee, whether or
not such counsel is an employee of any of them and who shall be reasonably
acceptable to the Trustee.
Outstanding: When used with respect to Certificates, means, as of the
-----------
date of determination, all Certificates
- 6 -
<PAGE>
theretofore authenticated and delivered under this Trust Agreement, except:
(i) Certificates theretofore canceled by the Registrar or
delivered to the Trustee or the Registrar for cancellation;
(ii) Certificates for which money in the full amount has been
theretofore deposited with the Trustee or any Paying Agent in trust
for the Holders of such Certificates as provided in Section 4.01
pending distribution of such money to the Certificateholders pursuant
to the final distribution payment to be made pursuant to Section 11.01
hereof; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been authenticated and delivered pursuant to this
Trust Agreement.
Owner Participant: Means the Owner Participant referred to in the
-----------------
Participation Agreement and any permitted successors and assigns.
Owner Trustee: Means Fleet National Bank of Connecticut, not in its
-------------
individual capacity but solely as trustee under the Trust Agreement dated
as of December 12, 1995, between Fleet National Bank of Connecticut and the
Owner Participant; and any successor to the Owner Trustee as such owner
trustee.
Participation Agreement: Means the Participation Agreement dated as
-----------------------
of December 12, 1995, among MGB, the Owner Participant, the Owner Trustee,
the Indenture Trustee and the Trustee.
Paying Agent: Means the paying agent maintained and appointed
------------
pursuant to section 7.12.
Permanent Offshore Global Certificate: Has the meaning provided in
-------------------------------------
Section 3.01.
Permitted Government Investment: Means obligations of the United
-------------------------------
States of America for the payment of which the full faith and credit of the
United States of America is pledged,
- 7 -
<PAGE>
maturing in not more than 60 days or such lesser time as is necessary for
payment of any Special Payments on a Special Distribution Date.
Person: Means any individual, corporation, partnership, association,
------
trust, unincorporated organization, or government or any agency or
political subdivision thereof.
Pool Balance: Means, as of any date, the aggregate unpaid principal
------------
amount of the Secured Notes on such date plus the amount of the principal
payments on the Secured Notes held by the Trustee and not yet distributed.
The Pool Balance as of any Distribution Date or Special Distribution Date,
if any, shall be computed after giving effect to the payment of principal,
if any, on the Secured Notes and distribution thereof to be made on that
date.
Pool Factor: Means, as of any date, the quotient (rounded to the
-----------
seventh decimal place) computed by dividing (i) the aggregate unpaid
principal amount of the Secured Notes on such date plus the amount of the
principal payments on the Secured Notes held by the Trustee and not yet
distributed by (ii) the aggregate original principal amount of the
Certificates. The Pool Factor, as of any Distribution Date or Special
Distribution Date, if any, shall be computed after giving effect to the
payment of principal, if any, on the Secured Notes and distribution thereof
to be made on that date.
QIB: Means a "qualified institutional buyer," as defined in Rule 144A
---
under the Securities Act.
Record Date: Means (i) for Scheduled Payments to be distributed on
-----------
any Distribution Date, other than the final distribution, the day (whether
or not a Business Day) which is 15 days preceding such Distribution Date,
and (ii) for Special Payments to be distributed on any Special Distribution
Date, if any, other than the final distribution, the day (whether or not a
Business Day) which is 15 days preceding such Special Distribution Date.
- 8 -
<PAGE>
Register and Registrar: Means the register maintained and the
----------------------
registrar appointed pursuant to Sections 3.04 and 7.12.
Registration Rights Agreement: Means the Registration Rights
-----------------------------
Agreement dated December 12, 1995, among Mobil, MGB and Morgan Stanley &
Co. Incorporated, as the initial purchaser of the Certificates.
Request: Means a request by the Company setting forth the subject
-------
matter of the request accompanied by an Officer's Certificate and an
Opinion of Counsel as provided in Section 1.02.
Responsible Officer: When used with respect to the initial Trustee,
-------------------
the initial Indenture Trustee or the Owner Trustee means any officer in the
Corporate Trust Office; when used with respect to any successor Trustee, or
successor Indenture Trustee, means the chairman or vice-chairman of the
board of directors or trustees, the chairman or vice-chairman of the
executive or standing committee of the board of directors or trustees, the
president, the chairman of the committee on trust matters, any vice-
president, any second vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer, the comptroller and any assistant comptroller;
and, when used with respect to the Trustee and the Indenture Trustee, also
means any other officer of the Trustee or the Indenture Trustee customarily
performing functions similar to those performed by any of the above
designated officers and also means, when used with respect to the Trustee,
Indenture Trustee or Owner Trustee with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.
Restricted Securities Legend: Has the meaning specified in Section
----------------------------
3.01.
Scheduled Payment: With respect to a Distribution Date, means any
-----------------
payment (other than a Special Payment) of principal and interest on a
Secured Note, due from the Owner Trustee, which payment represents the
payment of a regularly scheduled
- 9 -
<PAGE>
installment of principal then due on such Secured Note, or the payment of
regularly scheduled interest accrued on such Secured Note.
Secured Note: Means any one of the Secured Notes (as defined in the
------------
Indenture) described on Schedule I attached hereto, including any Secured
Note (as so defined) issued under the Indenture in replacement or
substitution therefor, held by the Trustee.
Securities Act: Means the Securities Act of 1933, as amended from
--------------
time to time.
Securities Exchange Act: Means the Securities Exchange Act of 1934,
-----------------------
as amended from time to time.
Special Distribution Date: Means (i) with respect to the prepayment
-------------------------
of any Secured Notes, the 2nd day of the month on which such prepayment is
scheduled to occur pursuant to the terms of the Indenture and (ii) with
respect to any Special Payment relating to a Secured Note other than as
described in clause (i) of the definition of Special Payment, the earliest
2nd day of a month for which it is practicable for the Trustee to give
notice pursuant to Section 4.02(c) 20 days prior thereto.
Special Payment: With respect to a Secured Note, means (i) any
---------------
payment of principal, premium, if any, and interest on such Secured Note
resulting from the prepayment of such Secured Note pursuant to Sections
3.02, 3.03, 3.05 or 3.06 of the Indenture, (ii) any payment of principal
and interest (including any interest accruing upon default) on, or any
other amount in respect of, such Secured Note upon an Indenture Event of
Default in respect thereof or upon the exercise of remedies under the
Indenture relating to such Secured Note, (iii) any Scheduled Payment or any
Special Payment referred to in clause (i) of this definition which is not
in fact paid within five days of the Distribution Date or Special
Distribution Date applicable thereto, or (iv) any proceeds from the sale of
any Secured Note by the Trustee pursuant to Article VI hereof; and Special
-------
Payments means all of such Special Payments.
--------
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<PAGE>
Special Payments Account: Means the account or accounts created and
------------------------
maintained pursuant to Section 4.01(b).
Specified Investments: Means (i) direct obligations of the United
---------------------
States of America and agencies thereof for which the full faith and credit
of the United States is pledged, (ii) obligations fully guaranteed by the
United States of America, (iii) certificates of deposit issued by, or
bankers' acceptances of, or time deposits with, any bank, trust company or
national banking association incorporated or doing business under the laws
of the United States of America or one of the States thereof having
combined capital and surplus and retained earnings of at least $500,000,000
(including the Indenture Trustee or Owner Trustee if such conditions are
met), (iv) commercial paper of companies, banks, trust companies or
national banking associations incorporated or doing business under the laws
of the United States of America or one of the States thereof and in each
case having a rating assigned to such commercial paper by Standard & Poor's
Corporation or Moody's Investors Service, Inc. (or, if neither such
organization shall rate such commercial paper at any time, by any
nationally recognized rating organization in the Untied States of America)
equal to the highest rating assigned by such organization, and (v) purchase
agreements with any financial institution having a combined capital and
surplus of at least $750,000,000 fully collateralized by obligations of the
type described in clauses (i) through (iv) above; provided that if all of
--------
the above investments are unavailable, the entire amount to be invested may
be used to purchase Federal Funds from an entity described in (iii) above;
and provided further that no investment shall be eligible as a "Specified
-------- -------
Investment" unless the final maturity or date of return of such investment
is 91 days or less from the date of purchase thereof.
Temporary Offshore Global Certificate: Has the meaning provided in
-------------------------------------
Section 3.01.
Transfer Date: Means the Closing Date as such term is defined in the
-------------
Participation Agreement scheduled to occur on December 12, 1995, or if
postponed in accordance with the Participation Agreement, the rescheduled
Closing Date.
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<PAGE>
Trust: Means the trust created by this Trust Agreement, the estate of
-----
which consists of the Trust Property.
Trust Indenture Act: Means the Trust Indenture Act of 1939, as
-------------------
amended from time to time.
Trust Property: Means the Secured Notes held as the property of the
--------------
Trust created hereby and all monies at any time paid thereon and all monies
due and to become due thereunder, funds from time to time deposited in the
Certificate Account and the Special Payments Account and any proceeds from
the sale by the Trustee pursuant to Article VI hereof of any Secured Note.
Trustee: Means the institution executing this Trust Agreement as
-------
Trustee, or its successor in interest, and any successor trustee appointed
as provided herein.
U.S. Global Certificate: Has the meaning provided in Section 3.01.
-----------------------
U.S. Physical Certificates: Has the meaning provided in Section 3.01.
--------------------------
Section 1.02. Compliance Certificates and Opinions. Upon any
------------------------------------
application or request by Mobil or MGB, the Owner Trustee or the Indenture
Trustee to the Trustee to take any action under any provision of this Trust
Agreement, Mobil, MGB, the Owner Trustee or the Indenture Trustee, as the case
may be, shall furnish to the Trustee an Officers' Certificate stating that, in
the opinion of the signers, all conditions precedent, if any, provided for in
this Trust Agreement relating to the proposed action have been complied with and
an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Trust Agreement relating to
such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
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<PAGE>
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any case
--------------------------------------
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any Opinion of Counsel stated to be based on the opinion of other
counsel shall be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Trust Agreement, they may, but need not, be consolidated
and form one instrument.
Section 1.04. Acts of Holders. (a) Any direction, consent, waiver
---------------
or other action provided by this Trust Agreement to be given or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action
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shall become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to Mobil or the Indenture
Trustee. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 7.01) conclusive in
favor of the Trustee, Mobil and the Indenture Trustee, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgements of deeds
or administer oaths that the Person executing such instrument acknowledged to
him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or such other officer and where such execution
is by an officer of a corporation or association or a member of a partnership,
on behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other reasonable manner
which the Trustee deems sufficient.
(c) In determining whether the Holders of the requisite Fractional
Undivided Interests of Certificates Outstanding have given any direction,
consent or waiver (a "Direction"), under this Trust Agreement, Certificates
owned by Mobil, MGB, the Owner Trustee, the Owner Participant or any Affiliate
of any such Persons shall be disregarded and deemed not to be Outstanding under
this Trust Agreement for purposes of any such determination. In determining
whether the Trustee shall be protected in relying upon any such Direction, only
Certificates which the Trustee knows to be so owned shall be so disregarded.
Notwithstanding the foregoing, (i) if any such Person owns 100% of the
Certificates Outstanding, such Certificates shall not be so disregarded as
aforesaid, and (ii) if any amount of Certificates so owned by any such Person
have been pledged in good faith, such Certificates shall not be disregarded as
aforesaid if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Certificates and that the pledgee
is not Mobil,
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<PAGE>
MGB, the Owner Trustee, the Owner Participant or any Affiliate of any such
Persons.
(d) Any direction, consent, waiver or other action by the Holder of
any Certificate shall bind the Holder of every Certificate issued upon the
transfer thereof or in exchange therefor or in lieu thereof, whether or not
notation of such action is made upon such Certificate.
(e) Except as otherwise provided in Section 1.04(c), Certificates
owned by or pledged to any Person shall have an equal and proportionate benefit
under the provisions of this Trust Agreement, without preference, priority, or
distinction as among all of the Certificates.
ARTICLE II
ACQUISITION OF SECURED NOTES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Issuance of Certificates; Acquisition of Secured Notes.
------------------------------------------------------
The Trustee, simultaneously with the execution and delivery of this Trust
Agreement, shall also execute and deliver the Participation Agreement, in the
form delivered to the Trustee on or prior to the date of the execution and
delivery hereof. Upon request of Mobil and the satisfaction of the closing
conditions with respect to the Production System to be delivered on the Transfer
Date specified in the Participation Agreement, on the Transfer Date the Trustee
shall execute, deliver and authenticate Certificates equalling in the aggregate
the total aggregate principal amount of the Secured Notes purchased by the
Trustee pursuant to the Participation Agreement on the Transfer Date and
evidencing the entire ownership of the Trust. The Trustee shall issue and sell
such certificates on the Transfer Date, in authorized denominations and in such
Fractional Undivided Interests, so as to result in the receipt of consideration
in an amount equal to the aggregate principal amount of such Secured Notes (the
"Consideration"). The Trustee shall purchase, pursuant to the terms and
conditions of the Participation Agreement, the Secured Notes on the Transfer
Date at an aggregate purchase price equal to the amount of the Consideration so
received. Except as provided in Sections 3.04 and 3.05 hereof, the Trustee shall
not
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execute or deliver Certificates in excess of the aggregate amount specified in
this paragraph.
Section 2.02. Acceptance by Trustee. The Trustee, upon the execution
---------------------
and delivery of this Trust Agreement, acknowledges its acceptance of all right,
title, and interest in and to the Secured Notes acquired pursuant to Section
2.01 hereof and the Participation Agreement and declares that the Trustee holds
and will hold such right, title, and interest, together with all other property
constituting the Trust Property, for the benefit of all present and future
Certificateholders, upon the trusts herein set forth. By its payment for and
acceptance of each Certificate issued to it hereunder, each initial
Certificateholder as grantor of the Trust thereby joins in the creation and
declaration of the Trust.
Section 2.03. Limitation of Powers. The Trust is constituted solely
--------------------
for the purpose of making the investment in the Secured Notes, and, except as
set forth herein, the Trustee is not authorized or empowered to acquire any
other investments or engage in any other activities and, in particular, the
Trustee is not authorized or empowered to do anything that would cause the Trust
to fail to qualify as a "grantor trust" for federal income tax purposes
(including, as subject to this restriction, acquiring the Production System (as
defined in the Indenture) by bidding the Secured Notes or otherwise, or taking
any action with respect to the Production System once acquired).
ARTICLE III
THE CERTIFICATES
Section 3.01. Form, Denomination and Execution of Certificates. The
------------------------------------------------
Certificates shall be in registered form without coupons. The face of the
Certificates shall be substantially in the form of Exhibit A hereto and the
reverse of the Certificates shall contain the Terms and Conditions substantially
as set forth in Exhibit A hereto (the "Terms"); provided that if a Certificate
is to be issued to DTC or its nominee as a global certificate, as contemplated
by the Offering Memorandum dated December 6, 1995 relating to the Certificates,
such global certificate will be issued in registered form without interest
coupons, with a face
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<PAGE>
substantially in the form of Exhibit A hereto with additions thereto as noted
thereon, a reverse containing the Terms and shall have affixed thereto a
schedule substantially in the form of Exhibit A-1 hereto (the "Global
Certificate"; Certificates other than the Global Certificate are herein referred
to as "Certificated Certificates"). References herein to the "Certificates"
shall be deemed to include the Global Certificate and the Certificated
Certificates unless the context requires otherwise. The Certificates may also
have such additional provisions, omissions, variations and insertions as are
permitted by this Trust Agreement, and may have such letters, numbers or other
marks of identification and such legends or endorsements printed, lithographed
or engraved thereon, as may be required to comply with the rules of any Clearing
Agency or any securities exchange on which the Certificates may be listed or to
conform to any usage in respect thereof, or as may, consistently herewith, be
prescribed by the Trustee or by the officer executing such Certificates, such
determination by said officer to be evidenced by his signing the Certificates.
Except as provided by Section 3.10 hereof, all Certificates shall include the
legend set forth in Exhibit A hereto (the "Restricted Securities Legend").
The definitive Certificates shall be printed, lithographed or engraved
or produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any Clearing Agency or any securities exchange
on which the Certificates may be listed, all as determined by the officer
executing such Certificates, as evidenced by his execution of such Certificates.
The Certificates shall be initially issued in minimum denominations of
$250,000, or integral multiples of $1,000 in excess thereof. At such time as
the restrictions contained in Section 3.10 hereof are removed, the minimum
denominations of the Certificates shall be reduced to $1,000, or integral
multiples of $1,000 in excess thereof.
The Certificates shall be executed on behalf of the Trustee by manual
or facsimile signature of a Responsible Officer of the Trustee. Certificates
bearing the manual or facsimile signature of an individual who was, at the time
when such signature was affixed, authorized to sign on behalf of the Trustee
shall be valid and binding obligations of the Trustee, notwithstanding that
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<PAGE>
such individual has ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such office at the date of such
Certificates. No Certificate shall be entitled to any benefit under this Trust
Agreement, or be valid for any purposes, unless there appears on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A hereto executed by the Trustee by manual signature, and such
certificate upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Certificates offered and sold in reliance on Rule 144A shall be issued
initially in the form of a single permanent global Certificate in registered
form, substantially in the form set forth in Exhibit A (the "U.S. Global
Certificate"), deposited with the Trustee, as custodian for the Depositary, duly
executed and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the U.S. Global Certificate may from time to time
be increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as hereinafter provided.
Certificates offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of a single temporary global
Certificate in registered form substantially in the form set forth in Exhibit A
(the "Temporary Offshore Global Certificate") deposited with the Trustee, as
custodian for the Depositary, duly executed and authenticated by the Trustee as
hereinafter provided. At any time following January 21, 1996 (the "Offshore
Certificates Exchange Date"), upon receipt by the Trustee, Mobil and MGB of a
certificate substantially in the form of Exhibit B, a single permanent global
Certificate in registered form substantially in the form set forth in Exhibit A
(the "Permanent Offshore Global Certificate;" and, together with the Temporary
Offshore Global Certificate, the "Offshore Global Certificate") duly executed
and authenticated by the Trustee as hereinafter provided shall be deposited with
the Trustee, as custodian for the Depositary, and the Registrar shall reflect on
its books and records the applicable date and a decrease in the principal amount
of the Temporary Offshore Global Certificate in an amount equal to the principal
amount of the beneficial interest in the Temporary Offshore Global Certificate
transferred.
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<PAGE>
Certificates offered and sold in reliance on Regulation D under the
Securities Act shall be issued in the form of permanent certificates in
registered form in substantially the form set forth in Exhibit A (the "U.S.
Physical Certificates"). Certificates issued pursuant to Section 3.10 in
exchange for interests in the Offshore Global Certificate shall be in the form
of permanent certificated Certificates in registered form substantially in the
form set forth in Exhibit A (the "Offshore Physical Certificates").
The Offshore Physical Certificates and U.S. Physical Certificates are
sometimes collectively herein referred to as the "Physical Certificates." The
U.S. Global Certificate and the Offshore Global Certificate are sometimes
referred to as the "Global Certificates."
Section 3.02. Authentication of Certificates. The Trustee on the
------------------------------
Transfer Date has caused to be authenticated and delivered, simultaneously with
the sale, assignment, and transfer to the Trustee of the Secured Notes pursuant
to Section 2.01 hereof and the Participation Agreement, Certificates duly
authenticated by the Trustee, in authorized denominations equalling in the
aggregate the aggregate principal amount of the Secured Notes so purchased and
evidencing the entire ownership of the Trust.
Section 3.03. Temporary Certificates. Pending the preparation of
----------------------
definitive Certificates, the Trustee may execute, authenticate and deliver
temporary Certificates which are printed, lithographed, typewritten, or
otherwise produced, in any denomination, containing substantially the same terms
and provisions as set forth in Exhibit A, except for such appropriate
insertions, omissions, substitutions and other variations relating to their
temporary nature as the officer executing such temporary Certificates may
determine, as evidenced by their execution of such temporary Certificates.
If temporary Certificates are issued, the Trustee will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the Corporate Trust Office of the Trustee, or at the office or
agency of the Trustee maintained in accordance with Section 7.12, without charge
to the holder. Upon surrender for cancellation of any one
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<PAGE>
or more temporary Certificates, the Trustee shall execute, authenticate and
deliver in exchange therefor definitive Certificates of authorized denominations
of a like aggregate Fractional Undivided Interest. Until so exchanged, such
temporary Certificates shall in all respects be entitled to the same benefits
under this Trust Agreement as definitive Certificates.
Section 3.04. Registration of Transfer and Exchange of Certificates.
-----------------------------------------------------
(a) The Trustee shall cause to be kept at the office or agency to be maintained
by it in accordance with the provisions of Section 7.12 a register (the
"Register") in which, subject to the provisions of this Section 3.04 and the
Certificates, the Trustee shall provide for the registration of Certificates and
of transfers and exchanges of Certificates as herein provided. The Trustee
shall initially be the registrar (the "Registrar") for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided.
(b) Upon surrender for registration of transfer of any Certificate at
the Corporate Trust Office or such other office or agency, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of a like
aggregate Fractional Undivided Interest. At the option of a Certificateholder,
Certificates may be exchanged for other Certificates of authorized denominations
of a like aggregate Fractional Undivided Interest, upon surrender of the
Certificates to be exchanged at any such office or agency. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate and deliver the Certificates that the Certificateholder making the
exchange is entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Registrar duly executed by the Holder thereof or his attorney duly authorized in
writing.
(c) Any Holder of a Global Certificate shall, by acceptance of such
Global Certificate, agree that transfers of beneficial interests in such Global
Certificate may be effected only through a book entry system maintained by the
Holder of such Global Certificate (or its agent), and that ownership of a
beneficial interest in the Certificate shall be required to be
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<PAGE>
reflected in a book entry. When Certificates are presented to the Registrar or a
co-Registrar with a request to register the transfer or to exchange them for an
equal principal amount of Certificates of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested if its
requirements for such transactions are met. To permit registrations of transfers
and exchanges, the Trustee shall execute and authenticate Certificates at the
Registrar's request. No service charge shall be made for any registration of
transfer or exchange of the Certificates, but Mobil or MGB may require payment
of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith.
(d) All Certificates surrendered for registration of transfer and
exchange shall be cancelled and subsequently destroyed by the Trustee.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificates. If
-------------------------------------------------
(a) any mutilated Certificate is surrendered to the Registrar, or the Registrar
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Registrar and the Trustee such
security, indemnity or bond, as may be required by them to save each of them
harmless, then, in the absence of notice to the Registrar or the Trustee that
such Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Fractional Undivided Interest with the same final Distribution Date. In
connection with the issuance of any new Certificate under this Section 3.05, the
Trustee shall require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Registrar)
connected therewith. Any duplicate Certificate issued pursuant to this Section
3.05 shall constitute conclusive evidence of the appropriate Fractional
Undivided Interest in the Trust, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
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<PAGE>
Section 3.06. Persons Deemed Owners. Prior to due presentation of a
---------------------
Certificate for registration of transfer, the Trustee, the Registrar, and any
Paying Agent of the Trustee may treat the person in whose name any Certificate
is registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 4.02 and for all other purposes whatsoever,
and neither the Trustee, the Registrar, nor any Paying Agent of the Trustee
shall be affected by any notice to the contrary.
Section 3.07. Cancellation. All Certificates surrendered for payment
------------
or transfer or exchange shall, if surrendered to any Person party hereto other
than the Registrar, be delivered by such Person to the Registrar for
cancellation. No Certificates shall be authenticated in lieu of or in exchange
for any Certificates cancelled as provided in this Section, except as expressly
permitted by this Trust Agreement. All cancelled Certificates held by the
Registrar shall be destroyed and a certification of their destruction delivered
to the Trustee.
Section 3.08. Limitation of Liability for Payments. All payments or
------------------------------------
distributions made to Certificateholders under this Trust Agreement shall be
made only from the Trust Property and only to the extent that the Trustee shall
have sufficient income or proceeds from the Trust Property to make such payments
in accordance with the terms of Article IV of this Trust Agreement. Each Holder
of a Certificate, by its acceptance of such Certificate, agrees that it will
look solely to the income and proceeds from the Trust Property to the extent
available for distribution to the Holder thereof as provided in this Trust
Agreement. Nothing in this Trust Agreement shall be construed as an agreement,
or otherwise creating an obligation, of Mobil to pay any of the principal,
premium, if any, and interest due from time to time under the Secured Notes or
in respect of the Certificates.
Section 3.09. Book-Entry Provisions for U.S. Global Certificate and
-----------------------------------------------------
Offshore Global Certificate. (a) The U.S. Global Certificate initially shall
- ---------------------------
(i) be registered in the name of the Depositary for such Global Certificates or
the nominee of such Depositary, (ii) be delivered to the Trustee as custodian
for such Depositary and (iii) bear legends as set forth in the Form of
Certificate attached hereto as Exhibit A.
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<PAGE>
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Trust Agreement with respect to any U.S. Global
Certificate or Offshore Global Certificate, as the case may be, held on their
behalf by the Depositary, or the Trustee as its custodian, or under the U.S.
Global Certificate or Offshore Global Certificate, as the case may be, and the
Depositary may be treated by Mobil, MGB, the Trustee and any agent of Mobil, MGB
or the Trustee as the absolute owner of such U.S. Global Certificate or Offshore
Global Certificate, as the case may be, for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent Mobil, MGB, the
Trustee or any agent of Mobil, MGB or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a holder of any
Certificate.
(b) Transfers of the U.S. Global Certificate and the Offshore Global
Certificate shall be limited to transfers of such U.S. Global Certificate or
Offshore Global Certificate in whole, but not in part, to the Depositary, its
successors or their respective nominee. Interests of beneficial owners in the
U.S. Global Certificate and the Offshore Global Certificate may be transferred
in accordance with the rules and procedures of the Depositary and the provisions
of Section 3.10. In addition, U.S. Physical Certificates and Offshore Physical
Certificates shall be transferred to all beneficial owners in exchange for their
beneficial interests in the U.S. Global Certificate or the Offshore Global
Certificate, as the case may be, if (i) the Depositary notifies Mobil or MGB
that it is unwilling or unable to continue as Depositary for the U.S. Global
Certificate or the Offshore Global Certificate, as the case may be, and a
successor depositary is not appointed by Mobil or MGB within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a request to that effect from the Depositary.
(c) Any beneficial interest in one of the Global Certificates that is
transferred to a person who takes delivery in the form of an interest in the
other Global Certificate will, upon transfer, cease to be an interest in such
Global Certificate and become an interest in the other Global Certificate and,
accordingly, will thereafter be subject to all transfer restrictions, if any,
and other procedures applicable to beneficial
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<PAGE>
interests in such other Global Certificate for as long as it remains such an
interest.
(d) In connection with any transfer of a portion of the beneficial
interests in the U.S. Global Certificate to beneficial owners pursuant to
paragraph (b) of this Section, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the U.S. Global
Certificate in an amount equal to the principal amount of the beneficial
interest in the U.S. Global Certificate to be transferred, and Mobil and MGB
shall execute, and the Trustee shall authenticate and deliver one or more U.S.
Physical Certificates of like tenor and amount.
(e) In connection with the transfer of the entire U.S. Global
Certificate or Offshore Global Certificate to beneficial owners pursuant to
paragraph (b) of this Section, the U.S. Global Certificate or Offshore Global
Certificate, as the case may be, shall be deemed to be surrendered to the
Trustee for cancellation, and the Trustee shall execute, authenticate and
deliver to each beneficial owner identified by the Depositary in exchange for
its beneficial interest in the U.S. Global Certificate or Offshore Global
Certificate, as the case may be, an equal aggregate principal amount of U.S.
Physical Certificates or Offshore Physical Certificates, as the case may be, of
authorized denominations.
(f) Any U.S. Physical Certificate delivered in exchange for an
interest in the U.S. Global Certificate pursuant to paragraph (b) or (d) of this
Section shall, except as otherwise provided by paragraph (f) of Section 3.10,
bear the legend regarding transfer restrictions applicable to the U.S. Physical
Certificate set forth in the Form of Certificate attached hereto as Exhibit A.
(g) Any Offshore Physical Certificate delivered in exchange for an
interest in the Offshore Global Certificate pursuant to paragraph (b) of this
Section shall, except as otherwise provided by paragraph (f) of Section 3.10,
bears the legend regarding transfer restrictions applicable to the Offshore
Physical Certificate set forth in the Form of Certificate attached hereto as
Exhibit A.
(h) The registered holder of the U.S. Global Certificate and the
Offshore Global Certificate may grant proxies and otherwise
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<PAGE>
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Trust Agreement or the Certificates.
(i) The Trustee shall enter into the Letter of Representations and
fulfill its responsibilities thereunder.
Section 3.10. Special Transfer Provisions. Unless and until a
---------------------------
Certificate has been sold under an effective registration statement under the
Securities Act or has been exchanged for a Certificate pursuant to an exchange
offer registered under the Securities Act, in either case pursuant to the
Registration Rights Agreement, the following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
-------------------------------------------------------
following provisions shall apply with respect to the registration of any
proposed transfer of a Certificate to any Institutional Accredited Investor
which is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Certificate
whether or not such Certificate bears the Restricted Securities Legend, if
(x) the requested transfer is at least three years after the later of the
original issue date of the Certificates and the last date on which such
Certificate was held by an affiliate of Mobil or MGB or (y) the proposed
transferee has delivered to the Registrar a certificate substantially in
the form of Exhibit D hereto.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Certificate, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (i) and (y)
instructions given in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of the U.S. Global Certificate in an
amount equal to the principal amount of the beneficial interest in the U.S.
Global Certificate to be transferred, and the Trustee shall execute,
authenticate and deliver, one or more U.S. Physical certificates of like
tenor and amount.
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<PAGE>
(b) Transfers to QIBs. The following provisions shall apply with
-----------------
respect to the registration of any proposed transfer of a Certificate to a QIB
(excluding Non U.S. Persons):
(i) If the Certificate to be transferred consists of U.S. Physical
Certificates or an interest in the Temporary Offshore Global Certificate,
the Registrar shall register the transfer if such transfer is being made by
a proposed transferor who has checked the box provided for on the form of
Certificate stating, or has otherwise advised Mobil, MGB and the Registrar
in writing, that the sale has been made in compliance with the provisions
of Rule 144A to a transferee who has signed the certification provided for
on the form of Certificate stating, or has otherwise advised Mobil, MGB and
the Registrar in writing, that it is purchasing the Certificate for its own
account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a QIB within the meaning of
Rule 144A, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding
Mobil and MGB as it has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, and the
Certificate to be transferred consists of U.S. Physical Certificates or an
interest in the Temporary Offshore Global Certificate, upon receipt by the
Registrar of the documents referred to in clause (i) and instructions given
in accordance with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and an increase
in the principal amount of the U.S. Global Certificate in an amount equal
to the principal amount of the U.S. Physical Certificates or the interest
in the Temporary Offshore Global Certificate, as the case may be, to be
transferred, and the Trustee shall cancel the Physical Certificate or
decrease the amount of the Temporary Offshore Global Certificate so
transferred.
(c) Transfers of Interests in the Temporary Offshore Global
-------------------------------------------------------
Certificate. The following provisions shall apply with
- -----------
- 26 -
<PAGE>
respect to registration of any proposed transfer of interests in the Temporary
Offshore Global Certificate:
(i) The Registrar shall register the transfer of any Certificate (x)
if the proposed transferee is a Non-U.S. Person and the proposed transferor
has delivered to the Registrar a certificate substantially in the form of
Exhibit E hereto or (y) if the proposed transferee is a QIB and the
proposed transferor has checked the box provided for on the form of
Certificate stating, or has otherwise advised Mobil, MGB and the Registrar
in writing, that the sale has been made in compliance with the provisions
of Rule 144A to a transferee who has signed the certification provided for
on the form of Certificate stating, or has otherwise advised Mobil, MGB and
the Registrar in writing, that it is purchasing the Certificate for its own
account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a QIB within the meaning of
Rule 144A, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding
the Company as it has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, upon receipt by
the Registrar of the documents referred to in clause (i)(y) above and
instructions given in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date
and an increase in the principal amount of the U.S. Global Certificate in
an amount equal to the principal amount of the Temporary Offshore Global
Certificate to be transferred, and the Trustee shall decrease the amount of
the Temporary Offshore Global Certificate.
(d) Transfers of Interests in the Permanent Offshore Global
-------------------------------------------------------
Certificate or Offshore Physical Certificates to U.S. Persons. The following
- -------------------------------------------------------------
provisions shall apply with respect to any transfer of interests in the
Permanent Offshore Global Certificate or Offshore Physical Certificates to U.S.
Persons: The Registrar shall give notice to Mobil and MGB and thereupon
register the
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<PAGE>
transfer of any such Certificate without requiring any additional
certification except to the extent that at the time of such transfer applicable
law shall require otherwise.
(e) Transfers to Non-U.S. Persons at any Time. The following
-----------------------------------------
provisions shall apply with respect to any transfer of a Certificate to a Non-
U.S. Person:
(i) Prior to January 22, 1996, the Registrar shall register any
proposed transfer of a Certificate to a Non-U.S. Person upon receipt of a
certificate substantially in the form of Exhibit E hereto from the proposed
transferor.
(ii) On and after January 22, 1996, the Registrar shall register any
proposed transfer to any Non-U.S. Person if the Certificate to be
transferred is a U.S. Physical Certificate or an interest in the U.S.
Global Certificate, upon receipt of a certificate substantially in the form
of Exhibit E from the proposed transferor.
(iii) (a) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Certificate, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (ii) and (y)
instructions in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of the U.S. Global Certificate in an
amount equal to the principal amount of the beneficial interest in the U.S.
Global Certificate to be transferred, and (b) if the proposed transferee is
an Agent Member, upon receipt by the Registrar of instructions given in
accordance with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and an increase
in the principal amount of the Offshore Global Certificate in an amount
equal to the principal amount of the U.S. Physical Certificates or the U.S.
Global Certificate, as the case may be, to be transferred, and the Trustee
shall cancel the Physical Certificate, if any, so transferred or decrease
the amount of the U.S. Global Certificate.
(f) Restricted Securities Legend. Upon the transfer, exchange or
----------------------------
replacement of Certificates not bearing the Restricted
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<PAGE>
Securities Legend, the Registrar shall deliver Certificates that do not bear the
Restricted Securities Legend. Upon the transfer, exchange or replacement of
Certificates bearing the Restricted Securities Legend, the Registrar shall
deliver only Certificates that bear the Restricted Securities Legend unless
either (i) the circumstances contemplated by the second sentence of the seventh
paragraph of Section 3.01 or paragraphs (a)(i)(x) or (e)(ii) of this Section
3.10 exist, (ii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to Mobil, MGB and the Trustee to the effect that neither
such legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act or (iii) Exchange
Certificates are being issued in exchange for Initial Certificates pursuant to
the Exchange Offer.
(g) General. By its acceptance of any Certificate bearing the
-------
Restricted Securities Legend, each Holder of such a Certificate acknowledges the
restrictions on transfer of such Certificate set forth in this Trust Agreement
and in the Restricted Securities Legend and agrees that it will transfer such
Certificate only as provided in this Trust Agreement. The Registrar shall not
register a transfer of any Certificate unless such transfer complies with the
restrictions on transfer of such Certificate set forth in this Trust Agreement.
In connection with any transfer of Certificates, each Holder agrees by its
acceptance of the Certificates to furnish the Registrar, Mobil or MGB such
certifications, legal opinions or other information as any of them may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act; provided that the Registrar shall not be required to
determine (but may rely on a determination made by Mobil or MGB with respect to)
the sufficiency of any such certifications, legal opinions or other information.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 3.09 or this Section 3.10.
Mobil and MGB shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
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<PAGE>
Section 3.11. CUSIP Numbers. The Trustee in issuing the Certificates
-------------
may use "CUSIP" and "CINS" numbers (if then generally in use), and the Trustee
shall use CUSIP numbers or CINS numbers, as the case may be, in notices of
exchange as a convenience to Holders; provided that any such notice shall state
that no representation is made as to the correctness of such numbers either as
printed on the Certificates or as contained in any notice of exchange and that
reliance may be placed only on the other identification numbers printed on the
Certificates.
Section 3.12. Registration Rights. Pursuant to and in accordance
-------------------
with the Registration Rights Agreement, the interest rate payable on the Series
1995-A[1] Secured Notes shall be increased by an amount equal to .50% per annum
at the time specified in the Registration Rights Agreement if Mobil and MGB fail
to satisfy certain provisions of such Registration Rights Agreement to allow the
Certificates to be freely transferable by Certificateholders under the
Securities Act.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments Account. (a)
------------------------------------------------
The Trustee shall establish and maintain on behalf of the Certificateholders the
Certificate Account with the Trustee as one or more non-interest-bearing
accounts. The Trustee shall hold the Certificate Account in trust for the
benefit of the Certificateholders, and shall make or permit withdrawals
therefrom only as provided in this Trust Agreement. On each day when a
Scheduled Payment is made under the Indenture to the Trustee, as holder of the
Secured Notes issued under such Indenture, the Trustee upon receipt shall
immediately deposit the aggregate amount of such Scheduled Payment in the
Certificate Account.
(b) The Trustee shall establish and maintain on behalf of the
Certificateholders the Special Payments Account with the Trustee as one or more
accounts, which shall be non-interest bearing except as provided in Section
4.04. The Trustee shall hold the Special Payments Account in trust for the
benefit of the Certificateholders, and shall make or permit withdrawals
therefrom
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<PAGE>
only as provided in this Trust Agreement. On each day when a Special Payment
(other than a Special Payment that represents the proceeds of any sale pursuant
to Article VI hereof by the Trustee of a Secured Note) is made under the
Indenture to the Trustee, as holder of the Secured Notes issued under such
Indenture, the Trustee upon receipt shall immediately deposit the aggregate
amounts of such Special Payments in the Special Payments Account. Upon the sale
of any Secured Note by the Trustee pursuant to Article VI hereof and the
realization of any proceeds thereof, the Trustee shall deposit the aggregate
amount of such proceeds as a Special Payment in the Special Payments Account.
(c) The Trustee shall present to the Indenture Trustee each Secured
Note on the date of its stated final maturity, or in the case of any Secured
Note which is to be prepaid in whole pursuant to the Indenture, on the
applicable prepayment date under such Indenture.
Section 4.02. Distributions from Certificate Account and Special
--------------------------------------------------
Payments Account. (a) On each Distribution Date or as soon thereafter as the
- ----------------
Trustee has confirmed receipt of the payment of the Scheduled Payments due on
the Secured Notes on such date, the Trustee shall distribute out of the
Certificate Account the entire amount deposited therein pursuant to Section
4.01(a). There shall be so distributed to each Certificateholder of record on
the Record Date with respect to such Distribution Date (other than as provided
in Section 11.01 concerning the final distribution) by (i) check mailed to such
Certificateholder at the address appearing in the Register or (ii) upon
application to the Trustee, by wire transfer in immediately available funds to
an account maintained by the Certificateholder with a bank, such
Certificateholder's pro rata share (based on the aggregate Fractional Undivided
Interest held by such Certificateholder) of the aggregate amount in the
Certificate Account.
(b) On each Special Distribution Date with respect to any Special
Payment or as soon thereafter as the Trustee has confirmed receipt of the
Special Payments due on the Secured Notes or realized upon the sale of any
Secured Note, the Trustee shall distribute out of the Special Payments Account
the entire amount deposited therein pursuant to Section 4.01(b) of such Special
Payment. There shall be so distributed to each Certificateholder of record on
the Record Date with respect to such Special
- 31 -
<PAGE>
Distribution Date (other than as provided in Section 11.01 concerning the final
distribution) by (i) check mailed to such Certificateholder at the address
appearing in the Register or (ii) upon application to the Trustee, by wire
transfer in immediately available funds to an account maintained by the
Certificateholder with a bank, such Certificateholder's pro rata share (based on
the aggregate Fractional Undivided Interest held by such Certificateholder) of
the aggregate amount in the Special Payments Account on account of such Special
Payment.
(c) The Trustee shall at the expense of Mobil cause notice of each
Special Payment to be mailed to each Holder of a Certificate at his address as
it appears in the Register. In the event of prepayment of Secured Notes, such
notice shall be mailed not less than 20 days prior to the date any such Special
Payment is scheduled to be distributed. In the case of any other Special
Payments, such notice shall be mailed as soon as practicable after the Trustee
has confirmed that it has received funds for such Special Payment. Notices
mailed by the Trustee shall set forth:
(i) the Special Distribution Date and the Record Date therefor
(except as otherwise provided in Section 11.01);
(ii) the amount of the Special Payment for each $1,000 face amount
Certificate and the amount thereof constituting principal, premium, if any,
and interest;
(iii) the reason for the Special Payment; and
(iv) if the Special Distribution Date is the same date as a
Distribution Date, the total amount to be received on such date for each
$1,000 face amount Certificate.
If the amount of premium payable upon the prepayment of an Secured Note has not
been calculated at the time that the Trustee mails notice of a Special Payment,
it shall be sufficient if the notice sets forth the other amounts to be
distributed and states that any premium received will also be distributed.
If any redemption of the Secured Notes held in the Trust is cancelled,
the Trustee, as soon as possible after learning thereof, shall cause notice
thereof to be mailed to each Certificateholder at its address as it appears on
the Register.
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<PAGE>
Section 4.03. Statements to Certificateholders. (a) On each
--------------------------------
Distribution Date and Special Distribution Date, if any, the Trustee will
include with each distribution to Certificateholders a statement, giving effect
to such distribution to be made on such Distribution Date or Special
Distribution Date, as the case may be, setting forth the following information
(per a $1,000 face amount Certificate as to (i) and (ii) below):
(i) the amount of such distribution allocable to principal and the
amount allocable to premium, if any;
(ii) the amount of such distribution allocable to interest; and
(iii) the Pool Balance and the Pool Factor.
(b) Within a reasonable period of time after the end of each calendar
year but not later than the latest date permitted by law, the Trustee shall
furnish to each Person who at any time during such calendar year was a
Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i) and (a)(ii) with respect to the Trust for
such calendar year or, in the event such Person was a Certificateholder of
record during a portion of such calendar year, for the applicable portion of
such year, and such other items as are readily available to the Trustee and
which a Certificateholder shall reasonably request as necessary for the purpose
of such Certificateholder's preparation of its Federal income tax returns. Such
report and such other items shall be prepared on the basis of information
supplied to the Trustee by the Clearing Agency Participants and shall be
delivered by the Trustee to such Clearing Agency Participants to be available
for forwarding by such Clearing Agency Participants to Certificate Owners.
Section 4.04. Investment of Special Payment Moneys. Any money
------------------------------------
received by the Trustee pursuant to Section 4.01(b) representing a Special
Payment which is not to be promptly distributed shall, to the extent
practicable, be invested in Permitted Government Investments by the Trustee
pending distribution of such Special Payment pursuant to Section 4.02. Any
investment made pursuant to this Section 4.04 shall be in such Permitted
Government Investments having maturities not later than the date that such
moneys are required to be used to make the
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<PAGE>
payment required under Section 4.02 on the applicable Special Distribution Date
and the Trustee shall hold any such Permitted Government Investments until
maturity. The Trustee shall have no liability with respect to any investment
made pursuant to this Section 4.04, other than by reason of the willful
misconduct or negligence of the Trustee. All income and earnings from such
investments shall be distributed on such Special Distribution Date as part of
such Special Payment.
ARTICLE V
MOBIL
Section 5.01. Maintenance of Corporate Existence. Each of Mobil and
----------------------------------
MGB, at its own cost and expense, will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence,
rights and franchises, except as otherwise specifically permitted in Section
5.02; provided, however, that neither Mobil nor MGB shall be required to
-------- -------
preserve any right or franchise if it shall determine that the preservation
thereof is no longer desirable in the conduct of its business and that the loss
thereof is not prejudicial in any material respect to the Certificateholders.
Section 5.02. Consolidation, Merger or Sale of Assets Permitted. (a)
-------------------------------------------------
Neither Mobil nor MGB shall merge or consolidate with or into any other
corporation or sell, convey or otherwise dispose of all or substantially all of
its assets to any Person unless (A) either (x) Mobil or MGB shall be the
continuing corporation or (y) the successor corporation (if other than Mobil or
MGB) shall be a corporation organized and existing under the laws of the United
States of America or a State thereof or the District of Columbia, and such
corporation shall expressly assume the due and punctual performance and
observance of all of the covenants and conditions of this Trust Agreement to be
performed by Mobil or MGB, as applicable, by supplemental agreement given by
such successor corporation to the Trustee and (B) immediately after giving
effect to such termination, no Event of Default and no Indenture Event of
Default, shall have occurred and be continuing.
(b) In case of any such merger, consolidation, sale, conveyance or
other disposition and upon any such assumption by the
- 34 -
<PAGE>
successor corporation, such successor corporation shall succeed to and be
substituted for Mobil or MGB hereunder, as applicable, with the same effect as
if it had been named herein as the party of the first part and such replaced
corporation shall be fully released from any and all further obligations or
liabilities hereunder from the time of such replacement.
(c) The Trustee, subject to the provisions of Sections 7.01 and 7.02,
may receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale or conveyance, and any such
assumption complies with the provisions of this Section 5.02.
Section 5.03. Annual Statements as to Compliance by Mobil and MGB.
---------------------------------------------------
Each of Mobil and MGB covenants and agrees to deliver to the Trustee on or
before a date not more than 120 days after the end of each fiscal year of Mobil
and MGB, as applicable, ending after the date hereof, an Officers' Certificate
stating as to the officer signing such certificate, whether or not to the best
of such officer's knowledge Mobil or MGB, as applicable, has kept, observed,
performed and fulfilled each and every such covenant in this Agreement contained
and is in default in the performance and observance of any of the terms,
provisions and conditions hereof, and, if Mobil or MGB shall be in default,
specifying all such defaults and the nature thereof, of which such officer may
have knowledge.
Section 5.04. Availability of Certain Information Concerning Mobil
----------------------------------------------------
and MGB. Until such time as the Certificates have been registered for resale by
- -------
the Certificateholders pursuant to the Securities Act by Mobil and MGB, if at
any time prior to December 12, 1998, Mobil and MGB are not subject to Section 13
or 15(d) of the Exchange Act and are not exempt from reporting pursuant to Rule
12g3-2(b) under the Exchange Act, Mobil and MGB, as applicable, will furnish to
any Certificateholder upon request, copies of the information required to be
delivered to Certificateholders or prospective purchasers of Certificates from
Certificateholders in order to enable such Certificateholders to comply with
Rule 144A under the Securities Act.
Section 5.05. Notification of Certain Mobil and MGB Acquisitions of
-----------------------------------------------------
Certificates. Until such time as the Certificates have been registered for
- ------------
resale by the Certificateholders pursuant
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<PAGE>
to the Securities Act by Mobil and MGB, neither Mobil nor MGB will acquire any
beneficial interest, and each will cause its "affiliates" (as defined in
paragraph (a)(1) of Rule 144 under the Securities Act) not to acquire any
beneficial interest, in any Certificate unless they notify the Trustee of such
acquisition. The Trustee and all Certificateholders shall be entitled to rely
without further investigation on any such notification (or the lack thereof).
ARTICLE VI
DEFAULT
Section 6.01. Events of Default. If any Indenture Event of Default
-----------------
under the Indenture (an "Event of Default") shall occur and be continuing, then,
and in each and every case, so long as such Indenture Event of Default shall be
continuing, the Trustee may vote all of the Secured Notes held in the Trust, and
upon the direction of the holders of Certificates evidencing Fractional
Undivided Interests aggregating not less than a majority in interest in the
Trust, the Trustee shall vote a corresponding majority of such Secured Notes, in
favor of directing the Indenture Trustee, to declare the unpaid principal amount
of the Secured Notes then outstanding and accrued interest thereon to be due and
payable under, and in accordance with the provisions of, the Indenture. In
addition, if an Indenture Event of Default shall have occurred and be
continuing, the Trustee may in accordance with the Indenture vote the Secured
Notes held in the Trust to direct the Indenture Trustee regarding the exercise
of remedies provided in Article IV of the Indenture.
In addition, after an Event of Default shall have occurred and be
continuing, the Trustee may in its discretion, and upon the direction of the
Certificateholders evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust shall, by such officer or agent as
it may appoint, subject to complying with the terms of the Indenture and the
Secured Notes, sell, convey, transfer and deliver such Secured Note or Secured
Notes, without recourse to or warranty by the Trustee or any Certificateholder,
to any Person. In any such case, the Trustee shall sell, assign, contract to
sell or otherwise dispose of and deliver such Secured Note or Secured Notes in
one or
- 36 -
<PAGE>
more parcels at public or private sale or sales, at any location or
locations at the option of the Trustee, all upon such terms and conditions as it
may reasonably deem advisable and at such prices as it may reasonably deem
advisable, for cash. If the Trustee so decides or is required to sell or
otherwise dispose of any Secured Note pursuant to this Section, the Trustee
shall take such of the actions described above as it may reasonably deem most
effectual to complete the sale or other disposition of such Secured Note, so as
to provide for the payment in full of all amounts due on the Certificates. The
Trustee shall give notice to Mobil and MGB promptly after any such sale.
Notwithstanding the foregoing, any action taken by the Trustee under this
Section shall not, in the reasonable judgment of the Trustee, be adverse to the
best interests of the Certificateholders.
Section 6.02. Incidents of Sale of Secured Notes. Upon any sale of
----------------------------------
all or any part of the Secured Notes made either under the power of sale given
under this Trust Agreement or otherwise for the enforcement of this Trust
Agreement, the following shall be applicable:
(1) Certificateholders and Trustee May Purchase Secured Notes. Any
---------------------------------------------------------
Certificateholder, the Trustee in its individual or any other capacity or any
other Person may bid for and purchase any of the Secured Notes, and upon
compliance with the terms of sale, may hold, retain, possess and dispose of such
Secured Notes in their or its or his own absolute right without further
accountability.
(2) Receipt of Trustee Shall Discharge Purchaser. The receipt of the
--------------------------------------------
Trustee or of the officer making such sale shall be a sufficient discharge to
any purchaser for his purchase money, and, after paying such purchase money and
receiving such receipt, such purchaser or his personal representative or assigns
shall not be obliged to see to the application of such purchase money, or be in
any way answerable for any loss, misapplication or non-application thereof.
(3) Application of Moneys Received upon Sale. Any moneys collected
----------------------------------------
by the Trustee upon any sale made either under the power of sale given by this
Trust Agreement or otherwise for the enforcement of this Trust Agreement, shall
be applied as provided in Section 4.02.
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<PAGE>
Section 6.03. Judicial Proceedings Instituted by Trustee.
------------------------------------------
(a) Trustee May Bring Suit. If there shall be a failure to make
----------------------
payment of the principal of, premium, if any, or interest on any Secured Note,
or if there shall be any failure to pay Rent (as defined in the Lease) under the
Lease when due and payable, then the Trustee, in its own name, and as trustee of
an express trust, as holder of such Secured Notes, shall be, to the extent
permitted by and in accordance with the terms of the Note Documents, entitled
and empowered to institute any suits, actions or proceedings at law, in equity
or otherwise, for the collection of the sums so due and unpaid on such Secured
Notes or under the Lease any may prosecute any such claim or proceeding to
judgment or final decree with respect to the whole amount of any such sums so
due and unpaid.
(b) Trustee May File Proofs of Claim; Appointment of Trustee as
-----------------------------------------------------------
Attorney-in-Fact in Judicial Proceedings. The Trustee in its own name, or as
- ----------------------------------------
trustee of an express trust, or as attorney-in-fact for the Certificateholders,
or in any one or more of such capacities (irrespective of whether distributions
on the Certificates shall then be due and payable, or the payment of the
principal on the Secured Notes shall then be due and payable, as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand to the Indenture Trustee for the payment of overdue
principal, premium (if any) or interest on the Secured Notes), shall be entitled
and empowered to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee and of the
Certificateholders allowed in any receivership, insolvency, bankruptcy,
liquidation, readjustment, reorganization or any other judicial proceedings
relative to Mobil or the Owner Trustee or the Owner Participant, their
respective creditors or property. Any receiver, assignee, trustee, liquidator,
sequestrator (or similar official) in any such judicial proceeding is hereby
authorized by each Certificateholder to make payments in respect of such claim
to the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Certificateholders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel. Nothing contained in this Trust
Agreement shall be deemed to give to the Trustee any
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<PAGE>
right to accept or consent to any plan of reorganization or otherwise by action
of any character in any such proceeding to waive or change in any way any right
of any Certificateholder.
Section 6.04. Control by Certificateholders. The Certificateholders
-----------------------------
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Trust shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee under this Trust
Agreement, including any right of the Trustee as holder of the Secured Notes,
provided that
- --------
(1) such direction shall not be in conflict with any rule of law or
with this Trust Agreement and would not involve the Trustee in personal
liability or expense,
(2) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to the Certificateholders not taking part in such
direction,
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(4) if an Indenture Event of Default shall have occurred and be
continuing, such direction shall not obligate the Trustee to vote more than
a corresponding majority of the related Secured Notes held by the Trust in
favor of directing any action by the Indenture Trustee with respect to such
Indenture Event of Default.
Section 6.05. Waiver of Defaults. The Certificate holders evidencing
------------------
Fractional Undivided Interests aggregating not less than a majority in interest
in the Trust may on behalf of the Certificateholders of all the Certificates
waive any Default or Event of Default hereunder and its consequences or may
instruct the Trustee to waive any default pursuant to Section 4.06 under the
Indenture and its consequences, except a Default
(1) in the deposit of any Scheduled Payment or Special Payment under
Section 4.01 or in the distribution of any payment under Section 4.02 on
the Certificates, or
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<PAGE>
(2) in the payment of the principal of, premium, if any, or interest
on any Secured Notes, or
(3) in respect of a covenant or provision hereof which under Article
IX hereof cannot be modified or amended without the consent of the
Certificateholder of each Outstanding Certificate affected.
Upon any such waiver, such Default shall cease to exist with respect
to this Trust Agreement, and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose of this Trust Agreement and any
direction given by the Trustee on behalf of such holders to the Indenture
Trustee shall be annulled with respect thereto; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereon. Upon any such waiver, the Trustee shall vote the Secured
Notes issued under the Indenture to waive the corresponding Indenture Default or
Indenture Event of Default.
Section 6.06. Undertaking to Pay Court Costs. All parties to this
------------------------------
Trust Agreement, and each Certificateholder by his acceptance of a Certificate,
shall be deemed to have agreed that any court may in its discretion require, in
any suit, action or proceeding for the enforcement of any right or remedy under
this Trust Agreement, or in any suit, action or proceeding against the Trustee
for any action taken or omitted by it as Trustee hereunder, the filing by any
party litigant in such suit, action or proceeding of an undertaking to pay the
costs of such suit, action or proceeding, and that such court may, in its
discretion, assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, action or proceeding, having due regard
to the merits and good faith of the claims or defenses made by such party
litigant; provided, however, that the provisions of this Section shall both
-------- -------
apply to (a) any suit, action or proceeding instituted by any Certificateholder
or group of Certificateholders evidencing Fractional Undivided Interests
aggregating more than 10% of the Trust, (b) any suit, action or proceeding
instituted by any Certificateholder for the enforcement of the distribution of
payments pursuant to Section 4.02 hereof on or after the respective due dates
expressed herein or (c) any suit, action or proceeding instituted by the
Trustee.
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<PAGE>
Section 6.07. Right of Certificateholders to Receive Payments Not to
------------------------------------------------------
Be Impaired. Anything in this Trust Agreement to the contrary notwithstanding,
- -----------
including without limitation Section 6.08 hereof, the right of any
Certificateholder to receive distributions of payments required pursuant to
Section 4.02 hereof on the Certificates when due, or to institute suit for the
enforcement of any such payment on or after the applicable Distribution Date or
Special Distribution Date, shall not be impaired or affected without the consent
of such Certificateholder.
Section 6.08. Certificateholders May Not Bring Suit Except Under
--------------------------------------------------
Certain Conditions. A Certificateholder shall not have the right to institute
- ------------------
any suit, action or proceeding at law or in equity or otherwise with respect to
this Trust Agreement, for the appointment of a receiver or for the enforcement
of any other remedy under this Trust Agreement, unless:
(1) such Certificateholder previously shall have given written notice
to the Trustee of a continuing Event of Default;
(2) the Certificateholders evidencing Fractional Undivided Interests
aggregating not less than a majority in interest of the Trust shall have
requested the Trustee in writing to institute such action, suit or
proceeding and shall have offered to the Trustee indemnity as provided in
Section 7.03(e);
(3) the Trustee shall have refused or neglected to institute any such
action, suit or proceeding for 60 days after receipt of such notice,
request and offer of indemnity; and
(4) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Certificateholders
evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in the Trust.
It is understood and intended that no one or more of the
Certificateholders shall have any right in any manner whatever hereunder or
under the Certificates to (i) surrender, impair, waive, affect, disturb or
prejudice any property in the Trust Property or the lien of any Indenture on any
property subject
- 41 -
<PAGE>
thereto, or the rights of the Certificateholders or the holders of the Secured
Notes, (ii) obtain or seek to obtain priority over or preference to any other
such Holder or (iii) enforce any right under this Trust Agreement, except in the
manner herein provided and for the equal, ratable and common benefit of all the
Certificateholders subject to the provisions of this Trust Agreement.
Section 6.09. Remedies Cumulative. Every remedy given hereunder to
-------------------
the Trustee or to any of the Certificateholders shall not be exclusive of any
other remedy or remedies, and every such remedy shall be cumulative and in
addition to every other remedy given hereunder or now or hereafter given by
statute, law, equity or otherwise.
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties as are specifically
set forth in this Trust Agreement, and no implied covenants or obligations
shall be read into this Trust Agreement against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Trust Agreement; but
in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Trust Agreement.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and
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<PAGE>
powers vested in it by this Trust Agreement, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Trust Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Certificateholders evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in the Trust relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Trust Agreement; and
(4) no provision of this Trust Agreement shall require the Trustee to
expend or risk its own funds in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk is not reasonably assured to it.
(d) Whether or not herein expressly so provided, every provision of
this Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
(e) The Trustee shall, at the direction of Mobil and MGB, execute
such instruments and take all such actions as may be necessary or desirable in
order to carry out the Exchange Offer,
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the issuance of the Exchange Certificates and any other transactions
contemplated by the Registration Rights Agreement.
Section 7.02. Notice of Defaults. As promptly as practicable after,
------------------
and in any event within 90 days after, the occurrence of any Default hereunder,
the Trustee shall transmit by mail to Mobil, MGB, the Owner Trustee and the
Indenture Trustee in accordance with Section 12.03 and to all
Certificateholders, as their names and addresses appear in the Register, notice
of such Default hereunder known to the Trustee, unless such Default shall have
been cured or waived; provided, however, that, except in the case of a Default
-------- -------
in the payment of the principal of, premium, if any, or interest on any Secured
Note, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interests of the
Certificateholders.
Section 7.03. Certain Rights of Trustee. Except as otherwise
-------------------------
provided in Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of Mobil or MGB mentioned herein shall
be sufficiently evidenced by a Request;
(c) whenever in the administration of this Trust Agreement the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate of
Mobil, MGB, the Owner Trustee or the Indenture Trustee;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and
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complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Certificateholders pursuant to this Trust
Agreement, unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the cost, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture or other paper or document; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 7.04. Not Responsible for Recitals or Issuance of
-------------------------------------------
Certificates. The recitals contained herein and in the Certificates, except the
- ------------
certificates of authentication, shall not be taken as the statements of the
Trustee, and the Trustee assumes no responsibility for their correctness.
Subject to Section 7.15, the Trustee makes no representations as to the validity
or sufficiency of this Trust Agreement, the Note Documents, the Indenture, the
Secured Notes or the Certificates, except that the Trustee hereby represents and
warrants that this Trust Agreement has been, and each Certificate will be,
executed and delivered by one of its officers who is duly authorized to execute
and deliver such document on its behalf.
Section 7.05. May Hold Certificates. The Trustee, any Paying Agent,
---------------------
Registrar or any other agent, in their respective individual or any other
capacity, may become the owner or pledgee of Certificates and may otherwise deal
with Mobil, the Owner Trustee or the Indenture Trustee with the same rights it
would have
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if it were not Trustee, Paying Agent, Registrar or such other agent.
Section 7.06. Money Held in Trust. Money held by the Trustee or the
-------------------
Paying Agent in trust hereunder need not be segregated from other funds except
to the extent required herein or by law and neither the Trustee nor the Paying
Agent shall have any liability for interest upon any such moneys except as
provided for herein.
Section 7.07. Compensation and Reimbursement. Mobil and MGB agree
------------------------------
(1) to pay, or cause to be paid, to the Trustee from time to time the
compensation set forth in the schedule agreed to by the Trustee and Mobil
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse, or
cause to be reimbursed, the Trustee upon its request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Trust Agreement (including
the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as
may be attributable to its negligence, willful misconduct or bad faith or
as may be incurred due to the Trustee's breach of its representations and
warranties set forth in Section 7.15;
(3) to indemnify, or cause to be indemnified, the Trustee in
accordance with Section 12.1 of the Participation Agreement. The Trustee
shall notify Mobil and MGB promptly of any claim for which it may seek
indemnity. Mobil and MGB shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel with the
consent of Mobil and MGB and Mobil and MGB will pay the reasonable fees and
expenses of such counsel. Mobil and MGB need not pay for any settlement
made without their consent; and
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(4) to indemnify, or cause to be indemnified, the Trustee, solely in
its individual capacity, for, and to hold it harmless against, any tax
(other than for or with respect to any tax referred to in the next
paragraph, provided that no indemnification shall be available with respect
to any tax attributable to the Trustee's compensation for serving as such)
incurred without negligence, willful misconduct or bad faith, on its part,
arising out of or in connection with the acceptance or administration of
this Trust, including any costs and expenses incurred in contesting the
imposition of any such tax. The Trustee, in its individual capacity, shall
notify Mobil and MGB promptly of any tax for which it may seek indemnity.
Mobil and MGB shall defend against the imposition of such tax and the
Trustee, in its individual capacity, shall cooperate in the defense. The
Trustee, in its individual capacity, may have separate counsel with the
consent of Mobil and MGB and Mobil and MGB will pay the reasonable fees and
expenses of such counsel. Mobil and MGB need not pay for any taxes paid,
in settlement or otherwise, without their consent.
In addition, the Trustee shall be entitled to reimbursement from, and
shall have a lien prior to the Certificates upon, all property and funds held or
collected by the Trustee in its capacity as Trustee for any tax incurred without
negligence, bad faith or willful misconduct, on its part, arising out of or in
connection with the acceptance or administration of this Trust (other than any
tax attributable to the Trustee's compensation for serving as such), including
any costs and expenses incurred in contesting the imposition of any such tax.
If the Trustee reimburses itself for any such tax it will within 30 days mail a
brief report setting forth the circumstances thereof to all Certificateholders
as their names and addresses appear in the Register.
Section 7.08. Corporate Trustee Required; Eligibility. There shall at
---------------------------------------
all times be a Trustee hereunder which shall be a corporation organized and
doing business under the laws of the United States of America or of any state,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $100,000,000, and subject to supervision or
examination by Federal or state authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining
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<PAGE>
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 7.09. Resignation and Removal; Appointment of Successor. (a)
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 7.10.
(b) The Trustee may resign at any time by giving written notice
thereof to Mobil, MGB, the Authorized Agents, the Owner Trustee and the
Indenture Trustee. If an instrument of acceptance by a successor Trustee shall
not have been delivered to Mobil, MGB, the Owner Trustee and the Indenture
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust delivered to the Trustee and to
Mobil, the Owner Trustee and the Indenture Trustee.
(d) If at any time:
(1) the Trustee shall cease to be eligible under Section 7.08 and
shall fail to resign after written request therefor by Mobil or by any such
Certificateholder; or
(2) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
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then, in any case, (i) Mobil and MGB may remove the Trustee or (ii) subject to
Section 6.06, any Certificateholder who has been a bona fide Holder of a
Certificate for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
(e) If a Responsible Officer of the Trustee shall obtain actual
knowledge of an Avoidable Tax (as hereinafter defined) which has been or is
likely to be asserted, the Trustee shall promptly notify Mobil, MGB and the
Owner Trustee thereof and shall, within 30 days of such notification, resign
hereunder unless within such 30-day period the Trustee shall have received
notice that Mobil, MGB or the Owner Trustee has agreed to pay such tax. Mobil
and MGB shall promptly appoint a successor Trustee in a jurisdiction where there
are no Avoidable Taxes. As used herein an Avoidable Tax means a state or local
tax: (i) upon (w) the Trust, (x) the Trust Property, (y) Holders of the
Certificates or (z) the Trustee for which the Trustee is entitled to seek
reimbursement from the Trust Property, and (ii) which would be avoided if the
Trustee were located in another state, or jurisdiction within a state, within
the United States. A tax shall not be an Avoidable Tax if Mobil, MGB or the
Owner Trustee shall agree to pay, and shall pay, such tax.
(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any cause,
Mobil and MGB shall promptly appoint a successor Trustee. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee shall be appointed by Act of the Holders holding
Certificates evidencing Fractional Undivided Interests aggregating not less than
a majority in interest in the Trust delivered to Mobil, MGB, the Owner Trustee,
the Indenture Trustee and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed as provided
above. If no successor Trustee shall have been so appointed as provided above
and accepted appointment in the manner hereinafter provided, any
Certificateholder who has been a bona fide Holder of a Certificate for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee.
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(g) The successor Trustee shall give notice of the resignation and
removal of the Trustee and appointment of the successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Certificates as their names and addresses appear in the Register.
Each notice shall include the name of such successor Trustee and the address of
its Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor. Every successor
--------------------------------------
Trustee appointed hereunder shall execute, acknowledge and deliver to Mobil and
to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on request of Mobil or the successor Trustee, such retiring
Trustee shall execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder, subject nevertheless to its lien, if
any, provided for in Section 7.07. Upon request of any such successor Trustee,
Mobil, the retiring Trustee and such successor Trustee shall execute and deliver
any and all instruments containing such provisions as shall be necessary or
desirable to transfer and confirm to, and for more fully and certainly vesting
in, such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 7.11. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business. Any corporation into which the Trustee may be merged or converted or
- --------
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties
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<PAGE>
hereto. In case any Certificates shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Certificates so authenticated with the same effect as if such
successor Trustee had itself authenticated such Certificates.
Section 7.12. Maintenance of Agencies. (a) There shall at all times
-----------------------
be maintained an office or agency where Certificates may be presented or
surrendered for registration of transfer or for exchange, and for payment
thereof and where notices and demands to or upon the Trustee in respect of the
Certificates or of this Trust Agreement may be served. Such office or agency
shall be initially at 79 South Main Street, Salt Lake City, Utah 84111. Written
notice of the location of each such other office or agency and of any change of
location thereof shall be given by the Trustee to Mobil, the Owner Trustee, the
Indenture Trustee and the Certificateholders. In the event that no such office
or agency shall be maintained or no such notice of location or of change of
location shall be given, presentations and demands may be made and notices may
be served at the Corporate Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a Paying Agent
hereunder. Each such Authorized Agent shall be a bank or trust company, shall
be a corporation organized and doing business under the laws of the United
States or any state, with a combined capital and surplus of at least
$100,000,000, and shall be authorized under such laws to exercise corporate
trust powers, subject to supervision by Federal or state authorities. The
Trustee shall initially be the Paying Agent and, as provided in Section 3.04,
Registrar hereunder. Each Registrar shall furnish to the Trustee, at stated
intervals of not more than six months, and at such other times as the Trustee
may request in writing, a copy of the Register.
(c) Any corporation into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authorized Agent shall
be a party, or any corporation succeeding to the corporate trust business of any
Authorized Agent, shall be the successor of such Authorized Agent hereunder, if
such successor corporation is otherwise eligible under this Section, without the
execution or filing of any paper or any further act on
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<PAGE>
the part of the parties hereto or such Authorized Agent or such successor
corporation.
(d) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Trustee, Mobil, MGB, the Owner Trustee and the
Indenture Trustee. Mobil and MGB may, and at the request of the Trustee shall,
at any time terminate the agency of any Authorized Agent by giving written
notice of termination to such Authorized Agent and to the Trustee. Upon the
resignation or termination of an Authorized Agent or in case at any time any
such Authorized Agent shall cease to be eligible under this Section (when, in
either case, no other Authorized Agent performing the functions of such
Authorized Agent shall have been appointed), Mobil and MGB shall promptly
appoint one or more qualified successor Authorized Agents, reasonably
satisfactory to the Trustee, to perform the functions of the Authorized Agent
which has resigned or whose agency has been terminated or who shall have ceased
to be eligible under this Section. Mobil and MGB shall give written notice of
any such appointment made by it to the Trustee, the Owner Trustee and the
Indenture Trustee; and in each case the Trustee shall mail notice of such
appointment to all Holders as their names and addressee appear on the Register.
(e) Mobil and MGB agree to pay, or cause to be paid, from time to
time to each Authorized Agent the compensation as set forth in the schedule
agreed to by each Authorized Agent and Mobil and MGB for its services and to
reimburse it for its reasonable expenses.
Section 7.13. Money for Certificate Payments to Be Held in Trust.
--------------------------------------------------
All moneys deposited with any Paying Agent for the purpose of any payment on
Certificates shall be deposited and held in trust for the benefit of the Holders
of the Certificates entitled to such payment, subject to the provisions of this
Section. Moneys so deposited and held in trust shall constitute a separate
trust fund for the benefit of the Holders of the Certificates with respect to
which such money was deposited.
The Trustee will cause each Paying Agent other than the Trustee to
execute and deliver to it an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will
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<PAGE>
(1) hold all sums held by it for payments on Certificates in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by any obligor upon the
Certificates in the making of any such payment; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Trust Agreement or for any other purpose,
direct any Paying Agent to pay to the Trustee all sums held in trust by such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by such Paying Agent; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Section 7.14. Registration of Secured Notes in Trustee's Name. The
-----------------------------------------------
Trustee agrees that all Secured Notes and Permitted Government Investments, if
any, shall be issued in the name of the Trustee or its nominee and held by the
Trustee, or, if not so held, the Trustee or its nominee shall be reflected as
the owner of such Secured Notes or Permitted Government Investments, as the case
may be, in the register of the issuer of such Secured Notes or Permitted
Government Investments under the applicable provisions of the Uniform Commercial
Code in effect where the Trustee holds such Secured Notes or Permitted
Government Investments, or other applicable law then in effect.
Section 7.15. Representations and Warranties of Trustee. The Trustee
-----------------------------------------
hereby represents and warrants that:
(i) the Trustee is a national banking association duly organized,
validly existing, and in good standing under the laws of the United States;
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(ii) the Trustee has full power, authority and legal right to execute,
deliver, and perform this Trust Agreement and the Participation Agreement
and has taken all necessary action to authorize the execution, delivery,
and performance by it of this Trust Agreement and the Participation
Agreement;
(iii) the execution, delivery and performance by the Trustee of this
Trust Agreement and the Participation Agreement (a) will not violate any
provision of any United States or Utah law or regulation governing the
banking and trust powers of the Trustee or any order, writ, judgment, or
decree of any court, arbitrator, or governmental authority applicable to
the Trustee or any of its assets, (b) will not violate any provision of the
articles of association or by-laws of the Trustee, or (c) will not violate
any provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of any lien on any
properties included in the Trust Property pursuant to the provisions of any
mortgage, indenture, contract, agreement or other undertaking to which it
is a party, which violation, default or lien could reasonably be expected
to have an adverse effect on the Trustee's performance or ability to
perform its duties hereunder or thereunder or on the transactions
contemplated herein or therein;
(iv) the execution, delivery and performance by the Trustee of this
Trust Agreement and the Participation Agreement will not require the
authorization, consent, or approval of, the giving of notice to, the filing
or registration with, or the taking of any other action in respect of, any
United States or Utah governmental authority or agency regulating the
banking and corporate trust activities of the Trustee; and
(v) this Trust Agreement and the Participation Agreement have been
duly executed and delivered by the Trustee and constitute the legal, valid,
and binding agreements of the Trustee, enforceable in accordance with their
respective terms, provided that enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and general principles of
equity.
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Section 7.16. Withholding Taxes; Information Reporting. The Trustee,
----------------------------------------
as trustee of a grantor trust, shall exclude and withhold from each distribution
of principal, premium, if any, and interest and other amounts due hereunder or
under the Certificates any and all withholding taxes applicable thereto as
required by law. The Trustee agrees to act as such withholding agent and, in
connection therewith, whenever any present or future taxes or similar charges
are required to be withheld with respect to any amounts payable in respect of
the Certificates, to withhold such amounts and timely pay the same to the
appropriate authority in the name of and on behalf of the holders of the
Certificates, that it will file any necessary withholding tax returns or
statements when due, and that, as promptly as possible after the payment
thereof, it will deliver to each holder of a Certificate appropriate
documentation showing the payment thereof, together with such additional
documentary evidence as such holders may reasonably request from time to time.
The Trustee agrees to file any other information reports as it may be required
to file under United States law.
Section 7.17. Trustee's Liens. The Trustee, in its individual
---------------
capacity, agrees that it will at its own cost and expense promptly take any
action as may be necessary to duly discharge and satisfy in full any mortgage,
pledge, lien, charge, encumbrance, security interest or claim ("Trustee's
Liens") on or with respect to the Trust Property which is either (i)
attributable to the Trustee in its individual capacity and which is unrelated to
the transactions contemplated by this Agreement, the Participation Agreement or
the Note Documents, or (ii) which is attributable to the Trustee as trustee
hereunder or in its individual capacity and which arise out of acts or omissions
which are prohibited by this Agreement.
Section 7.18. Availability of Certain Information Concerning the
--------------------------------------------------
Trust. The Trustee shall furnish to any Certificateholder upon request, copies
- -----
of the information with respect to the Trust required to be delivered to
Certificateholders or prospective purchasers of Certificates from
Certificateholders in order to enable such Certificateholders to comply with
Rule 144A under the Securities Act.
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<PAGE>
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. Mobil and MGB to Furnish Trustee with Names and
-----------------------------------------------
Addresses of Certificateholders. Mobil and MGB will furnish to the Trustee
- -------------------------------
within 15 days after each Record Date with respect to a Scheduled Payment, and
at such other times as the Trustee may request in writing, within 30 days after
receipt by Mobil or MGB of any such request, a list, in such form as the Trustee
may reasonably require, of all information in the possession or control of Mobil
or MGB as to the names and addresses of the Holders of Certificates, in each
case as of a date not more than 15 days prior to the time such list is
furnished; provided, however, that so long as the Trustee is the sole Registrar,
-------- -------
no such list need be furnished; and provided further, however, that no such list
-------- ------- -------
need be furnished for so long as a copy of the Register is being furnished to
the Trustee pursuant to Section 7.12(b).
Section 8.02. Preservation of Information; Communication to
---------------------------------------------
Certificateholders. (a) The Trustee shall preserve, in as current a form as is
- ------------------
reasonably practicable, the names and addresses of Holders of Certificates
contained in the most recent list furnished to the Trustee as provided in
Section 7.12(b) or Section 8.01, as the case may be, and the names and addresses
of Holders of Certificates received by the Trustee in its capacity as Registrar,
if so acting. The Trustee may destroy any list furnished to it as provided in
Section 7.12(b) or Section 8.01, as the case may be, upon receipt of a new list
so furnished.
(b) If three or more Holders of Certificates (such Holders
hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Certificate for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Certificates with respect to their rights
under this Trust Agreement or under the Certificates and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within 5 Business Days after the receipt of
such application, at its election, either
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<PAGE>
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 8.02(a), or
(ii) inform such applicants as to the approximate number of Holders of
Certificates whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 8.02(a), and as to
the approximate cost of mailing to such Certificateholders the form of
proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Certificateholder whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section
8.02(a), a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Certificates or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the applicants shall obtain a court
order, after notice to the Trustee and opportunity for hearing, so directing the
Trustee, the Trustee shall mail copies of such material to all such
Certificateholders with reasonable promptness after the entry of such order and
the renewal of the applicants' tender.
(c) Every Holder of Certificates, by receiving and holding the same,
agrees with Mobil, MGB and the Trustee that none of Mobil, MGB or the Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Certificates in accordance with
Section 8.02(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 8.02(b).
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Section 8.03. Reports by Mobil and MGB. Each of Mobil and MGB will:
------------------------
(1) file with the Trustee the information required by Section 10.2 of
the Participation Agreement; and
(2) transmit by mail to all Certificateholders, as their names and
addresses appear in the Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by Mobil and MGB pursuant to paragraph (1) of this
Section as may hereafter be required by rules and regulations prescribed
from time to time by the Commission.
ARTICLE IX
SUPPLEMENTAL TRUST AGREEMENTS
Section 9.01. Supplemental Trust Agreement Without Consent of
-----------------------------------------------
Certificateholders. Without the consent of the Holder of any Certificates,
- ------------------
Mobil and MGB may, and the Trustee (subject to Section 9.03) shall, at any time
and from time to time enter into one or more agreements supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to Mobil or
MGB, and the assumption by any such successor of the covenants of Mobil or
MGB, as applicable, herein contained; or
(2) to add to the covenants of Mobil or MGB, for the benefit of the
Holders of the Certificates, or to surrender any right or power herein
conferred upon Mobil or MGB; or
(3) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein or to make any other provisions with respect to matters or questions
arising under this Trust Agreement; provided that any such action shall not
--------
adversely affect the interests of the Holders of the Certificates; or
(4) to modify, eliminate or add to the provisions of this Trust
Agreement to such extent as shall be necessary to
- 58 -
<PAGE>
qualify this Trust Agreement (including any supplemental agreement) under
the Trust Indenture Act, or under any similar Federal statute hereafter
enacted, and to add to this Trust Agreement such other provisions as may be
expressly permitted by the Trust Indenture Act, excluding, however, the
provisions referred to in Section 316(a)(2) of the Trust Indenture Act as
in effect at the date as of which this instrument was executed or any
corresponding provision in any similar Federal statute hereafter enacted;
or
(5) to make provision for the issuance of the Exchange Certificates
to be issued in exchange for the Initial Certificates in the Exchange Offer
as contemplated by the Registration Rights Agreement.
Section 9.02. Supplemental Trust Agreements with Consent of
---------------------------------------------
Certificateholders. With the consent of the Holders of Certificates evidencing
- ------------------
Fractional Undivided Interests aggregating not less than a majority in interest
in the Trust, by Act of said Holders delivered to Mobil, MGB and the Trustee,
Mobil and MGB may (with the consent of the Owner Trustee, such consent not to be
unreasonably withheld), and the Trustee (subject to Section 9.03) shall, enter
into an agreement or agreements supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Trust Agreement or of modifying in any manner the rights and obligations
of the Holders of the Certificates under this Trust Agreement; provided,
--------
however, that no such supplemental agreement shall, without the consent of the
- -------
Holder of each Outstanding Certificate affected thereby:
(1) reduce in any manner the amount of, or delay the timing of, any
receipt by the Trustee of payments on the Secured Notes or distributions
that are required to be made herein on any Certificate, or change any date
of payment on any Certificate, or change the place of payment where, or the
coin or currency in which, any Certificate is payable, or impair the right
to institute suit for the enforcement of any such payment or distribution
on or after the Distribution Date or Special Distribution Date applicable
thereto; or
(2) permit the disposition of any Secured Note in the Trust Property
except as permitted by this Trust Agreement, or
- 59 -
<PAGE>
otherwise deprive any Certificateholder of the benefit of the ownership of
the Secured Notes in the Trust; or
(3) reduce the percentage of the aggregate Fractional Undivided
Interests of the Trust which is required for any such supplemental
agreement, or reduce such percentage required for any waiver (of compliance
with certain provisions of this Trust Agreement or certain defaults
hereunder and their consequences) provided for in this Trust Agreement; or
(4) modify any of the provisions of this Section or Section 6.05,
except to increase any such percentage or to provide that certain other
provisions of this Trust Agreement cannot be modified or waived without the
consent of the Holder of each Certificate affected thereby.
It shall not be necessary for any Act of Certificateholders under this
Section to approve the particular form of any proposed supplemental agreement,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.03. Documents Affecting Immunity or Indemnity. If in the
-----------------------------------------
opinion of the Trustee any document required to be executed by it pursuant to
the terms of Section 9.01 or 9.02 affects any interest, right, duty, immunity or
indemnity in favor of the Trustee under this Trust Agreement, the Trustee may in
its discretion decline to execute such document.
Section 9.04. Execution of Supplemental Trust Agreements. In
------------------------------------------
executing, or accepting the additional trusts created by, any supplemental
agreement permitted by this Article or the modifications thereby of the trusts
created by this Trust Agreement, the Trustee shall be entitled to receive, and
(subject to Section 7.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental agreement is
authorized or permitted by this Trust Agreement.
Section 9.05. Effect of Supplemental Trust Agreements. Upon the
---------------------------------------
execution of any supplemental agreement under this Article, this Trust Agreement
shall be modified in accordance therewith, and such supplemental agreement shall
form a part of this Trust Agreement for all purposes; and every Holder of
- 60 -
<PAGE>
Certificates theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.06. Reference in Certificates to Supplemental Trust
-----------------------------------------------
Agreements. Certificates authenticated and delivered after the execution of any
- ----------
supplemental agreement pursuant to this Article may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
agreement; and, in such case, suitable notation may be made upon Outstanding
Certificates after proper presentation and demand.
ARTICLE X
AMENDMENTS TO INDENTURES AND NOTE DOCUMENTS
Section 10.01. Amendments and Supplements to Indenture and Other
-------------------------------------------------
Note Documents. In the event that the Trustee, as holder of any Secured Note in
- --------------
trust for the benefit of the Certificateholders, receives a request for a
consent to any amendment, modification, waiver or supplement under the Indenture
or other Note Document or the Participation Agreement, which requires the
consent of the Certificateholders, the Trustee shall forthwith send a notice of
such proposed amendment, modification, waiver or supplement, to each
Certificateholder registered on the Register as of such date. The Trustee shall
request from the Certificateholders Directions as to (i) whether or not to
direct the Indenture Trustee to take or refrain from taking any action which a
holder of such Secured Note has the option to direct, (ii) whether or not to
give or execute any waivers, consents, amendments, modifications or supplements
as a holder of such Secured Note and (iii) how to vote any Secured Note if a
vote has been called for with respect thereto. Provided such a request for
Certificateholder Direction shall have been made, in directing any action or
casting any vote or giving any consent as the holder of any Secured Note, the
Trustee shall vote or consent with respect to such Secured Note in the same
proportion as the Certificates were actually voted by Acts of Holders delivered
to the Trustee prior to two Business Days before the Trustee directs such action
or casts such vote or gives such consent. Notwithstanding the foregoing, but
subject to Section 6.04, in the case that an Event of Default hereunder shall
have occurred and be continuing, the Trustee may, in its own discretion and at
its own direction, consent and notify
- 61 -
<PAGE>
the Indenture Trustee of such consent to any amendment, modification, waiver or
supplement under the Indenture or other Note Document or the Participation
Agreement.
ARTICLE XI
TERMINATION OF TRUST
Section 11.01. Termination of the Trust. The respective obligations
------------------------
and responsibilities of Mobil and the Trustee created hereby and the Trust
created hereby shall terminate upon the distribution to all Certificateholders
of all amounts required to be distributed to them pursuant to this Trust
Agreement and the disposition of all property held as part of the Trust
Property; provided, however, that in no event shall the trust created hereby
-------- -------
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of William Clinton, President of the United States, living on
the date of this Trust Agreement.
Notice of any termination, specifying the Distribution Date (or
Special Distribution Date, as the case may be) upon which the Certificateholders
may surrender their Certificates to the Trustee for payment of the final
distribution and cancellation, shall be mailed promptly by the Trustee to
Certificateholders not earlier than the 60th day and not later than the 20th day
next preceding such final distribution specifying (A) the Distribution Date (or
Special Distribution Date, as the case may be) upon which final payment of the
Certificates will be made upon presentation and surrender of Certificates at the
office or agency of the Trustee therein specified, (B) the amount of any such
final payment, and (C) that the Record Date otherwise applicable to such
Distribution Date (or Special Distribution Date, as the case may be) is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office or agency of the Trustee therein specified. The
Trustee shall give such notice to the Registrar at the time such notice is given
to Certificateholders. Upon presentation and surrender of the Certificates, the
Trustee shall cause to be distributed to Certificateholders amounts
distributable on such Distribution Date or Special Distribution Date, as the
case may be, pursuant to Section 4.02.
- 62 -
<PAGE>
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. In the
event that any money held by the Trustee for the payment of distributions on the
Certificates shall remain unclaimed for two years (or such lesser time as the
Trustee shall be satisfied, after sixty days' notice from Mobil or MGB, is one
month prior to the escheat period provided under applicable law) after the final
distribution date with respect thereto, the Trustee shall pay to Indenture
Trustee the appropriate amount of money relating to such Indenture Trustee and
shall give written notice thereof to the Owner Trustee, Mobil and MGB.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders. The death
------------------------------------------
or incapacity of any Certificateholder shall not operate to terminate this Trust
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations, and liabilities of the parties
hereto or any of them.
Section 12.02. Certificates Nonassessable and Fully Paid.
-----------------------------------------
Certificateholders shall not be personally liable for obligations of the Trust,
the Fractional Undivided Interests represented by the Certificates shall be
nonassessable for any losses or expenses of the Trust or for any reason
whatsoever, and Certificates upon authentication thereof by the Trustee pursuant
to Section 3.02 are and shall be deemed fully paid. No Certificateholder shall
have any right (except as expressly provided herein) to vote or in any manner
otherwise control the operation and management of the Trust Property, the Trust
established hereunder, or the obligations of the parties hereto, nor shall
anything set forth herein, or contained in the terms of the Certificates, be
construed so as to
- 63 -
<PAGE>
constitute the Certificateholders from time to time as partners or members of an
association.
Section 12.03. Notices. All demands, notices, and communications
-------
hereunder shall be in writing, personally delivered or mailed by certified mail-
return receipt requested, and shall be deemed to have been duly given upon
receipt, in the case of Mobil or MGB, at the following address: Mobil
Corporation, 3225 Gallows Road, Fairfax, Virginia 22037, Attention: Treasurer,
and, in the case of the Trustee, at the following address: First Security Bank
of Utah, National Association, 79 South Main Street, Salt Lake City, Utah 84111,
Attention: Corporate Trust Administration or, in each case, at such other
address as shall be designated by such party in a written notice to the other
parties. Any notice required or permitted to be given to a Certificateholder
hereunder shall be mailed by first class mail, postage prepaid, at the address
of such Holder as shown in the Register. Any notice so mailed within the time
prescribed in this Trust Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder received such notice. The
Trustee shall promptly furnish Mobil and MGB with a copy of each demand, notice
or written communication received by the Trustee hereunder from any
Certificateholder, any Owner Trustee or any Indenture Trustee.
Section 12.04. Governing Law. THIS TRUST AGREEMENT AND THE
-------------
CERTIFICATES SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.05. Severability of Provisions. If any one or more of the
--------------------------
covenants, agreements, provisions, or terms of this Trust Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Trust Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Trust Agreement or
the Trust, or of the Certificates or the rights of the Holders thereof.
Section 12.06. Effect of Headings and Table of Contents. The Article
----------------------------------------
and Section headings herein and the Table of Contents
- 64 -
<PAGE>
are for convenience only and shall not affect the construction hereof.
Section 12.07. Successors and Assigns. All covenants, agreements,
----------------------
representations and warranties in this Trust Agreement by the Trustee, Mobil and
MGB shall bind and, to the extent permitted hereby, shall inure to the benefit
of and be enforceable by their respective successors and assigns, whether so
expressed or not.
Section 12.08. Benefits of Trust Agreement. Nothing in this Trust
---------------------------
Agreement or in the Certificates, express or implied, shall give to any person,
other than the parties hereto and their successors hereunder, and the Holders of
Certificates, any benefit or any legal or equitable right, remedy or claim under
this Trust Agreement.
Section 12.09. Legal Holidays. In any case where any Distribution
--------------
Date or Special Distribution Date relating to any Certificate shall not be a
Business Day, then (notwithstanding any other provision of this Trust Agreement)
payment need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on such Distribution Date
or Special Distribution Date, and no interest shall accrue during the
intervening period.
Section 12.10. Counterparts. For the purpose of facilitating the
------------
execution of this Trust Agreement and for other purposes, this Trust Agreement
may be executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
* * * * *
- 65 -
<PAGE>
IN WITNESS WHEREOF, Mobil, MGB and the Trustee have caused this Trust
Agreement to be duly executed by their respective officers and their respective
seals, duly attested, to be hereunto affixed, all as of the day and year first
above written.
MOBIL CORPORATION
By: /s/ Richard E. Sliwinski
--------------------------
Name: Richard E. Sliwinski
Title:
[SEAL]
Attest:
/s/ Caroline M. Devine
- ----------------------------
Name: Caroline M. Devine
Title: Corporate Secretary
MOBIL G. B. 388 FINANCE INC.
By: /s/ Maxine C. Schnitzer
----------------------------
Name: Maxine C. Schnitzer
Title: Vice President
[SEAL]
Attest:
/s/ P.A. Stevenson
- ----------------------------
Name: P.A. Stevenson
Title: Secretary
FIRST SECURITY BANK OF UTAH,
NATIONAL ASSOCIATION,
as Trustee
By: /s/ Brett R. King
----------------------------
Name: Brett R. King
Title: Trust Officer
[SEAL]
Attest:
- 66 -
<PAGE>
__________________________
Name:
Title:
- 67 -
<PAGE>
EXHIBIT A
FORM OF PASS THROUGH CERTIFICATE
[RESTRICTED SECURITIES LEGEND]
[THIS PASS THROUGH CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
"INSTITUTIONAL ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7), OF REGULATION D UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR
(C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS PASS
THROUGH CERTIFICATE IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT
IT WILL NOT, WITHIN THREE YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE OF THIS PASS THROUGH CERTIFICATE OR THE
LAST DATE ON WHICH THIS PASS THROUGH CERTIFICATE WAS HELD BY
AN AFFILIATE OF MOBIL OR MGB, RESELL OR OTHERWISE TRANSFER
THIS PASS THROUGH CERTIFICATE EXCEPT (A) TO MOBIL, MGB OR
ANY AFFILIATE OF MOBIL OR MGB, (B) INSIDE THE UNITED STATES
TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES
TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE PASS THROUGH TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS PASS
THROUGH CERTIFICATE (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE PASS THROUGH TRUSTEE), (D) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
RULE 903 OR RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER
A-1
<PAGE>
THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
(3) AGREES THAT IT WILL NOT AT ANY TIME RESELL OR OTHERWISE
TRANSFER THIS PASS THROUGH CERTIFICATE TO AN EMPLOYEE
BENEFIT PLAN THAT IS SUBJECT TO ERISA OR SECTION 4975 OF THE
CODE THAT HAS NOT REPRESENTED TO THE PASS THROUGH TRUSTEE
THAT IT IS AN ACCREDITED INVESTOR AS DEFINED BY RULE
501(a)(1) OF REGULATION D UNDER THE SECURITIES ACT, AND (4)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS PASS
THROUGH CERTIFICATE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER
OF THIS PASS THROUGH CERTIFICATE WITHIN THREE YEARS AFTER
THE LATER OF THE ORIGINAL ISSUANCE OF THE PASS THROUGH
CERTIFICATE OR THE LAST DATE ON WHICH THIS PASS THROUGH
CERTIFICATE WAS HELD BY AN AFFILIATE OF MOBIL OR MGB, THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS PASS THROUGH CERTIFICATE TO THE PASS THROUGH
TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE PASS THROUGH TRUSTEE, MOBIL AND MGB
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
ANY OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN
A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT. THE PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION
REQUIRING THE PASS THROUGH TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS
A-2
<PAGE>
PASS THROUGH CERTIFICATE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.]/1/
[Global Securities Legend]*
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC"), NEW
YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO.), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO HEREIN.
______________________
/1/ Not to be included on Exchange Certificates.
A-3
<PAGE>
Mobil Corporation
1995-A[1] PASS THROUGH TRUST
___% Pass Through Certificate, Series 1995-A[1]
CUSIP __________
Final Distribution Date: ______ __, [____]
evidencing a fractional undivided interest in a trust, the property of
which includes certain Series 1995-A[1] Secured Notes secured by a 40%
undivided interest in an oil and gas production system leased to MGB.
Certificate
No. _______ $_____________ Fractional Undivided Interest
representing .0000____ of the Trust per
$1,000 face amount
THIS CERTIFIES THAT _____________________________, for value received,
is the registered owner of a $___________________ (______________________
dollars) Fractional Undivided Interest in Mobil Corporation 1995-A[1] Pass
Through Trust (the "Trust") created by First Security Bank of Utah, National
Association, as trustee (the "Trustee"), pursuant to a Pass Through Trust
Agreement dated as of December 12, 1995 (the "Agreement") between the Trustee,
Mobil Corporation, a corporation incorporated under Delaware law ("Mobil") and
MGB, a corporation incorporated under Delaware law ("MGB"), a summary of certain
of the pertinent provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Agreement. This Certificate is one of the duly
authorized Certificates designated as "___% Pass Through Certificates, Series
1995-A[1]" (herein called the "Certificates"). This Certificate is issued under
and is subject to the terms, provisions, and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound. The property of the Trust
includes certain Series 1995-A[1] Secured Notes (the "Trust Property"). The
Secured Notes are secured by a
A-4
<PAGE>
security interest in a 40% undivided interest in an oil and gas production
system leased to MGB.
Subject to an in accordance with the terms of the Agreement, from
funds then available to the Trustee, there will be distributed on January 3,
1996 and thereafter on each January 2 and July 2, commencing July 2, 1996 (a
"Distribution Date"), to the person in whose name this Certificate is registered
at the close of business on the day of the month which is 15 days preceding the
Distribution Date, an amount in respect of the Scheduled Payments on the Secured
Notes due on such Distribution Date, the receipt of which has been confirmed by
the Trustee, equal to the product of the percentage interest in the Trust
evidenced by this Certificate and an amount equal to the sum of such Scheduled
Payments. Subject to and in accordance with the terms of the Agreement and the
terms of this Certificate, in the event that Special Payments on the Secured
Notes are received by the Trustee, from funds then available to the Trustee,
there shall be distributed on the applicable Special Distribution Date, to the
Person in whose name this Certificate is registered at the close of business on
the day of the month which is 15 days preceding the Special Distribution Date,
an amount in respect of such Special Payments on the Secured Notes, the receipt
of which has been confirmed by the Trustee, equal to the product of the
percentage interest in the Trust evidenced by this Certificate and an amount
equal to the sum of such Special Payments so received. If a Distribution Date or
Special Distribution Date is not a Business Day, distribution shall be made on
the immediately following Business Day. The Special Distribution Date shall be
the 2nd day of the month determined as provided in the Agreement. The Trustee
shall mail notice of each Special Payment and the Special Distribution Date
therefor to the Holders of the Certificates.
Distributions on this Certificate will be made by the Trustee by (i)
wire transfer of immediately available funds or (ii) check mailed to the person
entitled thereto, without the presentation or surrender of this Certificate or
the making of any notation hereon. Except as otherwise provided in the Agreement
and notwithstanding the above, the final distribution on this Certificate will
be made after notice mailed by the Trustee of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency of the Trustee specified in such notice.
A-5
<PAGE>
[The holder of this Certificate is entitled to the benefits of the
Registration Rights Agreement (the "Registration Rights Agreement") dated
December 12, 1995, among Mobil, MGB and Morgan Stanley & Co. Incorporated, as
the initial purchaser of this Certificate. In the event that on or before June
12, 1996, Mobil and MGB shall fail to (A) commence an exchange offer registered
with the Securities and Exchange Commission or (b) cause a shelf registration
statement providing for the resale of the Certificates by the holders hereof to
be declared effective, all as more fully provided in the Registration Rights
Agreement, the interest rate payable on the Series 1995-A[1] Secured Notes shall
be permanently increased by .50% per annum as of such date.]/2/
The statements set forth in the legend, if any, set forth above are an
integral part of the terms of this Certificate and by acceptance hereof each
holder of this Certificate agrees to be subject to and bound by the terms and
provisions set forth in such legend, if any.
[THIS IS THE GLOBAL SECURITY REFERRED TO IN SECTION 3.04 OF THE WITHIN
MENTIONED AGREEMENT.]/3/
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
______________________
/2/ Not to be included in Exchange Certificates.
/3/ Add to Global Certificate only.
A-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
MOBIL CORPORATION
1995 PASS THROUGH TRUST
By: First Security Bank of Utah,
National Association,
as Trustee
By: _________________________
Title:
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated:
This is one of the Certificates referred
to in the within-mentioned Agreement.
[This is the Global Certificate referred
to in the within-mentioned Agreement]/4/
First Security Bank of Utah,
National Association,
as Trustee
By: __________________________
Authorized Officer
______________________________
/4/ For Global Certificate only.
A-7
<PAGE>
[Reverse of Certificate]
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, Mobil, MGB or the Trustee or any
affiliate thereof. The Certificates are limited in right of payment, all as
more specifically set forth on the face hereof and in the Agreement. All
payments or distributions made to Certificateholders under the Agreement shall
be made only from the Trust Property and only to the extent that the Trustee
shall have sufficient income or proceeds from the Trust Property and only to the
extent that the Trustee shall have sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of the Agreement.
Each Holder of this Certificate, by its acceptance hereof, agrees that it will
look solely to the income and proceeds from the Trust Property to the extent
available for distribution to such Holder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby. A copy of the Agreement may
be examined during normal business hours at the principal office of the Trustee,
and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of Mobil,
MGB and the rights of the Certificateholders under the Agreement at any time by
Mobil, MGB and the Trustee with the consent of the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Trust. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee in its capacity as Registrar, or
by any successor
A-8
<PAGE>
Registrar, in Salt Lake City, Utah, duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate Fractional Undivided Interest in the Trust will be
issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons initially in minimum denominations of $250,000 Fractional Undivided
Interest and any integral multiples of $1,000 in excess thereof. At such time
as certain restrictions on transfer have been removed, the minimum denominations
of the Certificates shall be reduced to $1,000 or any integral multiples of
$1,000 in excess thereof. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee shall require payment of a sum sufficient to cover
any tax or governmental charge payable in connection therewith.
The Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Trustee, the Registrar, nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
A-9
<PAGE>
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
________________________________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address including postal zip code of assignee
________________________________________________________________________________
the within Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
________________________________________________________________________________
attorney to transfer said Certificate on the books of the Trust with full power
of substitution in the premises.
[Until such time as this Certificate has been registered for resale by
the Certificateholders pursuant to the Securities Act of 1933 by Mobil and MGB,
in connection with any transfer of this Certificate occurring prior to the date
which is three years after the later of December 12, 1995 and the last date, if
any, this Certificate was owned by Mobil, MGB or an affiliate of Mobil or MGB,
the undersigned confirms that without utilizing any general solicitation or
general advertising that:
[ ] (a) this Certificate is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended,
provided by Rule 144A thereunder.
or
--
[ ] (b) this Certificate is being transferred other than in accordance with
(a) above and documents are being furnished which comply with the
conditions of transfer set forth in this Certificate and the
Agreement.
A-10
<PAGE>
If none of the foregoing boxes is checked, the Trustee shall not be obligated to
register this Certificate in the name of any person other than the Holder hereof
unless and until the conditions to any such transfer of registration set forth
herein and in Section 3.04(c) of the Agreement shall have been satisfied.]/5/
Date:_____________________
__________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face
of the within-mentioned instrument in every
particular, without alteration or any change
whatever.
[TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED:
The undersigned represents and warrants that it is purchasing the
Certificate for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding
Mobil, MGB and the Trust as the undersigned has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated: ______________________ _________________________________________
NOTICE: To be executed by an executive
officer]/5/
___________________________
/5/ Not to be included in Exchange Certificates.
A-11
<PAGE>
EXHIBIT A-1
SCHEDULE TO GLOBAL CERTIFICATE
Initial Principal Amount
------------------------
$[Insert initial principal amount]
<TABLE>
<CAPTION>
Amount of Amount of
Principal Registration Principal
Increased Number of Decreased
Registration Upon Certificated upon issue of
Number of Transfer and Certificate Certificated
Amount of Certificated Cancellation issued Certificate
Principal Certificate of upon Transfer or Aggregate
Repurchased Transferred Certificated of portion of Redemption or Principal
Date or Redeemed and Cancelled Certificate Global Certificate Repurchase Amount
---- ----------- ------------- ----------- ------------------ ---------- ------
<S> <C>
</TABLE>
<PAGE>
EXHIBIT B
---------
FORM OF REGULATION S TRANSFER RESTRICTION CERTIFICATE
-----------------------------------------------------
First Security Bank of Utah,
National Association
Attention: Corporate Trust Department
Re: Mobil Corporation ("Mobil")
Series 1995-A_ __% Pass Through
Certificates (the "Certificates")
Dear Sirs:
This letter relates to U.S. $_________ principal amount at maturity of
Certificates represented by a Certificate (the "Legended Certificate") which
bears a legend outlining restrictions upon transfer of such Legended
Certificate. Pursuant to Section 3.01 of the Pass Through Trust Agreement (the
"Trust Agreement") dated as of December 12, 1995 relating to the Certificates,
we hereby certify that we are (or we will hold such certificates on behalf of) a
person outside the United States to whom the Certificates could be transferred
in accordance with Rule 904 of Regulation S promulgated under the U.S.
Securities Act of 1933, as amended. Accordingly, you are hereby requested to
exchange the Legended Certificate for an unlegended certificate representing an
identical principal amount at maturity of Certificates, all in the manner
provided for in the Indenture.
You and Mobil are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
B-1
<PAGE>
By:________________________________
Authorized Signature
B-2
<PAGE>
EXHIBIT C
FORM OF DTC
LETTER OF REPRESENTATIONS
C-1
<PAGE>
EXHIBIT D
---------
FORM OF CERTIFICATE
TO BE DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
-----------------------------------------
First Security Bank of Utah,
National Association
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036-8293
RE: MOBIL CORPORATION
SERIES 1995-A_ __% PASS THROUGH CERTIFICATES
Dear Sirs:
In connection with our proposed purchase of __% Mobil Corporation Series
1995-A_ Pass Through Certificates (the "Pass Through Certificates"), we confirm
that:
(1) We have received (a) the Offering Memorandum (the "Offering
Memorandum") dated December 6, 1995 relating to the Pass Through Certificates
and (b) such other information as we deem necessary in order to make our
investment decision. We acknowledge that we have read and agree to the matters
stated on pages 2, 53, 54 and 55 of such Offering Memorandum, including, without
limitation, the restrictions on duplication and circulation of such Offering
Memorandum.
(2) As a purchaser of the Pass Through Certificates in a private placement
not registered under the Securities Act of 1933, as amended (the "Securities
Act"), we represent that we are purchasing such Pass Through Certificates for
our own account (or for an account as to which we exercise sole investment
discretion (a "Discretionary Account")) for investment and (subject, to the
extent necessary, to the disposition of our (or such Discretionary Account's)
property being at all times within our or its control) not with a view to any
distribution or other disposition thereof, subject to our ability to resell such
Pass Through Certificates in compliance with Rule 144A or Regulation S under the
Securities Act and the terms of the Pass Through Trust Agreement referred to
below, and we are proceeding on the assumption that we (or such Discretionary
Account) must bear the economic risk of the
D-1
<PAGE>
investment for an indefinite period since the Pass Through Certificates may not
be sold except as provided below.
(3) We have such knowledge and experience in financial and business
matters as to enable us to evaluate the merits and risks of our investment in
the Pass Through Certificates and we further represent that we are (or such
Discretionary Account is) an institution that is an "accredited investor" as
that term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act and able to bear the economic risks of our investment in the
Pass Through Certificates.
(4) We understand that any subsequent transfer of the Pass Through
Certificates is subject to certain restrictions and conditions set forth in the
Pass Through Trust Agreement dated as of December 12, 1995 relating to the Pass
Through Certificates (the "Pass Through Trust Agreement") and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer the Pass
Through Certificates except in compliance with, such restrictions and conditions
and the Securities Act.
(5) We understand that the offer and sale of the Pass Through Certificates
has not been registered under the Securities Act, and that the Pass Through
Certificates may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which
we are acting as hereinafter stated, that if we should sell any Pass Through
Certificates within three years after the later of the original issuance of the
Pass Through Certificates or the last date on which the Pass Through Certificate
is owned by an affiliate of Mobil Corporation ("Mobil") or Mobil G. B. 388
Finance Inc. ("MGB"), we will do so only (A) to Mobil, MGB, or any affiliate of
Mobil or MGB, (B) within the United States to a "Qualified institutional buyer"
(as defined therein) in accordance with the Rule 144A under the Securities Act,
(C) within the United States to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes to the Pass Through
Trustee a signed letter containing certain representations and agreements
relating to the restrictions on transfers of the pass Through Certificates (the
form of which letter can be obtained from the Pass Through Trustee), (D) outside
the United States in accordance with Rule 903 or Rule 904 of Regulation S under
the Securities Act, (E) pursuant to the exemption from registration provided by
Rule 144 under the Securities Act or (F) pursuant to an effective registration
statement under the Securities Act (if available), and we further
D-2
<PAGE>
agree to provide to any person purchasing any of the Pass Through Certificates
from us a notice advising such purchaser that resales of the Pass Through
Certificates are restricted as stated herein.
(6) We understand that, on any proposed resale of any Pass Through
Certificates, we will be required to furnish to Mobil, MGB and to the Pass
Through Trustee such certification, legal opinions and other information as
Mobil, MGB and the Pass Through Trustee may reasonably require to confirm that
the proposed sale complies with the foregoing restrictions. We further
understand that the Pass Through Certificates purchased by us will bear a legend
to the foregoing effect.
We request that the Pass Through Certificates that we have purchased
be registered [in our name, at [our address]] [in the name of [nominee name],
our nominee, at [our nominee's address]]/1/ and that such Securities be
delivered to [the above-mentioned address] [full name and address of custodian]
by registered mail, which delivery shall be for our sole risk and expense.
Very truly yours,
[NAME OF INVESTOR]
By:_________________________________
Name:
Title:
Dated:______________________
To Be Purchased:
$________ principal amount of Pass Through Certificates
__________________________
/1/ Delete inappropriate language.
D-3
<PAGE>
EXHIBIT E
---------
FORM OF CERTIFICATE
TO BE DELIVERED IN CONNECTION WITH
TRANSFERS PURSUANT TO REGULATION S
----------------------------------
_______________, ____
To: First Security Bank of Utah,
National Association
as Pass Through Trustee
RE: MOBIL CORPORATION 1995-A_ PASS THROUGH TRUST
PASS THROUGH TRUST CERTIFICATES, SERIES 1995-A_
(THE "SECURITIES")
In connection with our sale of __________________ principal amount of
Securities, we confirm that such sale has been effected pursuant to and in
accordance with Regulation S under the Securities Act of 1933, as amended, and,
accordingly we represent that
(1) the offer of the Securities was not made to a person in the United
States,
[(2) at the time the buy order was originated, the transferee was outside
the United States or we and any person acting on our behalf reasonably believed
that the transferee was outside the United States, and]*
[(2) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither we nor any person acting on
our behalf knows that the transaction has been pre-arranged with a buyer in the
United States, and]*
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S,
as applicable, and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
E-1
<PAGE>
In addition, if the sale is made during a restricted period and the provisions
of Rule 903(c)(2) or (3) or Rule 904(c)(1) of Regulation S are applicable
thereto, we confirm that such sale has been made in accordance with the
applicable provisions of Rule 903(c)(2) or (3) or Rule 904(c)(1), as the case
may be.
This certificate and the statements contained herein are made for your
benefit and the benefit of Mobil Corporation. You and Mobil Corporation are
entitled to rely upon this letter and are irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.
Terms used in this certificate have the meanings set forth in Regulation S.
[Name of Transferor]
By:__________________________
Authorized Signature
___________________________
* insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
E-2
<PAGE>
EXHIBIT 4.1(b)
[EXECUTION COPY]
MOBIL CORPORATION
MOBIL G. B. 388 FINANCE INC.
and
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION,
as Trustee
___________________________________________
PASS THROUGH TRUST AGREEMENT
Dated as of December 12, 1995
___________________________________________
$64,762,000
Mobil Corporation
1995-A6 Pass Through Trust
6.15% Pass Through Certificates,
Series 1995-A6
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS.................................................. 2
Section 1.01. Definitions................................... 2
Section 1.02. Compliance Certificates and Opinions.......... 11
Section 1.03. Form of Documents Delivered to Trustee........ 11
Section 1.04. Acts of Holders............................... 12
ARTICLE II
ACQUISITION OF SECURED NOTES;
ORIGINAL ISSUANCE OF CERTIFICATES........................... 13
Section 2.01. Issuance of Certificates; Acquisition
of Secured Notes.............................. 13
Section 2.02. Acceptance by Trustee......................... 14
Section 2.03. Limitation of Powers.......................... 14
ARTICLE III
THE CERTIFICATES............................................. 14
Section 3.01. Form, Denomination and Execution of
Certificates.................................. 14
Section 3.02. Authentication of Certificates................ 17
Section 3.03. Temporary Certificates....................... 17
Section 3.04. Registration of Transfer and Exchange of
Certificates.................................. 17
Section 3.05. Mutilated, Destroyed, Lost or Stolen
Certificates.................................. 18
Section 3.06. Persons Deemed Owners......................... 19
Section 3.07. Cancellation.................................. 19
Section 3.08. Limitation of Liability for Payments.......... 19
Section 3.09. Book-Entry Provisions for U.S. Global
Certificate and Offshore Global Certificate... 20
Section 3.10. Special Transfer Provisions................... 22
Section 3.11. CUSIP Numbers................................. 26
Section 3.12. Registration Rights........................... 26
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS.............. 26
Section 4.01. Certificate Account and Special Payments
Account....................................... 26
Section 4.02. Distributions from Certificate Account
and Special Payments Account.................. 27
Section 4.03. Statements to Certificateholders.............. 28
(i)
<PAGE>
Section 4.04. Investment of Special Payment Moneys.......... 29
ARTICLE V
MOBIL........................................................ 30
Section 5.01. Maintenance of Corporate Existence............ 30
Section 5.02. Consolidation, Merger or Sale of Assets
Permitted..................................... 30
Section 5.03. Annual Statements as to Compliance by
Mobil and MGB................................. 30
Section 5.04. Availability of Certain Information
Concerning Mobil and MGB...................... 31
Section 5.05. Notification of Certain Mobil and MGB
Acquisitions of Certificates.................. 31
ARTICLE VI
DEFAULT...................................................... 31
Section 6.01. Events of Default............................. 31
Section 6.02. Incidents of Sale of Secured Notes............ 32
Section 6.03. Judicial Proceedings
Instituted by Trustee......................... 33
Section 6.04. Control by Certificateholders................. 34
Section 6.05. Waiver of Defaults............................ 34
Section 6.06. Undertaking to Pay Court Costs................ 35
Section 6.07. Right of Certificateholders to Receive
Payments Not to Be Impaired................... 35
Section 6.08. Certificateholders May Not Bring Suit
Except Under Certain Conditions............... 36
Section 6.09. Remedies Cumulative........................... 37
ARTICLE VII
THE TRUSTEE.................................................. 37
Section 7.01. Certain Duties and Responsibilities........... 37
Section 7.02. Notice of Defaults............................ 38
Section 7.03. Certain Rights of Trustee..................... 39
Section 7.04. Not Responsible for Recitals or
Issuance of Certificates...................... 40
Section 7.05. May Hold Certificates......................... 40
Section 7.06. Money Held in Trust........................... 40
Section 7.07. Compensation and Reimbursement................ 40
Section 7.08. Corporate Trustee Required; Eligibility....... 41
Section 7.09. Resignation and Removal; Appointment of
Successor..................................... 42
Section 7.10. Acceptance of Appointment by Successor........ 44
Section 7.11. Merger, Conversion, Consolidation or
Succession to Business........................ 44
Section 7.12. Maintenance of Agencies....................... 44
(ii)
<PAGE>
Section 7.13. Money for Certificate Payments to Be Held
in Trust...................................... 46
Section 7.14. Registration of Secured Notes in
Trustee's Name................................ 46
Section 7.15. Representations and Warranties of
Trustee....................................... 47
Section 7.16. Withholding Taxes; Information Reporting...... 48
Section 7.17. Trustee's Liens............................... 48
Section 7.18. Availability of Certain Information
Concerning the Trust.......................... 48
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE............. 49
Section 8.01. Mobil and MGB to Furnish Trustee
with Names and Addresses of Certificateholders 49
Section 8.02. Preservation of Information;
Communication to Certificateholders........... 49
Section 8.03. Reports by Mobil and MGB...................... 50
ARTICLE IX
SUPPLEMENTAL TRUST AGREEMENTS................................ 51
Section 9.01. Supplemental Trust Agreement Without
Consent of Certificateholders................. 51
Section 9.02. Supplemental Trust Agreements with
Consent of Certificateholders................. 51
Section 9.03. Documents Affecting Immunity or
Indemnity..................................... 52
Section 9.04. Execution of Supplemental Trust Agreements.... 53
Section 9.05. Effect of Supplemental Trust Agreements....... 53
Section 9.06. Reference in Certificates to
Supplemental Trust Agreements................. 53
ARTICLE X
AMENDMENTS TO INDENTURES AND NOTE DOCUMENTS.................. 53
Section 10.01. Amendments and Supplements to Indenture
and Other Note Documents...................... 53
ARTICLE XI
TERMINATION OF TRUST......................................... 54
Section 11.01. Termination of the Trust...................... 54
(iii)
<PAGE>
ARTICLE XII
MISCELLANEOUS PROVISIONS..................................... 55
Section 12.01. Limitation on Rights of Certificateholders.... 55
Section 12.02. Certificates Nonassessable and Fully Paid..... 55
Section 12.03. Notices....................................... 56
Section 12.04. Governing Law................................. 56
Section 12.05. Severability of Provisions.................... 56
Section 12.06. Effect of Headings and Table of Contents...... 56
Section 12.07. Successors and Assigns....................... 56
Section 12.08. Benefits of Trust Agreement................... 57
Section 12.09. Legal Holidays................................ 57
Section 12.10. Counterparts.................................. 57
EXHIBIT A - Form of Pass Through Certificate
EXHIBIT B - Form of Regulation S Transfer Restriction
Certificate
EXHIBIT C - Form of DTC Letter of Representations
EXHIBIT D - Form of Non-QIB Accredited Investors Transfer
Certificate
EXHIBIT E - Form of Regulation S Transfer Certificate
Schedule A - Description of Secured Notes to be Purchased
(iv)
<PAGE>
This PASS THROUGH TRUST AGREEMENT, dated as of December 12, 1995, is
made with respect to the formation of the Mobil Corporation 1995-A6 Pass Through
Trust, between Mobil Corporation, a Delaware corporation ("Mobil"), Mobil G. B.
388 Finance Inc., a Delaware corporation ("MGB") and First Security Bank of
Utah, National Association, a national banking association, as Trustee.
WITNESSETH:
WHEREAS, MGB has previously purchased the Undivided Interest (as such
term and certain other capitalized terms used herein are defined below);
WHEREAS, the Owner Trustee, acting on behalf of the Owner Participant,
will purchase the Undivided Interest from MGB and lease the Undivided Interest
to MGB pursuant to the Lease Transaction;
WHEREAS, pursuant to the Lease Transaction, the Owner Trustee will
issue, on a non-recourse basis, Secured Notes under the Indenture in order to
pay MGB a portion of the purchase price for such Undivided Interest;
WHEREAS, pursuant to the terms and conditions of this Trust Agreement
and the Participation Agreement, to be entered into by the Trustee
simultaneously with the execution and delivery of this Trust Agreement, the
Series A-6 Secured Notes are to be sold to the Trustee by the Owner Trustee, and
the Trustee shall purchase the Series A-6 Secured Notes and shall hold the
Series A-6 Secured Notes in trust for the benefit of the Certificateholders;
WHEREAS, the Trustee, upon the execution and delivery of this Trust
Agreement, hereby declares the creation of this Trust for the benefit of the
Certificateholders, and the initial Certificateholders as the grantors of the
Trust and by their respective acceptances of the Certificates join in the
creation of this Trust with the Trustee; and
WHEREAS, to facilitate the sale of the Series A-6 Secured Notes to the
Trustee and the purchase of the Series A-6 Secured Notes by the Trustee, Mobil
and MGB are undertaking to perform certain administrative and ministerial duties
hereunder and are also undertaking to pay the fees and expenses of the Trustee.
NOW, THEREFORE,
In consideration of the mutual agreements herein contained, and of the
other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. (a) For all purposes of this Trust
-----------
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms used herein that are defined in this Article have the
meanings assigned to them in this Article, and include the plural as well as the
singular;
(2) all references in this Trust Agreement to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections and
other subdivisions of this Trust Agreement; and
(3) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
(b) For all purposes of this Trust Agreement, the following
capitalized terms have the following respective meanings:
Act: When used with respect to any Holder, has the meaning specified
---
in Section 1.04.
Affiliate: Of any specified Person, means any other Person which
---------
directly or indirectly controls or is controlled by, or is under common control
with, such specified Person. For the purposes of this definition, "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
Authorized Agent: Means any Paying Agent or Registrar.
----------------
Business Day: Means any day other than a Saturday, a Sunday, or a day
------------
on which commercial banking institutions are authorized or obligated by law,
executive order, or govern mental decree to be closed in New York, New York, the
city and state in which the Corporate Trust Office of the Indenture Trustee is
located or the city and state in which the Corporate Trust Office of the Trustee
is located.
-2-
<PAGE>
Certificate: Means any one of the certificates executed and
-----------
authenticated by the Trustee, substantially in the form of Exhibit A hereto.
For all purposes of this Trust Agreement, the term "Certificates" shall include
all Initial Certificates and all Exchange Certificates, and, for purposes of
this Trust Agreement, all Initial Certificates and all Exchange Certificates
shall vote together as one series of Certificates under this Trust Agreement.
Certificate Account: Means the account or accounts created and
-------------------
maintained pursuant to Section 4.01(a).
Certificated Certificates: Has the meaning specified in Section 3.01.
-------------------------
Certificateholder or Holder: Means the Person in whose name a
---------------------------
Certificate is registered in the Register.
Clearing Agency: Means an organization registered as a "clearing
---------------
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.
Clearing Agency Participant: Means a broker, dealer, bank, other
---------------------------
financial institution or other Person for whom from time to time a Clearing
Agency effects, directly or indirectly, book-entry transfers and pledges of
securities deposited with the Clearing Agency.
Closing Date: Has the meaning specified in Section 2.4 of the
------------
Participation Agreement.
Commission: Means the Securities and Exchange Commission, as from
----------
time to time constituted, created under the Securities Exchange Act of 1934.
Consideration: Has the meaning specified in Section 2.01.
-------------
Corporate Trust Office: With respect to the Trustee, the Owner
----------------------
Trustee and the Indenture Trustee, means the office of such trustee in the city
at which at any particular time its corporate trust business shall be
principally administered.
Default: Means any event which is, or after notice or lapse of time
-------
or both would become, an Event of Default.
Direction: Has the meaning specified in Section 1.04(c).
---------
-3-
<PAGE>
Distribution Date: With respect to distributions of Scheduled
-----------------
Payments, means January 3, 1996 and thereafter each January 2 and July 2,
commencing July 2, 1996 until payment of all the Scheduled Payments to be made
under the Secured Notes has been made.
DTC: Means The Depository Trust Company and any successor clearing
---
agency.
Event of Default: Means an event described in Section 6.0l.
----------------
Exchange Certificates: means any Certificate executed and
---------------------
authenticated by the Trustee containing terms substantially identical to the
Initial Certificates (except that such Exchange Certificates shall not contain
terms with respect to transfer restrictions) that are issued and exchanged for
the Initial Certificates in the Exchange Offer pursuant to the Registration
Rights Agreement and this Trust Agreement.
Exchange Offer: means the exchange offer that may be effected
--------------
pursuant to the Registration Rights Agreement.
Fractional Undivided Interest: Means the fractional undivided
-----------------------------
interest in the Trust that is evidenced by a Certificate.
Global Certificate: Has the meaning specified in Section 3.01.
------------------
Guaranty: Means the Guaranty issued by Mobil, pursuant to which Mobil
--------
will irrevocably and unconditionally guarantee all obligations of MGB under the
Lease and other agreements to which MGB is a party.
Holder: See Certificateholder.
------ -----------------
Initial Securities: mans the Certificates originally issued on the
------------------
date hereof and any Certificates issued in exchange or replacement thereof
pursuant to the terms of this Trust Agreement, other than the Exchange
Certificates.
Indenture: Means the Trust Indenture, Mortgage, Assignment of Lease
---------
and Security Agreement dated as of December 12, 1995, between the Owner Trustee
and First Security Bank of Utah, National Association, as Indenture Trustee; as
such Indenture may be amended or supplemented in accordance with its terms.
-4-
<PAGE>
Indenture Event of Default: Means any
--------------------------
Indenture Event of Default (as such term is defined in the Indenture).
Indenture Trustee: Means First Security Bank of Utah, National
-----------------
Association, as indenture trustee under the Indenture; and any successor to such
Indenture Trustee as such trustee.
Lease: Means the Production System Lease Agreement dated as of
-----
December 12, 1995 between the Owner Trustee, as the lessor, and MGB, as the
lessee; as such Lease may be amended or supplemented in accordance with its
respective terms.
Lease Transaction: Means the sale-leaseback transaction in respect of
-----------------
the Undivided Interest between MGB and the Owner Trustee provided for in the
Participation Agreement.
Letter of Representations: Means the agreement among Mobil, MGB, the
-------------------------
Trustee and DTC, dated as of December 12, 1995, substantially in the form
attached hereto as Exhibit C.
MGB: Means Mobil G. B. 388 Finance Inc., a Delaware corporation, or
---
its successor in interest pursuant to Section 5.02.
Mobil: Means Mobil Corporation, a Delaware corporation, or its
-----
successor in interest pursuant to Section 5.02.
Note Documents: Means, with respect to any Secured Note, the
--------------
Indenture, the Participation Agreement and the Lease.
Offshore Certificates Exchange Date: Has the meaning provided in
-----------------------------------
Section 3.01.
Offshore Global Certificates: Has the meaning provided in Section
----------------------------
3.01.
Offshore Physical Certificates: Has the meaning provided in Section
------------------------------
3.01.
Officer's Certificate: means a certificate signed (i) in the case of
---------------------
a corporation by the President, any Vice President or the Treasurer, of such
corporation, (ii) in the case of a partnership by the Chairman of the Board, the
President or any Vice President, the Treasurer or an Assistant Treasurer of a
corporate general partner, and (iii) in the case of the Owner Trustee or the
Indenture Trustee, a certificate signed by a Responsible Officer of the Owner
Trustee or Indenture Trustee.
-5-
<PAGE>
Opinion of Counsel: Means an opinion in writing, signed by legal
------------------
counsel, who may be (a) the General Counsel, Assistant General Counsel or other
appropriate internal counsel of Mobil or (b) such other counsel designated by
Mobil, the Owner Trustee or the Indenture Trustee, whether or not such counsel
is an employee of any of them and who shall be reasonably acceptable to the
Trustee.
Outstanding: When used with respect to Certificates, means, as of the
-----------
date of determination, all Certificates theretofore authenticated and delivered
under this Trust Agreement, except:
(i) Certificates theretofore canceled by the Registrar or delivered to the
Trustee or the Registrar for cancellation;
(ii) Certificates for which money in the full amount has been theretofore
deposited with the Trustee or any Paying Agent in trust for the Holders of such
Certificates as provided in Section 4.01 pending distribution of such money to
the Certificateholders pursuant to the final distribution payment to be made
pursuant to Section 11.01 hereof; and
(iii) Certificates in exchange for or in lieu of which other Certificates
have been authenticated and delivered pursuant to this Trust Agreement.
Owner Participant: Means the Owner Participant referred to in the
-----------------
Participation Agreement and any permitted successors and assigns.
Owner Trustee: Means Fleet National Bank of Connecticut, not in its
-------------
individual capacity but solely as trustee under the Trust Agreement dated as of
December 12, 1995, between Fleet National Bank of Connecticut and the Owner
Participant; and any successor to the Owner Trustee as such owner trustee.
Participation Agreement: Means the Participation Agreement dated as
-----------------------
of December 12, 1995, among MGB, the Owner Participant, the Owner Trustee, the
Indenture Trustee and the Trustee.
Paying Agent: Means the paying agent maintained and appointed
------------
pursuant to section 7.12.
Permanent Offshore Global Certificate: Has the meaning provided in
-------------------------------------
Section 3.01.
-6-
<PAGE>
Permitted Government Investment: Means obligations of the United
-------------------------------
States of America for the payment of which the full faith and credit of the
United States of America is pledged, maturing in not more than 60 days or such
lesser time as is necessary for payment of any Special Payments on a Special
Distribution Date.
Person: Means any individual, corporation, partnership, association,
------
trust, unincorporated organization, or government or any agency or political
subdivision thereof.
Pool Balance: Means, as of any date, the aggregate unpaid principal
------------
amount of the Secured Notes on such date plus the amount of the principal
payments on the Secured Notes held by the Trustee and not yet distributed. The
Pool Balance as of any Distribution Date or Special Distribution Date, if any,
shall be computed after giving effect to the payment of principal, if any, on
the Secured Notes and distribution thereof to be made on that date.
Pool Factor: Means, as of any date, the quotient (rounded to the
-----------
seventh decimal place) computed by dividing (i) the aggregate unpaid principal
amount of the Secured Notes on such date plus the amount of the principal
payments on the Secured Notes held by the Trustee and not yet distributed by
(ii) the aggregate original principal amount of the Certificates. The Pool
Factor, as of any Distribution Date or Special Distribution Date, if any, shall
be computed after giving effect to the payment of principal, if any, on the
Secured Notes and distribution thereof to be made on that date.
QIB: Means a "qualified institutional buyer," as defined in Rule 144A
---
under the Securities Act.
Record Date: Means (i) for Scheduled Payments to be distributed on
-----------
any Distribution Date, other than the final distribution, the day (whether or
not a Business Day) which is 15 days preceding such Distribution Date, and (ii)
for Special Payments to be distributed on any Special Distribution Date, if any,
other than the final distribution, the day (whether or not a Business Day) which
is 15 days preceding such Special Distribution Date.
Register and Registrar: Means the register maintained and the
----------------------
registrar appointed pursuant to Sections 3.04 and 7.12.
-7-
<PAGE>
Registration Rights Agreement: Means the Registration Rights
-----------------------------
Agreement dated December 12, 1995, among Mobil, MGB and Morgan Stanley & Co.
Incorporated, as the initial purchaser of the Certificates.
Request: Means a request by the Company setting forth the subject
-------
matter of the request accompanied by an Officer's Certificate and an Opinion of
Counsel as provided in Section 1.02.
Responsible Officer: When used with respect to the initial Trustee,
-------------------
the initial Indenture Trustee or the Owner Trustee means any officer in the
Corporate Trust Office; when used with respect to any successor Trustee, or
successor Indenture Trustee, means the chairman or vice-chairman of the board of
directors or trustees, the chairman or vice-chairman of the executive or
standing committee of the board of directors or trustees, the president, the
chairman of the committee on trust matters, any vice-president, any second vice-
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, any trust officer or assistant trust officer, the comptroller and any
assistant comptroller; and, when used with respect to the Trustee and the
Indenture Trustee, also means any other officer of the Trustee or the Indenture
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, when used with respect to the
Trustee, Indenture Trustee or Owner Trustee with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
Restricted Securities Legend: Has the meaning specified in Section
----------------------------
3.01.
Scheduled Payment: With respect to a Distribution Date, means any
-----------------
payment (other than a Special Payment) of principal and interest on a Secured
Note, due from the Owner Trustee, which payment represents the payment of a
regularly scheduled installment of principal then due on such Secured Note, or
the payment of regularly scheduled interest accrued on such Secured Note.
Secured Note: Means any one of the Secured Notes (as defined in the
------------
Indenture) described on Schedule I attached hereto, including any Secured Note
(as so defined) issued under the Indenture in replacement or substitution
therefor, held by the Trustee.
-8-
<PAGE>
Securities Act: Means the Securities Act of 1933, as amended from
--------------
time to time.
Securities Exchange Act: Means the Securities Exchange Act of 1934,
-----------------------
as amended from time to time.
Special Distribution Date: Means (i) with respect to the prepayment
-------------------------
of any Secured Notes, the 2nd day of the month on which such prepayment is
scheduled to occur pursuant to the terms of the Indenture and (ii) with respect
to any Special Payment relating to a Secured Note other than as described in
clause (i) of the definition of Special Payment, the earliest 2nd day of a month
for which it is practicable for the Trustee to give notice pursuant to Section
4.02(c) 20 days prior thereto.
Special Payment: With respect to a Secured Note, means (i) any
---------------
payment of principal, premium, if any, and interest on such Secured Note
resulting from the prepayment of such Secured Note pursuant to Sections 3.02,
3.03, 3.05 or 3.06 of the Indenture, (ii) any payment of principal and interest
(including any interest accruing upon default) on, or any other amount in
respect of, such Secured Note upon an Indenture Event of Default in respect
thereof or upon the exercise of remedies under the Indenture relating to such
Secured Note, (iii) any Scheduled Payment or any Special Payment referred to in
clause (i) of this definition which is not in fact paid within five days of the
Distribution Date or Special Distribution Date applicable thereto, or (iv) any
proceeds from the sale of any Secured Note by the Trustee pursuant to Article VI
hereof; and Special Payments means all of such Special Payments.
----------------
Special Payments Account: Means the account or accounts created and
------------------------
maintained pursuant to Section 4.01(b).
Specified Investments: Means (i) direct obligations of the United
---------------------
States of America and agencies thereof for which the full faith and credit of
the United States is pledged, (ii) obligations fully guaranteed by the United
States of America, (iii) certificates of deposit issued by, or bankers'
acceptances of, or time deposits with, any bank, trust company or national
banking association incorporated or doing business under the laws of the United
States of America or one of the States thereof having combined capital and
surplus and retained earnings of at least $500,000,000 (including the Indenture
Trustee or Owner Trustee if such conditions are met), (iv) commercial paper of
companies, banks, trust companies or national banking associations incorporated
or
-9-
<PAGE>
doing business under the laws of the Untied States of America or one of the
States thereof and in each case having a rating assigned to such commercial
paper by Standard & Poor's Corporation or Moody's Investors Service, Inc. (or,
if neither such organization shall rate such commercial paper at any time, by
any nationally recognized rating organization in the Untied States of America)
equal to the highest rating assigned by such organization, and (v) purchase
agreements with any financial institution having a combined capital and surplus
of at least $750,000,000 fully collateralized by obligations of the type
described in clauses (i) through (iv) above; provided that if all of the above
--------
investments are unavailable, the entire amount to be invested may be used to
purchase Federal Funds from an entity described in (iii) above; and provided
--------
further that no investment shall be eligible as a "Specified Investment" unless
- -------
the final maturity or date of return of such investment is 91 days or less from
the date of purchase thereof.
Temporary Offshore Global Certificate: Has the meaning provided in
-------------------------------------
Section 3.01.
Transfer Date: Means the Closing Date as such term is defined in the
-------------
Participation Agreement scheduled to occur on December 12, 1995, or if postponed
in accordance with the Participation Agreement, the rescheduled Closing Date.
Trust: Means the trust created by this Trust Agreement, the estate of
-----
which consists of the Trust Property.
Trust Indenture Act: Means the Trust Indenture Act of 1939, as
-------------------
amended from time to time.
Trust Property: Means the Secured Notes held as the property of the
--------------
Trust created hereby and all monies at any time paid thereon and all monies due
and to become due thereunder, funds from time to time deposited in the
Certificate Account and the Special Payments Account and any proceeds from the
sale by the Trustee pursuant to Article VI hereof of any Secured Note.
Trustee: Means the institution executing this Trust Agreement as
-------
Trustee, or its successor in interest, and any successor trustee appointed as
provided herein.
U.S. Global Certificate: Has the meaning provided in Section 3.01.
-----------------------
-10-
<PAGE>
U.S. Physical Certificates: Has the meaning provided in Section 3.01.
--------------------------
Section 1.02. Compliance Certificates and Opinions. Upon any
------------------------------------
application or request by Mobil or MGB, the Owner Trustee or the Indenture
Trustee to the Trustee to take any action under any provision of this Trust
Agreement, Mobil, MGB, the Owner Trustee or the Indenture Trustee, as the case
may be, shall furnish to the Trustee an Officers' Certificate stating that, in
the opinion of the signers, all conditions precedent, if any, provided for in
this Trust Agreement relating to the proposed action have been complied with and
an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Trust Agreement relating to
such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any case
--------------------------------------
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other
-11-
<PAGE>
such Persons as to other matters and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any Opinion of Counsel stated to be based on the opinion of other
counsel shall be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Trust Agreement, they may, but need not, be consolidated
and form one instrument.
Section 1.04. Acts of Holders. (a) Any direction, consent, waiver
---------------
or other action provided by this Trust Agreement to be given or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to Mobil or the Indenture
Trustee. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 7.01) conclusive in
favor of the Trustee, Mobil and the Indenture Trustee, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgements of deeds
or administer oaths that the Person executing such instrument acknowledged to
him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or such other officer and where such execution
is by an officer of a corporation or association or a member of a partnership,
on behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other reasonable manner
which the Trustee deems sufficient.
(c) In determining whether the Holders of the requisite Fractional
Undivided Interests of Certificates Outstanding have given any direction,
consent or waiver (a "Direction"), under this Trust Agreement, Certificates
owned by Mobil, MGB, the Owner Trustee, the Owner Participant or any Affiliate
of any such Persons
-12-
<PAGE>
shall be disregarded and deemed not to be Outstanding under this Trust Agreement
for purposes of any such determination. In determining whether the Trustee
shall be protected in relying upon any such Direction, only Certificates which
the Trustee knows to be so owned shall be so disregarded. Notwithstanding the
foregoing, (i) if any such Person owns 100% of the Certificates Outstanding,
such Certificates shall not be so disregarded as aforesaid, and (ii) if any
amount of Certificates so owned by any such Person have been pledged in good
faith, such Certificates shall not be disregarded as aforesaid if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Certificates and that the pledgee is not Mobil, MGB, the
Owner Trustee, the Owner Participant or any Affiliate of any such Persons.
(d) Any direction, consent, waiver or other action by the Holder of
any Certificate shall bind the Holder of every Certificate issued upon the
transfer thereof or in exchange therefor or in lieu thereof, whether or not
notation of such action is made upon such Certificate.
(e) Except as otherwise provided in Section 1.04(c), Certificates
owned by or pledged to any Person shall have an equal and proportionate benefit
under the provisions of this Trust Agreement, without preference, priority, or
distinction as among all of the Certificates.
ARTICLE II
ACQUISITION OF SECURED NOTES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Issuance of Certificates; Acquisition of Secured Notes.
------------------------------------------------------
The Trustee, simultaneously with the execution and delivery of this Trust
Agreement, shall also execute and deliver the Participation Agreement, in the
form delivered to the Trustee on or prior to the date of the execution and
delivery hereof. Upon request of Mobil and the satisfaction of the closing
conditions with respect to the Production System to be delivered on the Transfer
Date specified in the Participation Agreement, on the Transfer Date the Trustee
shall execute, deliver and authenticate Certificates equalling in the aggregate
the total aggregate principal amount of the Secured Notes purchased by the
Trustee pursuant to the Participation Agreement on the Transfer Date and
evidencing the entire ownership of the Trust. The Trustee shall issue and sell
such certificates on the Transfer Date, in authorized denominations and in such
Fractional Undivided Interests, so as to result in the receipt of consideration
in an
-13-
<PAGE>
amount equal to the aggregate principal amount of such Secured Notes (the
"Consideration"). The Trustee shall purchase, pursuant to the terms and
conditions of the Participation Agreement, the Secured Notes on the Transfer
Date at an aggregate purchase price equal to the amount of the Consideration so
received. Except as provided in Sections 3.04 and 3.05 hereof, the Trustee
shall not execute or deliver Certificates in excess of the aggregate amount
specified in this paragraph.
Section 2.02. Acceptance by Trustee. The Trustee, upon the execution
---------------------
and delivery of this Trust Agreement, acknowledges its acceptance of all right,
title, and interest in and to the Secured Notes acquired pursuant to Section
2.01 hereof and the Participation Agreement and declares that the Trustee holds
and will hold such right, title, and interest, together with all other property
constituting the Trust Property, for the benefit of all present and future
Certificateholders, upon the trusts herein set forth. By its payment for and
acceptance of each Certificate issued to it hereunder, each initial
Certificateholder as grantor of the Trust thereby joins in the creation and
declaration of the Trust.
Section 2.03. Limitation of Powers. The Trust is constituted solely
--------------------
for the purpose of making the investment in the Secured Notes, and, except as
set forth herein, the Trustee is not authorized or empowered to acquire any
other investments or engage in any other activities and, in particular, the
Trustee is not authorized or empowered to do anything that would cause the Trust
to fail to qualify as a "grantor trust" for federal income tax purposes
(including, as subject to this restriction, acquiring the Production System (as
defined in the Indenture) by bidding the Secured Notes or otherwise, or taking
any action with respect to the Production System once acquired).
ARTICLE III
THE CERTIFICATES
Section 3.01. Form, Denomination and Execution of Certificates. The
------------------------------------------------
Certificates shall be in registered form without coupons. The face of the
Certificates shall be substantially in the form of Exhibit A hereto and the
reverse of the Certificates shall contain the Terms and Conditions substantially
as set forth in Exhibit A hereto (the "Terms"); provided that if a Certificate
is to be issued to DTC or its nominee as a global certificate, as contemplated
by the Offering Memorandum dated December 6, 1995 relating to the Certificates,
such global certificate will be issued in registered form without interest
coupons, with a face
-14-
<PAGE>
substantially in the form of Exhibit A hereto with additions thereto as noted
thereon, a reverse containing the Terms and shall have affixed thereto a
schedule substantially in the form of Exhibit A-1 hereto (the "Global
Certificate"; Certificates other than the Global Certificate are herein referred
to as "Certificated Certificates"). References herein to the "Certificates"
shall be deemed to include the Global Certificate and the Certificated
Certificates unless the context requires otherwise. The Certificates may also
have such additional provisions, omissions, variations and insertions as are
permitted by this Trust Agreement, and may have such letters, numbers or other
marks of identification and such legends or endorsements printed, lithographed
or engraved thereon, as may be required to comply with the rules of any Clearing
Agency or any securities exchange on which the Certificates may be listed or to
conform to any usage in respect thereof, or as may, consistently herewith, be
prescribed by the Trustee or by the officer executing such Certificates, such
determination by said officer to be evidenced by his signing the Certificates.
Except as provided by Section 3.10 hereof, all Certificates shall include the
legend set forth in Exhibit A hereto (the "Restricted Securities Legend").
The definitive Certificates shall be printed, lithographed or engraved
or produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any Clearing Agency or any securities exchange
on which the Certificates may be listed, all as determined by the officer
executing such Certificates, as evidenced by his execution of such Certificates.
The Certificates shall be initially issued in minimum denominations of
$250,000, or integral multiples of $1,000 in excess thereof. At such time as
the restrictions contained in Section 3.10 hereof are removed, the minimum
denominations of the Certificates shall be reduced to $1,000, or integral
multiples of $1,000 in excess thereof.
The Certificates shall be executed on behalf of the Trustee by manual
or facsimile signature of a Responsible Officer of the Trustee. Certificates
bearing the manual or facsimile signature of an individual who was, at the time
when such signature was affixed, authorized to sign on behalf of the Trustee
shall be valid and binding obligations of the Trustee, notwithstanding that such
individual has ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such office at the date of such
Certificates. No Certificate shall be entitled to any benefit under this Trust
Agreement, or be valid for any purposes, unless there appears on such
Certificate a certificate of authentication substantially in the form set forth
-15-
<PAGE>
in Exhibit A hereto executed by the Trustee by manual signature, and such
certificate upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Certificates offered and sold in reliance on Rule 144A shall be issued
initially in the form of a single permanent global Certificate in registered
form, substantially in the form set forth in Exhibit A (the "U.S. Global
Certificate"), deposited with the Trustee, as custodian for the Depositary, duly
executed and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the U.S. Global Certificate may from time to time
be increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as hereinafter provided.
Certificates offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of a single temporary global
Certificate in registered form substantially in the form set forth in Exhibit A
(the "Temporary Offshore Global Certificate") deposited with the Trustee, as
custodian for the Depositary, duly executed and authenticated by the Trustee as
hereinafter provided. At any time following January 21, 1996 (the "Offshore
Certificates Exchange Date"), upon receipt by the Trustee, Mobil and MGB of a
certificate substantially in the form of Exhibit B, a single permanent global
Certificate in registered form substantially in the form set forth in Exhibit A
(the "Permanent Offshore Global Certificate;" and, together with the Temporary
Offshore Global Certificate, the "Offshore Global Certificate") duly executed
and authenticated by the Trustee as hereinafter provided shall be deposited with
the Trustee, as custodian for the Depositary, and the Registrar shall reflect on
its books and records the applicable date and a decrease in the principal amount
of the Temporary Offshore Global Certificate in an amount equal to the principal
amount of the beneficial interest in the Temporary Offshore Global Certificate
transferred.
Certificates offered and sold in reliance on Regulation D under the
Securities Act shall be issued in the form of permanent certificates in
registered form in substantially the form set forth in Exhibit A (the "U.S.
Physical Certificates"). Certificates issued pursuant to Section 3.10 in
exchange for interests in the Offshore Global Certificate shall be in the form
of permanent certificated Certificates in registered form substantially in the
form set forth in Exhibit A (the "Offshore Physical Certificates").
The Offshore Physical Certificates and U.S. Physical Certificates are
sometimes collectively herein referred to as the
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<PAGE>
"Physical Certificates." The U.S. Global Certificate and the Offshore Global
Certificate are sometimes referred to as the "Global Certificates."
Section 3.02. Authentication of Certificates. The Trustee on the
------------------------------
Transfer Date has caused to be authenticated and delivered, simultaneously with
the sale, assignment, and transfer to the Trustee of the Secured Notes pursuant
to Section 2.01 hereof and the Participation Agreement, Certificates duly
authenticated by the Trustee, in authorized denominations equalling in the
aggregate the aggregate principal amount of the Secured Notes so purchased and
evidencing the entire ownership of the Trust.
Section 3.03. Temporary Certificates. Pending the preparation of
----------------------
definitive Certificates, the Trustee may execute, authenticate and deliver
temporary Certificates which are printed, lithographed, typewritten, or
otherwise produced, in any denomination, containing substantially the same terms
and provisions as set forth in Exhibit A, except for such appropriate
insertions, omissions, substitutions and other variations relating to their
temporary nature as the officer executing such temporary Certificates may
determine, as evidenced by their execution of such temporary Certificates.
If temporary Certificates are issued, the Trustee will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the Corporate Trust Office of the Trustee, or at the office or
agency of the Trustee maintained in accordance with Section 7.12, without charge
to the holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Trustee shall execute, authenticate and deliver in exchange
therefor definitive Certificates of authorized denominations of a like aggregate
Fractional Undivided Interest. Until so exchanged, such temporary Certificates
shall in all respects be entitled to the same benefits under this Trust
Agreement as definitive Certificates.
Section 3.04. Registration of Transfer and Exchange of Certificates.
-----------------------------------------------------
(a) The Trustee shall cause to be kept at the office or agency to be maintained
by it in accordance with the provisions of Section 7.12 a register (the
"Register") in which, subject to the provisions of this Section 3.04 and the
Certificates, the Trustee shall provide for the registration of Certificates and
of transfers and exchanges of Certificates as herein provided. The Trustee
shall initially be the registrar (the "Registrar") for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided.
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<PAGE>
(b) Upon surrender for registration of transfer of any Certificate at
the Corporate Trust Office or such other office or agency, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of a like
aggregate Fractional Undivided Interest. At the option of a Certificateholder,
Certificates may be exchanged for other Certificates of authorized denominations
of a like aggregate Fractional Undivided Interest, upon surrender of the
Certificates to be exchanged at any such office or agency. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate and deliver the Certificates that the Certificateholder making the
exchange is entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Registrar duly executed by the Holder thereof or his attorney duly authorized in
writing.
(c) Any Holder of a Global Certificate shall, by acceptance of such
Global Certificate, agree that transfers of beneficial interests in such Global
Certificate may be effected only through a book entry system maintained by the
Holder of such Global Certificate (or its agent), and that ownership of a
beneficial interest in the Certificate shall be required to be reflected in a
book entry. When Certificates are presented to the Registrar or a co-Registrar
with a request to register the transfer or to exchange them for an equal
principal amount of Certificates of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested if its
requirements for such transactions are met. To permit registrations of
transfers and exchanges, the Trustee shall execute and authenticate Certificates
at the Registrar's request. No service charge shall be made for any
registration of transfer or exchange of the Certificates, but Mobil or MGB may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith.
(d) All Certificates surrendered for registration of transfer and
exchange shall be cancelled and subsequently destroyed by the Trustee.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificates. If
-------------------------------------------------
(a) any mutilated Certificate is surrendered to the Registrar, or the Registrar
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Registrar and the Trustee such
security, indemnity or bond, as may be required by them to save each of them
harmless, then, in the absence of notice to the
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<PAGE>
Registrar or the Trustee that such Certificate has been acquired by a bona fide
purchaser, the Trustee shall execute, authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like Fractional Undivided Interest with the same final
Distribution Date. In connection with the issuance of any new Certificate under
this Section 3.05, the Trustee shall require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee
and the Registrar) connected therewith. Any duplicate Certificate issued
pursuant to this Section 3.05 shall constitute conclusive evidence of the
appropriate Fractional Undivided Interest in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
Section 3.06. Persons Deemed Owners. Prior to due presentation of a
---------------------
Certificate for registration of transfer, the Trustee, the Registrar, and any
Paying Agent of the Trustee may treat the person in whose name any Certificate
is registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 4.02 and for all other purposes whatsoever,
and neither the Trustee, the Registrar, nor any Paying Agent of the Trustee
shall be affected by any notice to the contrary.
Section 3.07. Cancellation. All Certificates surrendered for payment
------------
or transfer or exchange shall, if surrendered to any Person party hereto other
than the Registrar, be delivered by such Person to the Registrar for
cancellation. No Certificates shall be authenticated in lieu of or in exchange
for any Certificates cancelled as provided in this Section, except as expressly
permitted by this Trust Agreement. All cancelled Certificates held by the
Registrar shall be destroyed and a certification of their destruction delivered
to the Trustee.
Section 3.08. Limitation of Liability for Payments. All payments or
------------------------------------
distributions made to Certificateholders under this Trust Agreement shall be
made only from the Trust Property and only to the extent that the Trustee shall
have sufficient income or proceeds from the Trust Property to make such payments
in accordance with the terms of Article IV of this Trust Agreement. Each Holder
of a Certificate, by its acceptance of such Certificate, agrees that it will
look solely to the income and proceeds from the Trust Property to the extent
available for distribution to the Holder thereof as provided in this Trust
Agreement. Nothing in this Trust Agreement shall be construed as an agreement,
or otherwise creating an obligation, of Mobil to pay
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any of the principal, premium, if any, and interest due from time to time under
the Secured Notes or in respect of the Certificates.
Section 3.09. Book-Entry Provisions for U.S. Global Certificate and
-----------------------------------------------------
Offshore Global Certificate. (a) The U.S. Global Certificate initially shall
- ---------------------------
(i) be registered in the name of the Depositary for such Global Certificates or
the nominee of such Depositary, (ii) be delivered to the Trustee as custodian
for such Depositary and (iii) bear legends as set forth in the Form of
Certificate attached hereto as Exhibit A.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Trust Agreement with respect to any U.S. Global
Certificate or Offshore Global Certificate, as the case may be, held on their
behalf by the Depositary, or the Trustee as its custodian, or under the U.S.
Global Certificate or Offshore Global Certificate, as the case may be, and the
Depositary may be treated by Mobil, MGB, the Trustee and any agent of Mobil, MGB
or the Trustee as the absolute owner of such U.S. Global Certificate or Offshore
Global Certificate, as the case may be, for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent Mobil, MGB, the
Trustee or any agent of Mobil, MGB or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a holder of any
Certificate.
(b) Transfers of the U.S. Global Certificate and the Offshore Global
Certificate shall be limited to transfers of such U.S. Global Certificate or
Offshore Global Certificate in whole, but not in part, to the Depositary, its
successors or their respective nominee. Interests of beneficial owners in the
U.S. Global Certificate and the Offshore Global Certificate may be transferred
in accordance with the rules and procedures of the Depositary and the provisions
of Section 3.10. In addition, U.S. Physical Certificates and Offshore Physical
Certificates shall be transferred to all beneficial owners in exchange for their
beneficial interests in the U.S. Global Certificate or the Offshore Global
Certificate, as the case may be, if (i) the Depositary notifies Mobil or MGB
that it is unwilling or unable to continue as Depositary for the U.S. Global
Certificate or the Offshore Global Certificate, as the case may be, and a
successor depositary is not appointed by Mobil or MGB within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a request to that effect from the Depositary.
(c) Any beneficial interest in one of the Global Certificates that is
transferred to a person who takes delivery in
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<PAGE>
the form of an interest in the other Global Certificate will, upon transfer,
cease to be an interest in such Global Certificate and become an interest in the
other Global Certificate and, accordingly, will thereafter be subject to all
transfer restrictions, if any, and other procedures applicable to beneficial
interests in such other Global Certificate for as long as it remains such an
interest.
(d) In connection with any transfer of a portion of the beneficial
interests in the U.S. Global Certificate to beneficial owners pursuant to
paragraph (b) of this Section, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the U.S. Global
Certificate in an amount equal to the principal amount of the beneficial
interest in the U.S. Global Certificate to be transferred, and Mobil and MGB
shall execute, and the Trustee shall authenticate and deliver one or more U.S.
Physical Certificates of like tenor and amount.
(e) In connection with the transfer of the entire U.S. Global
Certificate or Offshore Global Certificate to beneficial owners pursuant to
paragraph (b) of this Section, the U.S. Global Certificate or Offshore Global
Certificate, as the case may be, shall be deemed to be surrendered to the
Trustee for cancellation, and the Trustee shall execute, authenticate and
deliver to each beneficial owner identified by the Depositary in exchange for
its beneficial interest in the U.S. Global Certificate or Offshore Global
Certificate, as the case may be, an equal aggregate principal amount of U.S.
Physical Certificates or Offshore Physical Certificates, as the case may be, of
authorized denominations.
(f) Any U.S. Physical Certificate delivered in exchange for an
interest in the U.S. Global Certificate pursuant to paragraph (b) or (d) of this
Section shall, except as otherwise provided by paragraph (f) of Section 3.10,
bear the legend regarding transfer restrictions applicable to the U.S. Physical
Certificate set forth in the Form of Certificate attached hereto as Exhibit A.
(g) Any Offshore Physical Certificate delivered in exchange for an
interest in the Offshore Global Certificate pursuant to paragraph (b) of this
Section shall, except as otherwise provided by paragraph (f) of Section 3.10,
bears the legend regarding transfer restrictions applicable to the Offshore
Physical Certificate set forth in the Form of Certificate attached hereto as
Exhibit A.
(h) The registered holder of the U.S. Global Certificate and the
Offshore Global Certificate may grant proxies and otherwise authorize any
person, including Agent Members and persons that may
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hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Trust Agreement or the Certificates.
(i) The Trustee shall enter into the Letter of Representations and
fulfill its responsibilities thereunder.
Section 3.10. Special Transfer Provisions. Unless and until a
---------------------------
Certificate has been sold under an effective registration statement under the
Securities Act or has been exchanged for a Certificate pursuant to an exchange
offer registered under the Securities Act, in either case pursuant to the
Registration Rights Agreement, the following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
-------------------------------------------------------
following provisions shall apply with respect to the registration of any
proposed transfer of a Certificate to any Institutional Accredited Investor
which is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Certificate
whether or not such Certificate bears the Restricted Securities Legend, if (x)
the requested transfer is at least three years after the later of the original
issue date of the Certificates and the last date on which such Certificate was
held by an affiliate of Mobil or MGB or (y) the proposed transferee has
delivered to the Registrar a certificate substantially in the form of Exhibit D
hereto.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Certificate, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (i) and (y)
instructions given in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date and a
decrease in the principal amount of the U.S. Global Certificate in an amount
equal to the principal amount of the beneficial interest in the U.S. Global
Certificate to be transferred, and the Trustee shall execute, authenticate and
deliver, one or more U.S. Physical certificates of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
-----------------
respect to the registration of any proposed transfer of a Certificate to a QIB
(excluding Non U.S. Persons):
(i) If the Certificate to be transferred consists of U.S. Physical
Certificates or an interest in the Temporary Offshore Global Certificate, the
Registrar shall register the
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<PAGE>
transfer if such transfer is being made by a proposed transferor who has checked
the box provided for on the form of Certificate stating, or has otherwise
advised Mobil, MGB and the Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Certificate stating, or has otherwise
advised Mobil, MGB and the Registrar in writing, that it is purchasing the
Certificate for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding
Mobil and MGB as it has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon its foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, and the
Certificate to be transferred consists of U.S. Physical Certificates or an
interest in the Temporary Offshore Global Certificate, upon receipt by the
Registrar of the documents referred to in clause (i) and instructions given in
accordance with the Depositary's and the Registrar's procedures, the Registrar
shall reflect on its books and records the date and an increase in the principal
amount of the U.S. Global Certificate in an amount equal to the principal amount
of the U.S. Physical Certificates or the interest in the Temporary Offshore
Global Certificate, as the case may be, to be transferred, and the Trustee shall
cancel the Physical Certificate or decrease the amount of the Temporary Offshore
Global Certificate so transferred.
(c) Transfers of Interests in the Temporary Offshore Global
-------------------------------------------------------
Certificate. The following provisions shall apply with respect to registration
- -----------
of any proposed transfer of interests in the Temporary Offshore Global
Certificate:
(i) The Registrar shall register the transfer of any Certificate (x)
if the proposed transferee is a Non-U.S. Person and the proposed transferor has
delivered to the Registrar a certificate substantially in the form of Exhibit E
hereto or (y) if the proposed transferee is a QIB and the proposed transferor
has checked the box provided for on the form of Certificate stating, or has
otherwise advised Mobil, MGB and the Registrar in writing, that the sale has
been made in compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of
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<PAGE>
Certificate stating, or has otherwise advised Mobil, MGB and the Registrar in
writing, that it is purchasing the Certificate for its own account or an account
with respect to which it exercises sole investment discretion and that it and
any such account is a QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware
that the transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, upon receipt by
the Registrar of the documents referred to in clause (i)(y) above and
instructions given in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date and an
increase in the principal amount of the U.S. Global Certificate in an amount
equal to the principal amount of the Temporary Offshore Global Certificate to be
transferred, and the Trustee shall decrease the amount of the Temporary Offshore
Global Certificate.
(d) Transfers of Interests in the Permanent Offshore Global
-------------------------------------------------------
Certificate or Offshore Physical Certificates to U.S. Persons. The following
- -------------------------------------------------------------
provisions shall apply with respect to any transfer of interests in the
Permanent Offshore Global Certificate or Offshore Physical Certificates to U.S.
Persons: The Registrar shall give notice to Mobil and MGB and thereupon
register the transfer of any such Certificate without requiring any additional
certification except to the extent that at the time of such transfer applicable
law shall require otherwise.
(e) Transfers to Non-U.S. Persons at any Time. The following
-----------------------------------------
provisions shall apply with respect to any transfer of a Certificate to a Non-
U.S. Person:
(i) Prior to January 22, 1996, the Registrar shall register any
proposed transfer of a Certificate to a Non-U.S. Person upon receipt of a
certificate substantially in the form of Exhibit E hereto from the proposed
transferor.
(ii) On and after January 22, 1996, the Registrar shall register any
proposed transfer to any Non-U.S. Person if the Certificate to be transferred is
a U.S. Physical Certificate or an interest in the U.S. Global Certificate, upon
receipt of a certificate substantially in the form of Exhibit E from the
proposed transferor.
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<PAGE>
(iii) (a) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Certificate, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (ii) and (y)
instructions in accordance with the Depositary's and the Registrar's procedures,
the Registrar shall reflect on its books and records the date and a decrease in
the principal amount of the U.S. Global Certificate in an amount equal to the
principal amount of the beneficial interest in the U.S. Global Certificate to be
transferred, and (b) if the proposed transferee is an Agent Member, upon receipt
by the Registrar of instructions given in accordance with the Depositary's and
the Registrar's procedures, the Registrar shall reflect on its books and records
the date and an increase in the principal amount of the Offshore Global
Certificate in an amount equal to the principal amount of the U.S. Physical
Certificates or the U.S. Global Certificate, as the case may be, to be
transferred, and the Trustee shall cancel the Physical Certificate, if any, so
transferred or decrease the amount of the U.S. Global Certificate.
(f) Restricted Securities Legend. Upon the transfer, exchange or
----------------------------
replacement of Certificates not bearing the Restricted Securities Legend, the
Registrar shall deliver Certificates that do not bear the Restricted Securities
Legend. Upon the transfer, exchange or replacement of Certificates bearing the
Restricted Securities Legend, the Registrar shall deliver only Certificates that
bear the Restricted Securities Legend unless either (i) the circumstances
contemplated by the second sentence of the seventh paragraph of Section 3.01 or
paragraphs (a)(i)(x) or (e)(ii) of this Section 3.10 exist, (ii) there is
delivered to the Registrar an Opinion of Counsel reasonably satisfactory to
Mobil, MGB and the Trustee to the effect that neither such legend nor the
related restrictions on transfer are required in order to maintain compliance
with the provisions of the Securities Act or (iii) Exchange Certificates are
being issued in exchange for Initial Certificates pursuant to the Exchange
Offer.
(g) General. By its acceptance of any Certificate bearing the
-------
Restricted Securities Legend, each Holder of such a Certificate acknowledges the
restrictions on transfer of such Certificate set forth in this Trust Agreement
and in the Restricted Securities Legend and agrees that it will transfer such
Certificate only as provided in this Trust Agreement. The Registrar shall not
register a transfer of any Certificate unless such transfer complies with the
restrictions on transfer of such Certificate set forth in this Trust Agreement.
In connection with any transfer of Certificates, each Holder agrees by its
acceptance of the Certificates to furnish the Registrar, Mobil or MGB such
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<PAGE>
certifications, legal opinions or other information as any of them may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act; provided that the Registrar shall not be required to
determine (but may rely on a determination made by Mobil or MGB with respect to)
the sufficiency of any such certifications, legal opinions or other information.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 3.09 or this Section 3.10.
Mobil and MGB shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
Section 3.11. CUSIP Numbers. The Trustee in issuing the Certificates
-------------
may use "CUSIP" and "CINS" numbers (if then generally in use), and the Trustee
shall use CUSIP numbers or CINS numbers, as the case may be, in notices of
exchange as a convenience to Holders; provided that any such notice shall state
that no representation is made as to the correctness of such numbers either as
printed on the Certificates or as contained in any notice of exchange and that
reliance may be placed only on the other identification numbers printed on the
Certificates.
Section 3.12. Registration Rights. Pursuant to and in accordance
-------------------
with the Registration Rights Agreement, the interest rate payable on the Series
1995-A6 Secured Notes shall be increased by an amount equal to .50% per annum at
the time specified in the Registration Rights Agreement if Mobil and MGB fail to
satisfy certain provisions of such Registration Rights Agreement to allow the
Certificates to be freely transferable by Certificateholders under the
Securities Act.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments Account. (a)
------------------------------------------------
The Trustee shall establish and maintain on behalf of the Certificateholders the
Certificate Account with the Trustee as one or more non-interest-bearing
accounts. The Trustee shall hold the Certificate Account in trust for the
benefit of the Certificateholders, and shall make or permit withdrawals
therefrom only as provided in this Trust Agreement. On each day when a
Scheduled Payment is made under the Indenture to the Trustee, as holder of the
Secured Notes issued under such Indenture, the
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<PAGE>
Trustee upon receipt shall immediately deposit the aggregate amount of such
Scheduled Payment in the Certificate Account.
(b) The Trustee shall establish and maintain on behalf of the
Certificateholders the Special Payments Account with the Trustee as one or more
accounts, which shall be non-interest bearing except as provided in Section
4.04. The Trustee shall hold the Special Payments Account in trust for the
benefit of the Certificateholders, and shall make or permit withdrawals
therefrom only as provided in this Trust Agreement. On each day when a Special
Payment (other than a Special Payment that represents the proceeds of any sale
pursuant to Article VI hereof by the Trustee of a Secured Note) is made under
the Indenture to the Trustee, as holder of the Secured Notes issued under such
Indenture, the Trustee upon receipt shall immediately deposit the aggregate
amounts of such Special Payments in the Special Payments Account. Upon the sale
of any Secured Note by the Trustee pursuant to Article VI hereof and the
realization of any proceeds thereof, the Trustee shall deposit the aggregate
amount of such proceeds as a Special Payment in the Special Payments Account.
(c) The Trustee shall present to the Indenture Trustee each Secured
Note on the date of its stated final maturity, or in the case of any Secured
Note which is to be prepaid in whole pursuant to the Indenture, on the
applicable prepayment date under such Indenture.
Section 4.02. Distributions from Certificate Account and Special
--------------------------------------------------
Payments Account. (a) On each Distribution Date or as soon thereafter as the
- ----------------
Trustee has confirmed receipt of the payment of the Scheduled Payments due on
the Secured Notes on such date, the Trustee shall distribute out of the
Certificate Account the entire amount deposited therein pursuant to Section
4.01(a). There shall be so distributed to each Certificateholder of record on
the Record Date with respect to such Distribution Date (other than as provided
in Section 11.01 concerning the final distribution) by (i) check mailed to such
Certificateholder at the address appearing in the Register or (ii) upon
application to the Trustee, by wire transfer in immediately available funds to
an account maintained by the Certificateholder with a bank, such
Certificateholder's pro rata share (based on the aggregate Fractional Undivided
Interest held by such Certificateholder) of the aggregate amount in the
Certificate Account.
(b) On each Special Distribution Date with respect to any Special
Payment or as soon thereafter as the Trustee has confirmed receipt of the
Special Payments due on the Secured Notes or realized upon the sale of any
Secured Note, the Trustee shall distribute out of the Special Payments Account
the entire amount
-27-
<PAGE>
deposited therein pursuant to Section 4.01(b) of such Special Payment. There
shall be so distributed to each Certificateholder of record on the Record Date
with respect to such Special Distribution Date (other than as provided in
Section 11.01 concerning the final distribution) by (i) check mailed to such
Certificateholder at the address appearing in the Register or (ii) upon
application to the Trustee, by wire transfer in immediately available funds to
an account maintained by the Certificateholder with a bank, such
Certificateholder's pro rata share (based on the aggregate Fractional Undivided
Interest held by such Certificateholder) of the aggregate amount in the Special
Payments Account on account of such Special Payment.
(c) The Trustee shall at the expense of Mobil cause notice of each
Special Payment to be mailed to each Holder of a Certificate at his address as
it appears in the Register. In the event of prepayment of Secured Notes, such
notice shall be mailed not less than 20 days prior to the date any such Special
Payment is scheduled to be distributed. In the case of any other Special
Payments, such notice shall be mailed as soon as practicable after the Trustee
has confirmed that it has received funds for such Special Payment. Notices
mailed by the Trustee shall set forth:
(i) the Special Distribution Date and the
Record Date therefor (except as otherwise provided in Section 11.01);
(ii) the amount of the Special Payment for each $1,000 face amount
Certificate and the amount thereof constituting principal, premium, if any, and
interest;
(iii) the reason for the Special Payment; and
(iv) if the Special Distribution Date is the same date as a Distribution
Date, the total amount to be received on such date for each $1,000 face amount
Certificate.
If the amount of premium payable upon the prepayment of an Secured Note has not
been calculated at the time that the Trustee mails notice of a Special Payment,
it shall be sufficient if the notice sets forth the other amounts to be
distributed and states that any premium received will also be distributed.
If any redemption of the Secured Notes held in the Trust is cancelled,
the Trustee, as soon as possible after learning thereof, shall cause notice
thereof to be mailed to each Certificateholder at its address as it appears on
the Register.
Section 4.03. Statements to Certificateholders. (a) On each
--------------------------------
Distribution Date and Special Distribution Date, if any, the
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<PAGE>
Trustee will include with each distribution to Certificateholders a statement,
giving effect to such distribution to be made on such Distribution Date or
Special Distribution Date, as the case may be, setting forth the following
information (per a $1,000 face amount Certificate as to (i) and (ii) below):
(i) the amount of such distribution allocable
to principal and the amount allocable to premium, if any;
(ii) the amount of such distribution allocable to interest; and
(iii) the Pool Balance and the Pool Factor.
(b) Within a reasonable period of time after the end of each calendar
year but not later than the latest date permitted by law, the Trustee shall
furnish to each Person who at any time during such calendar year was a
Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i) and (a)(ii) with respect to the Trust for
such calendar year or, in the event such Person was a Certificateholder of
record during a portion of such calendar year, for the applicable portion of
such year, and such other items as are readily available to the Trustee and
which a Certificateholder shall reasonably request as necessary for the purpose
of such Certificateholder's preparation of its Federal income tax returns. Such
report and such other items shall be prepared on the basis of information
supplied to the Trustee by the Clearing Agency Participants and shall be
delivered by the Trustee to such Clearing Agency Participants to be available
for forwarding by such Clearing Agency Participants to Certificate Owners.
Section 4.04. Investment of Special Payment Moneys. Any money
------------------------------------
received by the Trustee pursuant to Section 4.01(b) representing a Special
Payment which is not to be promptly distributed shall, to the extent
practicable, be invested in Permitted Government Investments by the Trustee
pending distribution of such Special Payment pursuant to Section 4.02. Any
investment made pursuant to this Section 4.04 shall be in such Permitted
Government Investments having maturities not later than the date that such
moneys are required to be used to make the payment required under Section 4.02
on the applicable Special Distribution Date and the Trustee shall hold any such
Permitted Government Investments until maturity. The Trustee shall have no
liability with respect to any investment made pursuant to this Section 4.04,
other than by reason of the willful misconduct or negligence of the Trustee.
All income and earnings from such investments shall be distributed on such
Special Distribution Date as part of such Special Payment.
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<PAGE>
ARTICLE V
MOBIL
Section 5.01. Maintenance of Corporate Existence. Each of Mobil and
----------------------------------
MGB, at its own cost and expense, will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence,
rights and franchises, except as otherwise specifically permitted in Section
5.02; provided, however, that neither Mobil nor MGB shall be required to
-------- -------
preserve any right or franchise if it shall determine that the preservation
thereof is no longer desirable in the conduct of its business and that the loss
thereof is not prejudicial in any material respect to the Certificateholders.
Section 5.02. Consolidation, Merger or Sale of Assets Permitted. (a)
-------------------------------------------------
Neither Mobil nor MGB shall merge or consolidate with or into any other
corporation or sell, convey or otherwise dispose of all or substantially all of
its assets to any Person unless (A) either (x) Mobil or MGB shall be the
continuing corporation or (y) the successor corporation (if other than Mobil or
MGB) shall be a corporation organized and existing under the laws of the United
States of America or a State thereof or the District of Columbia, and such
corporation shall expressly assume the due and punctual performance and
observance of all of the covenants and conditions of this Trust Agreement to be
performed by Mobil or MGB, as applicable, by supplemental agreement given by
such successor corporation to the Trustee and (B) immediately after giving
effect to such termination, no Event of Default and no Indenture Event of
Default, shall have occurred and be continuing.
(b) In case of any such merger, consolidation, sale, conveyance or
other disposition and upon any such assumption by the successor corporation,
such successor corporation shall succeed to and be substituted for Mobil or MGB
hereunder, as applicable, with the same effect as if it had been named herein as
the party of the first part and such replaced corporation shall be fully
released from any and all further obligations or liabilities hereunder from the
time of such replacement.
(c) The Trustee, subject to the provisions of Sections 7.01 and 7.02,
may receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale or conveyance, and any such
assumption complies with the provisions of this Section 5.02.
Section 5.03. Annual Statements as to Compliance by Mobil and MGB.
---------------------------------------------------
Each of Mobil and MGB covenants and agrees to
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<PAGE>
deliver to the Trustee on or before a date not more than 120 days after the end
of each fiscal year of Mobil and MGB, as applicable, ending after the date
hereof, an Officers' Certificate stating as to the officer signing such
certificate, whether or not to the best of such officer's knowledge Mobil or
MGB, as applicable, has kept, observed, performed and fulfilled each and every
such covenant in this Agreement contained and is in default in the performance
and observance of any of the terms, provisions and conditions hereof, and, if
Mobil or MGB shall be in default, specifying all such defaults and the nature
thereof, of which such officer may have knowledge.
Section 5.04. Availability of Certain Information Concerning Mobil
----------------------------------------------------
and MGB. Until such time as the Certificates have been registered for resale by
- -------
the Certificateholders pursuant to the Securities Act by Mobil and MGB, if at
any time prior to December 12, 1998, Mobil and MGB are not subject to Section 13
or 15(d) of the Exchange Act and are not exempt from reporting pursuant to Rule
12g3-2(b) under the Exchange Act, Mobil and MGB, as applicable, will furnish to
any Certificateholder upon request, copies of the information required to be
delivered to Certificateholders or prospective purchasers of Certificates from
Certificateholders in order to enable such Certificateholders to comply with
Rule 144A under the Securities Act.
Section 5.05. Notification of Certain Mobil and MGB Acquisitions of
-----------------------------------------------------
Certificates. Until such time as the Certificates have been registered for
- ------------
resale by the Certificateholders pursuant to the Securities Act by Mobil and
MGB, neither Mobil nor MGB will acquire any beneficial interest, and each will
cause its "affiliates" (as defined in paragraph (a)(1) of Rule 144 under the
Securities Act) not to acquire any beneficial interest, in any Certificate
unless they notify the Trustee of such acquisition. The Trustee and all
Certificateholders shall be entitled to rely without further investigation on
any such notification (or the lack thereof).
ARTICLE VI
DEFAULT
Section 6.01. Events of Default. If any Indenture Event of Default
-----------------
under the Indenture (an "Event of Default") shall occur and be continuing, then,
and in each and every case, so long as such Indenture Event of Default shall be
continuing, the Trustee may vote all of the Secured Notes held in the Trust, and
upon the direction of the holders of Certificates evidencing Fractional
Undivided Interests aggregating not less than a majority in
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<PAGE>
interest in the Trust, the Trustee shall vote a corresponding majority of such
Secured Notes, in favor of directing the Indenture Trustee, to declare the
unpaid principal amount of the Secured Notes then outstanding and accrued
interest thereon to be due and payable under, and in accordance with the
provisions of, the Indenture. In addition, if an Indenture Event of Default
shall have occurred and be continuing, the Trustee may in accordance with the
Indenture vote the Secured Notes held in the Trust to direct the Indenture
Trustee regarding the exercise of remedies provided in Article IV of the
Indenture.
In addition, after an Event of Default shall have occurred and be
continuing, the Trustee may in its discretion, and upon the direction of the
Certificateholders evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust shall, by such officer or agent as
it may appoint, subject to complying with the terms of the Indenture and the
Secured Notes, sell, convey, transfer and deliver such Secured Note or Secured
Notes, without recourse to or warranty by the Trustee or any Certificateholder,
to any Person. In any such case, the Trustee shall sell, assign, contract to
sell or otherwise dispose of and deliver such Secured Note or Secured Notes in
one or more parcels at public or private sale or sales, at any location or
locations at the option of the Trustee, all upon such terms and conditions as it
may reasonably deem advisable and at such prices as it may reasonably deem
advisable, for cash. If the Trustee so decides or is required to sell or
otherwise dispose of any Secured Note pursuant to this Section, the Trustee
shall take such of the actions described above as it may reasonably deem most
effectual to complete the sale or other disposition of such Secured Note, so as
to provide for the payment in full of all amounts due on the Certificates. The
Trustee shall give notice to Mobil and MGB promptly after any such sale.
Notwithstanding the foregoing, any action taken by the Trustee under this
Section shall not, in the reasonable judgment of the Trustee, be adverse to the
best interests of the Certificateholders.
Section 6.02. Incidents of Sale of Secured Notes. Upon any sale of
----------------------------------
all or any part of the Secured Notes made either under the power of sale given
under this Trust Agreement or otherwise for the enforcement of this Trust
Agreement, the following shall be applicable:
(1) Certificateholders and Trustee May Purchase Secured Notes. Any
---------------------------------------------------------
Certificateholder, the Trustee in its individual or any other capacity or any
other Person may bid for and purchase any of the Secured Notes, and upon
compliance with the terms of sale, may hold, retain, possess and dispose of such
Secured Notes in their or its or his own absolute right without further
accountability.
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(2) Receipt of Trustee Shall Discharge Purchaser. The receipt of the
--------------------------------------------
Trustee or of the officer making such sale shall be a sufficient discharge to
any purchaser for his purchase money, and, after paying such purchase money and
receiving such receipt, such purchaser or his personal representative or assigns
shall not be obliged to see to the application of such purchase money, or be in
any way answerable for any loss, misapplication or non-application thereof.
(3) Application of Moneys Received upon Sale. Any moneys collected by
----------------------------------------
the Trustee upon any sale made either under the power of sale given by this
Trust Agreement or otherwise for the enforcement of this Trust Agreement, shall
be applied as provided in Section 4.02.
Section 6.03. Judicial Proceedings Instituted by Trustee.
------------------------------------------
(a) Trustee May Bring Suit. If there shall be a failure to make
----------------------
payment of the principal of, premium, if any, or interest on any Secured Note,
or if there shall be any failure to pay Rent (as defined in the Lease) under the
Lease when due and payable, then the Trustee, in its own name, and as trustee of
an express trust, as holder of such Secured Notes, shall be, to the extent
permitted by and in accordance with the terms of the Note Documents, entitled
and empowered to institute any suits, actions or proceedings at law, in equity
or otherwise, for the collection of the sums so due and unpaid on such Secured
Notes or under the Lease any may prosecute any such claim or proceeding to
judgment or final decree with respect to the whole amount of any such sums so
due and unpaid.
(b) Trustee May File Proofs of Claim; Appointment of Trustee as
-----------------------------------------------------------
Attorney-in-Fact in Judicial Proceedings. The Trustee in its own name, or as
- ----------------------------------------
trustee of an express trust, or as attorney-in-fact for the Certificateholders,
or in any one or more of such capacities (irrespective of whether distributions
on the Certificates shall then be due and payable, or the payment of the
principal on the Secured Notes shall then be due and payable, as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand to the Indenture Trustee for the payment of overdue
principal, premium (if any) or interest on the Secured Notes), shall be entitled
and empowered to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee and of the
Certificateholders allowed in any receivership, insolvency, bankruptcy,
liquidation, readjustment, reorganization or any other judicial proceedings
relative to Mobil or the Owner Trustee or the Owner Participant, their
respective creditors or
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property. Any receiver, assignee, trustee, liquidator, sequestrator (or similar
official) in any such judicial proceeding is hereby authorized by each
Certificateholder to make payments in respect of such claim to the Trustee, and
in the event that the Trustee shall consent to the making of such payments
directly to the Certificateholders, to pay to the Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel. Nothing contained in this Trust Agreement
shall be deemed to give to the Trustee any right to accept or consent to any
plan of reorganization or otherwise by action of any character in any such
proceeding to waive or change in any way any right of any Certificateholder.
Section 6.04. Control by Certificateholders. The Certificateholders
-----------------------------
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Trust shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee under this Trust
Agreement, including any right of the Trustee as holder of the Secured Notes,
provided that
- --------
(1) such direction shall not be in conflict with any rule of law or
with this Trust Agreement and would not involve the Trustee in personal
liability or expense,
(2) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to the Certificateholders not taking part in such
direction,
(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(4) if an Indenture Event of Default shall have occurred and be
continuing, such direction shall not obligate the Trustee to vote more than a
corresponding majority of the related Secured Notes held by the Trust in favor
of directing any action by the Indenture Trustee with respect to such Indenture
Event of Default.
Section 6.05. Waiver of Defaults. The Certificateholders evidencing
------------------
Fractional Undivided Interests aggregating not less than a majority in interest
in the Trust may on behalf of the Certificateholders of all the Certificates
waive any Default or Event of Default hereunder and its consequences or may
instruct the Trustee to waive any default pursuant to Section 4.06 under the
Indenture and its consequences, except a Default
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(1) in the deposit of any Scheduled Payment or Special Payment under
Section 4.01 or in the distribution of any payment under Section 4.02 on the
Certificates, or
(2) in the payment of the principal of, premium, if any, or interest
on any Secured Notes, or
(3) in respect of a covenant or provision hereof which under Article
IX hereof cannot be modified or amended without the consent of the
Certificateholder of each Outstanding Certificate affected.
Upon any such waiver, such Default shall cease to exist with respect
to this Trust Agreement, and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose of this Trust Agreement and any
direction given by the Trustee on behalf of such holders to the Indenture
Trustee shall be annulled with respect thereto; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereon. Upon any such waiver, the Trustee shall vote the Secured
Notes issued under the Indenture to waive the corresponding Indenture Default or
Indenture Event of Default.
Section 6.06. Undertaking to Pay Court Costs. All parties to this
------------------------------
Trust Agreement, and each Certificateholder by his acceptance of a Certificate,
shall be deemed to have agreed that any court may in its discretion require, in
any suit, action or proceeding for the enforcement of any right or remedy under
this Trust Agreement, or in any suit, action or proceeding against the Trustee
for any action taken or omitted by it as Trustee hereunder, the filing by any
party litigant in such suit, action or proceeding of an undertaking to pay the
costs of such suit, action or proceeding, and that such court may, in its
discretion, assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, action or proceeding, having due regard
to the merits and good faith of the claims or defenses made by such party
litigant; provided, however, that the provisions of this Section shall both
-------- -------
apply to (a) any suit, action or proceeding instituted by any Certificateholder
or group of Certificateholders evidencing Fractional Undivided Interests
aggregating more than 10% of the Trust, (b) any suit, action or proceeding
instituted by any Certificateholder for the enforcement of the distribution of
payments pursuant to Section 4.02 hereof on or after the respective due dates
expressed herein or (c) any suit, action or proceeding instituted by the
Trustee.
Section 6.07. Right of Certificateholders to Receive Payments Not to
------------------------------------------------------
Be Impaired. Anything in this Trust Agreement to the contrary notwithstanding,
- -----------
including without limitation Section
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<PAGE>
6.08 hereof, the right of any Certificateholder to receive distributions of
payments required pursuant to Section 4.02 hereof on the Certificates when due,
or to institute suit for the enforcement of any such payment on or after the
applicable Distribution Date or Special Distribution Date, shall not be impaired
or affected without the consent of such Certificateholder.
Section 6.08. Certificateholders May Not Bring Suit Except Under
--------------------------------------------------
Certain Conditions. A Certificateholder shall not have the right to institute
- ------------------
any suit, action or proceeding at law or in equity or otherwise with respect to
this Trust Agreement, for the appointment of a receiver or for the enforcement
of any other remedy under this Trust Agreement, unless:
(1) such Certificateholder previously shall have given written notice
to the Trustee of a continuing Event of Default;
(2) the Certificateholders evidencing Fractional Undivided Interests
aggregating not less than a majority in interest of the Trust shall have
requested the Trustee in writing to institute such action, suit or proceeding
and shall have offered to the Trustee indemnity as provided in Section 7.03(e);
(3) the Trustee shall have refused or neglected to institute any such
action, suit or proceeding for 60 days after receipt of such notice, request and
offer of indemnity; and
(4) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Certificateholders evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in the Trust.
It is understood and intended that no one or more of the
Certificateholders shall have any right in any manner whatever hereunder or
under the Certificates to (i) surrender, impair, waive, affect, disturb or
prejudice any property in the Trust Property or the lien of any Indenture on any
property subject thereto, or the rights of the Certificateholders or the holders
of the Secured Notes, (ii) obtain or seek to obtain priority over or preference
to any other such Holder or (iii) enforce any right under this Trust Agreement,
except in the manner herein provided and for the equal, ratable and common
benefit of all the Certificateholders subject to the provisions of this Trust
Agreement.
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Section 6.09. Remedies Cumulative. Every remedy given hereunder to
-------------------
the Trustee or to any of the Certificateholders shall not be exclusive of any
other remedy or remedies, and every such remedy shall be cumulative and in
addition to every other remedy given hereunder or now or hereafter given by
statute, law, equity or otherwise.
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties as are specifically
set forth in this Trust Agreement, and no implied covenants or obligations shall
be read into this Trust Agreement against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Trust Agreement; but in the
case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the
requirements of this Trust Agreement.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this Trust
Agreement, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Trust Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
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(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the Certificateholders evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Trust
Agreement; and
(4) no provision of this Trust Agreement shall require the Trustee to
expend or risk its own funds in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk is not reasonably assured to it.
(d) Whether or not herein expressly so provided, every provision of
this Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
(e) The Trustee shall, at the direction of Mobil and MGB, execute such
instruments and take all such actions as may be necessary or desirable in order
to carry out the Exchange Offer, the issuance of the Exchange Certificates and
any other transactions contemplated by the Registration Rights Agreement.
Section 7.02. Notice of Defaults. As promptly as practicable after,
------------------
and in any event within 90 days after, the occurrence of any Default hereunder,
the Trustee shall transmit by mail to Mobil, MGB, the Owner Trustee and the
Indenture Trustee in accordance with Section 12.03 and to all
Certificateholders, as their names and addresses appear in the Register, notice
of such Default hereunder known to the Trustee, unless such Default shall have
been cured or waived; provided, however, that, except in the case of a Default
-------- -------
in the payment of the principal of, premium, if any, or interest on any Secured
Note, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interests of the
Certificateholders.
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<PAGE>
Section 7.03. Certain Rights of Trustee. Except as otherwise provided
-------------------------
in Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of Mobil or MGB mentioned herein shall be
sufficiently evidenced by a Request;
(c) whenever in the administration of this Trust Agreement the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate of Mobil, MGB, the Owner Trustee or the
Indenture Trustee;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Certificateholders pursuant to this Trust Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the cost, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
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<PAGE>
Section 7.04. Not Responsible for Recitals or Issuance of
-------------------------------------------
Certificates. The recitals contained herein and in the Certificates, except the
- ------------
certificates of authentication, shall not be taken as the statements of the
Trustee, and the Trustee assumes no responsibility for their correctness.
Subject to Section 7.15, the Trustee makes no representations as to the validity
or sufficiency of this Trust Agreement, the Note Documents, the Indenture, the
Secured Notes or the Certificates, except that the Trustee hereby represents and
warrants that this Trust Agreement has been, and each Certificate will be,
executed and delivered by one of its officers who is duly authorized to execute
and deliver such document on its behalf.
Section 7.05. May Hold Certificates. The Trustee, any Paying Agent,
---------------------
Registrar or any other agent, in their respective individual or any other
capacity, may become the owner or pledgee of Certificates and may otherwise deal
with Mobil, the Owner Trustee or the Indenture Trustee with the same rights it
would have if it were not Trustee, Paying Agent, Registrar or such other agent.
Section 7.06. Money Held in Trust. Money held by the Trustee or the
-------------------
Paying Agent in trust hereunder need not be segregated from other funds except
to the extent required herein or by law and neither the Trustee nor the Paying
Agent shall have any liability for interest upon any such moneys except as
provided for herein.
Section 7.07. Compensation and Reimbursement. Mobil and MGB agree
------------------------------
(1) to pay, or cause to be paid, to the Trustee from time to time the
compensation set forth in the schedule agreed to by the Trustee and Mobil for
all services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse, or
cause to be reimbursed, the Trustee upon its request for all reasonable out-of-
pocket expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Trust Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence, willful misconduct or bad faith or as may be incurred due to the
Trustee's breach of its representations and warranties set forth in Section
7.15;
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(3) to indemnify, or cause to be indemnified, the Trustee in
accordance with Section 12.1 of the Participation Agreement. The Trustee shall
notify Mobil and MGB promptly of any claim for which it may seek indemnity.
Mobil and MGB shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel with the consent of Mobil and
MGB and Mobil and MGB will pay the reasonable fees and expenses of such counsel.
Mobil and MGB need not pay for any settlement made without their consent; and
(4) to indemnify, or cause to be indemnified, the Trustee, solely in
its individual capacity, for, and to hold it harmless against, any tax (other
than for or with respect to any tax referred to in the next paragraph, provided
that no indemnification shall be available with respect to any tax attributable
to the Trustee's compensation for serving as such) incurred without negligence,
willful misconduct or bad faith, on its part, arising out of or in connection
with the acceptance or administration of this Trust, including any costs and
expenses incurred in contesting the imposition of any such tax. The Trustee, in
its individual capacity, shall notify Mobil and MGB promptly of any tax for
which it may seek indemnity. Mobil and MGB shall defend against the imposition
of such tax and the Trustee, in its individual capacity, shall cooperate in the
defense. The Trustee, in its individual capacity, may have separate counsel
with the consent of Mobil and MGB and Mobil and MGB will pay the reasonable fees
and expenses of such counsel. Mobil and MGB need not pay for any taxes paid, in
settlement or otherwise, without their consent.
In addition, the Trustee shall be entitled to reimbursement from, and
shall have a lien prior to the Certificates upon, all property and funds held or
collected by the Trustee in its capacity as Trustee for any tax incurred without
negligence, bad faith or willful misconduct, on its part, arising out of or in
connection with the acceptance or administration of this Trust (other than any
tax attributable to the Trustee's compensation for serving as such), including
any costs and expenses incurred in contesting the imposition of any such tax.
If the Trustee reimburses itself for any such tax it will within 30 days mail a
brief report setting forth the circumstances thereof to all Certificateholders
as their names and addresses appear in the Register.
Section 7.08. Corporate Trustee Required; Eligibility. There shall at
---------------------------------------
all times be a Trustee hereunder which shall be a corporation organized and
doing business under the laws of the United States of America or of any state,
authorized under such
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laws to exercise corporate trust powers, having a combined capital and surplus
of at least $100,000,000, and subject to supervision or examination by Federal
or state authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 7.09. Resignation and Removal; Appointment of Successor. (a)
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 7.10.
(b) The Trustee may resign at any time by giving written notice
thereof to Mobil, MGB, the Authorized Agents, the Owner Trustee and the
Indenture Trustee. If an instrument of acceptance by a successor Trustee shall
not have been delivered to Mobil, MGB, the Owner Trustee and the Indenture
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust delivered to the Trustee and to
Mobil, the Owner Trustee and the Indenture Trustee.
(d) If at any time:
(1) the Trustee shall cease to be eligible under Section 7.08 and
shall fail to resign after written request therefor by Mobil or by any such
Certificateholder; or
(2) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any case, (i) Mobil and MGB may remove the Trustee or (ii) subject to
Section 6.06, any Certificateholder who has been a bona
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fide Holder of a Certificate for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
(e) If a Responsible Officer of the Trustee shall obtain actual
knowledge of an Avoidable Tax (as hereinafter defined) which has been or is
likely to be asserted, the Trustee shall promptly notify Mobil, MGB and the
Owner Trustee thereof and shall, within 30 days of such notification, resign
hereunder unless within such 30-day period the Trustee shall have received
notice that Mobil, MGB or the Owner Trustee has agreed to pay such tax. Mobil
and MGB shall promptly appoint a successor Trustee in a jurisdiction where there
are no Avoidable Taxes. As used herein an Avoidable Tax means a state or local
tax: (i) upon (w) the Trust, (x) the Trust Property, (y) Holders of the
Certificates or (z) the Trustee for which the Trustee is entitled to seek
reimbursement from the Trust Property, and (ii) which would be avoided if the
Trustee were located in another state, or jurisdiction within a state, within
the United States. A tax shall not be an Avoidable Tax if Mobil, MGB or the
Owner Trustee shall agree to pay, and shall pay, such tax.
(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any cause,
Mobil and MGB shall promptly appoint a successor Trustee. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee shall be appointed by Act of the Holders holding
Certificates evidencing Fractional Undivided Interests aggregating not less than
a majority in interest in the Trust delivered to Mobil, MGB, the Owner Trustee,
the Indenture Trustee and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed as provided
above. If no successor Trustee shall have been so appointed as provided above
and accepted appointment in the manner hereinafter provided, any
Certificateholder who has been a bona fide Holder of a Certificate for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee.
(g) The successor Trustee shall give notice of the resignation and
removal of the Trustee and appointment of the successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Certificates as their names and addresses appear in the Register.
Each notice shall include the name of such successor Trustee and the address of
its Corporate Trust Office.
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Section 7.10. Acceptance of Appointment by Successor. Every successor
--------------------------------------
Trustee appointed hereunder shall execute, acknowledge and deliver to Mobil and
to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on request of Mobil or the successor Trustee, such retiring
Trustee shall execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder, subject nevertheless to its lien, if
any, provided for in Section 7.07. Upon request of any such successor Trustee,
Mobil, the retiring Trustee and such successor Trustee shall execute and deliver
any and all instruments containing such provisions as shall be necessary or
desirable to transfer and confirm to, and for more fully and certainly vesting
in, such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 7.11. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business. Any corporation into which the Trustee may be merged or converted or
- --------
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Certificates shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Certificates so authenticated with the same
effect as if such successor Trustee had itself authenticated such Certificates.
Section 7.12. Maintenance of Agencies. (a) There shall at all times
-----------------------
be maintained an office or agency where Certificates may be presented or
surrendered for registration of transfer or for exchange, and for payment
thereof and where notices and demands to or upon the Trustee in respect of the
Certificates or of this Trust Agreement may be served. Such office or agency
shall be initially at 79 South Main Street, Salt Lake City, Utah 84111. Written
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notice of the location of each such other office or agency and of any change of
location thereof shall be given by the Trustee to Mobil, the Owner Trustee, the
Indenture Trustee and the Certificateholders. In the event that no such office
or agency shall be maintained or no such notice of location or of change of
location shall be given, presentations and demands may be made and notices may
be served at the Corporate Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a Paying Agent
hereunder. Each such Authorized Agent shall be a bank or trust company, shall
be a corporation organized and doing business under the laws of the United
States or any state, with a combined capital and surplus of at least
$100,000,000, and shall be authorized under such laws to exercise corporate
trust powers, subject to supervision by Federal or state authorities. The
Trustee shall initially be the Paying Agent and, as provided in Section 3.04,
Registrar hereunder. Each Registrar shall furnish to the Trustee, at stated
intervals of not more than six months, and at such other times as the Trustee
may request in writing, a copy of the Register.
(c) Any corporation into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authorized Agent shall
be a party, or any corporation succeeding to the corporate trust business of any
Authorized Agent, shall be the successor of such Authorized Agent hereunder, if
such successor corporation is otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the parties
hereto or such Authorized Agent or such successor corporation.
(d) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Trustee, Mobil, MGB, the Owner Trustee and the
Indenture Trustee. Mobil and MGB may, and at the request of the Trustee shall,
at any time terminate the agency of any Authorized Agent by giving written
notice of termination to such Authorized Agent and to the Trustee. Upon the
resignation or termination of an Authorized Agent or in case at any time any
such Authorized Agent shall cease to be eligible under this Section (when, in
either case, no other Authorized Agent performing the functions of such
Authorized Agent shall have been appointed), Mobil and MGB shall promptly
appoint one or more qualified successor Authorized Agents, reasonably
satisfactory to the Trustee, to perform the functions of the Authorized Agent
which has resigned or whose agency has been terminated or who shall have ceased
to be eligible under this Section. Mobil and MGB shall give written notice of
any such appointment made by it to the Trustee, the Owner Trustee and the
Indenture Trustee; and in each case the
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Trustee shall mail notice of such appointment to all Holders as their names and
addressee appear on the Register.
(e) Mobil and MGB agree to pay, or cause to be paid, from time to time
to each Authorized Agent the compensation as set forth in the schedule agreed to
by each Authorized Agent and Mobil and MGB for its services and to reimburse it
for its reasonable expenses.
Section 7.13. Money for Certificate Payments to Be Held in Trust.
--------------------------------------------------
All moneys deposited with any Paying Agent for the purpose of any payment on
Certificates shall be deposited and held in trust for the benefit of the Holders
of the Certificates entitled to such payment, subject to the provisions of this
Section. Moneys so deposited and held in trust shall constitute a separate
trust fund for the benefit of the Holders of the Certificates with respect to
which such money was deposited.
The Trustee will cause each Paying Agent other than the Trustee to
execute and deliver to it an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will
(1) hold all sums held by it for payments on Certificates in trust for
the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by any obligor upon the
Certificates in the making of any such payment; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Trust Agreement or for any other purpose,
direct any Paying Agent to pay to the Trustee all sums held in trust by such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by such Paying Agent; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Section 7.14. Registration of Secured Notes in Trustee's Name. The
-----------------------------------------------
Trustee agrees that all Secured Notes and Permitted Government Investments, if
any, shall be issued in the name of the
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Trustee or its nominee and held by the Trustee, or, if not so held, the Trustee
or its nominee shall be reflected as the owner of such Secured Notes or
Permitted Government Investments, as the case may be, in the register of the
issuer of such Secured Notes or Permitted Government Investments under the
applicable provisions of the Uniform Commercial Code in effect where the Trustee
holds such Secured Notes or Permitted Government Investments, or other
applicable law then in effect.
Section 7.15. Representations and Warranties of Trustee.
-----------------------------------------
The Trustee hereby represents and warrants that:
(i) the Trustee is a national banking association duly organized,
validly existing, and in good standing under the laws of the United States;
(ii) the Trustee has full power, authority and legal right to execute,
deliver, and perform this Trust Agreement and the Participation Agreement and
has taken all necessary action to authorize the execution, delivery, and
performance by it of this Trust Agreement and the Participation Agreement;
(iii) the execution, delivery and performance by the Trustee of this Trust
Agreement and the Participation Agreement (a) will not violate any provision of
any United States or Utah law or regulation governing the banking and trust
powers of the Trustee or any order, writ, judgment, or decree of any court,
arbitrator, or governmental authority applicable to the Trustee or any of its
assets, (b) will not violate any provision of the articles of association or by-
laws of the Trustee, or (c) will not violate any provision of, or constitute,
with or without notice or lapse of time, a default under, or result in the
creation or imposition of any lien on any properties included in the Trust
Property pursuant to the provisions of any mortgage, indenture, contract,
agreement or other undertaking to which it is a party, which violation, default
or lien could reasonably be expected to have an adverse effect on the Trustee's
performance or ability to perform its duties hereunder or thereunder or on the
transactions contemplated herein or therein;
(iv) the execution, delivery and performance by the Trustee of this Trust
Agreement and the Participation Agreement will not require the authorization,
consent, or approval of, the giving of notice to, the filing or registration
with, or the taking of any other action in respect of, any United States or Utah
governmental authority or agency regulating the banking and corporate trust
activities of the Trustee; and
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(v) this Trust Agreement and the Participation Agreement have been duly
executed and delivered by the Trustee and constitute the legal, valid, and
binding agreements of the Trustee, enforceable in accordance with their
respective terms, provided that enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and general principles of equity.
Section 7.16. Withholding Taxes; Information Reporting. The Trustee,
----------------------------------------
as trustee of a grantor trust, shall exclude and withhold from each distribution
of principal, premium, if any, and interest and other amounts due hereunder or
under the Certificates any and all withholding taxes applicable thereto as
required by law. The Trustee agrees to act as such withholding agent and, in
connection therewith, whenever any present or future taxes or similar charges
are required to be withheld with respect to any amounts payable in respect of
the Certificates, to withhold such amounts and timely pay the same to the
appropriate authority in the name of and on behalf of the holders of the
Certificates, that it will file any necessary withholding tax returns or
statements when due, and that, as promptly as possible after the payment
thereof, it will deliver to each holder of a Certificate appropriate
documentation showing the payment thereof, together with such additional
documentary evidence as such holders may reasonably request from time to time.
The Trustee agrees to file any other information reports as it may be required
to file under United States law.
Section 7.17. Trustee's Liens. The Trustee, in its individual
---------------
capacity, agrees that it will at its own cost and expense promptly take any
action as may be necessary to duly discharge and satisfy in full any mortgage,
pledge, lien, charge, encumbrance, security interest or claim ("Trustee's
Liens") on or with respect to the Trust Property which is either (i)
attributable to the Trustee in its individual capacity and which is unrelated to
the transactions contemplated by this Agreement, the Participation Agreement or
the Note Documents, or (ii) which is attributable to the Trustee as trustee
hereunder or in its individual capacity and which arise out of acts or omissions
which are prohibited by this Agreement.
Section 7.18. Availability of Certain Information Concerning the
--------------------------------------------------
Trust. The Trustee shall furnish to any Certificateholder upon request, copies
- -----
of the information with respect to the Trust required to be delivered to
Certificateholders or prospective purchasers of Certificates from
Certificateholders in order to enable such Certificateholders to comply with
Rule 144A under the Securities Act.
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ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. Mobil and MGB to Furnish Trustee with Names and
-----------------------------------------------
Addresses of Certificateholders. Mobil and MGB will furnish to the Trustee
- -------------------------------
within 15 days after each Record Date with respect to a Scheduled Payment, and
at such other times as the Trustee may request in writing, within 30 days after
receipt by Mobil or MGB of any such request, a list, in such form as the Trustee
may reasonably require, of all information in the possession or control of Mobil
or MGB as to the names and addresses of the Holders of Certificates, in each
case as of a date not more than 15 days prior to the time such list is
furnished; provided, however, that so long as the Trustee is the sole Registrar,
-------- -------
no such list need be furnished; and provided further, however, that no such list
-------- ------- -------
need be furnished for so long as a copy of the Register is being furnished to
the Trustee pursuant to Section 7.12(b).
Section 8.02. Preservation of Information; Communication to
---------------------------------------------
Certificateholders. (a) The Trustee shall preserve, in as current a form as is
- ------------------
reasonably practicable, the names and addresses of Holders of Certificates
contained in the most recent list furnished to the Trustee as provided in
Section 7.12(b) or Section 8.01, as the case may be, and the names and addresses
of Holders of Certificates received by the Trustee in its capacity as Registrar,
if so acting. The Trustee may destroy any list furnished to it as provided in
Section 7.12(b) or Section 8.01, as the case may be, upon receipt of a new list
so furnished.
(b) If three or more Holders of Certificates (such Holders hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Certificate for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Certificates with respect to their rights under this Trust Agreement or under
the Certificates and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within 5 Business Days after the receipt of such application, at its election,
either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 8.02(a), or
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(ii) inform such applicants as to the approximate number of Holders of
Certificates whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 8.02(a), and as to the
approximate cost of mailing to such Certificateholders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Certificateholder whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section
8.02(a), a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Certificates or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the applicants shall obtain a court
order, after notice to the Trustee and opportunity for hearing, so directing the
Trustee, the Trustee shall mail copies of such material to all such
Certificateholders with reasonable promptness after the entry of such order and
the renewal of the applicants' tender.
(c) Every Holder of Certificates, by receiving and holding the same,
agrees with Mobil, MGB and the Trustee that none of Mobil, MGB or the Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Certificates in accordance with
Section 8.02(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 8.02(b).
Section 8.03. Reports by Mobil and MGB. Each of Mobil and MGB will:
------------------------
(1) file with the Trustee the information required by Section 10.2 of
the Participation Agreement; and
(2) transmit by mail to all Certificateholders, as their names and
addresses appear in the Register, within 30 days after the filing thereof with
the Trustee, such summaries of any information, documents and reports required
to be filed by Mobil and MGB pursuant to paragraph (1) of this Section as may
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hereafter be required by rules and regulations prescribed from time to time by
the Commission.
ARTICLE IX
SUPPLEMENTAL TRUST AGREEMENTS
Section 9.01. Supplemental Trust Agreement Without Consent of
-----------------------------------------------
Certificateholders. Without the consent of the Holder of any Certificates,
- ------------------
Mobil and MGB may, and the Trustee (subject to Section 9.03) shall, at any time
and from time to time enter into one or more agreements supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to Mobil or MGB,
and the assumption by any such successor of the covenants of Mobil or MGB, as
applicable, herein contained; or
(2) to add to the covenants of Mobil or MGB, for the benefit of the
Holders of the Certificates, or to surrender any right or power herein conferred
upon Mobil or MGB; or
(3) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein or
to make any other provisions with respect to matters or questions arising under
this Trust Agreement; provided that any such action shall not adversely affect
--------
the interests of the Holders of the Certificates; or
(4) to modify, eliminate or add to the provisions of this Trust
Agreement to such extent as shall be necessary to qualify this Trust Agreement
(including any supplemental agreement) under the Trust Indenture Act, or under
any similar Federal statute hereafter enacted, and to add to this Trust
Agreement such other provisions as may be expressly permitted by the Trust
Indenture Act, excluding, however, the provisions referred to in Section
316(a)(2) of the Trust Indenture Act as in effect at the date as of which this
instrument was executed or any corresponding provision in any similar Federal
statute hereafter enacted; or
(5) to make provision for the issuance of the Exchange Certificates to
be issued in exchange for the Initial Certificates in the Exchange Offer as
contemplated by the Registration Rights Agreement.
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Section 9.02. Supplemental Trust Agreements with Consent of
---------------------------------------------
Certificateholders. With the consent of the Holders of Certificates evidencing
- ------------------
Fractional Undivided Interests aggregating not less than a majority in interest
in the Trust, by Act of said Holders delivered to Mobil, MGB and the Trustee,
Mobil and MGB may (with the consent of the Owner Trustee, such consent not to be
unreasonably withheld), and the Trustee (subject to Section 9.03) shall, enter
into an agreement or agreements supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Trust Agreement or of modifying in any manner the rights and obligations
of the Holders of the Certificates under this Trust Agreement; provided,
--------
however, that no such supplemental agreement shall, without the consent of the
- -------
Holder of each Outstanding Certificate affected thereby:
(1) reduce in any manner the amount of, or delay the timing of, any
receipt by the Trustee of payments on the Secured Notes or distributions that
are required to be made herein on any Certificate, or change any date of payment
on any Certificate, or change the place of payment where, or the coin or
currency in which, any Certificate is payable, or impair the right to institute
suit for the enforcement of any such payment or distribution on or after the
Distribution Date or Special Distribution Date applicable thereto; or
(2) permit the disposition of any Secured Note in the Trust Property
except as permitted by this Trust Agreement, or otherwise deprive any
Certificateholder of the benefit of the ownership of the Secured Notes in the
Trust; or
(3) reduce the percentage of the aggregate Fractional Undivided
Interests of the Trust which is required for any such supplemental agreement, or
reduce such percentage required for any waiver (of compliance with certain
provisions of this Trust Agreement or certain defaults hereunder and their
consequences) provided for in this Trust Agreement; or
(4) modify any of the provisions of this Section or Section 6.05,
except to increase any such percentage or to provide that certain other
provisions of this Trust Agreement cannot be modified or waived without the
consent of the Holder of each Certificate affected thereby.
It shall not be necessary for any Act of Certificateholders under this
Section to approve the particular form of any proposed supplemental agreement,
but it shall be sufficient if such Act shall approve the substance thereof.
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Section 9.03. Documents Affecting Immunity or Indemnity. If in the
-----------------------------------------
opinion of the Trustee any document required to be executed by it pursuant to
the terms of Section 9.01 or 9.02 affects any interest, right, duty, immunity or
indemnity in favor of the Trustee under this Trust Agreement, the Trustee may in
its discretion decline to execute such document.
Section 9.04. Execution of Supplemental Trust Agreements. In
------------------------------------------
executing, or accepting the additional trusts created by, any supplemental
agreement permitted by this Article or the modifications thereby of the trusts
created by this Trust Agreement, the Trustee shall be entitled to receive, and
(subject to Section 7.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental agreement is
authorized or permitted by this Trust Agreement.
Section 9.05. Effect of Supplemental Trust Agreements. Upon the
---------------------------------------
execution of any supplemental agreement under this Article, this Trust Agreement
shall be modified in accordance therewith, and such supplemental agreement shall
form a part of this Trust Agreement for all purposes; and every Holder of
Certificates theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.06. Reference in Certificates to Supplemental Trust
-----------------------------------------------
Agreements. Certificates authenticated and delivered after the execution of any
- ----------
supplemental agreement pursuant to this Article may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
agreement; and, in such case, suitable notation may be made upon Outstanding
Certificates after proper presentation and demand.
ARTICLE X
AMENDMENTS TO INDENTURES AND NOTE DOCUMENTS
Section 10.01. Amendments and Supplements to Indenture and Other Note
------------------------------------------------------
Documents. In the event that the Trustee, as holder of any Secured Note in
- ---------
trust for the benefit of the Certificate holders, receives a request for a
consent to any amendment, modification, waiver or supplement under the Indenture
or other Note Document or the Participation Agreement, which requires the
consent of the Certificateholders, the Trustee shall forthwith send a notice of
such proposed amendment, modification, waiver or supplement, to each
Certificateholder registered on the Register as of such date. The Trustee shall
request from the Certificateholders Directions as to (i) whether or not to
direct the Indenture Trustee to take or refrain from taking any action
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which a holder of such Secured Note has the option to direct, (ii) whether or
not to give or execute any waivers, consents, amendments, modifications or
supplements as a holder of such Secured Note and (iii) how to vote any Secured
Note if a vote has been called for with respect thereto. Provided such a
request for Certificateholder Direction shall have been made, in directing any
action or casting any vote or giving any consent as the holder of any Secured
Note, the Trustee shall vote or consent with respect to such Secured Note in the
same proportion as the Certificates were actually voted by Acts of Holders
delivered to the Trustee prior to two Business Days before the Trustee directs
such action or casts such vote or gives such consent. Notwithstanding the
foregoing, but subject to Section 6.04, in the case that an Event of Default
hereunder shall have occurred and be continuing, the Trustee may, in its own
discretion and at its own direction, consent and notify the Indenture Trustee of
such consent to any amendment, modification, waiver or supplement under the
Indenture or other Note Document or the Participation Agreement.
ARTICLE XI
TERMINATION OF TRUST
Section 11.01. Termination of the Trust. The respective obligations
------------------------
and responsibilities of Mobil and the Trustee created hereby and the Trust
created hereby shall terminate upon the distribution to all Certificateholders
of all amounts required to be distributed to them pursuant to this Trust
Agreement and the disposition of all property held as part of the Trust
Property; provided, however, that in no event shall the trust created hereby
-------- -------
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of William Clinton, President of the United States, living on
the date of this Trust Agreement.
Notice of any termination, specifying the Distribution Date (or
Special Distribution Date, as the case may be) upon which the Certificateholders
may surrender their Certificates to the Trustee for payment of the final
distribution and cancellation, shall be mailed promptly by the Trustee to
Certificateholders not earlier than the 60th day and not later than the 20th day
next preceding such final distribution specifying (A) the Distribution Date (or
Special Distribution Date, as the case may be) upon which final payment of the
Certificates will be made upon presentation and surrender of Certificates at the
office or agency of the Trustee therein specified, (B) the amount of any such
final payment, and (C) that the Record Date otherwise applicable to such
Distribution Date (or Special Distribution Date, as the case may be) is not
applicable, payments being made only upon presentation
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and surrender of the Certificates at the office or agency of the Trustee therein
specified. The Trustee shall give such notice to the Registrar at the time such
notice is given to Certificateholders. Upon presentation and surrender of the
Certificates, the Trustee shall cause to be distributed to Certificateholders
amounts distributable on such Distribution Date or Special Distribution Date, as
the case may be, pursuant to Section 4.02.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. In the
event that any money held by the Trustee for the payment of distributions on the
Certificates shall remain unclaimed for two years (or such lesser time as the
Trustee shall be satisfied, after sixty days' notice from Mobil or MGB, is one
month prior to the escheat period provided under applicable law) after the final
distribution date with respect thereto, the Trustee shall pay to Indenture
Trustee the appropriate amount of money relating to such Indenture Trustee and
shall give written notice thereof to the Owner Trustee, Mobil and MGB.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders. The death
------------------------------------------
or incapacity of any Certificateholder shall not operate to terminate this Trust
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations, and liabilities of the parties
hereto or any of them.
Section 12.02. Certificates Nonassessable and Fully Paid.
-----------------------------------------
Certificateholders shall not be personally liable for obligations of the Trust,
the Fractional Undivided Interests represented by the Certificates shall be
nonassessable for any losses or expenses of the Trust or for any reason
whatsoever, and Certificates upon authentication thereof by the Trustee pursuant
to Section 3.02 are and shall be deemed fully paid. No Certificateholder shall
have any right (except as expressly provided herein) to vote or in any manner
otherwise control the operation and management of the Trust Property, the Trust
established hereunder, or the obligations of
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the parties hereto, nor shall anything set forth herein, or contained in the
terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association.
Section 12.03. Notices. All demands, notices, and communications
-------
hereunder shall be in writing, personally delivered or mailed by certified mail-
return receipt requested, and shall be deemed to have been duly given upon
receipt, in the case of Mobil or MGB, at the following address: Mobil
Corporation, 3225 Gallows Road, Fairfax, Virginia 22037, Attention: Treasurer,
and, in the case of the Trustee, at the following address: First Security Bank
of Utah, National Association, 79 South Main Street, Salt Lake City, Utah 84111,
Attention: Corporate Trust Administration or, in each case, at such other
address as shall be designated by such party in a written notice to the other
parties. Any notice required or permitted to be given to a Certificateholder
hereunder shall be mailed by first class mail, postage prepaid, at the address
of such Holder as shown in the Register. Any notice so mailed within the time
prescribed in this Trust Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder received such notice. The
Trustee shall promptly furnish Mobil and MGB with a copy of each demand, notice
or written communication received by the Trustee hereunder from any
Certificateholder, any Owner Trustee or any Indenture Trustee.
Section 12.04. Governing Law. THIS TRUST AGREEMENT AND THE
-------------
CERTIFICATES SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.05. Severability of Provisions. If any one or more of the
--------------------------
covenants, agreements, provisions, or terms of this Trust Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Trust Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Trust Agreement or
the Trust, or of the Certificates or the rights of the Holders thereof.
Section 12.06. Effect of Headings and Table of Contents. The Article
----------------------------------------
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 12.07. Successors and Assigns. All covenants, agreements,
----------------------
representations and warranties in this Trust Agreement
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by the Trustee, Mobil and MGB shall bind and, to the extent permitted hereby,
shall inure to the benefit of and be enforceable by their respective successors
and assigns, whether so expressed or not.
Section 12.08. Benefits of Trust Agreement. Nothing in this Trust
---------------------------
Agreement or in the Certificates, express or implied, shall give to any person,
other than the parties hereto and their successors hereunder, and the Holders of
Certificates, any benefit or any legal or equitable right, remedy or claim under
this Trust Agreement.
Section 12.09. Legal Holidays. In any case where any Distribution
--------------
Date or Special Distribution Date relating to any Certificate shall not be a
Business Day, then (notwithstanding any other provision of this Trust Agreement)
payment need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on such Distribution Date
or Special Distribution Date, and no interest shall accrue during the
intervening period.
Section 12.10. Counterparts. For the purpose of facilitating the
------------
execution of this Trust Agreement and for other purposes, this Trust Agreement
may be executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
* * * * *
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<PAGE>
IN WITNESS WHEREOF, Mobil, MGB and the Trustee have caused this Trust
Agreement to be duly executed by their respective officers and their respective
seals, duly attested, to be hereunto affixed, all as of the day and year first
above written.
MOBIL CORPORATION
By: /s/ R.E. Sliwinski
--------------------------
Name: R. E. Sliwinski
Title:
[SEAL]
Attest:
/s/ Caroline M. Devine
- ----------------------------
Name: Caroline M. Devine
Title: Corporate Secretary
MOBIL G. B. 388 FINANCE INC.
By: /s/ Maxine C. Schnitzer
----------------------------
Name: Maxine C. Schnitzer
Title: Vice President
[SEAL]
Attest:
/s/ P.A. Stevenson
- ----------------------------
Name: P.A. Stevenson
Title: Secretary
FIRST SECURITY BANK OF UTAH,
NATIONAL ASSOCIATION,
as Trustee
By: /s/ Brett R. King
----------------------------
Name: Brett R. King
Title: Trust Officer
[SEAL]
Attest:
_________________________
Name:
Title:
- 58 -
<PAGE>
EXHIBIT 4.2(a)
Form of Pass Through Certificate
[Global Securities Legend]*
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO.), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN THE INDENTURE REFERRED TO HEREIN.
<PAGE>
Mobil Corporation
1995-Al PASS THROUGH TRUST
5.52% Pass Through Certificate, Series 1995-B1
CUSIP ____________
Final Distribution Date: January 2, 1997
evidencing a fractional undivided interest in a trust, the property of
which includes certain Series 1995-A1 Secured Notes secured by a 40%
undivided interest in an oil and gas production system leased to MGB.
Certificate
No. 001 $4,917,000 Fractional Undivided Interest
representing .00020338 of the Trust per
$1,000 face amount
THIS CERTIFIES THAT Cede & Co., for value received, is the registered
owner of a $4,917,000 (Four Million Nine Hundred Seventeen Thousand Dollars)
Fractional Undivided Interest in Mobil Corporation 1995-A1 Pass Through Trust
(the "Trust") created by First Security Bank of Utah, National Association, as
trustee (the "Trustee"), pursuant to a Pass Through Trust Agreement dated as of
December 12, 1995 (the "Agreement") between the Trustee, Mobil Corporation, a
corporation incorporated under Delaware law ("Mobil") and MGB, a corporation
incorporated under Delaware law ("MGB"), a summary of certain of the pertinent
provisions of which is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Agreement. This Certificate is one of the duly authorized Certificates
designated as "5.52% Pass Through Certificates, Series 1995-B1" (herein called
the "Certificates"). This Certificate is issued under and is subject to the
terms, provisions, and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. The property of the Trust includes certain Series
1995-A1 Secured Notes (the "Trust Property"). The Secured Notes are secured by a
security interest in a 40% undivided interest in an oil and gas production
system leased to MGB.
Subject to and in accordance with the terms of the Agreement, from
funds then available to the Trustee, there will be distributed on each January 2
and July 2, commencing July 2, 1996 (a "Distribution Date"), to the person in
whose name this Certificate is registered at the close of business on the day of
the month which is 15 days preceding the
2
<PAGE>
Distribution Date, an amount in respect of the Scheduled Payments on the Secured
Notes due on such Distribution Date, the receipt of which has been confirmed by
the Trustee, equal to the product of the percentage interest in the Trust
evidenced by this Certificate and an amount equal to the sum of such Scheduled
Payments. Subject to and in accordance with the terms of the Agreement and the
terms of this Certificate, in the event that Special Payments on the Secured
Notes are received by the Trustee, from funds then available to the Trustee,
there shall be distributed on the applicable Special Distribution Date, to the
Person in whose name this Certificate is registered at the close of business on
the day of the month which is 15 days preceding the Special Distribution Date,
an amount in respect of such Special Payments on the Secured Notes, the receipt
of which has been confirmed by the Trustee, equal to the product of the
percentage interest in the Trust evidenced by this Certificate and an amount
equal to the sum of such Special Payments so received. If a Distribution Date
or Special Distribution Date is not a Business Day, distribution shall be made
on the immediately following Business Day. The Special Distribution Date shall
be the 2nd day of the month determined as provided in the Agreement. The
Trustee shall mail notice of each Special Payment and the Special Distribution
Date therefor to the Holders of the Certificates.
Distributions on this Certificate will be made by the Trustee by (i)
wire transfer of immediately available funds or (ii) check mailed to the person
entitled thereto, without the presentation or surrender of this Certificate or
the making of any notation hereon. Except as otherwise provided in the
Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after notice mailed by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency of the Trustee specified in such notice.
The statements set forth in the legend, if any, set forth above are an
integral part of the terms of this Certificate and by acceptance hereof each
holder of this Certificate agrees to be subject to and bound by the terms and
provisions set forth in such legend, if any.
THIS IS THE GLOBAL SECURITY REFERRED TO IN SECTION 3.04 OF THE WITHIN-
MENTIONED AGREEMENT.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
3
<PAGE>
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
MOBIL CORPORATION
1995-A1 PASS THROUGH TRUST
By: First Security Bank of Utah, National Association,
as Trustee
By:________________________
Title:
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated:
This is the Global Certificate referred
to in the within-mentioned Agreement
First Security Bank of Utah,
National Association,
as Trustee
By:___________________________
Authorized Officer
4
<PAGE>
[Reverse of Certificate]
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, Mobil, MGB or the Trustee or any
affiliate thereof. The Certificates are limited in right of payment, all as
more specifically set forth on the face hereof and in the Agreement. All
payments or distributions made to Certificateholders under the Agreement shall
be made only from the Trust Property and only to the extent that the Trustee
shall have sufficient income or proceeds from the Trust Property and only to the
extent that the Trustee shall have sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of the Agreement.
Each Holder of this Certificate, by its acceptance hereof, agrees that it will
look solely to the income and proceeds from the Trust Property to the extent
available for distribution to such Holder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby. A copy of the Agreement may
be examined during normal business hours at the principal office of the Trustee,
and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of Mobil,
MGB and the rights of the Certificateholders under the Agreement at any time by
Mobil, MGB and the Trustee with the consent of the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Trust. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee in its capacity as Registrar, or
by any successor Registrar, in Salt Lake City, Utah, duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Registrar duly executed by the Holder hereof or such
5
<PAGE>
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust will be issued to the designated
transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons initially in minimum denominations of $250,000 Fractional Undivided
Interest and any integral multiples of $1,000 in excess thereof. At such time
as certain restrictions on transfer have been removed, the minimum denominations
of the Certificates shall be reduced to $1,000 or any integral multiples of
$1,000 in excess thereof. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee shall require payment of a sum sufficient to cover
any tax or governmental charge payable in connection therewith.
The Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Trustee, the Registrar, nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
6
<PAGE>
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
- --------------------------------------------------------------------------------
the within Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
attorney to transfer said Certificate on the books of the Trust with full power
of substitution in the premises.
Date:
---------------------
----------------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the within-mentioned instrument in every particular,
without alteration or any change whatever.
7
<PAGE>
EXHIBIT 4.2(b)
Form of Pass Through Certificate
[Global Securities Legend]*
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO.), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN THE INDENTURE REFERRED TO HEREIN.
<PAGE>
Mobil Corporation
1995-A2 PASS THROUGH TRUST
5.57% Pass Through Certificate, Series 1995-B2
CUSIP ____________
Final Distribution Date: January 2, 1998
evidencing a fractional undivided interest in a trust, the property of
which includes certain Series 1995-A2 Secured Notes secured by a 40%
undivided interest in an oil and gas production system leased to MGB.
Certificate
No. 001 $5,173,000 Fractional Undivided Interest
representing .00019331 of the Trust per
$1,000 face amount
THIS CERTIFIES THAT Cede & Co., for value received, is the registered
owner of a $5,173,000 (Five Million One Hundred Seventy Three Thousand Dollars)
Fractional Undivided Interest in Mobil Corporation 1995-A2 Pass Through Trust
(the "Trust") created by First Security Bank of Utah, National Association, as
trustee (the "Trustee"), pursuant to a Pass Through Trust Agreement dated as of
December 12, 1995 (the "Agreement") between the Trustee, Mobil Corporation, a
corporation incorporated under Delaware law ("Mobil") and MGB, a corporation
incorporated under Delaware law ("MGB"), a summary of certain of the pertinent
provisions of which is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Agreement. This Certificate is one of the duly authorized Certificates
designated as "5.57% Pass Through Certificates, Series 1995-B2" (herein called
the "Certificates"). This Certificate is issued under and is subject to the
terms, provisions, and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. The property of the Trust includes certain Series
1995-A2 Secured Notes (the "Trust Property"). The Secured Notes are secured by a
security interest in a 40% undivided interest in an oil and gas production
system leased to MGB.
Subject to and in accordance with the terms of the Agreement, from
funds then available to the Trustee, there will be distributed on each January 2
and July 2, commencing July 2, 1996 (a "Distribution Date"), to the person in
whose name this Certificate is registered at the close of business on the day of
the month which is 15 days preceding the
2
<PAGE>
Distribution Date, an amount in respect of the Scheduled Payments on the Secured
Notes due on such Distribution Date, the receipt of which has been confirmed by
the Trustee, equal to the product of the percentage interest in the Trust
evidenced by this Certificate and an amount equal to the sum of such Scheduled
Payments. Subject to and in accordance with the terms of the Agreement and the
terms of this Certificate, in the event that Special Payments on the Secured
Notes are received by the Trustee, from funds then available to the Trustee,
there shall be distributed on the applicable Special Distribution Date, to the
Person in whose name this Certificate is registered at the close of business on
the day of the month which is 15 days preceding the Special Distribution Date,
an amount in respect of such Special Payments on the Secured Notes, the receipt
of which has been confirmed by the Trustee, equal to the product of the
percentage interest in the Trust evidenced by this Certificate and an amount
equal to the sum of such Special Payments so received. If a Distribution Date
or Special Distribution Date is not a Business Day, distribution shall be made
on the immediately following Business Day. The Special Distribution Date shall
be the 2nd day of the month determined as provided in the Agreement. The
Trustee shall mail notice of each Special Payment and the Special Distribution
Date therefor to the Holders of the Certificates.
Distributions on this Certificate will be made by the Trustee by (i)
wire transfer of immediately available funds or (ii) check mailed to the person
entitled thereto, without the presentation or surrender of this Certificate or
the making of any notation hereon. Except as otherwise provided in the
Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after notice mailed by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency of the Trustee specified in such notice.
The statements set forth in the legend, if any, set forth above are an
integral part of the terms of this Certificate and by acceptance hereof each
holder of this Certificate agrees to be subject to and bound by the terms and
provisions set forth in such legend, if any.
THIS IS THE GLOBAL SECURITY REFERRED TO IN SECTION 3.04 OF THE WITHIN-
MENTIONED AGREEMENT.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
3
<PAGE>
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
MOBIL CORPORATION
1995-A2 PASS THROUGH TRUST
By: First Security Bank of Utah, National Association,
as Trustee
By:________________________
Title:
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated:
This is the Global Certificate referred
to in the within-mentioned Agreement
First Security Bank of Utah,
National Association,
as Trustee
By:___________________________
Authorized Officer
4
<PAGE>
[Reverse of Certificate]
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, Mobil, MGB or the Trustee or any
affiliate thereof. The Certificates are limited in right of payment, all as
more specifically set forth on the face hereof and in the Agreement. All
payments or distributions made to Certificateholders under the Agreement shall
be made only from the Trust Property and only to the extent that the Trustee
shall have sufficient income or proceeds from the Trust Property and only to the
extent that the Trustee shall have sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of the Agreement.
Each Holder of this Certificate, by its acceptance hereof, agrees that it will
look solely to the income and proceeds from the Trust Property to the extent
available for distribution to such Holder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby. A copy of the Agreement may
be examined during normal business hours at the principal office of the Trustee,
and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of Mobil,
MGB and the rights of the Certificateholders under the Agreement at any time by
Mobil, MGB and the Trustee with the consent of the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Trust. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee in its capacity as Registrar, or
by any successor Registrar, in Salt Lake City, Utah, duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Registrar duly executed by the Holder hereof or such
5
<PAGE>
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust will be issued to the designated
transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons initially in minimum denominations of $250,000 Fractional Undivided
Interest and any integral multiples of $1,000 in excess thereof. At such time
as certain restrictions on transfer have been removed, the minimum denominations
of the Certificates shall be reduced to $1,000 or any integral multiples of
$1,000 in excess thereof. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee shall require payment of a sum sufficient to cover
any tax or governmental charge payable in connection therewith.
The Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Trustee, the Registrar, nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
6
<PAGE>
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
- --------------------------------------------------------------------------------
the within Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
attorney to transfer said Certificate on the books of the Trust with full power
of substitution in the premises.
Date:
---------------------
----------------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the within-mentioned instrument in every particular,
without alteration or any change whatever.
7
<PAGE>
EXHIBIT 4.2(c)
Form of Pass Through Certificate
[Global Securities Legend]*
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO.), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN THE INDENTURE REFERRED TO HEREIN.
<PAGE>
Mobil Corporation
1995-A3 PASS THROUGH TRUST
5.65% Pass Through Certificate, Series 1995-B3
CUSIP ____________
Final Distribution Date: January 2, 1999
evidencing a fractional undivided interest in a trust, the property of
which includes certain Series 1995-A3 Secured Notes secured by a 40%
undivided interest in an oil and gas production system leased to MGB.
Certificate
No. 001 $5,462,000 Fractional Undivided Interest
representing .00018308 of the Trust per
$1,000 face amount
THIS CERTIFIES THAT Cede & Co., for value received, is the registered
owner of a $5,462,000 (Five Million Four Hundred Sixty Two Thousand Dollars)
Fractional Undivided Interest in Mobil Corporation 1995-A3 Pass Through Trust
(the "Trust") created by First Security Bank of Utah, National Association, as
trustee (the "Trustee"), pursuant to a Pass Through Trust Agreement dated as of
December 12, 1995 (the "Agreement") between the Trustee, Mobil Corporation, a
corporation incorporated under Delaware law ("Mobil") and MGB, a corporation
incorporated under Delaware law ("MGB"), a summary of certain of the pertinent
provisions of which is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Agreement. This Certificate is one of the duly authorized Certificates
designated as "5.65% Pass Through Certificates, Series 1995-B3" (herein called
the "Certificates"). This Certificate is issued under and is subject to the
terms, provisions, and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. The property of the Trust includes certain Series
1995-A3 Secured Notes (the "Trust Property"). The Secured Notes are secured by a
security interest in a 40% undivided interest in an oil and gas production
system leased to MGB.
Subject to and in accordance with the terms of the Agreement, from
funds then available to the Trustee, there will be distributed on each January 2
and July 2, commencing July 2, 1996 (a "Distribution Date"), to the person in
whose name this Certificate is registered at the close of business on the day of
the month which is 15 days preceding the
2
<PAGE>
Distribution Date, an amount in respect of the Scheduled Payments on the Secured
Notes due on such Distribution Date, the receipt of which has been confirmed by
the Trustee, equal to the product of the percentage interest in the Trust
evidenced by this Certificate and an amount equal to the sum of such Scheduled
Payments. Subject to and in accordance with the terms of the Agreement and the
terms of this Certificate, in the event that Special Payments on the Secured
Notes are received by the Trustee, from funds then available to the Trustee,
there shall be distributed on the applicable Special Distribution Date, to the
Person in whose name this Certificate is registered at the close of business on
the day of the month which is 15 days preceding the Special Distribution Date,
an amount in respect of such Special Payments on the Secured Notes, the receipt
of which has been confirmed by the Trustee, equal to the product of the
percentage interest in the Trust evidenced by this Certificate and an amount
equal to the sum of such Special Payments so received. If a Distribution Date
or Special Distribution Date is not a Business Day, distribution shall be made
on the immediately following Business Day. The Special Distribution Date shall
be the 2nd day of the month determined as provided in the Agreement. The
Trustee shall mail notice of each Special Payment and the Special Distribution
Date therefor to the Holders of the Certificates.
Distributions on this Certificate will be made by the Trustee by (i)
wire transfer of immediately available funds or (ii) check mailed to the person
entitled thereto, without the presentation or surrender of this Certificate or
the making of any notation hereon. Except as otherwise provided in the
Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after notice mailed by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency of the Trustee specified in such notice.
The statements set forth in the legend, if any, set forth above are an
integral part of the terms of this Certificate and by acceptance hereof each
holder of this Certificate agrees to be subject to and bound by the terms and
provisions set forth in such legend, if any.
THIS IS THE GLOBAL SECURITY REFERRED TO IN SECTION 3.04 OF THE WITHIN-
MENTIONED AGREEMENT.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
3
<PAGE>
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
MOBIL CORPORATION
1995-A3 PASS THROUGH TRUST
By: First Security Bank of Utah, National Association,
as Trustee
By:________________________
Title:
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated:
This is the Global Certificate referred
to in the within-mentioned Agreement
First Security Bank of Utah,
National Association,
as Trustee
By:___________________________
Authorized Officer
4
<PAGE>
[Reverse of Certificate]
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, Mobil, MGB or the Trustee or any
affiliate thereof. The Certificates are limited in right of payment, all as
more specifically set forth on the face hereof and in the Agreement. All
payments or distributions made to Certificateholders under the Agreement shall
be made only from the Trust Property and only to the extent that the Trustee
shall have sufficient income or proceeds from the Trust Property and only to the
extent that the Trustee shall have sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of the Agreement.
Each Holder of this Certificate, by its acceptance hereof, agrees that it will
look solely to the income and proceeds from the Trust Property to the extent
available for distribution to such Holder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby. A copy of the Agreement may
be examined during normal business hours at the principal office of the Trustee,
and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of Mobil,
MGB and the rights of the Certificateholders under the Agreement at any time by
Mobil, MGB and the Trustee with the consent of the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Trust. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee in its capacity as Registrar, or
by any successor Registrar, in Salt Lake City, Utah, duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Registrar duly executed by the Holder hereof or such
5
<PAGE>
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust will be issued to the designated
transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons initially in minimum denominations of $250,000 Fractional Undivided
Interest and any integral multiples of $1,000 in excess thereof. At such time
as certain restrictions on transfer have been removed, the minimum denominations
of the Certificates shall be reduced to $1,000 or any integral multiples of
$1,000 in excess thereof. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee shall require payment of a sum sufficient to cover
any tax or governmental charge payable in connection therewith.
The Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Trustee, the Registrar, nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
6
<PAGE>
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
- --------------------------------------------------------------------------------
the within Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
attorney to transfer said Certificate on the books of the Trust with full power
of substitution in the premises.
Date:
---------------------
----------------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the within-mentioned instrument in every particular,
without alteration or any change whatever.
7
<PAGE>
EXHIBIT 4.2(d)
Form of Pass Through Certificate
[Global Securities Legend]*
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO.), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN THE INDENTURE REFERRED TO HEREIN.
<PAGE>
Mobil Corporation
1995-A4 PASS THROUGH TRUST
5.74% Pass Through Certificate, Series 1995-B4
CUSIP ____________
Final Distribution Date: January 2, 2000
evidencing a fractional undivided interest in a trust, the property of
which includes certain Series 1995-A4 Secured Notes secured by a 40%
undivided interest in an oil and gas production system leased to MGB.
Certificate
No. 001 $5,770,000 Fractional Undivided Interest
representing .00017331 of the Trust per
$1,000 face amount
THIS CERTIFIES THAT Cede & Co., for value received, is the registered
owner of a $5,770,000 (Five Million Seven Hundred Seventy Thousand Dollars)
Fractional Undivided Interest in Mobil Corporation 1995-A4 Pass Through Trust
(the "Trust") created by First Security Bank of Utah, National Association, as
trustee (the "Trustee"), pursuant to a Pass Through Trust Agreement dated as of
December 12, 1995 (the "Agreement") between the Trustee, Mobil Corporation, a
corporation incorporated under Delaware law ("Mobil") and MGB, a corporation
incorporated under Delaware law ("MGB"), a summary of certain of the pertinent
provisions of which is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Agreement. This Certificate is one of the duly authorized Certificates
designated as "5.74% Pass Through Certificates, Series 1995-B4" (herein called
the "Certificates"). This Certificate is issued under and is subject to the
terms, provisions, and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. The property of the Trust includes certain Series
1995-A4 Secured Notes (the "Trust Property"). The Secured Notes are secured by a
security interest in a 40% undivided interest in an oil and gas production
system leased to MGB.
Subject to and in accordance with the terms of the Agreement, from
funds then available to the Trustee, there will be distributed on each January 2
and July 2, commencing July 2, 1996 (a "Distribution Date"), to the person in
whose name this Certificate is registered at the close of business on the day of
the month which is 15 days preceding the
2
<PAGE>
Distribution Date, an amount in respect of the Scheduled Payments on the Secured
Notes due on such Distribution Date, the receipt of which has been confirmed by
the Trustee, equal to the product of the percentage interest in the Trust
evidenced by this Certificate and an amount equal to the sum of such Scheduled
Payments. Subject to and in accordance with the terms of the Agreement and the
terms of this Certificate, in the event that Special Payments on the Secured
Notes are received by the Trustee, from funds then available to the Trustee,
there shall be distributed on the applicable Special Distribution Date, to the
Person in whose name this Certificate is registered at the close of business on
the day of the month which is 15 days preceding the Special Distribution Date,
an amount in respect of such Special Payments on the Secured Notes, the receipt
of which has been confirmed by the Trustee, equal to the product of the
percentage interest in the Trust evidenced by this Certificate and an amount
equal to the sum of such Special Payments so received. If a Distribution Date
or Special Distribution Date is not a Business Day, distribution shall be made
on the immediately following Business Day. The Special Distribution Date shall
be the 2nd day of the month determined as provided in the Agreement. The
Trustee shall mail notice of each Special Payment and the Special Distribution
Date therefor to the Holders of the Certificates.
Distributions on this Certificate will be made by the Trustee by (i)
wire transfer of immediately available funds or (ii) check mailed to the person
entitled thereto, without the presentation or surrender of this Certificate or
the making of any notation hereon. Except as otherwise provided in the
Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after notice mailed by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency of the Trustee specified in such notice.
The statements set forth in the legend, if any, set forth above are an
integral part of the terms of this Certificate and by acceptance hereof each
holder of this Certificate agrees to be subject to and bound by the terms and
provisions set forth in such legend, if any.
THIS IS THE GLOBAL SECURITY REFERRED TO IN SECTION 3.04 OF THE WITHIN-
MENTIONED AGREEMENT.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
3
<PAGE>
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
MOBIL CORPORATION
1995-A4 PASS THROUGH TRUST
By: First Security Bank of Utah, National Association,
as Trustee
By:________________________
Title:
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated:
This is the Global Certificate referred
to in the within-mentioned Agreement
First Security Bank of Utah,
National Association,
as Trustee
By:___________________________
Authorized Officer
4
<PAGE>
[Reverse of Certificate]
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, Mobil, MGB or the Trustee or any
affiliate thereof. The Certificates are limited in right of payment, all as
more specifically set forth on the face hereof and in the Agreement. All
payments or distributions made to Certificateholders under the Agreement shall
be made only from the Trust Property and only to the extent that the Trustee
shall have sufficient income or proceeds from the Trust Property and only to the
extent that the Trustee shall have sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of the Agreement.
Each Holder of this Certificate, by its acceptance hereof, agrees that it will
look solely to the income and proceeds from the Trust Property to the extent
available for distribution to such Holder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby. A copy of the Agreement may
be examined during normal business hours at the principal office of the Trustee,
and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of Mobil,
MGB and the rights of the Certificateholders under the Agreement at any time by
Mobil, MGB and the Trustee with the consent of the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Trust. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee in its capacity as Registrar, or
by any successor Registrar, in Salt Lake City, Utah, duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Registrar duly executed by the Holder hereof or such
5
<PAGE>
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust will be issued to the designated
transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons initially in minimum denominations of $250,000 Fractional Undivided
Interest and any integral multiples of $1,000 in excess thereof. At such time
as certain restrictions on transfer have been removed, the minimum denominations
of the Certificates shall be reduced to $1,000 or any integral multiples of
$1,000 in excess thereof. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee shall require payment of a sum sufficient to cover
any tax or governmental charge payable in connection therewith.
The Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Trustee, the Registrar, nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
6
<PAGE>
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
- --------------------------------------------------------------------------------
the within Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
attorney to transfer said Certificate on the books of the Trust with full power
of substitution in the premises.
Date:
---------------------
----------------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the within-mentioned instrument in every particular,
without alteration or any change whatever.
7
<PAGE>
EXHIBIT 4.2(e)
Form of Pass Through Certificate
[Global Securities Legend]*
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO.), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN THE INDENTURE REFERRED TO HEREIN.
<PAGE>
Mobil Corporation
1995-A5 PASS THROUGH TRUST
5.79% Pass Through Certificate, Series 1995-B5
CUSIP ____________
Final Distribution Date: January 2, 2001
evidencing a fractional undivided interest in a trust, the property of
which includes certain Series 1995-A5 Secured Notes secured by a 40%
undivided interest in an oil and gas production system leased to MGB.
Certificate
No. 001 $6,101,000 Fractional Undivided Interest
representing .00016391 of the Trust per
$1,000 face amount
THIS CERTIFIES THAT Cede & Co., for value received, is the registered
owner of a $6,101,000 (Six Million One Hundred One Thousand Dollars) Fractional
Undivided Interest in Mobil Corporation 1995-A5 Pass Through Trust (the "Trust")
created by First Security Bank of Utah, National Association, as trustee (the
"Trustee"), pursuant to a Pass Through Trust Agreement dated as of December 12,
1995 (the "Agreement") between the Trustee, Mobil Corporation, a corporation
incorporated under Delaware law ("Mobil") and MGB, a corporation incorporated
under Delaware law ("MGB"), a summary of certain of the pertinent provisions of
which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the
Agreement. This Certificate is one of the duly authorized Certificates
designated as "5.79% Pass Through Certificates, Series 1995-B5" (herein called
the "Certificates"). This Certificate is issued under and is subject to the
terms, provisions, and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. The property of the Trust includes certain Series
1995-A5 Secured Notes (the "Trust Property"). The Secured Notes are secured by a
security interest in a 40% undivided interest in an oil and gas production
system leased to MGB.
Subject to and in accordance with the terms of the Agreement, from
funds then available to the Trustee, there will be distributed on each January 2
and July 2, commencing July 2, 1996 (a "Distribution Date"), to the person in
whose name this Certificate is registered at the close of business on the day of
the month which is 15 days preceding the
2
<PAGE>
Distribution Date, an amount in respect of the Scheduled Payments on the Secured
Notes due on such Distribution Date, the receipt of which has been confirmed by
the Trustee, equal to the product of the percentage interest in the Trust
evidenced by this Certificate and an amount equal to the sum of such Scheduled
Payments. Subject to and in accordance with the terms of the Agreement and the
terms of this Certificate, in the event that Special Payments on the Secured
Notes are received by the Trustee, from funds then available to the Trustee,
there shall be distributed on the applicable Special Distribution Date, to the
Person in whose name this Certificate is registered at the close of business on
the day of the month which is 15 days preceding the Special Distribution Date,
an amount in respect of such Special Payments on the Secured Notes, the receipt
of which has been confirmed by the Trustee, equal to the product of the
percentage interest in the Trust evidenced by this Certificate and an amount
equal to the sum of such Special Payments so received. If a Distribution Date
or Special Distribution Date is not a Business Day, distribution shall be made
on the immediately following Business Day. The Special Distribution Date shall
be the 2nd day of the month determined as provided in the Agreement. The
Trustee shall mail notice of each Special Payment and the Special Distribution
Date therefor to the Holders of the Certificates.
Distributions on this Certificate will be made by the Trustee by (i)
wire transfer of immediately available funds or (ii) check mailed to the person
entitled thereto, without the presentation or surrender of this Certificate or
the making of any notation hereon. Except as otherwise provided in the
Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after notice mailed by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency of the Trustee specified in such notice.
The statements set forth in the legend, if any, set forth above are an
integral part of the terms of this Certificate and by acceptance hereof each
holder of this Certificate agrees to be subject to and bound by the terms and
provisions set forth in such legend, if any.
THIS IS THE GLOBAL SECURITY REFERRED TO IN SECTION 3.04 OF THE WITHIN-
MENTIONED AGREEMENT.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
3
<PAGE>
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
MOBIL CORPORATION
1995-A5 PASS THROUGH TRUST
By: First Security Bank of Utah, National Association,
as Trustee
By:________________________
Title:
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated:
This is the Global Certificate referred
to in the within-mentioned Agreement
First Security Bank of Utah,
National Association,
as Trustee
By:___________________________
Authorized Officer
4
<PAGE>
[Reverse of Certificate]
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, Mobil, MGB or the Trustee or any
affiliate thereof. The Certificates are limited in right of payment, all as
more specifically set forth on the face hereof and in the Agreement. All
payments or distributions made to Certificateholders under the Agreement shall
be made only from the Trust Property and only to the extent that the Trustee
shall have sufficient income or proceeds from the Trust Property and only to the
extent that the Trustee shall have sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of the Agreement.
Each Holder of this Certificate, by its acceptance hereof, agrees that it will
look solely to the income and proceeds from the Trust Property to the extent
available for distribution to such Holder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby. A copy of the Agreement may
be examined during normal business hours at the principal office of the Trustee,
and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of Mobil,
MGB and the rights of the Certificateholders under the Agreement at any time by
Mobil, MGB and the Trustee with the consent of the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Trust. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee in its capacity as Registrar, or
by any successor Registrar, in Salt Lake City, Utah, duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Registrar duly executed by the Holder hereof or such
5
<PAGE>
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust will be issued to the designated
transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons initially in minimum denominations of $250,000 Fractional Undivided
Interest and any integral multiples of $1,000 in excess thereof. At such time
as certain restrictions on transfer have been removed, the minimum denominations
of the Certificates shall be reduced to $1,000 or any integral multiples of
$1,000 in excess thereof. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee shall require payment of a sum sufficient to cover
any tax or governmental charge payable in connection therewith.
The Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Trustee, the Registrar, nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
6
<PAGE>
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
- --------------------------------------------------------------------------------
the within Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
attorney to transfer said Certificate on the books of the Trust with full power
of substitution in the premises.
Date:
---------------------
----------------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the within-mentioned instrument in every particular,
without alteration or any change whatever.
7
<PAGE>
EXHIBIT 4.2(f)
Form of Pass Through Certificate
[Global Securities Legend]*
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO.), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN THE INDENTURE REFERRED TO HEREIN.
<PAGE>
Mobil Corporation
1995-A6 PASS THROUGH TRUST
6.15% Pass Through Certificate, Series 1995-B6
CUSIP ____________
Final Distribution Date: January 2, 2008
evidencing a fractional undivided interest in a trust, the property of
which includes certain Series 1995-A6 Secured Notes secured by a 40%
undivided interest in an oil and gas production system leased to MGB.
Certificate
No. 001 $64,762,000 Fractional Undivided Interest
representing .00001544 of the Trust per
$1,000 face amount
THIS CERTIFIES THAT Cede & Co., for value received, is the registered
owner of a $64,762,000 (Sixty Four Million Seven Hundred Sixty Two Thousand
Dollars) Fractional Undivided Interest in Mobil Corporation 1995-A6 Pass Through
Trust (the "Trust") created by First Security Bank of Utah, National
Association, as trustee (the "Trustee"), pursuant to a Pass Through Trust
Agreement dated as of December 12, 1995 (the "Agreement") between the Trustee,
Mobil Corporation, a corporation incorporated under Delaware law ("Mobil") and
MGB, a corporation incorporated under Delaware law ("MGB"), a summary of certain
of the pertinent provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Agreement. This Certificate is one of the duly
authorized Certificates designated as "6.15% Pass Through Certificates, Series
1995-B6" (herein called the "Certificates"). This Certificate is issued under
and is subject to the terms, provisions, and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound. The property of the Trust
includes certain Series 1995-A6 Secured Notes (the "Trust Property"). The
Secured Notes are secured by a security interest in a 40% undivided interest in
an oil and gas production system leased to MGB.
Subject to and in accordance with the terms of the Agreement, from
funds then available to the Trustee, there will be distributed on each January 2
and July 2, commencing July 2, 1996 (a "Distribution Date"), to the person in
whose name this Certificate is registered at the close of business on the day of
the month which is 15 days preceding the
2
<PAGE>
Distribution Date, an amount in respect of the Scheduled Payments on the Secured
Notes due on such Distribution Date, the receipt of which has been confirmed by
the Trustee, equal to the product of the percentage interest in the Trust
evidenced by this Certificate and an amount equal to the sum of such Scheduled
Payments. Subject to and in accordance with the terms of the Agreement and the
terms of this Certificate, in the event that Special Payments on the Secured
Notes are received by the Trustee, from funds then available to the Trustee,
there shall be distributed on the applicable Special Distribution Date, to the
Person in whose name this Certificate is registered at the close of business on
the day of the month which is 15 days preceding the Special Distribution Date,
an amount in respect of such Special Payments on the Secured Notes, the receipt
of which has been confirmed by the Trustee, equal to the product of the
percentage interest in the Trust evidenced by this Certificate and an amount
equal to the sum of such Special Payments so received. If a Distribution Date
or Special Distribution Date is not a Business Day, distribution shall be made
on the immediately following Business Day. The Special Distribution Date shall
be the 2nd day of the month determined as provided in the Agreement. The
Trustee shall mail notice of each Special Payment and the Special Distribution
Date therefor to the Holders of the Certificates.
Distributions on this Certificate will be made by the Trustee by (i)
wire transfer of immediately available funds or (ii) check mailed to the person
entitled thereto, without the presentation or surrender of this Certificate or
the making of any notation hereon. Except as otherwise provided in the
Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after notice mailed by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency of the Trustee specified in such notice.
The statements set forth in the legend, if any, set forth above are an
integral part of the terms of this Certificate and by acceptance hereof each
holder of this Certificate agrees to be subject to and bound by the terms and
provisions set forth in such legend, if any.
THIS IS THE GLOBAL SECURITY REFERRED TO IN SECTION 3.04 OF THE WITHIN-
MENTIONED AGREEMENT.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
3
<PAGE>
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
MOBIL CORPORATION
1995-A6 PASS THROUGH TRUST
By: First Security Bank of Utah, National Association,
as Trustee
By:________________________
Title:
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated:
This is the Global Certificate referred
to in the within-mentioned Agreement
First Security Bank of Utah,
National Association,
as Trustee
By:___________________________
Authorized Officer
4
<PAGE>
[Reverse of Certificate]
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, Mobil, MGB or the Trustee or any
affiliate thereof. The Certificates are limited in right of payment, all as
more specifically set forth on the face hereof and in the Agreement. All
payments or distributions made to Certificateholders under the Agreement shall
be made only from the Trust Property and only to the extent that the Trustee
shall have sufficient income or proceeds from the Trust Property and only to the
extent that the Trustee shall have sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of the Agreement.
Each Holder of this Certificate, by its acceptance hereof, agrees that it will
look solely to the income and proceeds from the Trust Property to the extent
available for distribution to such Holder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby. A copy of the Agreement may
be examined during normal business hours at the principal office of the Trustee,
and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of Mobil,
MGB and the rights of the Certificateholders under the Agreement at any time by
Mobil, MGB and the Trustee with the consent of the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Trust. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee in its capacity as Registrar, or
by any successor Registrar, in Salt Lake City, Utah, duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Registrar duly executed by the Holder hereof or such
5
<PAGE>
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust will be issued to the designated
transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons initially in minimum denominations of $250,000 Fractional Undivided
Interest and any integral multiples of $1,000 in excess thereof. At such time
as certain restrictions on transfer have been removed, the minimum denominations
of the Certificates shall be reduced to $1,000 or any integral multiples of
$1,000 in excess thereof. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee shall require payment of a sum sufficient to cover
any tax or governmental charge payable in connection therewith.
The Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Trustee, the Registrar, nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
6
<PAGE>
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
- --------------------------------------------------------------------------------
the within Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
attorney to transfer said Certificate on the books of the Trust with full power
of substitution in the premises.
Date:
---------------------
----------------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the within-mentioned instrument in every particular,
without alteration or any change whatever.
7
<PAGE>
EXHIBIT 4.3
[CONFORMED COPY]
---------------------------------------------------------------------------
---------------------------------------------------------------------------
TRUST INDENTURE, MORTGAGE, ASSIGNMENT OF LEASE,
AND SECURITY AGREEMENT
among
FLEET NATIONAL BANK OF CONNECTICUT,
not in its individual
capacity, except to
the extent expressly
set forth herein,
but solely as Corporate Owner Trustee,
MICHAEL M. HOPKINS,
not in his individual
capacity, except to
the extent expressly
set forth herein,
but solely as Individual Owner Trustee,
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION,
not in its individual
capacity, except to
the extent expressly
set forth herein,
but solely as Corporate Indenture Trustee
and
VAL T. ORTON,
not in his individual
capacity, except to
the extent expressly
set forth herein,
but solely as Individual Indenture Trustee
Dated as of December 12, 1995
Sale and Leaseback of an Undivided Interest in
Oil and Gas Production System
---------------------------------------------------------------------------
---------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I
DEFINITIONS....................... 5
SECTION 1.01. Definitions..................................... 5
ARTICLE II
THE SECURED NOTES............................... 5
SECTION 2.01. Secured Notes................................... 5
SECTION 2.02. Payments from Indenture Estate
Only...................................................... 9
SECTION 2.03. Method of Payment............................... 10
SECTION 2.04. Note Register................................... 11
SECTION 2.05. Registered Owners............................... 11
SECTION 2.06. Transfer, Exchange and Replacement
of Notes.................................................. 11
SECTION 2.07. New Notes; Payment of Expenses.................. 13
SECTION 2.08. Additional Notes................................ 13
SECTION 2.09. Termination of Interest in
Indenture Estate.......................................... 17
SECTION 2.10. Equally and Ratably Secured..................... 17
ARTICLE III
REDEMPTION AND REFUNDING................. 17
SECTION 3.01. Generally....................................... 17
SECTION 3.02. Mandatory Redemption............................ 17
SECTION 3.03. [Intentionally Omitted]......................... 20
SECTION 3.04. Assumption of Obligations of the
Owner Trustee by the Lessee............................... 20
SECTION 3.05. Refunding....................................... 22
SECTION 3.06. Owner Trustee's and Owner
Participant's Option to Redeem or Purchase
Secured Notes............................................. 23
SECTION 3.07. Deposited Redemption or Purchase
Moneys.................................................... 25
SECTION 3.08. Acquisition of Secured Notes.................... 25
SECTION 3.09. Condition to Redemption and
Refunding................................................. 25
SECTION 3.10. Notice of Certain Redemption.................... 25
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE INDENTURE ESTATE........... 26
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
SECTION 4.01. Basic Rent Distribution...................... 26
SECTION 4.02. Certain Distributions........................ 28
SECTION 4.03. Distribution After Indenture Event
of Default............................................. 29
SECTION 4.04. Application of Payments on Secured
Notes.................................................. 30
SECTION 4.05. Applications of Payments According
to Applicable Operative Document Provisions............ 31
SECTION 4.06. Amounts Received for Which No
Provision Is Made...................................... 32
SECTION 4.07. Payment Procedures........................... 32
ARTICLE V
COVENANTS OF OWNER TRUSTEE; CERTAIN AGREEMENTS;
INDENTURE EVENTS OF DEFAULT; REMEDIES OF INDENTURE TRUSTEE
SECTION 5.01. Covenants of Owner Trustee;
Certain Agreements..................................... 32
SECTION 5.02. Indenture Events of Default.................. 35
SECTION 5.03. Certain Rights............................... 37
SECTION 5.04. Remedies..................................... 39
SECTION 5.05. Suit; Possession; Title; Sale of
Indenture Estate....................................... 41
SECTION 5.06. Remedies Cumulative.......................... 45
SECTION 5.07. Discontinuance of Proceedings................ 45
SECTION 5.08. Waiver of Past Defaults...................... 46
SECTION 5.09. No Action Contrary to Lessee's
Rights Under the Lease................................. 46
SECTION 5.10. Rights of Holders of Secured
Notes.................................................. 46
SECTION 5.11. Limitation on Suits by Holders............... 47
ARTICLE VI
DUTIES OF THE INDENTURE TRUSTEE.......... 47
SECTION 6.01. Certain Actions.............................. 47
SECTION 6.02. Action Upon Instructions..................... 48
SECTION 6.03. Release of Lien of Indenture................. 48
SECTION 6.04. Indemnification.............................. 49
SECTION 6.05. No Implied Duties............................ 50
SECTION 6.06. Duties to Remove Certain Liens............... 50
SECTION 6.07. No Action Except Under Operative
Documents or Instructions.............................. 50
SECTION 6.08. Certain Rights of the Owner
Trustee and the Owner Participant...................... 51
SECTION 6.09. Filing of Financing and
Continuation Statements................................ 52
SECTION 6.10. Furnishing of Notices........................ 52
SECTION 6.11. Taxes; Withholding; Information
Reporting.............................................. 52
ARTICLE VII
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
THE INDENTURE TRUSTEE AND THE OWNER TRUSTEE.... 53
SECTION 7.01. Acceptance of Trusts and Duties.............. 53
SECTION 7.02. Absence of Duties Except as
Specified.............................................. 53
SECTION 7.03. No Representations or Warranties............. 53
SECTION 7.04. No Segregation of Moneys; No
Interest; Investments...................................... 54
SECTION 7.05. Reliance; Agents; Advice of
Counsel................................................ 55
SECTION 7.06. No Compensation from Holders or
Indenture Estate........................................... 56
SECTION 7.07. Right of the Indenture Trustee to
Perform Covenants, Etc................................. 56
SECTION 7.08. Moneys for Payments in Respect of
Notes to be Held in Trust.............................. 56
SECTION 7.09. Disposition of Moneys Held for
Payments of Notes...................................... 56
ARTICLE VIII
SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES...... 57
SECTION 8.01. Notice of Successor Owner
Trustees............................................... 57
SECTION 8.02. Resignation of Indenture Trustee;
Appointment of Successor............................... 57
SECTION 8.03. Co-Trustees and Separate Trustees............ 59
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS TO THIS
INDENTURE AND OTHER DOCUMENTS........... 62
SECTION 9.01. Indenture Supplements Without
Consent of Holders..................................... 62
SECTION 9.02. Supplements and Amendments to
Indenture with Consent of Holders of Notes............. 63
SECTION 9.03. Execution of Indenture Supplement,
Amendments, Etc........................................ 68
SECTION 9.04. Effect of Indenture Supplement............... 69
SECTION 9.05. Reference in Secured Notes to
Indenture Supplements.................................. 69
SECTION 9.06. Notices of Indenture Supplements
and Amendments, Etc.................................... 69
SECTION 9.07. Lessee Rights................................ 69
ARTICLE X
MISCELLANEOUS................... 70
SECTION 10.01. Termination of Indenture..................... 70
SECTION 10.02. No Legal Title to Indenture Estate
in Holders............................................. 70
SECTION 10.03. Power of Attorney............................ 70
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
SECTION 10.04. Regarding the Owner Trustee.................. 71
SECTION 10.05. Notices...................................... 72
SECTION 10.06. Severability of Provisions................... 72
SECTION 10.07. No Oral Modification or
Continuing Waivers..................................... 72
SECTION 10.08. Successors and Assigns....................... 72
SECTION 10.09. Headings; Table of Contents.................. 73
SECTION 10.10. Normal Commercial Relations.................. 73
SECTION 10.11. Governing Law................................ 73
SECTION 10.12. Execution.................................... 73
SECTION 10.13. Security Agreement........................... 73
SECTION 10.14. Benefits of Indenture........................ 73
SECTION 10.15. Personal Property............................ 74
SECTION 10.16. Individual Indenture Trustee................. 74
SECTION 10.17. Special Louisiana Provisions................. 74
</TABLE>
<TABLE>
<S> <C>
Appendix A . . . . . . Definitions
Schedule 1 . . . . . . Description of Undivided Interest
Schedule 2 . . . . . . Resolution
Exhibit A. . . . . . . Form of Secured Notes
Exhibit B. . . . . . . Maturity Dates, etc.
Exhibit C. . . . . . . Relevant Amendment
Exhibit D. . . . . . . Form of Indenture Supplement
Exhibit E. . . . . . . Form of Relevant Date Supplement
Exhibit F. . . . . . . Form of Guaranty
</TABLE>
iv
<PAGE>
TRUST INDENTURE, MORTGAGE, ASSIGNMENT OF LEASE,
AND SECURITY AGREEMENT
------------------------------------------------
BE IT KNOWN, that on the date hereinafter set forth, before me, the
undersigned Notary Public, duly commissioned and qualified in and for the State
of New York, and in the presence of the undersigned, competent witnesses,
personally came and appeared: FLEET NATIONAL BANK OF CONNECTICUT, a national
banking association, not in its individual capacity, except as expressly
provided herein, but solely as Corporate Owner Trustee under the Trust Agreement
(the "Corporate Owner Trustee") represented herein by its undersigned Michael M.
-----------------------
Hopkins, appearing herein by resolution of its Board of Directors, a certified
copy of which is annexed hereto as Schedule 2, MICHAEL M. HOPKINS, an
individual, not in his individual capacity, except as expressly provided herein,
but solely as Individual Owner Trustee under the Trust Agreement (the
"Individual Owner Trustee"; together with the Corporate Owner Trustee, the
- -------------------------
"Owner Trustee"), FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION, a national
- --------------
banking association, not in its individual capacity, except as expressly
provided herein, but solely as Corporate Indenture Trustee (the "Corporate
---------
Indenture Trustee"), and VAL T. ORTON, an individual, not in his individual
- -----------------
capacity, except as expressly provided herein, but solely as Individual
Indenture Trustee (the "Individual Indenture Trustee"; together with the
----------------------------
Corporate Indenture Trustee, the "Indenture Trustee") who each being duly
-----------------
sworn, did declare and say as follows:
WITNESSETH:
----------
WHEREAS, the Owner Participant, Hopkins and the Trust Company have
heretofore entered into the Trust Agreement, whereby, among other things,
Hopkins and the Trust Company each in its or his capacity as Owner Trustee
thereunder has declared a certain trust for the use and benefit of the Owner
Participant, subject, however, to the Lien of this Indenture, and the Owner
Trustee is authorized and directed to execute and deliver this Indenture;
WHEREAS, the Owner Trustee, desires by this Indenture, to provide
among other things (i) for the issuance by the Owner Trustee to each Pass
Through Trustee the Series 1995 A Secured Notes specified in Exhibit B-2 hereto
upon payment by such Pass Through Trustee of the principal amount of such series
1995 A Secured Notes. Percentage of Lessor's Cost, (ii) for the assignment,
mortgage and pledge by the Owner Trustee to the Indenture Trustee, as part of
the Indenture Estate thereunder, among other things, of all of the right, title
and interest of the Owner Trustee, other than Excepted Payments, in, to and
under, as the case may be, the Undivided Interest, the Lease, the Guaranty, the
Bill of Sale, and all payments and other amounts received thereunder, other than
Excepted
<PAGE>
Payments, in accordance with the terms thereof, as security for, among other
things, the Owner Trustee's obligations to the Indenture Trustee, the Loan
Participants and the other Holders and for the benefit and security of the Loan
Participants and such Holders;
WHEREAS, all things have been done to make the Secured Notes, when
executed by the Owner Trustee and authenticated, issued and delivered hereunder,
the legal, valid, binding and enforceable obligations of the Owner Trustee in
accordance with their terms; and
WHEREAS, all things necessary to make this Indenture the legal, valid,
binding and enforceable obligation of the Owner Trustee, for the uses and
purposes herein set forth, in accordance with its terms, have been done and
performed and have happened, and the Indenture Trustee has duly accepted the
trust created hereby and as evidence thereof has joined in the execution hereof;
NOW, THEREFORE, THIS TRUST INDENTURE, MORTGAGE, ASSIGNMENT OF LEASE
AND SECURITY AGREEMENT, WITNESSETH, that, to secure (i) the prompt payment when
and as due and payable of the principal of, Make-Whole Amount, if any, and
interest on all the Secured Notes from time to time Outstanding hereunder and of
all other amounts payable to the Holders (whether as Holders or Loan
Participants) hereunder, under the Secured Notes and under the other Operative
Documents (other than the Tax Indemnity Agreement), (ii) the performance and
observance by the Owner Trustee of all the provisions, covenants and agreements
for the benefit of the Indenture Trustee or the Holders herein, in the
Participation Agreement, in the Secured Notes and in the other Operative
Documents (other than the Tax Indemnity Agreement), and (iii) the performance
and observance by the Owner Participant of its covenants and agreements in the
Operative Documents (other than the Tax Indemnity Agreement) contained (the
obligations described in the above clauses (i), (ii) and (iii) collectively, the
"Indenture Indebtedness"), and for the uses and purposes and subject to the
----------------------
terms and provisions hereof, and in consideration of the premises and of the
covenants herein contained and of the acceptance of the Secured Notes by the
Holders thereof:
GRANTING CLAUSE
---------------
The Owner Trustee, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to secure the payment
and performance of the Indenture Indebtedness, hereby presently irrevocably
mortgages, hypothecates, and pledges unto the Indenture Trustee and creates a
security interest to and for the benefit of the Corporate Indenture Trustee or,
to the extent
2
<PAGE>
set forth in Section 8.03 below, the Individual Indenture Trustee, in all of the
right, title and interest of the Owner Trustee in and to the following property,
rights and privileges, other than Excepted Payments, now owned or in the future
acquired by the Owner Trustee or in which the Owner Trustee now has or may in
the future acquire any estate, right, title or interest (which collectively,
excluding Excepted Payments but including all property hereafter subjected to
the Lien of this Indenture, shall constitute the "Indenture Estate"), to wit:
----------------
(a) the Undivided Interest (which is described in Schedule 1),
including without limitation the Lessor's Share of any Component or
Replacement Component or Modification to the Production System which,
pursuant to the terms of the Lease, are the property of the Owner Trustee;
(b) the Bill of Sale, and all rights, powers and remedies of the
Owner Trustee pursuant thereto, whether arising thereunder or by statute,
at law, in equity or otherwise;
(c) the Lease including without limitation, (i) all amounts of Rent,
insurance proceeds and requisition, indemnity or other payments of any kind
for or with respect to any asset leased or subleased thereunder, (ii) all
right of the Owner Trustee to exercise any election or option, or to give
any notice, consent, waiver or approval under or in respect of the Lease,
or to accept any surrender or enter into any modification thereof, as the
case may be, and (iii) all rights, powers and remedies of the Owner Trustee
pursuant to the Lease, whether arising thereunder or by statute, at law, in
equity or otherwise, including, without limitation, the right to possession
of any asset demised thereunder;
(d) The Agency and Support Agreement, including without limitation
(i) all amounts payable thereunder, (ii) all right of the Owner Trustee to
exercise any election or option, or to give any notice, consent, waiver or
approval under or in respect of the Agency and Support Agreement, or to
accept any surrender or enter into any modification thereof, as the case
may be, and (iii) all rights, powers and remedies of the Owner Trustee
pursuant to the Agency and Support Agreement, whether arising thereunder or
by statute, at law, in equity or otherwise;
(e) The Guaranty, including without limitation (i) all amounts
payable thereunder,
3
<PAGE>
(ii) all right of the Owner Trustee to exercise any election or option, or
to give any notice, consent, waiver or approval under or in respect of the
Guaranty, or to accept any surrender or enter into any modification
thereof, as the case may be, and (iii) all rights, powers and remedies of
the Owner Trustee pursuant to the Guaranty, whether arising thereunder or
by statute, at law, in equity or otherwise;
(g) all moneys and securities now or hereafter paid or deposited or
required to be paid or deposited to or with the Indenture Trustee pursuant
to any term of any Operative Document, and held or required to be held by
the Indenture Trustee hereunder;
(h) to the extent assignable, any and all permits, certificates,
approvals and authorizations, however characterized, issued or in any way
furnished in connection with the Undivided Interest, whether necessary or
not for the operation and use of the Undivided Interest;
(i) all the tolls, rents, issues, profits, products, revenues and
other income of the property subjected or required to be subjected to the
Lien of this Indenture; and
(j) all rights or property which may be received upon the exercise of
any remedy or option contained in any of the above-described instruments
and all proceeds in whatever form of all or any part of any of the
foregoing;
EXCLUDING, HOWEVER, from the foregoing grant, and thereby from the
Lien of this Indenture and from the Indenture Estate, any and all Excepted
Payments; and
SUBJECT to the rights of the Owner Trustee and the Owner Participant
hereunder;
TO HAVE AND TO HOLD the aforesaid property unto the Corporate
Indenture Trustee, or the Individual Indenture Trustee, as the case may be, its
or his successors and assigns, for the benefit and security of the Holders,
without any priority of any one Secured Note over any other, and for the uses
and purposes and subject to the terms and conditions set forth in this
Indenture. This Indenture is a mortgage given to secure the payment of the
Indenture Indebtedness and this Indenture is also intended to operate as, among
other things, a security agreement and an assignment of leases and rents.
4
<PAGE>
It is expressly agreed that anything contained in this Indenture to
the contrary notwithstanding, the Owner Trustee shall remain liable under the
Lease and the other Operative Documents to perform all of the obligations of the
Owner Trustee thereunder, all in accordance with and pursuant to the terms and
provisions of each thereof, and the Holders and, except as expressly provided
herein, the Indenture Trustee shall have no obligation or liability under any
Operative Document by reason of or arising out of this Indenture. None of the
Indenture Trustee or any Holder shall be required or obligated in any manner to
perform or fulfill any obligation of the Owner Trustee under or pursuant to any
Operative Document or, except as herein expressly provided, to make any payment,
or to make any inquiry as to the nature or sufficiency of any payment received
by them, or to present or file any claim, or to take any action to collect or
enforce the payment of any amounts which may have been assigned to them or to
which they may be entitled at any time.
Accordingly, the Owner Trustee and the Indenture Trustee hereby agree
for themselves and for the benefit and security of the Holders as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise defined herein, for the
-----------
purposes hereof, capitalized terms used herein and not otherwise defined shall
have the meanings assigned to them in Appendix A. References in this Indenture
to Sections, subsections, paragraphs, Schedules, Appendices and Exhibits are to
Sections, subsections and paragraphs in, and Schedules, Appendices and Exhibits
to, this Indenture unless otherwise indicated.
ARTICLE II
THE SECURED NOTES
SECTION 2.01. Secured Notes. (a) Generally. Except for Secured
------------- ---------
Notes issued pursuant to Section 2.06 or 2.08, Secured Notes may be issued only
on the Closing Date. On the Closing Date, the Secured Notes to be issued on
such Date pursuant to Section 2.2 of the Participation Agreement shall be duly
executed by the Owner Trustee, duly authenticated and delivered by the Corporate
Indenture Trustee and registered in the name of the Loan Participant to which
such Secured Note is being issued and shall have attached thereto the
Amortization Schedule for such Secured Note. Receipt by the Corporate Indenture
Trustee of Secured
5
<PAGE>
Notes duly executed by the Owner Trustee shall constitute instructions to the
Corporate Indenture Trustee to authenticate, register and deliver such Secured
Notes on the Closing Date.
(b) Series 1995 A-1 Secured Notes. The Series 1995 A-1 Secured Notes
-----------------------------
shall:
(i) be limited in aggregate original principal amount to the amount
specified in Exhibit B hereto;
(ii) be issuable only as registered Secured Notes in denominations
of at least $1,000, or if the remaining principal amount thereof shall be
less than $1,000, such remaining principal amount;
(iii) be dated the Closing Date;
(iv) bear interest on the unpaid principal amount thereof from the
date of such Series 1995 A-1 Secured Notes at the rate specified in Exhibit
B (which rate may be increased as provided in such Series 1995 A-1 Secured
Notes) (computed on the basis of a 360-day year consisting of twelve 30-day
months);
(v) provide for payments of interest and otherwise be due and
payable as to principal and interest as specified herein and therein;
(vi) be prepayable only as provided in Article III; and
(vii) be substantially of the tenor and in the form set forth in
Exhibit A-1.
(c) Series 1995 A-2 Secured Notes. The Series 1995 A-2 Secured Notes
-----------------------------
shall:
(i) be limited in aggregate original principal amount to the amount
specified in Exhibit B hereto;
(ii) be issuable only as registered Secured Notes in denominations
of at least $1,000, or if the remaining principal amount thereof shall be
less than $1,000, such remaining principal amount;
(iii) be dated the Closing Date;
(iv) bear interest on the unpaid principal amount thereof from the
date of such Series 1995 A-2 Secured Notes at the rate specified in Exhibit
B (which rate may be increased as provided in such Series 1995 A-2 Secured
Notes) (computed on the basis of a 360-day year consisting of twelve 30-day
months);
6
<PAGE>
(v) be due and payable as to principal and interest as specified
herein and therein;
(vi) be prepayable only as provided in Article III; and
(vii) be substantially of the tenor and in the form set forth in
Exhibit A-2.
(d) Series 1995 A-3 Secured Note. The Series 1995 A-3 Secured Notes
----------------------------
shall:
(i) be limited in aggregate original principal amount to the amount
specified in Exhibit B hereto;
(ii) be issuable only as registered Secured Notes in denominations
of at least $1,000, or if the remaining principal amount thereof shall be
less than $1,000, such remaining principal amount;
(iii) be dated the Closing Date;
(iv) bear interest on the unpaid principal amount thereof from the
date of such Series 1995 A-3 Secured Notes at the rate specified in Exhibit
B (which rate may be increased as provided in such Series 1995 A-3 Secured
Notes) (computed on the basis of a 360-day year consisting of twelve 30-day
months);
(v) provide for payments of interest and otherwise be due and
payable as to principal and interest as specified herein and therein;
(vi) be prepayable only as provided in Article III; and
(vii) be substantially of the tenor and in the form set forth in
Exhibit A-3.
(e) Series 1995 A-4 Secured Notes. The Series 1995 A-4 Secured Notes
-----------------------------
shall:
(i) be limited in aggregate original principal amount to the amount
specified in Exhibit B hereto;
(ii) be issuable only as registered Secured Notes in denominations
of at least $1,000, or if the remaining principal amount thereof shall be
less than $1,000, such remaining principal amount;
(iii) be dated the Closing Date;
(iv) bear interest on the unpaid principal amount thereof from the
date of such Series 1995 A-4
7
<PAGE>
Secured Notes at the rate specified in Exhibit B (which rate may be
increased as provided in such Series 1995 A-4 Secured Notes) (computed on
the basis of a 360-day year consisting of twelve 30-day months);
(v) be due and payable as to principal and interest as specified
herein and therein;
(vi) be prepayable only as provided in Article III; and
(vii) be substantially of the tenor and in the form set forth in
Exhibit A-4.
(f) Series 1995 A-5 Secured Notes. The Series 1995 A-5 Secured
-----------------------------
Notes shall:
(i) be limited in aggregate original principal amount to the amount
specified in Exhibit B hereto;
(ii) be issuable only as registered Secured Notes in denominations
of at least $1,000, or if the remaining principal amount thereof shall be
less than $1,000, such remaining principal amount;
(iii) be dated the Closing Date;
(iv) bear interest on the unpaid principal amount thereof from the
date of such Series 1995 A-5 Secured Notes at the rate specified in Exhibit
B (which rate may be increased as provided in such Series 1995 A-5 Secured
Notes) (computed on the basis of a 360-day year consisting of twelve 30-day
months);
(v) be due and payable as to principal and interest as specified
herein and therein;
(vi) be prepayable only as provided in Article III; and
(vii) be substantially of the tenor and in the form set forth in
Exhibit A-5.
(g) Series 1995 A-6 Secured Notes. The Series 1995 A-6 Secured
-----------------------------
Notes shall:
(i) be limited in aggregate original principal amount to the amount
specified in Exhibit B hereto;
(ii) be issuable only as registered Secured Notes in denominations
of at least $1,000, or if the remaining principal amount thereof shall be
less than $1,000, such remaining principal amount;
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<PAGE>
(iii) be dated the Closing Date;
(iv) bear interest on the unpaid principal amount thereof from the
date of such Series 1995 A-6 Secured Notes at the rate specified in Exhibit
B (which rate may be increased as provided in such Series 1995 A-6 Secured
Notes) (computed on the basis of a 360-day year consisting of twelve 30-day
months);
(v) be due and payable as to principal and interest as specified
herein and therein;
(vi) be prepayable only as provided in Article III; and
(vii) be substantially of the tenor and in the form set forth in
Exhibit A-6.
(h) Each Secured Note shall be signed on behalf of the Corporate
Owner Trustee by a Responsible Officer of the Corporate Owner Trustee, and on
behalf of the Individual Owner Trustee, by Hopkins, manually or in facsimile.
No Secured Note shall be secured by or entitled to any benefit under this
Indenture, or be valid for any purpose, unless there appears thereon a
certificate of authentication executed by or on behalf of the Corporate
Indenture Trustee by the manual signature of a Responsible Officer of the
Corporate Indenture Trustee, and such certificate on any Secured Note shall be
conclusive evidence that such Secured Note has been duly authenticated and
delivered hereunder.
SECTION 2.02. Payments from Indenture Estate Only. All payments of
-----------------------------------
principal, Make-Whole Amount, if any, and interest to be made by the Owner
Trustee and, except as otherwise provided in the Operative Documents, all
payments of any other amounts payable by or on behalf of the Owner Trustee under
the Secured Notes and this Indenture, shall be made only from the income and
proceeds from the Indenture Estate, and only to the extent that the Indenture
Trustee shall have received sufficient income or proceeds from the Indenture
Estate to make such payments in accordance with the terms hereof. Each Holder,
by its acceptance of a Secured Note, agrees that it will look solely to the
income and proceeds from the Indenture Estate to the extent available for
payment as herein provided and that (a) none of the Owner Trustee or the
Indenture Trustee (whether in its individual or trust capacity) shall be
personally liable to such Holder for any amounts payable under the Secured
Notes, nor, except as specifically provided herein or in the other Operative
Documents, for any amounts payable or any liability under this Indenture and (b)
the Owner Participant shall not be liable to the Indenture Trustee or to any
Holder under any circumstances for any reason whatsoever
9
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except to the extent expressly provided herein or in any other Operative
Document.
SECTION 2.03. Method of Payment. (a) The principal of, and Make-
-----------------
Whole Amount, if any, and interest, on each Secured Note shall be payable in
immediately available funds, the receipt of which has been confirmed by a
Responsible Officer of the Corporate Indenture Trustee (which shall be done
promptly upon receipt thereof) on or before 12:00 p.m., New York time, at the
place of receipt, on the due date therefor, to the Corporate Indenture Trustee
at the corporate trust office of the Corporate Indenture Trustee. Amounts so
received by the Indenture Trustee shall be paid by the Indenture Trustee to each
Holder on the due date therefor without any presentment or surrender of any
Secured Note held by such Holder by whichever of the following methods shall be
specified by prior written notice from such Holder to the Indenture Trustee:
(i) by transferring prior to 2:00 p.m., New York City time, on such date such
payment to such Holder in immediately available funds by crediting the amount to
be distributed to any Holder to any account maintained by such Holder with the
Indenture Trustee or (ii) by initiating a wire transfer prior to the time set
forth in clause (i) of this Section 2.03(a) of such amount in immediately
available funds to a banking institution designated in such notice with bank
wire transfer facilities for the account of such Holder, in all cases without
any presentment or surrender of any Secured Note, except that on the date of the
final maturity thereof (whether at maturity, upon prepayment, acceleration or
otherwise), the Holder of each Secured Note shall surrender such Secured Note
promptly after payment; provided that failure to so present shall not diminish
--------
the effect of full and final payment by the Owner Trustee. In the event the
Indenture Trustee shall fail to make any payment as provided in the preceding
sentence after its receipt of funds at the place and on or before the time
specified in this Section 2.03(a), the Corporate Indenture Trustee in its
individual capacity agrees to compensate each Holder for loss of use of funds in
an amount equal to the interest (computed at the then prevailing rate of
overnight Permitted Investments) which could have been earned on such funds had
they been timely paid to such Holder.
(b) Whenever any payment to be made hereunder or pursuant to the
terms of any Secured Note shall be stated to be due on a day which is not a
Business Day, such payment shall be due and payable on the next succeeding
Business Day with the same force and effect as if made on such scheduled date
and (provided such payment is timely made on such succeeding Business Day) no
interest shall accrue on the amount of such payment from and after such
scheduled date.
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(c) If payment of any installment of principal payable in accordance
with the terms hereof and of the Secured Notes is not paid in full when due,
whether as scheduled or upon acceleration and whether before or after the
maturity date of the Secured Notes, such overdue amount of principal shall (to
the extent not prohibited by applicable law) bear interest, payable on demand,
for each day from and including the date payment thereof was due to the actual
date of payment, at the Overdue Rate.
(d) Subject to Section 6.11, the Holder of any Secured Note shall be
entitled to the principal of, and Make-Whole Amount, if any, and interest on
such Secured Note free from all rights of set-off or counterclaims of the Owner
Trustee, the Indenture Trustee or any prior Holder of such Secured Note.
Nothing set forth in this Section 2.03(d) shall impair the right of the Owner
Trustee to receive a return from the Indenture Trustee of any amount
unintentionally overpaid by the Owner Trustee in respect of a Secured Note.
SECTION 2.04. Note Register. The Indenture Trustee shall cause to be
-------------
kept at the Corporate Indenture Trustee's corporate trust office a register (the
"Note Register") for the registration or transfer of the Secured Notes. The
-------------
Note Register shall be maintained by the Corporate Indenture Trustee, and the
names and addresses of the registered Holders of the Secured Notes, the
transfers of the Secured Notes and the names and addresses of the transferees of
the Secured Notes shall be entered in the Note Register under such reasonable
regulations as the Corporate Indenture Trustee may prescribe. Each Loan
Participant shall be provided reasonable opportunities to inspect the Note
Register from time to time.
SECTION 2.05. Registered Owners. The Owner Trustee and the Indenture
-----------------
Trustee may deem and treat any registered Holder as the absolute owner of any
Secured Note held by such Holder, as indicated in the Note Register, for the
purpose of receiving payment of all amounts payable with respect to such Secured
Note and for all other purposes, and neither the Owner Trustee nor the Indenture
Trustee shall be affected by any notice to the contrary. All such payments so
made shall be valid and effectual to satisfy and discharge the liability of the
Owner Trustee upon such Secured Note to the extent of the sum or sums so paid.
SECTION 2.06. Transfer, Exchange and Replacement of Notes. (a)
-------------------------------------------
Secured Notes may be transferred only on the Note Register. Any Secured Note
may be transferred on the Note Register if such Secured Note is surrendered for
cancellation at the corporate trust office of the Corporate Indenture Trustee
and is accompanied by an instrument of transfer in form and substance reasonably
satisfactory to
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the Corporate Indenture Trustee, which Secured Note or Secured Notes shall be
cancelled by the Indenture Trustee. A new Secured Note or Secured Notes of the
same series, duly executed by the Owner Trustee and registered in the name of
the transferee or transferees in a principal amount or amounts equal to the
principal amount of such transferred Secured Note, shall be duly authenticated
and delivered by the Corporate Indenture Trustee to the transferee or
transferees named by the Holder of such transferred Secured Note in exchange for
such transferred Secured Note. Promptly after registration of the transfer of
any Secured Note, the Corporate Indenture Trustee shall give notice thereof to
the Lessee and the Owner Trustee specifying the name and address for notices of
the transferee or transferees.
(b) Any Secured Note may be exchanged for a new Secured Note if such
Secured Note to be so exchanged is/are surrendered for cancellation at the
corporate trust office of the Corporate Indenture Trustee and are accompanied by
the request of the Holder thereof specifying the denomination of the new Secured
Note (which shall be in denominations of at least $1,000 or if less, the then
unpaid principal amount thereof) to be issued in exchange therefor. Upon
instructions from the Indenture Trustee, the Owner Trustee shall deliver to the
Indenture Trustee a new Secured Note of the same series, duly executed by the
Owner Trustee and registered in the name of such Holder in the denominations so
requested and in an aggregate principal amount equal to the aggregate original
principal amount of such Secured Note to be so exchanged, and such new Secured
Note shall be duly authenticated by the Corporate Indenture Trustee and
delivered by the Indenture Trustee to such Holder in exchange for such Secured
Note to be so exchanged, which Secured Note shall be cancelled by the Indenture
Trustee.
(c) If any Secured Note shall become mutilated or be destroyed, lost
or stolen, upon request of the Holder thereof, a new Secured Note of the same
series, duly executed by the Owner Trustee and registered in the name of such
Holder in the same original principal amount as the Secured Note so mutilated,
destroyed, lost or stolen, shall be duly authenticated and delivered by the
Corporate Indenture Trustee to such Holder in exchange for such Secured Note, if
mutilated, or in substitution for such Secured Note, if destroyed, lost or
stolen. In the case of a mutilated Secured Note, such Secured Note shall be
surrendered for cancellation at the corporate trust office of the Corporate
Indenture Trustee and shall be cancelled by the Indenture Trustee. In the case
of a destroyed, lost or stolen Secured Note, the Holder thereof shall furnish to
the Owner Trustee and the Indenture Trustee (i) evidence to their reasonable
satisfaction of the destruction, loss or
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theft of such Secured Note and ownership thereof, and (ii) such security or
indemnity as may be reasonably required by them to save them harmless; provided
--------
that if the affected Holder is a Pass Through Trustee, the written agreement of
such Holder to indemnify the Owner Trustee and the Indenture Trustee (in their
respective individual and trust capacities) with respect to such destroyed, lost
or stolen Secured Note, together with written notice of ownership and
destruction, loss or theft thereof, shall satisfy the conditions of this
sentence.
SECTION 2.07. New Notes; Payment of Expenses. (a) Each new Secured
------------------------------
Note (a "New Note") issued pursuant to Section 2.06 upon transfer of, in
--------
exchange for or in substitution for a Secured Note (an "Old Note") shall be
--------
dated as of the date of such Old Note. The Indenture Trustee shall mark on each
New Note (i) the date to which principal and interest have been paid on the
applicable Old Note and (ii) all payments and prepayments of principal made on
such Old Note which are allocable to such New Note. Interest shall be deemed to
have been paid on such New Note to the date to which interest was paid on the
applicable Old Note, and all payments and prepayments of principal required to
have been marked on such New Note, as provided in clause (ii) of the preceding
sentence, shall be deemed to have been made thereon. All New Notes issued
pursuant to Section 2.06 in exchange for or in substitution for or in lieu of
Old Notes shall be valid obligations of the Owner Trustee evidencing the same
debt as such Old Notes and shall be entitled to the benefits and security of
this Indenture to the same extent as such Old Notes. Issuance of any New Note
shall not for any purposes be deemed a further advance of funds to the Owner
Trustee and the perfection and priority of the security interest in the
Indenture Estate applicable to such New Note shall for all purposes be the same
as that applicable to the Secured Note replaced by such New Note.
(b) Upon the issuance of a New Note or New Notes pursuant to Section
2.06, the Owner Trustee and/or the Indenture Trustee may require from the party
requesting such New Note or New Notes payment of a sum to reimburse the Owner
Trustee and/or the Indenture Trustee for, or to provide funds for, the payment
of any tax or other governmental charge or any other charge or expense paid or
payable with respect to such transfer by the Owner Trustee or the Indenture
Trustee, without any right of reimbursement under any Operative Document with
respect to such payments.
SECTION 2.08. Additional Notes. (a) So long as no Lease Event of
----------------
Default or Indenture Event of Default shall have occurred and be continuing,
Additional Notes of one or more series may be issued under and secured by this
Indenture at any time or from time to time, subject to the conditions
hereinafter provided in this Section 2.08, for
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<PAGE>
the purpose of financing the Lessor's Share of the cost of any Non-Severable
Modification or any Severable Modification required by law to the Production
System as provided in Section 14 of the Participation Agreement.
(b) Prior to the issuance of any Additional Notes of any series
pursuant to this Section 2.08, the Owner Trustee shall have received from the
Owner Participant and delivered to the Indenture Trustee, not less than thirty
(30) days prior to the proposed date of issuance of such Additional Notes, a
request and authorization to issue Additional Notes (a "Request"), which Request
-------
shall include the amount and series of such Additional Notes, the proposed date
of issuance of such Additional Notes, and other details with respect thereto
which are not inconsistent with this Section 2.08. Such Additional Notes shall
have a designation so as to distinguish such Additional Notes from the Initial
Secured Notes and Additional Notes of any other series, but otherwise shall be
substantially similar in form to the Initial Secured Notes, with such omissions
therefrom, variations therein and additions thereto as shall be appropriate.
Such Additional Notes shall not rank senior in any respect to other Secured
Notes issued pursuant to the terms hereof.
(c) The terms, conditions and designations of such Additional Notes
(which shall be consistent with the Request and with the terms of this Indenture
and of the Participation Agreement) shall be set forth in a supplement to this
Indenture, substantially in the form of Exhibit D, which shall be executed by
the Owner Trustee and the Indenture Trustee. Such indenture supplement shall
set forth:
(i) after giving effect to the issuance of the Additional
Notes, the aggregate principal amount outstanding of all Secured Notes which
shall not exceed 85% of the total Fair Market Value of the Undivided Interest
(as determined pursuant to the Appraisal Procedure) after giving effect to such
Modifications;
(ii) the text of such Additional Notes (which, except for the
terms of payment thereof, shall be of substantially the same effect as the text
of the Initial Secured Notes set forth in this Indenture, with such changes as
are consistent with and permitted by this Indenture and which in all events
shall provide that such Additional Notes are never more than pari passu in
priority of payment, in right of security and in all other respects with the
Initial Secured Notes);
(iii) the date of maturity of such Additional Notes (which shall
be no later than the end of the Basic Lease Term);
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<PAGE>
(iv) the date from which, and the date or dates on which,
interest is payable (which shall be Interest Payment Dates);
(v) the terms for the repayment of the principal amount of such
Additional Notes (each regularly scheduled payment of principal shall be an
Interest Payment Date);
(vi) the terms, if any, as to prepayment or redemption of such
Additional Notes at the option of the Owner Trustee, and as to the premium, if
any, payable on any redemption or prepayment of such Additional Notes; and
(vii) any other terms and agreements in respect thereof provided
or permitted by this Trust Indenture or necessary to specify the terms and
conditions on which such Additional Notes shall be issued.
(d) Such Additional Notes shall be executed by the Owner Trustee as
provided in Section 2.01 and deposited with the Corporate Indenture Trustee for
authentication and delivery, but before such Additional Notes shall be
authenticated and delivered by the Corporate Indenture Trustee, there shall be
delivered to or deposited with the Corporate Indenture Trustee the following:
(i) the Request;
(ii) such supplement to this Indenture, duly executed by the
Owner Trustee;
(iii) a supplement to the Lease, duly authorized, executed and
delivered by the Lessee and the Owner Trustee, providing for adjustments to the
Basic Rent Percentages, Stipulated Loss Value Percentages and Termination Value
Percentages, and the definition of Lessor's Cost under the Lease required to
ensure that payments of such amounts will be adequate to provide for payments
required hereunder and under the Secured Notes, after giving effect to the
issuance of such Additional Notes, together with such instruments of conveyance,
assignment and transfer, if any, necessary to subject such supplement to the
Lease to the Lien and security interest of this Indenture and to perfect such
Lien and security interest subject to no Liens other than Permitted Liens, and
evidence as to the due recording or filing of each thereof or of financing or
similar statements with respect thereto;
(iv) such instruments of conveyance, assignment and transfer
(including, without limitation, contractors' waivers) duly executed and
delivered by the respective parties thereto, and such evidence of the due filing
thereof or of financing statements with respect
15
<PAGE>
thereto, as may be required to convey to the Owner Trustee all property included
in the Lessor's Share of such Modification, if any, and to subject such property
to the Lien of this Indenture, subject to no Liens except Permitted Liens;
(v) originals or certified copies of all corporate actions
necessary for the due and valid issue of such Additional Notes, the due and
valid authorization, execution, delivery and performance by the Owner Trustee of
the supplement to this Indenture relating thereto, and the due and valid
authorization, execution, delivery and performance by the Lessee and the Owner
Trustee of the supplement to the Lease and the creation of the Lien and security
interest thereon referred to above, all of which corporate actions shall have
been duly obtained and shall be in full force and effect; together with evidence
as to the due occurrence of all such authorization, execution, delivery and
performance;
(vi) documentation, duly executed and delivered by the respective
parties thereto whereby the proposed holders of the Additional Notes agree to be
bound by the terms of the Operative Documents (including, without limitation,
representations and covenants corresponding to those contained in Section 7 of
the Participation Agreement);
(vii) an Officer's Certificate of the Lessee certifying (a) as
to the cost of the Lessor's Share of such Modification and (b) that all
conditions precedent to the issuance of the Additional Notes contained in this
Section 2.08 and in Section 14 of the Participation Agreement have been
satisfied unless such conditions have been waived in writing by the Indenture
Trustee and Owner Trustee; and
(viii) such opinions of counsel as are customary in transactions
of this type, including, without limitation, opinions as to the due
authorization, execution, delivery and enforceability and the creation and
perfection of the security interest in the Lessor's Share of such Modification
(subject to usual or customary exceptions, qualifications and assumptions) of
such supplement to this Indenture and such Additional Notes, and such other
certi ficates and other documents as may be reasonably requested by the
Indenture Trustee to evidence the validity and binding effect of such supplement
to this Indenture and such Additional Notes and compliance with this Section
2.08.
(e) When the documents referred to in Section 2.08(d) shall have been
delivered to or deposited with the Indenture Trustee and when such Additional
Notes described in the Request and the supplement to this Indenture have been
executed by the Owner Trustee as required by this
16
<PAGE>
Indenture, the Corporate Indenture Trustee shall authenticate and deliver such
Additional Notes in the manner described in such Request, but only upon payment
to the Owner Trustee of the sum or sums specified in such Request, whereupon the
Owner Trustee shall pay such sum or sums to the Lessee.
SECTION 2.09. Termination of Interest in Indenture Estate. A Holder
-------------------------------------------
shall have no further interest in, or other right with respect to, the Indenture
Estate upon the payment of principal of, Make-Whole Amount, if any, and interest
on, any Secured Notes held by such Holder and all other sums payable to such
Holder hereunder with respect to any such Secured Notes, under the other
Operative Documents and under such Secured Notes.
SECTION 2.10. Equally and Ratably Secured. Except as otherwise
---------------------------
expressly provided in this Indenture, all Secured Notes at any time Outstanding
under this Indenture shall be equally and ratably secured by this Indenture
without preference, priority or distinction on account of the series, date, time
of issue or maturity of such Secured Notes. All Additional Notes at any time
Outstanding under this Indenture shall be equally and ratably secured by this
Indenture without preference, priority or distinction on account of the series,
date, time of issue or maturity of such Additional Notes.
ARTICLE III
REDEMPTION AND REFUNDING
SECTION 3.01. Generally. The Secured Notes may not be redeemed or
---------
prepaid except to the extent and in the manner expressly permitted or required
by this Indenture. Except as otherwise expressly provided in this Indenture,
any amount prepaid in partial redemption of the Secured Notes Outstanding shall
be distributed by the Indenture Trustee to all Holders ratably, without priority
of any Holder or any series over any other Holder or any other series, in the
proportion that the principal amount of Secured Notes held by such Holder bears
to the principal amount of all Secured Notes then Outstanding.
SECTION 3.02. Mandatory Redemption. (a) Casualty Redemption. In
-------------------- -------------------
the event that an Event of Loss shall occur with respect to the Production
System or a Significant Portion thereof then, unless, in the case of an Event of
Loss with respect to such a Significant Portion where such Significant Portion
is rebuilt or replaced pursuant to Section 12.2 of the Lease or the Lessee has
elected to purchase the Undivided Interest pursuant to Section 6.1(f) of the
Lease, the Owner Trustee shall redeem
17
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on the date on which Stipulated Loss Value is paid pursuant to the Lease (the
date of any redemption under this Section 3.02(a) being herein called a
"Casualty Redemption Date") (i) if the Event of Loss shall have occurred with
------------------------
respect to the Production System, the entire unpaid principal amount of the
Secured Notes Outstanding on such Casualty Redemption Date, at a redemption
price equal to 100% of such unpaid principal amount of such Secured Notes,
together with any accrued and unpaid interest thereon to such Casualty
Redemption Date and without Make-Whole Amount or any other premium and (ii) if
the Event of Loss shall have occurred with respect to a Significant Portion of
the Production System, such of the unpaid principal amount of the Secured Notes
of each series Outstanding on such Casualty Redemption Date (assuming, only for
purposes of this calculation, that if such Casualty Redemption Date is
coincident with an Installment Payment Date or a Maturity Date, the scheduled
principal payment due, if any, on such Casualty Redemption Date on the Secured
Notes of such series is paid prior to the time the Redemption Price is
calculated pursuant to this Section 3.02(a)(ii) and applied to principal in
accordance with Section 4.01) as shall be equal to the product of (x) the entire
unpaid principal amount of the Secured Notes of such series Outstanding on such
Casualty Redemption Date (assuming, only for purposes of this calculation, that
if such Casualty Redemption Date is coincident with an Installment Payment Date
or a Maturity Date, the scheduled principal payment due, if any, on such
Casualty Redemption Date on the Secured Notes of such series is paid prior to
the time the Redemption Price is calculated pursuant to this Section 3.02(a)(ii)
and applied to principal in accordance with Section 4.01) and (y) a fraction,
the numerator of which shall be the Original Cost of the Significant Portion of
the Undivided Interest suffering such Event of Loss and the denominator of which
shall be Lessor's Cost, at a redemption price equal to 100% of such unpaid
principal amount of the Secured Notes of such series to be redeemed on such
Casualty Redemption Date pursuant to the terms of this Section 3.02(a)(ii),
together with any accrued and unpaid interest thereon to such Casualty
Redemption Date (assuming, only for purposes of this calculation, that if such
Casualty Redemption Date is coincident with an Interest Payment Date, the
interest due on such Interest Payment Date is paid prior to the time the
Redemption Price is calculated pursuant to this Section 3.02(a)(ii) and applied
to interest in accordance with Section 4.01) and without Make-Whole Amount or
any other premium; provided that each Holder of a Secured Note of such series
--------
shall receive, as to the principal thereof, the same portion of such Redemption
Price of such series in its entirety as the principal value of such Secured Note
at such Casualty Redemption Date represents of the total value of the principal
value of all Secured Notes of such series at such Casualty Redemption Date.
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(b) Early Termination Redemption. In the event that the Lease is
----------------------------
terminated with respect to the Undivided Interest or a Significant Portion
thereof pursuant to Section 7 of the Lease, the Owner Trustee shall redeem on
the applicable Termination Date (the date of any redemption under this Section
3.02(b) being herein called a "Termination Redemption Date") (i) if the
---------------------------
termination is with respect to the Undivided Interest, the entire unpaid
principal amount of the Secured Notes Outstanding on such Termination Redemption
Date, at a redemption price equal to 100% of such unpaid principal amount of
such Secured Notes, together with any accrued and unpaid interest thereon to
such Termination Redemption Date plus, in the case of each Secured Note,
redeemed prior to the Premium Termination Date applicable to such Secured Note,
a premium, equal to the Make-Whole Amount, if any, with respect to such Secured
Note and otherwise without premium and (ii) if the termination is with respect
to a Significant Portion of the Undivided Interest, such of the unpaid principal
amount of the Secured Notes of each series Outstanding on such Termination
Redemption Date (assuming, only for purposes of this calculation, that if such
Termination Redemption Date is coincident with an Installment Payment Date or a
Maturity Date, the scheduled principal payment due, if any, on such Termination
Redemption Date on the Secured Notes of such series is paid prior to the time
the Redemption Price is calculated pursuant to this Section 3.02(b)(ii) and
applied to principal in accordance with Section 4.01) as shall be equal to the
product of (x) the entire unpaid principal amount of the Secured Notes of such
series Outstanding on such Termination Redemption Date (assuming, only for
purposes of this calculation, that if such Termination Redemption Date is
coincident with an Installment Payment Date or a Maturity Date, the scheduled
principal payment due, if any, on such Termination Redemption Date on the
Secured Notes of such series is paid prior to the time the Redemption Price is
calculated pursuant to this Section 3.02(b)(ii) and applied to principal in
accordance with Section 4.01) and (y) a fraction, the numerator of which shall
be the Original Cost of such Significant Portion and the denominator of which
shall be Lessor's Cost, at a redemption price equal to 100% of the unpaid
principal amount of the Secured Notes of such series to be redeemed on such
Termination Redemption Date pursuant to the terms of this Section 3.02(b)(ii),
together with any accrued and unpaid interest thereon to such Termination
Redemption Date (assuming, only for purposes of this calculation, that if such
Termination Redemption Date is coincident with an Interest Payment Date, the
interest due on such Interest Payment Date is paid prior to the time the
Redemption Price is calculated pursuant to this Section 3.02(b)(ii) and applied
to interest in accordance with Section 4.01) plus, in the case of a redemption
pursuant to this Section 3.02(b)(ii) prior to the Premium Termination Date
applicable
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<PAGE>
to such Secured Note, a premium, equal to the Make-Whole Amount, if any, with
respect to the portion of such Secured Note which is to be so redeemed and
otherwise without premium; provided that each Holder of a Secured Note of such
--------
series shall receive, as to the principal thereof, the same portion of such
Redemption Price of such series in its entirety as the principal value of such
Secured Note at such Termination Redemption Date represents of the total value
of the principal value of all Secured Notes of such series at such Termination
Redemption Date.
(c) Purchase Redemption. (i) In the event that the Lessee shall
-------------------
purchase the Undivided Interest pursuant to Section 6.1(c), 6.1(d), 6.1(e) or
6.1(f) of the Lease prior to the date of expiration of the Basic Lease Term, and
the Lessee shall not have assumed the obligations of the Owner Trustee under the
Secured Notes pursuant to Section 11.6 of the Participation Agreement or
purchased the Beneficial Interest pursuant to Sections 16.1 and 16.2 of the
Participation Agreement, the Owner Trustee shall redeem on the date of purchase
(the date of any redemption under this Section 3.02(c) being herein called a
"Purchase Redemption Date"), the entire unpaid principal of the Secured Notes
------------------------
Outstanding on such Purchase Redemption Date at a redemption price equal to 100%
of the unpaid principal amount of the Secured Notes together with any accrued
and unpaid interest thereon to such Purchase Redemption Date plus, in the case
of each Secured Note redeemed (other than a redemption pursuant to this Section
3.02(c) in connection with the exercise by the Lessee of its purchase option
under Section 6.1(f) of the Lease) prior to the Premium Termination Date
applicable to such Secured Note, a premium equal to the Make-Whole Amount, if
any, with respect to such Secured Note and otherwise without premium.
SECTION 3.03. [Intentionally Omitted].
---------------------
SECTION 3.04. Assumption of Obligations of the Owner Trustee by the
-----------------------------------------------------
Lessee. In the event that the Lessee shall have elected to assume all of the
- ------
rights and obligations of the Owner Trustee under this Indenture in respect of
the Secured Notes in connection with the purchase by the Lessee of the Undivided
Interest pursuant to Section 6.1 of the Lease or pursuant to Section 16.2(d) of
the Participation Agreement (the date of any such assumption being referred to
hereinafter as the "Relevant Date") and, if on or prior to the Relevant Date:
-------------
(a) the Lessee shall have delivered to the Indenture Trustee an
Officer's Certificate of the Lessee, dated the Relevant Date, stating that
the Lessee has paid to the Owner Trustee all amounts required to be paid to
the Owner Trustee pursuant to
20
<PAGE>
the Lease, in connection with such purchase or termination and assumption;
(b) no Indenture Event of Default after giving effect to the Relevant
Amendment (as defined below) shall have occurred and be continuing
immediately subsequent to such purchase or termination, or assumption and
the Indenture Trustee shall have received an Officer's Certificate, dated
the Relevant Date, of the Lessee to such effect;
(c) the Indenture Trustee shall have received a supplement to this
Indenture, substantially in the form of Exhibit E (the "Relevant Date
-------------
Supplement"), duly executed by the Lessee, which shall provide that the
----------
Lessee agrees that it is acquiring, subject to the security interest and
Lien thereon granted to the Indenture Trustee under this Indenture and the
Ship Mortgage, the Undivided Interest, as provided in Section 2 of the form
of Relevant Date Supplement attached as Exhibit E;
(d) the Indenture Trustee shall have received, on or prior to the
Relevant Date, evidence of all filings, recordings and other action
referred to in the opinion of counsel referred to below;
(e) the Guarantor shall have entered into a guaranty substantially in
the form of Exhibit F (the "Relevant Guaranty"); and
-----------------
(f) the Indenture Trustee shall have received opinions of counsel as
are customary for transactions of this type, subject to usual or customary
qualifications, exceptions and assumptions, and shall include opinions,
subject to such qualifications, exceptions and assumptions, to the effect
that, after giving effect to the Relevant Amendment (as defined below):
(i) on the Relevant Date, this Indenture, as supplemented by the
Relevant Date Supplement and as amended by the Relevant Amendment and
the Secured Notes issued thereunder constitute the legal, valid and
binding obligations of the Lessee, enforceable against the Lessee in
accordance with their terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by
general principles of equity, and except as limited by applicable laws
which may affect the remedies provided for in this Indenture as so
supplemented, which laws, however, do not in the
21
<PAGE>
opinion of such counsel make the remedies provided for in this
Indenture inadequate for the practical realization of the rights and
benefits provided for in this Indenture as so supplemented;
(ii) on the Relevant Date, the Relevant Guaranty constitutes the
legal, valid and binding obligation of the Guarantor, enforceable
against the Guarantor in accordance with its terms, except as the same
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally
and by general principles of equity; and
(iii) the Lien of this Indenture on the Undivided Interest has
been accomplished and creates a security interest in the Indenture
Estate and all filings and recordings and other action necessary or
appropriate to perfect the interests of the Indenture Trustee have
been accomplished;
then, simultaneously with the delivery of such documents, the Indenture Trustee
shall execute and deliver the Relevant Date Supplement, and automatically and
without the requirement of further action by any Person, effective as of the
Relevant Date:
(x) this Indenture shall be deemed to have been amended as provided
for in Exhibit C hereto (the "Relevant Amendment"); and
------------------
(y) the Owner Trustee shall be released from all of its obligations
under this Indenture in respect of the Secured Notes or otherwise (other
than any obligations or liabilities of the Owner Trustee in its or his
individual capacity incurred on or prior to the Relevant Date or arising
out of or based upon events occurring on or prior to the Relevant Date,
which obligations and liabilities shall remain the sole responsibility of
the Owner Trustee) and there shall be immediately distributed any funds
then being retained hereunder that are distributable to the Owner Trustee
or the Owner Participant.
SECTION 3.05. Refunding. (a) Subject to the terms of Section 15 of
---------
the Participation Agreement, the Owner Trustee from time to time may after
January 2, 2001, take such steps as may be necessary to refund or refinance in
whole all Outstanding Secured Notes at the redemption price equal to 100% of the
unpaid principal amount of the Secured Notes to be redeemed pursuant to this
Section 3.05, together with any accrued and unpaid interest thereon to the date
of redemption plus, in the case of each Secured Note
22
<PAGE>
redeemed prior to the Premium Termination Date applicable to such Secured Note,
a premium equal to the Make-Whole Amount, if any, with respect to such Secured
Note and otherwise without premium.
(b) The terms, conditions and designations of any such Refunding
Secured Notes (to the extent not inconsistent with this Indenture) shall be set
forth in a supplement to this Indenture reasonably satisfactory to the Indenture
Trustee (a "Refunding Indenture") which shall be executed by the Owner Trustee
-------------------
and the Indenture Trustee.
(c) The Corporate Indenture Trustee shall authenticate and deliver
Refunding Secured Notes in accordance with the provisions of any Refunding
Indenture upon receipt by the Indenture Trustee of the following:
(i) a counterpart of the applicable Refunding Indenture duly executed
by the Owner Trustee; and
(ii) any opinions, certificates or additional documents as reasonably
shall be required to be delivered to or deposited with the Indenture
Trustee by the applicable Refunding Indenture, Section 15 of the
Participation Agreement or for transactions of this type.
SECTION 3.06. Owner Trustee's and Owner Participant's Option to
-------------------------------------------------
Redeem or Purchase Secured Notes. In the event that (a) at any time one or more
- --------------------------------
Lease Events of Default shall have occurred and any such Lease Event of Default
shall have continued for a period of less than 270 days, during which time the
Secured Notes could but shall not have been accelerated pursuant to Section
5.04, or (b)(i) the Indenture Trustee has given the Owner Trustee or the Owner
Participant notice of the intent to accelerate the Secured Notes pursuant to
Section 5.04, (ii) the Secured Notes shall have been accelerated pursuant to
Section 5.04 or (iii) at any time one or more Lease Events of Default shall have
occurred and any such Lease Event of Default shall have continued for a period
of 270 days or more during which time the Secured Notes could, but shall not
have been, accelerated pursuant to Section 5.04, the Owner Trustee or the Owner
Participant may, at its option, give at least 30 days' prior irrevocable notice
to the Indenture Trustee that it will redeem (or purchase in lieu of redemption)
all Secured Notes then Outstanding, which redemption or purchase shall be at a
redemption or purchase price equal to 100% of the unpaid principal amount of
such Secured Notes, together with any accrued and unpaid interest thereon, plus
in the case of any redemption or purchase pursuant to clause (a) above prior to
the Premium Termination Date with respect to any Secured Note a premium equal to
the Make-Whole Amount, if any, with respect to such Secured Note but otherwise
23
<PAGE>
without premium and on or prior to the Business Day preceding such Redemption
Date, the Owner Trustee or the Owner Participant will deposit with the Indenture
Trustee an amount sufficient to redeem or purchase at the applicable Redemption
Price all Secured Notes then Outstanding (including, in the case of a redemption
or purchase pursuant to clause (a) above, a good faith estimate of the premium
computed as provided for herein) plus an amount equal to all other sums then due
and payable to a Loan Participant hereunder, and to pay the Indenture Trustee
all amounts then due it hereunder, which funds shall be held by the Indenture
Trustee as provided in Section 7.04. Upon the giving of such notice and the
receipt by the Indenture Trustee of such deposit, the Indenture Trustee shall
deem all instructions received from the Owner Trustee or the Owner Participant
as having been given by the Loan Participants of 100% of the Outstanding
principal amount of Secured Notes for all purposes of this Indenture. If such
notice is given, the Owner Trustee further agrees that it will deposit or cause
to be deposited with the Indenture Trustee, on or prior to the Business Day
preceding the applicable Redemption Date, whether or not an Indenture Event of
Default is then continuing, funds sufficient, when added to the funds already
held by the Indenture Trustee for such purpose, to redeem or purchase at the
applicable Redemption Price (including the premium actually payable in respect
thereof computed as provided for herein), on such Redemption Date all Secured
Notes then Outstanding to pay all other sums then due and payable to a Loan
Participant hereunder and to pay the Indenture Trustee all amounts then due it
hereunder. In the event the Owner Trustee shall have given any such notice to
purchase or redeem, unless the Owner Trustee shall have consented thereto, the
Indenture Trustee shall not during the period from such notice to the Redemption
Date specified therein institute any new remedy or proceeding in respect of any
new remedy under this Indenture, and the Indenture Trustee shall, to the extent
the same may be accomplished without prejudicing the rights of the Indenture
Trustee hereunder, take such actions and forbear from taking actions, in each
case sufficient to maintain the status quo with respect to any pending remedies
------ ---
or proceedings in respect thereof being then pursued hereunder; provided,
--------
however, that in no event shall the Indenture Trustee sell or assign any portion
- -------
of the Indenture Estate during the period from such notice to the Redemption
Date specified therein. In the event the Owner Trustee shall have given any
such notice to purchase or redeem, and the Owner Trustee has deposited with the
Indenture Trustee the amounts required to be deposited pursuant to this Section
3.06, then on the Redemption Date, each Loan Participant will be deemed to sell,
assign, transfer and convey to the Owner Trustee or its designee (without
recourse or warranty of any kind other than of title to the Secured Notes so
conveyed) all of the right, title and interest of such Loan Participant in and
to
24
<PAGE>
the Secured Notes held by such Loan Participant. On and after such Redemption
Date, the Indenture Trustee shall no longer treat the former Loan Participants
as the "Loan Participants", except for purposes of the Loan Participants' right
to receive their respective portions of the amounts paid to the Indenture
Trustee as aforesaid and all other amounts due to such Loan Participants under
the Operative Documents with respect to acts, events, circumstances or
conditions occurring or existing prior to such Redemption Date, and on such date
the Corporate Indenture Trustee shall register the transfer of ownership of the
Secured Notes into the name of the Owner Trustee or its designee. If the Owner
Trustee elects to purchase the Secured Notes under this Section 3.06, nothing
herein, including the use of the terms "Redemption Date" and "Redemption Price",
shall be deemed to result in a redemption of the Secured Notes.
SECTION 3.07. Deposited Redemption or Purchase Moneys. Moneys held
---------------------------------------
by the Indenture Trustee for the redemption or purchase of any Secured Note
issued hereunder as provided in this Article III shall be held by the Indenture
Trustee as a separate fund in trust for the account of the respective Holders of
the Secured Notes to be redeemed, shall be invested in accordance with the
provisions of Section 7.04 and shall be delivered to them respectively in
accordance with Section 2.03 on the Redemption Date. Any amounts so held by the
Indenture Trustee shall be deemed paid for purposes of Section 2.09, and
promptly after payment of all amounts of principal of, Make-Whole Amount, if
any, and interest on, and all other amounts due and payable under any such
Secured Notes, the Holders thereof shall deliver such Secured Notes to the
Indenture Trustee for cancellation.
SECTION 3.08. Acquisition of Secured Notes. The Owner Trustee
----------------------------
covenants that it will not, directly or indirectly, acquire or make any offer to
acquire any Secured Note except pursuant to the provisions of this Indenture.
SECTION 3.09. Condition to Redemption and Refunding. It shall be a
-------------------------------------
condition to any redemption, refinancing or refunding of Secured Notes effected
under this Article III other than under Section 3.06 that all amounts of
principal of, Make-Whole Amount, if any, and interest on, and all other amounts
then due and payable under the Secured Notes which are to be the subject of such
redemption, refinancing or refunding, as the case may be, as well as all other
amounts due and payable to the Holders of such Secured Notes as are to be the
subject of such redemption, refinancing or refunding shall have been paid as
specified therein or in any other Operative Document.
SECTION 3.10. Notice of Certain Redemptions. In connection with a
-----------------------------
redemption of any of the Secured Notes
25
<PAGE>
pursuant to Section 3.02 or Section 3.05, the Owner Trustee shall give
irrevocable (except with respect to redemption notices given pursuant to Section
3.02(a), Section 3.02(b) or Section 3.02(c) (to the extent, in the case of
Section 3.02(c), such redemption notice relates to the Lessee's election to
exercise a purchase option under Section 6.1(d), (e) or (f) of the Lease) which
may be withdrawn, in the case of such a redemption notice given pursuant to
3.02(a) following the occurrence of an Event of Loss with respect to a
Significant Portion of the Production System, if the Lessee has elected (or
shall be deemed to have elected) the option set forth in Section 12.2(b)(ii) of
the Lease with respect to such Event of Loss or shall have elected the purchase
option set forth in Section 6.1(f) of the Lease and, in the case of such a
redemption notice given pursuant Section 3.02(b) or 3.02(c), if the Lease is not
terminated with respect to the Undivided Interest or, if applicable, the
Significant Portion thereof) notice of such redemption at least 25 days and not
more than 60 days prior to the Redemption Date to each Loan Participant of such
Secured Notes to be redeemed, at such Loan Participant's address appearing in
the Note Register.
Any such notice of redemption shall state:
(i) the Redemption Date (which shall be a monthly anniversary of a
Basic Rent Payment Date);
(ii) the applicable basis for determining the redemption price
pursuant to Section 3.02 or Section 3.05 (the "Redemption Price");
----------------
(iii) that on the Redemption Date, the Redemption Price will become
due and payable upon each such Secured Note, and that, if any such Secured
Notes are then Outstanding, interest on such Secured Notes shall cease to
accrue on and after such Redemption Date; and
(iv) the place or places where such Secured Notes are to be
surrendered for payment of the Redemption Price.
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE INDENTURE ESTATE
SECTION 4.01. Basic Rent Distribution. (a) Generally. Except as
----------------------- ---------
otherwise provided in Sections 4.01(c) and 4.03, each installment of Basic Rent
(other than any portion thereof constituting an Excepted Payment), any payment
of the Advance Amount, any payment received from the Owner Participant pursuant
to Section 11.1(i) of the
26
<PAGE>
Participation Agreement, any payment of Supplemental Rent representing interest
on overdue installments of Basic Rent (other than any portion thereof
constituting an Excepted Payment) and any payment received by the Indenture
Trustee as contemplated by Section 5.03 shall be promptly distributed by the
Indenture Trustee on the date such payment is due from the Lessee (or as soon
thereafter as such payment shall be received by the Indenture Trustee) in the
following order of priority:
first, in accordance with Section 4.04, so much of such installment or
-----
payment as shall be required to pay in full the aggregate amount of the
payment or repayment of principal, interest and other amounts then due
under all Secured Notes shall be distributed to the Holders of such Secured
Notes ratably, without priority of one Holder over any other Holder, in the
proportion that the amount of such payment or payments then due under each
such Secured Note bears to the aggregate amount of the payments then due
under all such Secured Notes; and
second, subject to Section 4.01(c), the balance, if any, of such
------
installment remaining thereafter shall be distributed to the Owner Trustee
for distribution pursuant to the Trust Agreement.
(b) Application of Certain Amounts Held by the Indenture Trustee upon
-----------------------------------------------------------------
Certain Defaults. If as a result of any default by the Lessee or the Owner
- ----------------
Participant in the performance of its obligations under any Operative Document,
the Indenture Trustee shall not have received for distribution on any Basic Rent
Payment Date (or the Indenture Trustee shall be prevented from distributing on
such date) the full amount then distributable pursuant to clause "first" of
-----
Section 4.01(a), the Indenture Trustee shall, if Section 4.03 is not applicable
but subject in any case to any restrictions contained in Section 4.05,
distribute other amounts of the character referred to in Section 4.05 then held
by it or thereafter received by it to the Holders to the extent necessary to
make all distributions then due pursuant to such clause "first".
-----
(c) Retention of Amounts by the Indenture Trustee. If, at the time
---------------------------------------------
of receipt by the Indenture Trustee of an installment of Basic Rent (whether or
not then overdue) or of payment of Supplemental Rent representing interest on
any overdue installment of Basic Rent, the Indenture Trustee shall have Actual
Knowledge that there shall have occurred and be continuing an Indenture Event of
Default, the Indenture Trustee shall retain and not distribute any amount
otherwise required to be distributed
27
<PAGE>
pursuant to clause "second" of Section 4.01(a), and (i) at such time as there
------
shall not be continuing any such Indenture Event of Default or (ii) on the first
Business Day occurring more than 180 days after the receipt of such amount,
whichever shall first occur, the Indenture Trustee shall distribute such amount
pursuant to clause "second" of Section 4.01(a) unless prior thereto the
------
Indenture Trustee (as assignee of the Owner Trustee) shall have given notice to
declare the Lease to be in default in accordance with Section 16.1 thereof, the
Indenture Trustee shall have given notice to the Owner Trustee pursuant to the
first proviso to Section 5.04 of the Indenture Trustee's intent to declare the
Secured Notes due and payable or any of the Secured Notes shall have been
declared or otherwise shall have become immediately due and payable pursuant to
Section 5.04, in which case such amount shall be distributed by the Indenture
Trustee forthwith in accordance with the terms of Section 4.03.
SECTION 4.02. Certain Distributions. (a) Any payment received by
---------------------
the Indenture Trustee (i) pursuant to Section 12 of the Lease as a result of the
occurrence of an Event of Loss with respect to the Production System or a
Significant Portion thereof, (ii) pursuant to Section 6 of the Lease as a result
of the sale of the Undivided Interest, (iii) upon the termination of the Lease
with respect to the Undivided Interest or a Significant Portion thereof pursuant
to Section 7 of the Lease or (iv) pursuant to Section 3.05, shall be distributed
forthwith in the following order of priority:
first, in the manner provided in clause "first" of Section 4.03;
----- -----
second, in the manner provided in clause "third" of Section 4.03 but
------ -----
only with respect to those Secured Notes to be redeemed pursuant to Section
3.02 as a result of such Event of Loss, sale or termination, as the case
may be;
third, in the manner provided in clause "second" of Section 4.03;
----- ------
fourth, in the manner provided in clause "fourth" of Section 4.03; and
------ ------
fifth, in the manner provided in clause "fifth" of Section 4.03.
----- -----
(b) The portion of each payment referred to in this Section 4.02
distributed to a Holder on account of principal or interest on any Secured Note
held by such Holder shall be applied by such Holder in payment of such Secured
Note in accordance with the terms of Section 4.04.
28
<PAGE>
SECTION 4.03. Distribution After Indenture Event of Default. If (a)
---------------------------------------------
an Indenture Event of Default shall have occurred and be continuing, and (b)
either the Indenture Trustee (as assignee of the Owner Trustee) shall have given
notice to declare the Lease to be in default pursuant to Section 16.1 thereof,
the Indenture Trustee shall have given notice to the Owner Trustee pursuant to
the first proviso to Section 5.04 of the Indenture Trustee's intent to declare
the Secured Notes due and payable or any of the Secured Notes shall have been
declared or otherwise shall have become immediately due and payable pursuant to
Section 5.04, then, to the extent that each such notice or declaration shall not
have been rescinded or the Secured Notes shall remain immediately due and
payable, (i) all amounts then held by the Indenture Trustee pursuant to Section
4.05 or 4.06 (and not excluded from the operation of this Section 4.03) or then
otherwise held by the Indenture Trustee hereunder or under any Operative
Document (other than amounts held for its own account), and (ii) all payments
and amounts thereafter realized by the Indenture Trustee through the exercise of
remedies hereunder or under any of the agreements assigned or pledged to the
Indenture Trustee under this Indenture or otherwise as trustee under this
Indenture (for purposes of this Section 4.03, all such amounts and payments held
or realized being herein called "proceeds"), other than amounts expressly paid
--------
to it for its own account and other than Excepted Payments, shall be distributed
forthwith by the Indenture Trustee in the following order of priority:
first, so much of such proceeds as shall be required to reimburse the
-----
Indenture Trustee for any unpaid fees for its services under this Indenture
and any unreimbursed tax, expense (including reasonable legal fees) or
other loss incurred by it (in each case to the extent reimbursable under
the Operative Documents) shall be distributed to the Indenture Trustee for
application to itself;
second, so much of the remaining proceeds as shall be required to
------
reimburse the then existing or prior Holders for amounts paid or advanced
by the Holders pursuant to Section 6.04 (to the extent not previously
reimbursed), shall be distributed to the then existing and prior Holders as
their respective interests may appear, and if the proceeds remaining are
insufficient to pay all such amounts in full, they shall be distributed
ratably, without priority of any recipient over any other recipient (except
as otherwise expressly provided herein), in the proportion the aggregate
amount due each such Person under this clause "second" bears to the
------
aggregate amount and
29
<PAGE>
interest due all such Persons under this clause "second";
------
third, so much of the proceeds remaining as shall be required to pay
-----
in full the aggregate unpaid principal amount of each Secured Note then
Outstanding and Make-Whole Amount, if any, and all accrued but unpaid
interest thereon to the date of distribution, shall be distributed to the
Holder of such Secured Note, and if the proceeds remaining are insufficient
to pay all such amounts in full, they shall be distributed to all Holders
ratably, without priority of any Holder over any other Holder (except as
otherwise expressly provided herein), in the proportion that the aggregate
amount due each such Holder under this clause "third" bears to the
-----
aggregate amount due all such Holders under this clause "third";
-----
fourth, so much of the proceeds remaining as shall be required to pay
------
to each Holder all other amounts payable pursuant to the indemnification
provisions of Section 12 of the Participation Agreement or pursuant to any
other provision of any Operative Document and secured hereunder to such
Holder or to its predecessors and remaining unpaid shall be distributed to
such Holder for distribution to itself and such predecessors, as their
respective interests may appear, and if the proceeds remaining are
insufficient to pay all such amounts in full, they shall be distributed
ratably, without priority of any Holder over any other Holder (except as
otherwise expressly provided herein), in the proportion that the aggregate
amount due each such Holder under this clause "fourth" bears to the
------
aggregate amount due all such Holders under this clause "fourth"; and
------
fifth, the balance, if any, of the proceeds remaining shall be
-----
distributed to the Owner Trustee for distribution pursuant to the Trust
Agreement.
All amounts distributed to any Holder pursuant to clause "third" of
-----
this Section 4.03 shall be applied by such Holder in payment of the Secured
Notes held by it in accordance with the terms of Section 4.04.
SECTION 4.04. Application of Payments on Secured Notes. Each payment
----------------------------------------
on a Secured Note shall be applied, first, to the payment of accrued interest on
-----
such Secured Note to the date of such payment, second, to the payment of any
------
principal on such Secured Note then due thereunder, and third, to the payment of
-----
the installments of principal
30
<PAGE>
remaining unpaid on such Secured Note in the inverse order of the installment
due date thereof.
SECTION 4.05. Applications of Payments According to Applicable
------------------------------------------------
Operative Document Provisions. (a) Any payments or amounts (other than
- -----------------------------
Excepted Payments) received by the Indenture Trustee, provision for the
application of which is made in any Operative Document, shall be applied
promptly as provided in such Operative Document, unless (i) in the case of
payments or amounts that would be payable to the Lessee upon satisfaction of any
applicable conditions, a Lease Event of Default shall have occurred and be
continuing at the time the Indenture Trustee receives such payment and the
Indenture Trustee has Actual Knowledge of such Lease Event of Default, in which
case the Indenture Trustee shall hold such payments and amounts as cash
collateral security for the obligations of the Lessee under the Operative
Documents and shall invest such payments and amounts in accordance with the
terms of Section 7.04, and, subject to earlier distribution thereof by the
Indenture Trustee under Section 4.03 if the Lease shall have been declared in
default in accordance with Section 16.1 thereof, or under Section 4.01(b)
(subject to Section 4.05(b)), such payments and amounts, and the proceeds of any
investment thereof, shall be paid by the Indenture Trustee to the Lessee at such
time as any applicable conditions shall have been satisfied and no Lease Event
of Default shall be continuing, and (ii) in the case of any other such payments
and amounts, an Indenture Event of Default shall have occurred and be continuing
at the time the Indenture Trustee receives such payment and the Indenture
Trustee has Actual Knowledge of such Indenture Event of Default, in which case
the Indenture Trustee shall hold such payment as part of the Indenture Estate,
as cash collateral security hereunder for the performance of the Indenture
Indebtedness and on the earlier of the next Business Day on which no Indenture
Event of Default shall have occurred and be continuing or the first Business Day
occurring more than 180 days after the receipt of such payment, and, subject to
any prior application of such payment pursuant to Section 4.01(b) or 4.03, the
Indenture Trustee shall apply such payment, and the proceeds of any investment
thereof, to the purpose for which it was made.
(b) Notwithstanding any other provision of this Indenture to the
contrary, and whether or not any such provision refers to this Section 4.05, any
Excepted Payment or other amount expressly provided by the terms of this
Indenture to be paid directly to the Owner Trustee or to the Owner Participant
shall be paid or distributed immediately by the Indenture Trustee to the Owner
Trustee or the Owner Participant, as the case may be.
31
<PAGE>
SECTION 4.06. Amounts Received for Which No Provision Is Made. (a)
-----------------------------------------------
Any payment received or amounts realized by the Indenture Trustee for which no
provision as to the application thereof is made elsewhere in this Indenture or
any other Operative Document shall be held by the Indenture Trustee as part of
the Indenture Estate in a cash collateral account maintained under Section 7.04,
and (b) all payments received and amounts realized by the Indenture Trustee
under the Lease, including without limitation, Section 11.7(b) of the Lease, or
otherwise with respect to the Undivided Interest, to the extent received or
realized at any time after payment in full of the principal of and interest on
all Secured Notes issued hereunder, as well as any other amounts remaining as
part of or as proceeds of the Indenture Estate after payment in full of the
principal of, Make-Whole Amount, if any, and interest on all such Secured Notes,
shall be distributed forthwith by the Indenture Trustee in the order of priority
set forth in Section 4.03, omitting clause "third" thereof. The Indenture
-----
Trustee shall give prompt notice to the Owner Trustee and each Holder of the
receipt of any moneys by the Indenture Trustee subject to the provisions of this
Section 4.06.
SECTION 4.07. Payment Procedures. All amounts which are
------------------
distributable from time to time by the Indenture Trustee to the Owner Trustee,
the Owner Participant or any Holder shall be paid by the Indenture Trustee in
immediately available funds promptly after such amounts become immediately
available to it, and the Indenture Trustee shall not be obligated to see to the
application of any such payment made by it. All payments made by the Indenture
Trustee to the Owner Participant or to the Owner Trustee shall be made in the
manner and to the address set forth in Schedule 1 to the Participation Agreement
or to such other address as may be specified from time to time by notice to the
Indenture Trustee from the Owner Participant or the Owner Trustee.
ARTICLE V
COVENANTS OF OWNER TRUSTEE; CERTAIN AGREEMENTS;
INDENTURE EVENTS OF DEFAULT; REMEDIES OF INDENTURE TRUSTEE
SECTION 5.01. Covenants of Owner Trustee; Certain Agreements. (a)
----------------------------------------------
Subject to Section 2.02, the Owner Trustee will duly and punctually perform and
observe all covenants and conditions to be performed and observed by it pursuant
to the terms of any Operative Document. Except as permitted by this Indenture
or the terms of any Operative Document, the Owner Trustee will take no action
and will cooperate with the Indenture Trustee so as to permit no action to be
taken by others which will release, or which may be
32
<PAGE>
construed as releasing, the Owner Trustee or the Lessee from any of its or the
Lessee's, as the case may be, obligations or liabilities under any Operative
Document, or which may result in the termination, amendment or modification, or
impair the validity, of any such Operative Document.
(b) If the Owner Trustee has Actual Knowledge of any Indenture Event
of Default, Indenture Default, Lease Event of Default or Event of Loss, such
Owner Trustee will give prompt written notice thereof to the Indenture Trustee,
the Lessee and the Owner Participant if such notice shall not already have been
given to such party. The notice shall set forth in reasonable detail the
circumstances of such default or loss known to such Owner Trustee.
(c) At any time and from time to time, upon the reasonable request of
the Indenture Trustee, the Owner Trustee shall promptly and duly execute and
deliver any and all such further instruments and documents as the Indenture
Trustee may deem necessary or desirable (and as shall be consistent with the
intent, purposes and provisions hereof) to perfect or maintain the Lien of this
Indenture or to obtain for the Indenture Trustee the full benefit of the
specific rights and powers herein granted, conveyed or assigned, or which the
Owner Trustee may be or may hereafter be bound to convey or assign to the
Indenture Trustee or to facilitate the performance of the terms of this
Indenture, or the filing, registering or recording of this Indenture, including,
without limitation, the execution and delivery of any financing statement (and
any continuation statement with respect to any such financing statement) or any
other similar document specified in such instructions as may be necessary or
desirable to perfect or maintain the Lien of this Indenture.
(d) The Owner Trustee does hereby warrant and represent that it has
not assigned or pledged, and hereby covenants that except as provided in or
permitted by the other Operative Documents it will not assign or pledge, so long
as this Indenture shall remain in effect, any of the Owner Trustee's right,
title or interest hereby assigned to anyone other than the Indenture Trustee,
and that the Owner Trustee will not (other than in respect of Excepted
Payments), except as provided in or permitted by this Indenture or any other
Operative Document, (i) accept any payment from the Lessee, (ii) terminate or
consent to the cancellation or surrender of the Lease or accept any prepayment
of Rent under the Lease, (iii) enter into any agreement amending or
supplementing any Operative Document, (iv) execute or grant any waiver or
modification of, or consent under, the terms of any Operative Document, (v)
settle or compromise any claim arising under any Operative Document, or (vi)
submit or consent to the submission of any
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dispute, difference or other matter arising under or in respect of any Operative
Document to arbitration thereunder.
(e) The Owner Trustee does hereby ratify and confirm the Lease, and
does hereby agree the Owner Trustee will not, except as provided in or permitted
by this Indenture or the terms of any other Operative Document, take or omit to
take any action, the taking or omission of which might result in an alteration
or impairment of the Lease or any other Operative Document, or of any of the
rights created by the Lease or any Operative Document, or the assignment
hereunder or thereunder, as the case may be.
(f) The Corporate Owner Trustee will, in its individual capacity and
at its own cost and expense, promptly take such action as may be necessary to
discharge any Lessor's Lien on any of the Owner Trustee's estate, right, title
or interest in the Trust Estate (including the Louisiana Trust Estate as defined
in Section 8.03 hereof) so pledged or assigned or intended to be conveyed,
pledged or assigned under this Indenture.
(g) Until the release of the security interest in the Indenture
Estate pursuant to Section 6.03, all payments due or to become due under any
Operative Document to the Owner Trustee that are part of the Indenture Estate
shall be made directly to the Indenture Trustee or in accordance with the
Indenture Trustee's instructions, and the Owner Trustee shall give all notices
as shall be required under each Operative Document to direct that such payments
be made to the Indenture Trustee. Promptly on receipt thereof, the Owner
Trustee will transfer to the Indenture Trustee any and all moneys from time to
time received by it and constituting part of the Indenture Estate or otherwise
assigned or pledged to the Indenture Trustee hereunder, in each case for
application by the Indenture Trustee pursuant to this Indenture, except that the
Owner Trustee shall accept for distribution pursuant to the terms of the Trust
Agreement any amounts distributed to it by the Indenture Trustee under this
Indenture.
(h) An executed counterpart of each amendment or supplement to the
Trust Agreement shall be delivered within 20 Business Days after the execution
thereof to the Indenture Trustee, provided that any amendment or supplement
under which a successor trustee is appointed shall be mailed to the Indenture
Trustee within 10 days after the execution thereof. The Lien of this Indenture
shall not be affected by any amendment or supplement to the Trust Agreement or
by any other action taken under or in respect of the Trust Agreement. Without
the prior written consent of the Indenture Trustee, the Trust Agreement may not
in any event be terminated or revoked by the Owner Participant prior to the
termination of this Indenture. In the case of any
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appointment of a successor to any Owner Trustee pursuant to the Trust Agreement
or any merger, conversion, consolidation or transfer of all or substantially all
of the corporate trust business of the Corporate Owner Trustee pursuant to the
Trust Agreement, the successor Owner Trustee shall give prompt notice thereof to
the Indenture Trustee.
SECTION 5.02. Indenture Events of Default. "Indenture Event of
--------------------------- ------------------
Default" means any of the following events (whatever the reason for such
- -------
Indenture Event of Default and whether such event shall be voluntary or
involuntary or come about or be effected by operation of law or pursuant to or
in compliance with any judgment, decree or order of any court or any
Governmental Rule):
(a) any Lease Event of Default (other than a Lease Event of Default
arising from the failure of the Lessee to make an Excepted Payment) shall
have occurred and be continuing; or
(b) any payment of principal of, Make-Whole Amount, if any, or
interest on any Secured Note shall not have been made when due and such
default shall continue unremedied for ten (10) Business Days after the same
shall have become due and payable; or
(c) the failure by either of the Owner Participant or the Owner
Trustee, as the case may be, to perform or observe in any material respect
any covenant or agreement to be performed or observed by it under this
Indenture or any other Operative Document (other than the Tax Indemnity
Agreement and other than Section 11.1(i) of the Participation Agreement),
(i) which failure shall continue for a period of thirty (30) days after
receipt by the Owner Participant or the Owner Trustee of a notice from the
Indenture Trustee or any holder of a Secured Note specifying such failure
and requiring it be remedied or (ii) which failure, if such failure is
remediable and the Owner Participant or the Owner Trustee is diligently
attempting to remedy such failure, shall continue for a period of 180 days
after receipt of notice thereof; or
(d) any representation or warranty made by either of the Owner
Participant or the Owner Trustee pursuant to Section 6 or 8, as the case
may be, of the Participation Agreement shall prove to have been inaccurate
in any material respect when made, unless such inaccurate representation or
warranty shall not be material to the recipient at the time when the notice
referred to below
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shall have been received by the Owner Participant or the Owner Trustee or
any material adverse impact thereof shall have been cured within thirty
(30) days after receipt by the Owner Participant or the Owner Trustee of a
written notice thereof from the Indenture Trustee; provided that if such
--------
material adverse impact is remediable and the Owner Participant or Owner
Trustee is diligently attempting to remedy such impact, the Owner
Participant or Owner Trustee shall have 90 days after receipt of written
notice thereof from the Indenture Trustee to remedy any such material
adverse impact; or
(e) either of the Owner Participant or the Owner Trustee shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of its or any substantial part of its property, or
shall consent to any such relief or to the appointment or taking possession
by any such official or agency in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of
creditors, or shall take any corporate action to authorize any of the
foregoing, or an involuntary case or other proceeding shall be commenced
against either of the Owner Participant or the Owner Trustee seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official or agency of its or any substantial
part of its part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of ninety
(90) days, or if, under the provisions of any law providing for
reorganization or winding-up of corporations which may apply to the Owner
Trustee or the Owner Participant, any court of competent jurisdiction shall
assume jurisdiction, custody or control of the Indenture Estate, the Owner
Trustee or the Owner Participant or of any substantial part of its property
and such jurisdiction, custody or control shall remain in force
unrelinquished, unstayed or unterminated for a period of ninety (90) days.
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SECTION 5.03. Certain Rights. (a) If the Lessee shall fail to make
--------------
any payment of Basic Rent under the Lease when the same shall become due, and if
such failure of the Lessee to make such payment of Basic Rent shall not
constitute the fourth consecutive such failure or the seventh or subsequent
cumulative such failure, then as long as no Indenture Event of Default (other
than arising from a Lease Event of Default not involving any failure to make any
payments to which the Indenture Trustee or any Loan Participant is entitled
hereunder when due) shall have occurred and be continuing, the Owner Participant
or the Owner Trustee may (but need not), without consent or concurrence of the
Indenture Trustee or any Holder, pay, in the manner provided in Section 2.03,
for application in accordance with Section 4.01, pay to the Indenture Trustee,
at any time prior to the day which is the 11th day subsequent to the expiration
of the grace period provided for in Section 15(a) of the Lease with respect to
the payment of Basic Rent (and the Indenture Trustee shall not (without the
prior written consent of the Owner Trustee) declare the Lease in default
pursuant to Section 16 thereof or exercise any of the rights, powers or remedies
pursuant to such Section 16 or Section 5.04 hereof prior to the occurrence of
such later date), an amount equal to the full amount of such payment of Basic
Rent, together with any interest due thereon on account of the delayed payment
thereof to the date of such payment in accordance with Section 2.03(c) hereof,
and such payment by the Owner Participant or the Owner Trustee shall be deemed
to cure as of the date of such payment any Indenture Event of Default which
arose from such failure of the Lessee (including any Lease Event of Default
arising from the Lessee's failure to pay interest in respect of such overdue
Basic Rent for the period commencing on the date of such payment), but such cure
shall not relieve the Lessee of any of its obligations. If the Lessee shall
fail to perform or observe any covenant, condition or agreement to be performed
or observed by it under the Lease or any other Lease Event of Default shall
exist (other than the failure to pay Basic Rent), and if (but only if) the
performance or observance of such covenant condition or agreement or the cure of
such Lease Event of Default can be effected by the payment of money alone (it
being understood that actions such as the obtaining of insurance can be so
effected), then as long as no other Indenture Event of Default (other than those
arising from a Lease Event of Default) shall have occurred and be continuing,
the Owner Participant or the Owner Trustee may (but need not), without consent
or concurrence of the Indenture Trustee or any Holder, pay to the Indenture
Trustee (or to such other person as may be entitled to receive the same), at any
time prior to the day which is the later of (x) the 11th day subsequent to
notice of such failure or such Lease Event of Default by the Indenture Trustee
to the Owner Trustee or the Owner Participant and
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(y) the 11th day subsequent to the expiration of the grace period, if any,
provided with respect to such failure or such Lease Event of Default on the part
of the Lessee in Section 15 of the Lease (and the Indenture Trustee shall not
(without the prior written consent of the Owner Trustee) declare the Lease in
default pursuant to Section 16 thereof or exercise any of the rights, powers or
remedies pursuant to such Section 16 or Section 5.04 hereof prior to the
occurrence of such later date), all sums necessary to effect the performance or
observance of such covenant or agreement of the Lessee or to cure such Lease
Event of Default, together with any interest due thereon on account of the
delayed payment thereof to the date of such payment, and such payment by the
Owner Participant or the Owner Trustee shall be deemed to cure as of the date of
such payment any Indenture Event of Default which arose from such failure of the
Lessee or such Lease Event of Default (including any Lease Event of Default
arising from the Lessee's failure to pay interest in respect of such overdue
payment for the period commencing on the date of such payment), but such cure
shall not relieve the Lessee of any of its obligations; provided that the Owner
--------
Trustee and the Owner Participant, collectively, shall not be entitled to cure
any such Lease Event of Default if the total amount outstanding and not
reimbursed to such parties exceeds in the aggregate $10,000,000.
(b) To the extent of any payment made by the Owner Trustee or the
Owner Participant pursuant to Section 5.03(a), the Owner Trustee or the Owner
Participant, as the case may be, shall be subrogated to the rights of the
Holders hereunder to receive from the Indenture Trustee the payment of Basic
Rent or other amount for which such payment was made by the Owner Trustee or the
Owner Participant, as the case may be, and the Owner Trustee or the Owner
Participant, as the case may be, shall be entitled to receive such payment from
the Indenture Trustee upon receipt thereof by the Indenture Trustee; provided,
--------
however, that no such amount shall be paid to the Owner Trustee or the Owner
- -------
Participant, as the case may be, unless all principal of and interest on the
Secured Notes then due and payable and any other amounts then due and payable
under the Secured Notes and this Indenture shall have been paid in full and no
Indenture Default shall have occurred and be continuing.
(c) The Owner Trustee, upon exercising cure rights under Section
5.03(a) or rights under Section 6.08(a)(iii) or under Section 18.1 of the Lease,
shall not obtain any Lien on any part of the Indenture Estate or Trust Estate
(including the Louisiana Trust Estate) on account of such payment for the costs
and expenses incurred in connection therewith nor shall any claims of the Owner
Trustee against the Lessee or any other Person for the repayment thereof impair
the prior right and security
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interest of the Indenture Trustee in and to the Indenture Estate or otherwise
related to the Indenture Estate.
(d) If there shall occur an Indenture Event of Default pursuant to
Section 5.02(a) arising as a result of a failure by the Lessee to make any
payment of Rent when due, the Indenture Trustee shall so notify the Owner
Trustee in writing promptly upon such occurrence.
SECTION 5.04. Remedies. (a) If an Indenture Event of Default shall
--------
have occurred and be continuing and so long as the same shall be unremedied,
then and in every such case the Indenture Trustee, subject to Sections 5.03,
5.04(d), 5.05, 5.09, 6.01 and 6.08, may exercise any or all of the rights and
powers and pursue any and all of the remedies herein provided or available under
applicable law; provided, however, the Indenture Trustee must give the Owner
-------- -------
Trustee at least 10 Business Days' (or 5 Business Days in the case of
acceleration of the Secured Notes other than an automatic acceleration of the
Secured Notes as provided in Section 5.04(c)) prior written notice of its
intention to exercise remedies pursuant to this Section 5.04 (it being
understood that such notice may be given concurrently with any notice of default
given hereunder or under the Lease and prior to the expiration of any applicable
grace periods). Notwithstanding any contrary provision herein, upon the
occurrence and during the continuance of an Indenture Event of Default, the
Indenture Trustee may exercise, subject to Sections 5.03(a), 5.05, 5.09, 5.10
and 6.08, all rights and remedies of the Owner Trustee to the exclusion of the
Owner Trustee under the Lease (other than those rights and remedies to the
extent relating to Excepted Payments), including without limitation the right to
take possession of all or any part of the Indenture Estate and exclude the Owner
Trustee and all Persons (including the Lessee except to the extent of the
Lessee's rights under the Agency and Support Agreement and Section 8.2 of the
Lease) claiming under the Owner Trustee wholly or partly therefrom. In addition
to and without limiting the foregoing, the Indenture Trustee, upon at least
twenty-five (25) days' prior written notice to the Owner Trustee and the Owner
Participant, may invoke and exercise the power of sale and sell any or all of
the Indenture Estate in the manner required by law at public auction, or in any
other manner which shall be in accordance with applicable law, or, in lieu of
sale pursuant to the power of sale, the Indenture Estate may be foreclosed, and
the Indenture Trustee has and may exercise all rights and remedies of a secured
party under the Uniform Commercial Code as in effect in any applicable
jurisdiction; provided, however, that if an Indenture Event of Default has
-------- -------
occurred and is continuing solely by virtue of one or more Lease Events of
Default (at a time when no other Indenture Events of Default shall have occurred
and be continuing), the Indenture Trustee shall not
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exercise foreclosure remedies under this Indenture without exercising material
remedies seeking to dispossess the Lessee under the Lease, unless exercising
such remedies under the Lease shall be prohibited by law, governmental authority
or court order, in which case the Indenture Trustee shall not exercise
foreclosure remedies under the Indenture until the expiration of a period of 180
days from the commencement of such prohibition; provided, further, that
-------- -------
notwithstanding any provision herein to the contrary, the Indenture Trustee
shall not sell, assign, transfer or deliver any of the Indenture Estate or take
possession of the Indenture Estate unless the Secured Notes shall have been
accelerated pursuant to Section 5.04(b) or 5.04(c); provided, further, that
-------- -------
included in any such notice shall be a statement as to the Indenture Trustee's
intention to foreclose the Lien of this Indenture under executory process
pursuant to Title II of Book IV of the Louisiana Code of Civil Procedure and any
other related provision of law as such provision may be amended from time to
time. The Indenture Trustee shall notify the Owner Trustee, the Owner
Participant and the Lessee as soon as is reasonably practicable after its
commencement of the exercise of any remedy pursuant to this Section 5.04.
(b) If an Indenture Event of Default (other than an Indenture Event
of Default specified in Section 5.02(e) or an Indenture Event of Default of the
type specified in Section 5.02(a) which arises as a result of any Lease Event
of Default other than such Lease Event of Default as is specified in Section
15(g) of the Lease) shall have occurred and be continuing, then, subject to
Sections 5.03, 6.01 and 6.08, the Indenture Trustee may at any time, by five (5)
days' written notice to the Owner Trustee, declare all (but not less than all)
of the Secured Notes to be due and payable. Upon such declaration the unpaid
principal of all Secured Notes then Outstanding, together with accrued but
unpaid interest thereon and any other amounts due thereunder, shall immediately
become due and payable without presentment, demand, protest or notice, all of
which are hereby waived.
(c) If an Indenture Event of Default of the type specified in Section
5.02(e), or an Indenture Event of Default of the type specified in Section
5.02(a) which arises as a result of any Lease Event of Default specified in
Section 15(g) of the Lease shall have occurred and be continuing, the principal
of all Secured Notes then Outstanding, together with accrued but unpaid interest
thereon and any other amounts due thereunder, shall become and be due and
payable automatically, without declaration, notice, demand or any other action
on the part of the Indenture Trustee or any Holder, all of which are hereby
waived. Each of Section 5.04(b) and this Section 5.04(c), however, is subject
to the condition that, if at any time
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after the principal of the Secured Notes shall have become due and payable upon
a declared or automatic acceleration thereof as provided herein, and before any
judgment or decree for the payment of the money so due, or any portion thereof,
shall be entered, all overdue payments of interest upon the Secured Notes and
all other amounts payable under the Secured Notes (except the principal of the
Secured Notes which by such declaration shall have become payable) shall have
been duly paid, and every other Indenture Event of Default with respect to any
covenant or provision of this Indenture shall have been cured, then in every
such case a Majority in Interest of Holders of Notes, by written instrument
filed with the Indenture Trustee, may (but shall not be obligated to) rescind
and annul the Indenture Trustee's declaration and its consequences; but no such
rescission or annulment shall extend to or affect any subsequent Event of
Default or impair any right consequent thereon.
(d) Notwithstanding any provision in any document or instruction that
purports to require the Indenture Trustee to acquire title to any or all of the
Indenture Estate upon foreclosure, or pursuant to instructions, the Indenture
Trustee shall not be obligated to acquire any such title unless: (i) the
Indenture Trustee is provided with such security or indemnity as it shall deem
satisfactory to it, (ii) such acquisition of title complies with all applicable
Operative Documents, laws, rules and regulations, which shall be evidenced by an
opinion of counsel to such effect in form and substance satisfactory to the
Indenture Trustee and (iii) the Indenture Trustee shall have obtained such
executed certificates, instruments or other documents, in accordance with its
reasonable inquiries or requests.
SECTION 5.05. Suit; Possession; Title; Sale of Indenture Estate. (a)
-------------------------------------------------
The Owner Trustee agrees that, if an Indenture Event of Default shall have
occurred and be continuing and the Indenture Trustee shall be entitled to
exercise remedies hereunder as provided in Section 5.04, the Indenture Trustee
may take possession of all or any part of the Indenture Estate and may exclude
the Owner Trustee, and all Persons claiming under the Owner Trustee, wholly or
partly therefrom; provided, however, that at least 10 Business Days' prior
-------- -------
notice of such taking of possession shall be given to the Owner Trustee. If an
Indenture Event of Default shall have occurred and be continuing and the
Indenture Trustee shall be entitled to exercise remedies hereunder as provided
in Section 5.04, at the request of the Indenture Trustee, the Owner Trustee
shall promptly execute and deliver to the Indenture Trustee such instruments of
title and other documents as the Indenture Trustee may deem necessary or
advisable to enable the Indenture Trustee or any agent or representative
designated by the Indenture Trustee, at such time or times and place or places
as the
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Indenture Trustee may specify, to obtain possession of all or any part of the
Indenture Estate to which the Indenture Trustee shall at the time be entitled
hereunder. If the Owner Trustee shall for any reason fail to execute and
deliver such instruments and documents after such request by the Indenture
Trustee, the Indenture Trustee may (i) obtain a judgment conferring on the
Indenture Trustee the right to immediate possession of any property comprising a
portion of the Indenture Estate and requiring the Owner Trustee to execute and
deliver such instruments and documents to the Indenture Trustee, or (ii) pursue
all or part of such property wherever it may be found, and the Indenture Trustee
may enter any of the premises where such property or any portion thereof may be
or is supposed to be and search for such property. All expenses of obtaining
such judgment or of pursuing, searching for and taking such property shall,
until paid, be secured by the Lien of this Indenture.
(b) Upon every such taking of possession, the Indenture Trustee may
make, from time to time and at the expense of the Indenture Estate, such
expenditures for maintenance, insurance, repairs, replacements, alterations,
additions and improvements to and of the Indenture Estate as it may deem proper.
In each such case, the Indenture Trustee shall have the right to maintain, use,
operate, store, lease, control or manage the Indenture Estate and to exercise
all rights and power of the Owner Trustee relating to the Indenture Estate as
the Indenture Trustee shall deem to be in the best interest of the Holders. The
Indenture Trustee shall be entitled to collect and receive directly all tolls,
rents (including Rent), revenue, issues, income, products and profits of the
Indenture Estate and every part thereof, other than Excepted Payments. Such
tolls, rents (including Rent), revenues, issues, income, products and profits
shall be applied (i) to pay the expenses of the use, operation, storage,
leasing, control, management or disposi tion of the Indenture Estate, (ii) to
pay the expense of all maintenance, repairs, replacements, alterations,
additions and improvements, (iii) to make all payments which the Indenture
Trustee may be required or may elect to make, if any, for taxes, assessments,
insurance or other proper charges upon the Indenture Estate or any portion
thereof, including without limitation the employment of engineers and
accountants to examine, inspect and make reports upon the properties and books
and records of the Owner Trustee, and (iv) to pay amounts owing in respect of
the Secured Notes in accordance with the provisions thereof and hereof and to
make all other payments which the Indenture Trustee may be required or
authorized to make under any provision of this Indenture, as well as just and
reasonable compensation for the services of the Indenture Trustee and of all
Persons properly engaged and employed by the Indenture Trustee.
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(c) Any of the Indenture Trustee, any Holder, the Owner Trustee or
the Owner Participant may be a purchaser of the Indenture Estate or any portion
thereof or any interest therein at any sale thereof, whether pursuant to
foreclosure or power of sale or otherwise. The Indenture Trustee may apply
against the purchase price therefor the amount then due to it hereunder or under
any of the Secured Notes secured hereby and any Holder may apply against the
purchase price therefor the amount then due to it hereunder or under the Secured
Notes held by such Holder, to the extent of such portion of the purchase price
as it would have received had it been entitled to share in any distribution
thereof. The Indenture Trustee or any Holder or any nominee of any such Holder
shall acquire, upon any such purchase, good title to the property so purchased,
free of the Lien of this Indenture and, to the extent permitted by applicable
law, free of all rights of redemption in the Owner Trustee in respect of the
property so purchased.
(d) Any sale or other conveyance of any of the Indenture Estate by
the Indenture Trustee made pursuant to the terms of this Indenture or the Lease
shall bind the Owner Trustee, the Holders and the Owner Participant and shall be
effective to transfer or convey all right, title and interest of the Indenture
Trustee, the Owner Trustee, the Holders and the Owner Participant in and to such
Indenture Estate or portion thereof, as the case may be. No purchaser or other
grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such sale or conveyance, or as to the application of
any sale or other proceeds with respect thereto by the Indenture Trustee. In
the event of any such sale, the Owner Trustee shall execute any and all such
bills of sale and other documents, and perform and do all other acts and things
requested by the Indenture Trustee in order to permit continuation of such sale
and to effectuate the transfer or conveyance referred to in the first sentence
of this Section 5.05(d). The Owner Trustee shall ratify and confirm any such
sale or sales by executing and delivering to the Indenture Trustee or to such
purchaser or purchasers all instruments as may reasonably be requested for such
purpose. Any such sale or sales made hereunder shall operate to divest all the
estate, right, title, interest, claim and demand whatsoever, whether at law or
in equity, of the Owner Trustee in and to the properties and rights so sold, and
shall be a perpetual bar both at law and in equity against the Owner Trustee and
against any and all persons claiming or who may claim the same, or any part
thereof from, through or under the Owner Trustee. Upon any sale or other
disposition of the Indenture Estate by the Indenture Trustee, the Indenture
Trustee will promptly account in writing, in reasonable detail, to the Owner
Trustee for the amount of such sale, the costs and expenses incurred in
connection therewith and any surplus proceeds.
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(e) The Indenture Trustee shall, as a matter of right, be entitled to
the appointment of a receiver or a keeper pursuant to the terms and provisions
of La. R.S. 9:5136 et seq. (who may be the Indenture Trustee or any successor or
-- ---
nominee thereof), at any time after an Indenture Event of Default either before
or after declaring due and payable the principal of all Secured Notes then
Outstanding, together with accrued but unpaid interest thereon and any other
amounts due thereunder, for all or any portion of the Indenture Estate, whether
such receivership or keepership be incidental to a proposed sale of the
Indenture Estate or the taking of possession thereof or otherwise, and the Owner
Trustee hereby consents to the appointment of such a receiver or keeper, and
agrees that it will not oppose any such appointment. Any receiver or keeper
appointed for all or any portion of the Indenture Estate shall be entitled in
addition to any powers available under applicable law, to exercise all the
rights and powers of the Indenture Trustee with respect to the Indenture Estate.
(f) To the extent now or at any time hereafter enforceable under
applicable law, the Owner Trustee covenants that it will not at any time insist
upon or plead, or in any manner whatsoever claim or take any benefit or
advantage of any stay, extension, moratorium, any exemption from execution or
sale or other similar law or from any law now or hereafter in force providing
for the valuation or appraisement of the Indenture Estate or any part thereof,
prior to any sale or sales thereof to be made pursuant to any provision herein
contained, or prior to any applicable decree, judgment or order of any court of
competent jurisdiction; nor, after such sale or sales, claim or exercise any
right under any statute now or hereafter made or enacted by any state or any
right to have a portion of the Indenture Estate or the security for the Secured
Notes marshalled or otherwise redeem the property so sold or any part thereof,
and hereby expressly waives for itself and on behalf of each and every Person,
except decree or judgment creditors of the Owner Trustee acquiring any interest
in or title to the Indenture Estate or any part thereof subsequent to the date
of this Indenture, all benefit and advantage of any such law or laws, and
covenants that it will not invoke or use any such law or laws, but will suffer
and permit the execution of every such power as though no such law or laws had
been made or enacted. Nothing in this Section 5.05(f) shall be deemed to be a
waiver by the Owner Trustee of its rights under Section 5.03 hereof.
The Indenture Trustee may maintain such a pleading, or, in any manner
whatsoever, claim or take any benefit or advantage of or from any law now or
hereafter in force even if it does not possess any of the Secured Notes or does
not produce any of them in the proceeding. A delay
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or omission by the Indenture Trustee or any Holder in exercising any right or
remedy accruing upon an Indenture Event of Default under this Indenture shall
not impair the right or remedy or constitute a waiver of or acquiescence in such
Indenture Event of Default.
(g) The Indenture Trustee may adjourn from time to time any sale to
be made under or by virtue of this Indenture for such sale or for such adjourned
sale or sales, and, except as otherwise provided by any applicable provision of
law, the Indenture Trustee, without further notice or publication, may make such
sale at the time and place to which the same shall be so adjourned.
(h) Any recovery of any judgment by the Indenture Trustee under the
Secured Notes and any levy of any execution under any such judgment upon the
Indenture Estate shall not affect in any manner or to any extent the security
title and security interest conveyed hereby upon the Indenture Estate or any
part thereof, or any conveyances, powers, rights and remedies of the Indenture
Trustee hereunder, but such conveyances, powers, rights and remedies shall
continue unimpaired as before.
(i) Notwithstanding anything contained herein, so long as any Pass
Through Trustee is a registered Holder, the Indenture Trustee is not authorized
or empowered to acquire title to all or any portion of the Indenture Estate or
take any action with respect to all or any portion of the Indenture Estate so
acquired by it if such acquisition or action would cause the related Pass
Through Trust to fail to qualify as a "grantor trust" for federal income tax
purposes.
SECTION 5.06. Remedies Cumulative. Each and every right, power and
-------------------
remedy provided the Indenture Trustee specifically or otherwise in this
Indenture shall be cumulative and shall be in addition to every right, power
and remedy herein specifically provided or now or hereafter existing at law, in
equity or otherwise. Each and every such right, power and remedy may be
exercised from time to time and as often and in such order as may be deemed
expedient by the Indenture Trustee, and the exercise or the beginning of the
exercise of any such right, power or remedy shall not be construed to be a
waiver of the right to exercise at the same time or thereafter any other right,
power or remedy. No delay or omission by the Indenture Trustee in the exercise
of any right or power or in the pursuit of any remedy shall impair any such
right, power or remedy, or be construed to be a waiver of any Indenture Event of
Default or to be an acquiescence therein.
SECTION 5.07. Discontinuance of Proceedings. In case the Indenture
-----------------------------
Trustee shall have instituted any
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proceeding to enforce any right, power or remedy under this Indenture by
foreclosure, entry or otherwise, and such proceeding shall have been
discontinued or abandoned for any reason or shall have been determined adversely
to the Indenture Trustee, then and in every such case the Owner Trustee, the
Indenture Trustee and the Lessee shall, subject to any determination in such
proceeding, be restored to their former positions and rights hereunder with
respect to the Indenture Estate, and all right, powers and remedies of the
Indenture Trustee shall continue as if no such proceeding had been instituted.
SECTION 5.08. Waiver of Past Defaults. Upon written instruction of a
-----------------------
Majority in Interest of Holders of Notes, the Indenture Trustee shall waive any
Indenture Event of Default specified in such instruction and its consequences,
and upon any such waiver such Indenture Event of Default shall cease to exist
for every purpose of this Indenture; provided, however, that no such waiver
-------- -------
shall extend to any subsequent or other Indenture Event of Default or impair any
right or consequence thereof; and provided further, however, that in the absence
-------- ------- -------
of the written instruction of the Holders of all Secured Notes then Outstanding,
the Indenture Trustee shall not waive any Indenture Event of Default arising
from a default (i) in the payment of the principal of or interest on, or other
amounts due under, any Secured Note then Outstanding, or (ii) in respect of a
covenant or provision hereof which pursuant to the terms of Article IX cannot be
modified or amended without the consent of each Holder of a Secured Note then
Outstanding.
SECTION 5.09. No Action Contrary to Lessee's Rights Under the Lease.
-----------------------------------------------------
Notwithstanding any other provision of any Operative Document, (i) unless a
Lease Event of Default shall have occurred and be continuing and the Lease shall
have been declared to be in default pursuant to Section 16.1 thereof, the
Indenture Trustee shall not take or cause to be taken any action contrary to the
Lessee's rights under the Lease, including without limitation the rights of the
Lessee under Section 9.1 thereof and (ii) the Indenture Trustee shall not take
or cause to be taken any action contrary to the rights of the Other Owner and
its successors and assigns under Section 9.1 of the Lease.
SECTION 5.10. Rights of Holders of Secured Notes. Notwithstanding
----------------------------------
any provision herein (including Section 5.11) to the contrary, the Holder of a
Secured Note shall have the absolute and unconditional right to receive payment
from the Indenture Estate of the principal of and interest on such Secured Note
on the dates and as specified in such Secured Note, and to institute suit
against the Owner Trustee for the enforcement of any such payment, subject to
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Section 2.02, and such right shall not be impaired without the consent of such
Holder.
SECTION 5.11. Limitation on Suits by Holders. A Holder may pursue a
------------------------------
remedy under this Indenture or under a Secured Note only if:
(i) the Holder gives to the Indenture Trustee written notice of a
continuing Indenture Event of Default under this Indenture;
(ii) the Holders of at least 25 percent (25%) of the Outstanding
principal amount of the Secured Notes instruct the Indenture Trustee to
pursue the remedy;
(iii) such Holder or Holders offer to the Inden ture Trustee indemnity
satisfactory to the Indenture Trustee against any loss, liability or
expense to be, or which may be, incurred by the Indenture Trustee in
pursuing the remedy;
(iv) the Indenture Trustee does not comply with the request within 60
days after receipt of the instructions and the offer of indemnity; and
(v) during such 60-day period, a Majority in Interest of Holders do
not give the Indenture Trustee an instruction inconsistent with the
request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
ARTICLE VI
DUTIES OF THE INDENTURE TRUSTEE
SECTION 6.01. Certain Actions. If the Indenture Trustee shall have
---------------
Actual Knowledge of any Indenture Event of Default or any Indenture Default or
any failure on the part of the Lessee to make any payment of Rent when due or
any Event of Loss or other material fact relating to the Undivided Interest, the
Indenture Trustee shall (a) give prompt telephonic notice (promptly confirmed in
writing) to the Owner Trustee, the Owner Participant and the Lessee and (b)
within 90 days after obtaining such Actual Knowledge, mail to each Holder,
notice of all Indenture Events of Default unless, in each case, such Indenture
Event of Default has been remedied before the giving of such notice and the
Indenture Trustee has Actual Knowledge that such Indenture Default or Indenture
Event of Default has been so remedied; provided, however, that the failure by
-------- -------
the Indenture Trustee to provide such notice shall not
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invalidate any actions subsequently taken by the Indenture Trustee in connection
with such Indenture Event of Default. Except in the case of a default in the
payment of the principal or interest on any Secured Note, the Indenture Trustee
shall be protected in withholding the notice required under clause (b) above if
and so long as Responsible Officers of the Indenture Trustee in good faith
determine that withholding such notice is in the interest of the Holders.
SECTION 6.02. Action Upon Instructions. (a) The Indenture Trustee
------------------------
shall, upon the written instruction at any time and from time to time of a
Majority in Interest of Holders of Notes, give such notice, consent or direction
or exercise such right, remedy or power hereunder or under the Lease or any
other agreement constituting part of the Indenture Estate as shall be specified
in such instruction; provided, however, that nothing set forth in this Section
-------- -------
6.02(a) shall entitle the Holders to cause the Indenture Trustee to give any
notice or exercise any right, power or remedy that is not elsewhere authorized
by, or is otherwise restricted or prohibited by, this Indenture. If the
Indenture Trustee shall not have received instructions as above provided within
twenty (20) calendar days after mailing of the notice pursuant to Section 6.01
to the Holders, the Indenture Trustee may take such action, or refrain from
taking such action, but shall be under no duty to take or refrain from taking
any action, with respect to such Indenture Event of Default, Event of Loss or
fact as it shall determine to be advisable and in the best interest of the
Holders. If the Indenture Trustee receives any instructions after the
expiration of the aforementioned twenty day period, the Indenture Trustee shall
use its best efforts to conform any action being taken to comply with those
instructions.
(b) The Indenture Trustee shall not consent to the assignment by the
Lessee of all or any material portion of its right, title and interest in, to
and under the Lease, except (i) with respect to an assignment permitted under
Section 14.2 of the Lease or (ii) upon the written instruction at any time and
from time to time of a Majority in Interest of Holders of Notes. Nothing set
forth herein shall be construed to permit such assignment without the consent of
the Owner Trustee or to adversely affect any right of the Owner Trustee.
SECTION 6.03. Release of Lien of Indenture. (a) Release of
---------------------------- ----------
Indenture Estate. Upon satisfaction of the conditions for termination of this
- ----------------
Indenture set forth in Section 10.01, the Indenture Trustee, upon the written
request of the Owner Trustee, shall execute and deliver to, or as directed by,
the Owner Trustee, all appropriate instruments (in due form for recording or
filing) releasing
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the Indenture Estate from the Lien of this Indenture, and the Indenture Trustee
shall pay all moneys or other properties or proceeds held by it under this
Indenture to the Owner Trustee and shall give notice to the Lessee of such
payment. The cost and expense associated with any action taken by the Indenture
Trustee pursuant to the provisions of this Section 6.03(a) shall be borne by the
Lessee.
(b) Release of the Undivided Interest Upon Transfer. Upon any
-----------------------------------------------
transfer by the Owner Trustee of the Undivided Interest or a Significant Portion
thereof pursuant to Section 6.1, 7, 11.7(b) or 12 of the Lease or any retention
by the Owner Trustee of the Undivided Interest pursuant to Section 7 of the
Lease and receipt by the Indenture Trustee of all amounts of Rent therefor that
constituted a part of the Indenture Estate due and payable by the Lessee and the
concurrent redemption of Secured Notes as set forth in Sections 3.02 and 4.02
and the payment of any other amounts then due and owing hereunder, the Indenture
Trustee, upon the written request of the Owner Trustee, shall execute and
deliver to, or as directed by, the Owner Trustee, all appropriate instruments
(in due form for recording or filing) releasing the Undivided Interest or such
Significant Portion, as the case may be, and all other property solely relating
thereto and then constituting a portion of the Indenture Estate (or if not
solely relating thereto, but such other property can be reasonably partitioned
without undue burden or delay, such other property), as the case may be, from
the Lien of this Indenture. The cost and expense associated with any action
taken by the Indenture Trustee pursuant to the provisions of this Section
6.03(b) shall be borne by the Lessee.
(c) Release of Lien upon Full Payment of Secured Notes. Upon payment
--------------------------------------------------
in full of the principal of and interest on and all other amounts due and
payable under the Secured Notes, and all other amounts due and payable to any
Holder or the Indenture Trustee hereunder or under any other Operative Document,
the Indenture Trustee, upon the written request of the Owner Trustee, shall
execute and deliver to, or as directed by, the Owner Trustee, all appropriate
instruments (in due form for recording or filing) releasing the Undivided
Interest, and all other property relating thereto and then constituting a
portion of the Indenture Estate from the Lien of this Indenture. The cost and
expense associated with any action taken by the Indenture Trustee pursuant to
the provisions of this Section 6.03(c) shall be borne by the Lessee.
SECTION 6.04. Indemnification. The Indenture Trustee shall not be
---------------
required to take any action or refrain from taking any action instructed to be
taken or refrained from being taken pursuant to Section 6.02 or under Article V
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unless the Indenture Trustee shall have been indemnified to the Indenture
Trustee's reasonable satisfaction against any liability (including without
limitation environmental liability), cost or expense (including without
limitation the reasonable fees and expenses of counsel) which may be incurred in
connection therewith, other than any such liability, cost or expense which
results from the willful misconduct or gross negligence of the Indenture Trustee
and for the failure of the Corporate Indenture Trustee to exercise ordinary care
in distributing funds in accordance with the terms of the Operative Documents.
Except with respect to actions required by the first sentence of Section 6.01
hereof, the Indenture Trustee shall be under no obligation to take any action
under this Indenture and nothing contained in this Indenture shall require the
Indenture Trustee to expend or risk the Indenture Trustee's own funds or
otherwise incur any financial liability or any other liability (including
without limitation environmental liability) in the performance of any of the
Indenture Trustee's duties hereunder or in the exercise of any of the Indenture
Trustee's rights or powers if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it. The Indenture Trustee shall be
required to take any action under Section 6.02 or Article V, nor shall any other
provision of this Indenture be deemed to impose a duty on any Indenture Trustee
to take any action, if such Indenture Trustee shall have reasonably determined
or been advised in writing by its counsel that such action is contrary to the
terms hereof or of any other Operative Document, or is contrary to applicable
law.
SECTION 6.05. No Implied Duties. No implied duties or obligations of
-----------------
the Indenture Trustee shall be read into this Indenture.
SECTION 6.06. Duties to Remove Certain Liens. The Corporate
------------------------------
Indenture Trustee and the Individual Indenture Trustee, each in its individual
capacity, shall comply with Section 11.4(a) of the Participation Agreement.
SECTION 6.07. No Action Except Under Operative Documents or
---------------------------------------------
Instructions. The Owner Trustee and the Indenture Trustee agree that they will
- ------------
not use, operate, store, lease, control, manage, sell, dispose of or otherwise
deal with the Undivided Interest or any other part of the Indenture Estate
except (a) in accordance with the terms of the Lease or the other Operative
Documents or (b) in accordance with the powers granted to, or the authority
conferred upon, the Owner Trustee and the Indenture Trustee pursuant to the
express terms of this Indenture and the Trust Agreement.
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SECTION 6.08. Certain Rights of the Owner Trustee and the Owner
-------------------------------------------------
Participant. Notwithstanding any provision in this Indenture to the contrary:
- -----------
(a) each of the Owner Trustee and the Owner Participant shall have the
right, to the exclusion of the Indenture Trustee, whether or not an
Indenture Event of Default is continuing and whether or not the Indenture
Trustee has foreclosed on the Lien of the Indenture, (i) to receive
Excepted Payments, (ii) to demand, collect, sue for or give any notice of
default with respect to Excepted Payments, (iii) prior to the foreclosure
of the Lien of the Indenture and subject to Section 5.03(c), to declare the
Lease in default in respect of Expected Payments and (iv) to enforce the
payment of Excepted Payments due and payable to it by appropriate judicial
proceedings and to exercise other remedies as provided under any Operative
Document to the extent and with respect to any portion of the Indenture
Estate which shall have been released pursuant to the terms of this
Indenture; provided that the rights referred to in this Section
--------
6.08(a)(iii) and (iv) shall not be deemed to include the exercise of any
remedies provided for in Section 16 of the Lease other than the right to
proceed by appropriate court action or actions, either at law or in equity,
to enforce performance by the Lessee of the applicable covenants or to
recover damages for breach thereof;
(b) at all times prior to the foreclosure of the Lien of the
Indenture, whether or not an Indenture Event of Default is continuing, each
of the Owner Trustee and the Owner Participant shall have the right, but
not to the exclusion of the Indenture Trustee, (i) to receive from the
Lessee all notices, financial statements, certificates, opinions of counsel
and other documents and information which the Lessee is permitted or
required to give or furnish to the Owner Trustee or the Owner Participant
pursuant to the terms of any Operative Document, (ii) to retain all rights
with respect to liability insurance which Section 13 of the Lease
specifically confers upon the Owner Trustee or the Owner Participant, or
other insurance under Section 13.4 of the Lease purchased for the benefit
of the Owner Trustee or the Owner Participant (subject, however to the
provisions of the definition of "Excepted Payments") and (iii) to exercise
inspection rights pursuant to Section 10.6 of the Participation Agreement
and Section 11.2 of the Lease;
(c) prior to the foreclosure of the Lien of the Indenture and whether
or not an Indenture Event of Default shall have occurred and be continuing,
the Owner Trustee shall have the right, to the exclusion of
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the Indenture Trustee, to adjust Basic Rent Percentag es, Stipulated Loss
Value Percentages and Termination Value Percentages and the Early Buy-Out
Percentage pursuant to Section 4 of the Lease but subject to the
limitations set forth in Section 3.5 of the Lease; and
(d) So long as no Indenture Event of Default shall have occurred and
be continuing (subject to Section 9.02), the Owner Trustee shall retain (to
the exclusion of the Indenture Trustee) all rights of the "Lessor" under
the Lease, other than the Indenture Trustee's right to receive any funds
assigned to the Indenture Trustee under the terms of this Indenture.
SECTION 6.09. Filing of Financing and Continuation Statements. The
-----------------------------------------------
Indenture Trustee shall, at the expense of the Owner Trustee, execute and file
any continuation or similar statement or document delivered to it by the Owner
Trustee or the Lessee in a form reasonably satisfactory to the Indenture Trustee
and proper for filing.
SECTION 6.10. Furnishing of Notices. The Indenture Trustee will
---------------------
furnish to the Owner Trustee and the Owner Participant, promptly upon receipt
thereof, a duplicate or copy of each report, notice, request, demand,
instruction, certificate, financial statement or other instrument furnished to
the Indenture Trustee hereunder or under any other Operative Document.
SECTION 6.11. Taxes; Withholding; Information Reporting. The
-----------------------------------------
Indenture Trustee shall exclude and withhold from each distribution of principal
and interest and other amounts due hereunder or under the Secured Notes any and
all withholding taxes applicable thereto as required by law. The Indenture
Trustee agrees (a) to act as such withholding agent and, in connection
therewith, whenever any present or future taxes or similar charges are required
to be withheld with respect to any amounts payable in respect of the Secured
Notes or otherwise due hereunder, to withhold such taxes or charges and timely
pay the same to the appropriate authority in the name of and on behalf of the
Loan Participants, (b) that it will file any necessary withholding tax returns
or statements when due and (c) that, as promptly as possible after the payment
of such withheld amounts, it will deliver to each Loan Participant appropriate
documentation showing the payment of such withheld amounts, together with such
additional documentary evidence as such Loan Participants may reasonably request
from time to time. The Indenture Trustee agrees to file any other information
reports as it may be required to file under United States law. No withholding
or action with respect thereto shall constitute or give rise to any Indenture
Event of Default or any other claims against the Owner Participant or the Owner
Trustee. Any tax withheld by
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the Indenture Trustee pursuant to this Section 6.11 shall be deemed for all
purposes of this Indenture and the Secured Notes to have been paid to the Holder
with respect to which such tax was withheld.
ARTICLE VII
THE INDENTURE TRUSTEE AND THE OWNER TRUSTEE
SECTION 7.01. Acceptance of Trusts and Duties. The Indenture Trustee
-------------------------------
accepts the duties hereby created and applicable to it and agrees to perform the
same upon the terms and conditions set forth in this Indenture and the
Participation Agreement. The Corporate Indenture Trustee further agrees to
receive and disburse all moneys constituting part of the Indenture Estate in
accordance with the terms hereof. The Indenture Trustee shall not be answerable
or accountable in its individual capacity under any circumstances, except (a)
for its willful misconduct or gross negligence, (b) for its failure to exercise
reasonable care in safeguarding the security held by it pursuant to the terms
hereof, (c) in the case of the inaccuracy of any representations or warranties
made by the Indenture Trustee in its individual capacity and contained in the
Participation Agreement or any other Operative Document or referred to by
reference in Section 7.03 hereof, (d) as provided in Sections 2.03 and 6.06, (e)
for any Tax based on or measured by any fees, commissions or compensation
received by it for acting as trustee hereunder, or (f) except as otherwise
expressly provided herein for its failure to use reasonable care in disbursing
funds in accordance with the terms hereof.
SECTION 7.02. Absence of Duties Except as Specified. Except in
-------------------------------------
accordance with written instructions furnished pursuant to Section 6.01 or 6.02,
and except as provided in, and without limiting the generality of, Sections
6.04, 6.05, 6.06 and 6.07, the Indenture Trustee shall have no duty (a) to
record or file the Lease or this Indenture or any other document, or to maintain
any such recording or filing, or to rerecord or refile any such document, (b) to
effect or maintain any such insurance, whether or not the Lessee shall be in
default with respect thereto, (c) to discharge any Lien of any kind against any
part of the Trust Estate (including the Louisiana Trust Estate) or the Indenture
Estate, or (d) to inspect the Undivided Interest at any time, or to ascertain or
inquire as to the performance or observance of any of the Lessee's covenants
pursuant to the terms of the Lease.
SECTION 7.03. No Representations or Warranties. NEITHER THE OWNER
--------------------------------
TRUSTEE NOR THE INDENTURE TRUSTEE MAKES (IN ITS INDIVIDUAL OR TRUST CAPACITY)
(a) ANY REPRESENTATION
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OR WARRANTY, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, AS TO THE VALUE,
COMPLIANCE WITH SPECIFICATIONS, DURABILITY, OPERATION, CONSTRUCTION,
PERFORMANCE, DESIGN OR CONDITION OF THE PRODUCTION SYSTEM OR ANY PART THEREOF,
THE MERCHANTABILITY THEREOF OR THE FITNESS THEREOF FOR ANY PARTICULAR PURPOSE,
TITLE TO THE PRODUCTION SYSTEM OR ANY COMPONENT OF THE PRODUCTION SYSTEM, THE
QUALITY OF THE MATERIALS OR WORKMANSHIP THEREOF OR CONFORMITY THEREOF TO
SPECIFICATIONS, OR THE PRESENCE OR ABSENCE OF ANY LATENT OR OTHER DEFECTS,
WHETHER OR NOT DISCOVERABLE, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTION SYSTEM, OR ANY COMPONENT OF
THE PRODUCTION SYSTEM, or (b) any representation or warranty as to the validity,
legality or enforceability of this Indenture, any of the other Operative
Documents or the Secured Notes, or as to the correctness of any statement
contained in any thereof, except as set forth in Sections 8 and 9 of the
Participation Agreement and Section 7.3 of the Trust Agreement.
SECTION 7.04. No Segregation of Moneys; No Interest; Investments.
--------------------------------------------------
Any moneys paid to or retained by the Indenture Trustee pursuant to any
provision hereof and not then required to be distributed to the Holders, the
Lessee or the Owner Trustee shall be deposited in a separate, interest bearing
cash collateral account; provided that any payments received or applied
--------
hereunder by the Indenture Trustee shall be accounted for by the Indenture
Trustee so that any portion thereof paid or applied pursuant hereto shall be
identifiable as to the source thereof. Any amounts held by the Indenture
Trustee pursuant to the express terms of this Indenture or any other Operative
Document shall be invested and reinvested by the Indenture Trustee from time to
time in Permitted Investments at the direction of (i) the Lessee if such amounts
would be payable to the Lessee upon satisfaction of any applicable conditions;
or (ii) the Owner Participant in the case of the remaining portion of such
amounts; provided, however, that in the event there shall be continuing any
-------- -------
Indenture Event of Default such directions may be given exclusively by a
Majority in Interest of Holders of Notes. The Indenture Trustee shall have no
liability for any loss resulting from any investment required to be made
hereunder other than by reason of its own willful misconduct or negligence in
failing to comply with such instructions. Any net income or gain realized as a
result of any such investment or reinvestment shall be held as part of the
Indenture Estate and shall be applied by the Indenture Trustee at the same time,
on the same conditions and in the same manner as the amounts in respect of which
such income or gain was realized are required to be distributed in accordance
with the provisions hereof. Any Permitted Investment may be sold or otherwise
reduced to cash (without regard to maturity) by the Indenture Trustee whenever
necessary to make any
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application as required by the terms of this Indenture or of any applicable
Operative Document.
SECTION 7.05. Reliance; Agents; Advice of Counsel. Neither the Owner
-----------------------------------
Trustee nor the Indenture Trustee (in their respective individual or trust
capacities for the purposes of this Section 7.05) shall incur any liability to
anyone in acting upon any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or paper
reasonably believed by it to be genuine and believed by it to be signed by the
proper party or parties. Either of the Owner Trustee or the Indenture Trustee
may accept a copy of a resolution of the Board of Directors or other governing
body of any party to the Participation Agreement or other Operative Agreement,
certified by the Secretary or any Assistant Secretary thereof as duly adopted
and in full force and effect, as conclusive evidence that such resolution has
been duly adopted and that the same is in full force and effect. As to any fact
or matter relating to the Lessee the manner of ascertainment of which is not
specifically described herein, the Owner Trustee and the Indenture Trustee may
for all purposes hereof rely on an Officer's Certificate of the relevant party
as to such fact or matter, and such Officer's Certificate shall constitute full
protection to the Owner Trustee or the Indenture Trustee (in their individual or
trust capacities), as the case may be, for any action taken or omitted to be
taken by it in good faith in reliance thereon. The Indenture Trustee shall
assume, and shall be fully protected in assuming, that the Owner Trustee is
authorized by the Trust Agreement to enter into this Indenture and to take all
action to be taken by the Owner Trustee pursuant to the provisions hereof, and
shall not inquire into the authorization of the Owner Trustee with respect
thereto. The Owner Trustee shall assume, and shall be fully protected in
assuming, that the Indenture Trustee is authorized to enter into this Indenture
and to take all action to be taken by the Indenture Trustee pursuant to the
provisions hereof, and shall not inquire into the authorization of the Indenture
Trustee with respect thereto. In the administration of the trusts hereunder,
the Indenture Trustee may execute any of the trusts or powers hereof and perform
its powers and duties hereunder directly or through agents or attorneys and at
the expense of the Indenture Estate may consult with counsel, accountants and
other skilled Persons to be selected and retained by it, and the Indenture
Trustee shall not be liable for anything done, suffered or omitted in good faith
by it in accordance with the written advice or written opinion of any such
counsel, accountant or other skilled Person acting within such Person's area of
competence (so long as the Indenture Trustee shall have exercised due care in
selecting such Person).
55
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SECTION 7.06. No Compensation from Holders or Indenture Estate.
------------------------------------------------
Notwithstanding any other provision hereof, the Indenture Trustee shall have no
right against the Holders, the Owner Trustee, the Owner Participant or, except
as otherwise provided in Section 4.03, the Indenture Estate for any fee as
compensation for its services hereunder.
SECTION 7.07. Right of the Indenture Trustee to Perform Covenants,
----------------------------------------------------
Etc. If the Owner Trustee or the Lessee shall fail to make any payment or
- ----
perform any act required to be made or performed by it hereunder or under any
Operative Document to which it is a party or if the Owner Trustee or the Lessee
shall fail to release any Lien affecting the Indenture Estate which it is
required to release by the terms of this Indenture or any other Operative
Document to which it is a party, the Indenture Trustee, after notice to and
demand upon the Owner Trustee or the Lessee and affording the Owner Trustee and
the Lessee a reasonable opportunity to cure, and without waiving or releasing
any obligation or Lease Event of Default, may (but shall be under no obligation
to) at any time thereafter make such payment or perform such act for the account
of and at the expense of the Indenture Estate, and may enter upon any property
for such purpose and take all such action with respect thereto as, in the
Indenture Trustee's opinion, may be necessary or appropriate therefor. No such
entry shall be deemed an eviction. All sums so paid by the Indenture Trustee
and all costs and expenses (including, without limitation, legal fees and
expenses) so incurred, shall constitute additional indebtedness secured by this
Indenture and shall be paid from the Indenture Estate to the Indenture Trustee
on demand. The Indenture Trustee shall not be liable for any damages resulting
from any such payment or action unless such damages shall be a consequence of
willful misconduct or gross negligence on the part of the Indenture Trustee.
SECTION 7.08. Moneys for Payments in Respect of Notes to be Held in
-----------------------------------------------------
Trust. In case the Holder of any Secured Note shall fail to present the same
- -----
for payment on any date on which the principal thereof becomes payable, the
Indenture Trustee may set aside in trust the moneys then due thereon uninvested
and shall pay such moneys to any Holder of such Secured Note upon due
presentation for surrender thereof in accordance with the provisions of this
Indenture, subject to the provisions of Section 7.09.
SECTION 7.09. Disposition of Moneys Held for Payments of Notes. Any
------------------------------------------------
money set aside under Section 7.08 and not paid to Holders under Section 7.08
shall be held by the Indenture Trustee in trust until the latest of (a) the date
three years after the date of such setting aside, (b) the date all other Holders
(other than other Holders for
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which the Indenture Trustee is holding such moneys pursuant to Section 7.08) of
the Secured Notes shall have received full payment of all principal of and
interest and other sums payable to them on such Secured Notes or the Indenture
Trustee shall hold (and shall have notified such Persons that it holds) in trust
an amount sufficient to make full payment thereof when due, and (c) the date the
Owner Trustee shall have fully performed and observed all its covenants and
obligations contained in this Indenture with respect to the Secured Notes; and
thereafter shall be paid to the Owner Trustee by the Indenture Trustee who then
shall be released from all further liability with respect to such moneys, and
thereafter the Holders of the Secured Notes in respect of which such moneys were
so paid to the Owner Trustee shall have no rights in respect thereof except to
obtain payment of such moneys from the Owner Trustee.
ARTICLE VIII
SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES
SECTION 8.01. Notice of Successor Owner Trustees. In the case of any
----------------------------------
appointment of a successor to the Owner Trustee pursuant to the Trust Agreement,
or any merger, conversion or consolidation or transfer of substantially all of
the corporate trust business of the Owner Trustee, the successor Owner Trustee
shall give prompt written notice thereof to the Indenture Trustee.
SECTION 8.02. Resignation of Indenture Trustee; Appointment of
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Successor. (a) The Indenture Trustee or any successor thereto may resign at
- ---------
any time without cause by giving at least thirty (30) days prior written notice
to the Owner Trustee, the Owner Participant, the Lessee and each Holder, such
resignation to be effective upon the acceptance of the trusteeship by a
successor Indenture Trustee as provided in Section 8.02(b). In addition, a
Majority in Interest of Holders of Notes may at any time remove the Indenture
Trustee without cause by an instrument in writing delivered to the Owner
Trustee, the Owner Participant, the Lessee and the Indenture Trustee, such
removal to be effective upon the acceptance of the trusteeship by a successor
Indenture Trustee as provided in Section 8.02(b). In the case of the
resignation or removal of the Indenture Trustee, the Owner Trustee may appoint a
successor Indenture Trustee. If a successor Indenture Trustee shall not have
been appointed within thirty (30) days of such notice of resignation or removal,
the Indenture Trustee, the Owner Trustee, the Owner Participant, the Lessee or a
Majority in Interest of Holders may apply to any court of competent jurisdiction
to appoint a successor Indenture Trustee qualified under Section 8.02(c) to act
until such time, if any, as a successor shall have been appointed as above
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provided in this Section 8.02. The successor Indenture Trustee so appointed by
such court shall immediately and without further act be superseded by any
successor Indenture Trustee appointed as above provided in this Section 8.02.
(b) Any successor Indenture Trustee, however appointed, shall execute
and deliver to the Owner Trustee and to the predecessor Indenture Trustee (with
a copy to each Holder) an instrument accepting such appointment, and shall give
the Owner Participant, the Holders and the Lessee written notice of such
acceptance. Upon the execution and delivery of such instrument, such successor
Indenture Trustee, without further act, shall become vested with all the
estates, properties, rights, powers and duties of the predecessor Indenture
Trustee hereunder with like effect as if originally named the Indenture Trustee
herein. Notwithstanding and without limiting the foregoing, the predecessor
Indenture Trustee, upon the written request of the successor Indenture Trustee,
shall execute and deliver an instrument transferring to such successor Indenture
Trustee, upon the trusts herein expressed applicable to it, all the estates,
properties, rights and powers of such predecessor Indenture Trustee, and such
predecessor Indenture Trustee shall duly assign, transfer, deliver and pay over
to such successor Indenture Trustee all moneys or other property then held by
such predecessor Indenture Trustee hereunder.
(c) There shall at all times be a Corporate Indenture Trustee
hereunder which shall be a bank or trust company organized and doing business
under the laws of the United States of America or of any State thereof,
authorized under such laws to exercise corporate trust powers, subject to
supervision or examination by Federal or State authority, having a combined
capital and surplus of at least $75,000,000, regularly engaged in or having
expertise in leveraged leasing. If such bank or trust company publishes reports
of condition at least annually, pursuant to applicable law or to the
requirements of the aforesaid supervising or examining authority, then for
purposes hereof the combined capital and surplus of such bank or trust company
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published.
(d) Any corporation into which the Corporate Indenture Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Corporate
Indenture Trustee shall be a party, or any corporation to which substantially
all the corporate trust business of the Corporate Indenture Trustee may be
transferred, shall, subject to the terms of paragraph (c) of
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this Section 8.02, be the Corporate Indenture Trustee under this Indenture
without further act.
SECTION 8.03. Co-Trustees and Separate Trustees. (a) In order to
---------------------------------
comply with the provisions of La. R.S. 9:1783 and other provisions of Louisiana
law (to the extent the same may be applicable), the Corporate Indenture Trustee
and the Owner Trustee hereby appoint Val T. Orton, a resident of the State of
Utah, as the Individual Indenture Trustee hereunder. For such purposes, the
Individual Indenture Trustee shall act as mortgagee, assignee and secured party
solely with respect to that portion of the Indenture Estate subject to the laws
of the State of Louisiana and as to which the Corporate Indenture Trustee is not
qualified to act as mortgagee, assignee or secured party under such laws (the
"Louisiana Indenture Estate"). Further, if at any time it shall be necessary or
--------------------------
prudent in order to conform to any law of any jurisdiction in which property
shall be held subject to the Lien of this Indenture, the Indenture Trustee shall
be advised by counsel that it is so necessary or prudent in the interest of the
Holders, or a Majority in Interest of Holders of Notes in writing shall so
request the Indenture Trustee and the Owner Trustee, the Indenture Trustee and
the Owner Trustee shall execute and deliver all instruments and agreements
necessary or proper either (i) to constitute another bank or trust company or
one or more Persons approved by the Indenture Trustee and the Owner Trustee,
either to act as co-trustee or co-trustees of all or any portion of the
Indenture Estate, jointly with the Indenture Trustee originally named herein or
any successor or successors, or to act as separate trustee or trustees of all or
any such portion of the Indenture Estate in each case with such rights, powers,
duties and obligations as may be provided in such supplemental indenture or such
instrument of appointment as the Indenture Trustee or a Majority in Interest of
Holders of Notes may deem necessary or advisable, or (ii) to clarify, add to or
subtract from the rights, powers, duties and obligations theretofore granted any
such additional or separate trustee, subject in each case to the remaining
provisions of this Section 8.03. In the event that the Owner Trustee shall not
have joined in the execution of such instruments and agreements within fifteen
(15) days after the receipt of a written request from the Indenture Trustee to
do so, or if an Indenture Event of Default shall have occurred and be
continuing, the Indenture Trustee may act under the foregoing provisions of this
Section 8.03 without the concurrence of the Owner Trustee; and the Owner Trustee
hereby appoints the Indenture Trustee its agent and attorney-in-fact to act for
it under the foregoing provisions of this Section 8.03(a) in either of such
contingencies. The Indenture Trustee may, in such capacity, execute, deliver
and perform any such supplemental indenture, or any such instrument, as may be
required for
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the appointment of any such co-trustee(s) or separate trustee(s) or for the
clarification of, addition to or subtraction from the rights, powers, duties or
obligations theretofore granted to any such co-trustee(s) or separate
trustee(s). In case any co-trustee(s) or separate trustee(s) appointed under
this Section 8.03(a) shall die, become incapable of acting, resign or be
removed, all the assets, property, rights, powers, trusts, duties and
obligations of such co-trustee(s) or separate trustee(s) shall revert to and
shall vest in and may be exercised by the Indenture Trustee, to the extent
permitted by law, until a successor, additional or separate trustee is appointed
as provided in this Section 8.03(a).
(b) The Individual Indenture Trustee shall accept the benefits of the
mortgages, assignments and security interest granted herein to the extent the
same cover and affect the Louisiana Indenture Estate and, in such capacity,
shall have full power and authority to foreclose the Lien hereof to the extent
the same covers and affects the Louisiana Indenture Estate subject to the terms
and provisions hereof; provided, further, that to the extent permitted from time
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to time by Louisiana law, the Individual Indenture Trustee shall confer with and
obtain the concurrence of the Corporate Indenture Trustee prior to taking any
such action. Every other co-trustee and separate trustee hereunder and, to the
extent not inconsistent with the immediately preceding sentence, the Individual
Indenture Trustee, shall, to the extent permitted by law and except as otherwise
expressly provided in any Operative Document, be appointed and act, and the
Indenture Trustee and its successors shall act, subject to the following
provisions and conditions:
(i) the Secured Notes shall be authenticated and delivered by the
Corporate Indenture Trustee, and all powers, duties, obligations and rights
conferred upon the Indenture Trustee in respect of the receipt, custody,
control, payment and management of moneys, papers or securities, shall be
exercised, solely by the Indenture Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee and such co-trustee or co-
trustees or separate trustee or trustees jointly, except to the extent that
under any applicable law or in any jurisdiction in which any particular act
or acts are to be performed, the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations shall be exercised and
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performed by such co-trustee or co-trustees or separate trustee or
trustees; but subject to the same limitations in any exercise of his, her
or its power and authority as those to which the Indenture Trustee is
subject under the terms of this Indenture;
(iii) notwithstanding anything herein contained to the contrary, no
power given hereby to, or which it is provided hereby may be exercised by,
any such co-trustee or co-trustees or separate trustee or trustees, shall
be exercised hereunder by such additional trustee or trustees except
jointly with, or with consent in writing of, the Indenture Trustee;
(iv) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder;
(v) the powers of any co-trustee(s) or separate trustee(s) appointed
pursuant to this Section 8.03 shall not in any case exceed those of the
Indenture Trustee hereunder; and
(vi) the Owner Trustee and the Indenture Trustee, at any time, by an
instrument in writing executed by them jointly, may remove any such
trustee, and in that case, by an instrument in writing executed by them
jointly, may appoint a successor or successors to such co-trustee or co-
trustees or separate trustee or trustees, as the case may be. In the event
that the Owner Trustee shall not have joined in the execution of any such
instrument within fifteen (15) days after the receipt of a written request
from the Indenture Trustee to do so, the Indenture Trustee shall have the
power to remove any such co-trustee or separate trustee and to appoint a
successor co-trustee or separate trustee without the concurrence of the
Owner Trustee. In the event that the Indenture Trustee alone shall have
appointed a separate trustee or trustees or co-trustee or co-trustees as
above provided in this Section 8.03, it may at any time, by an instrument
in writing, remove any such separate trustee or co-trustee, the successor
to any such separate trustee or co-trustee so removed to be appointed by
the Owner Trustee and the Indenture Trustee, or by the Indenture Trustee
alone, as provided in this Section 8.03.
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ARTICLE IX
SUPPLEMENTS AND AMENDMENTS TO THIS
INDENTURE AND OTHER DOCUMENTS
SECTION 9.01. Indenture Supplements Without Consent of Holders. The
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Owner Trustee and the Indenture Trustee, without the consent of any Holder and
at any time and from time to time, may enter into one or more amendments or
supplements to this Indenture, in form satisfactory to each of the Owner Trustee
and Indenture Trustee, for any of the following purposes:
(a) to subject to the Lien of this Indenture additional property
constituting part of the Indenture Estate pursuant to a supplement to this
Indenture;
(b) to correct or amplify the description of any property at any time
subject to the Lien of this Indenture;
(c) to add to the covenants of the Owner Trustee for the benefit of
the Holders or to surrender any right or power herein conferred upon the
Owner Trustee, the Owner Participant or the Lessee;
(d) to cure any ambiguity, to correct or supplement any provision
herein or in the Secured Notes which may be defective or inconsistent with
any other provisions of this Indenture, provided that such action shall not
--------
adversely affect the interests of any Holder;
(e) to provide for the assumption by the Lessee of the obligations of
the Owner Trustee hereunder in accordance with the terms and conditions
applicable thereto specified in Section 3.04, including without limitation,
such amendments to Exhibit C as may be necessary or desirable in order to
effectuate such assumption and accomplish the purposes thereof (provided
--------
that such amendments to Exhibit C shall not adversely affect the interests
of the Loan Participants);
(f) to evidence the succession of a new Owner Trustee in accordance
with the Trust Agreement or the succession of a new Indenture Trustee
hereunder or the appointment or removal of any co-trustee or separate
trustee thereunder or hereunder;
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(g) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee or to make any other provisions with respect
to matters or questions arising hereunder so long as such action shall not
adversely affect the interests of the Loan Participants;
(h) to add to the rights of the Loan Participants;
(i) to include on the Secured Notes any legend as may be required by
law; or
(j) to provide for the establishment and issuance of (A) Additional
Notes pursuant to Section 14 of the Participation Agreement or Section 2.08
or (B) Refunding Secured Notes in connection with a refunding or
refinancing pursuant to Section 15 of the Participation Agreement or
Section 3.05.
SECTION 9.02. Supplements and Amendments to Indenture with Consent of
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Holders of Notes. (a) Without the consent of a Majority in Interest of Holders
- ----------------
of Notes, the respective parties to the Lease, the Participation Agreement and
the Trust Agreement may not modify, amend or supplement any of such agreements,
or give any consent, waiver, authorization or approval thereunder, for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions thereof or of modifying in any manner the rights of the
respective parties thereunder; provided, however, that the actions specified in
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Section 9.02(c) may be taken without the consent of the Indenture Trustee or any
Holder.
(b) Except as provided in Section 9.01 or 9.02(c) or 9.02(d), at any
time and from time to time, with the consent of a Majority in Interest of
Holders of Notes and upon the written request of the Owner Trustee, the
Indenture Trustee (x) shall execute an amendment or supplement to this Indenture
for the purpose of adding provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture, or (y) shall execute an
amendment or supplement to, or give a consent, waiver, authorization or
approval, for the purposes of adding any provisions to or changing in any manner
or eliminating any of the provisions of, the Participation Agreement, or (z)
shall consent to any amendment or supplement to, or give a consent, waiver,
authorization or approval, for the purposes of adding any provisions to or
changing in any manner or eliminating any of the provisions of, any of the other
Operative Documents; provided, however, that no such amendment or supplement to
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this Indenture, or consent, waiver, authorization, approval, amendment or
supplement to the Participation Agreement or
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any such other Operative Document (whether pursuant to subsection (a) or (c) of
this Section 9.02, and anything in such subsections or elsewhere in this
Indenture to the contrary notwithstanding) shall, without the consent of each
Holder of a Secured Note then Outstanding:
(i) change the stated maturity of the principal of, or any
installment of interest on, or any mandatory or optional repayment,
purchase or redemption provision with respect to, any Secured Note, or
change the principal amount thereof or any other amount payable in respect
thereof or reduce the Make-Whole Amount, if any, or interest thereon, or
change the place of payment where, or the coin or currency in which, any
Secured Note or the interest thereon is payable;
(ii) permit the creation of any Lien on the Indenture Estate not
otherwise permitted hereunder or deprive any Holder of the benefit of the
Lien of this Indenture upon the Indenture Estate, or any portion thereof,
for the security of its Secured Notes;
(iii) change the percentage of the aggregate principal amount of
Secured Notes required to take or approve any action hereunder or any other
Operative Document;
(iv) modify the definitions of "Indenture Default", "Indenture
Event of Default", "Majority in Interest of Holders of Notes", "Lease
Default" or "Lease Event of Default";
(v) modify the order of priorities in which distributions are to
be made under Article IV;
(vi) reduce the amount or change the time of any payment of Basic
Rent, Stipulated Loss Value, Early Buy-Out Purchase Price or Termination
Value, except as expressly permitted pursuant to the terms of the Lease or
the Participation Agreement as executed on the date hereof, so that such
payments would be insufficient to pay principal of and interest on the
outstanding Secured Notes as they become due hereunder, or change any of
the circumstances under which Stipulated Loss Value, Early Buy-Out Purchase
Price or Termination Value is payable or reduce the amount or change the
time or any of the circumstances of payment of Supplemental Rent pursuant
to Section 3.2(b) of the Lease;
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(vii) [Intentionally Omitted];
(viii) modify, amend or supplement any of the provisions of this
Section 9.02;
(ix) modify, amend or supplement the Lease, or consent to any
assignment of the Lease (other than an assignment pursuant to Section 14.2
of the Lease), in either case releasing the Lessee from its obligations in
respect of the payment of Basic Rent, Supplemental Rent payable pursuant to
Section 3.2(b) of the Lease, Stipulated Loss Value, Early Buy-Out Purchase
Price or Termination Value, or changing the absolute and unconditional
character of such obligations as set forth in Section 3.6 of the Lease; or
(x) adversely affect any indemnities in favor of any Holder as
provided pursuant to the terms of any Operative Document, except as may be
consented to by each Person adversely affected thereby.
(c) Notwithstanding anything to the contrary contained in Section
9.02(b) (except as provided in the proviso to Section 9.02(b)), (x) without the
necessity of the consent of any of the Holders or the Indenture Trustee, the
Owner Trustee may and (y) in the case of clauses (iii) and (iv) of this Section
9.02(c), without the consent of any of the Holders, the Indenture Trustee may:
(i) so long as no Indenture Event of Default shall have occurred and
be continuing, modify, amend or supplement the Lease, or give any consent,
waiver, authorization or approval with respect thereto, except that without
compliance with Section 9.02(b), the Owner Trustee shall not modify, amend
or supplement, or give any consent, waiver, authorization or approval for
the purposes of adding any provisions to or changing in any manner or
eliminating any of the provisions thereof or of modifying in any manner the
rights of the respective parties thereunder, with respect to the following
provisions of the Lease as originally executed: Section 2 (if the result
thereof would be to shorten the term of the Lease to a period shorter than
the period ending with the maturity date of the Secured Notes), Section
3.1, 3.2, Section 3.3, Section 3.5, Section 3.6, Section 6, Section 7
(except that the procedures for soliciting bids may be modified and
further restrictions may be imposed on the ability of the Lessee to
terminate the Lease pursuant to such Section 7), Section 9.1, Section 10,
Sections 11.1 through 11.7 (other than Section 11.5(c)), Section 12,
Section 13 (except that additional insurance
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requirements may be imposed on the Lessee), Section 14, Section 15, Section
16, Section 18.1, Section 19.3 and any definition of terms used in the
Lease, to the extent that any modification of such definition would result
in a modification of the Lease not permitted pursuant to this Section
9.02(b), provided that, subject to the next proviso, in the event an
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Indenture Event of Default shall have occurred and be continuing, the
Indenture Trustee shall have all rights of the Owner Trustee as "Lessor"
under the Lease to modify, amend or supplement the Lease or give any
consent, waiver, authorization or approval thereunder, for the purpose of
adding any provisions to or changing in any manner or eliminating any of
the provisions thereof or of modifying in any manner the rights of the
"Lessor" thereunder; provided further that, without the prior consent of
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the Owner Trustee, and subject to the Indenture Trustee's rights to
exercise remedies under Section 16 of the Lease without the prior consent
of the Owner Trustee, whether or not an Indenture Event of Default shall
have occurred and be continuing, no such action shall be taken with respect
to any of the provisions of Sections 1 (if any modification of a definition
contained therein would result in a modification of the Lease not permitted
by this proviso), 3, 4, 5, 6, 7, 8.2, 10, 11, 12, 13 (except to increase
the amounts or types of insurance the Lessee must provide thereunder at its
expense), 14, 15, 17, 18 and 19 of the Lease, or any other Section of the
Lease (including Section 16 of the Lease) to the extent such action shall
affect the amount or timing of any amounts payable by the Lessee under the
Lease as originally executed (or as subsequently modified with the consent
of the Owner Trustee) which, absent the occurrence and continuance of an
Indenture Event of Default, would be distributable to the Owner Trustee or
the Owner Participant under Article IV;
(ii) modify, amend or supplement the Trust Agreement, or give any
consent, waiver, authorization or approval with respect thereto, except
that without compliance with Section 9.02(b), the Owner Trustee shall not
modify, amend or supplement, or give any consent, waiver, authorization or
approval for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions thereof or of modifying in any
manner the rights of the respective parties thereunder, with respect to the
following provisions of the Trust Agreement as originally executed:
Section 1, Section 3.2, Section 3.3, Section 5.1, Section 9.1, Section 10,
Section 11.1, Section 12.7 and any definition of terms used in the Trust
Agreement, to the extent that any modification of such definition would
result in a modification of the Trust
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Agreement not permitted pursuant to this Section 9.02(c), and in each case
only to the extent any such action shall adversely impact the interests of
the Holders;
(iii) modify, amend or supplement the Participation Agreement, or give
any consent, waiver, authorization or approval with respect thereto, except
that without compliance with Section 9.02(b), the Owner Trustee and the
Indenture Trustee shall not modify, amend or supplement, or give any
consent, waiver, authorization or approval for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions thereof or of modifying in any manner the rights of the
respective parties thereunder, with respect to the following provisions of
the Participation Agreement as originally executed: Section 2, Section 3,
Section 4, Section 5, Section 6, Section 8, Section 10 (other than an
amendment to add to the covenants of the Lessee), Section 11.1, Section
11.2, Section 11.4, Section 11.6, Section 12 (insofar as such Section 12
relates to the Indenture Trustee, the Indenture Estate and the Holders)
and, to the extent the Loan Participants would be adversely affected
thereby, Section 15 and Section 16 and any definition of terms used in the
Participation Agreement to the extent that any modification of such
definition would result in a modification of the Participation Agreement
not permitted pursuant to this Section 9.02(c); and
(iv) modify, amend or supplement any of said agreements in order to
cure any ambiguity, to correct or supplement any provisions thereof which
may be defective or inconsistent with any other provision thereof or of any
provision of this Indenture, or to make any other provision with respect to
matters or questions arising thereunder or under this Indenture which shall
not be inconsistent with the provisions of this Indenture, provided the
making of any such other provision shall not adversely affect the interests
of the Holders unless such provision corrects a mistake or cures an
ambiguity.
(d) The Indenture Trustee, without the consent of any Holder and at
any time and from time to time, may enter into one or more amendments or
supplements to the Participation Agreement, in form satisfactory to the
Indenture Trustee, for any of the following purposes:
(i) to add to the covenants of any other party thereto for the
benefit of the Indenture Trustee or the Holders or to surrender any right
or power therein conferred upon any other party thereto;
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(ii) to cure any ambiguity, or to correct or supplement any provision
therein which may be defective or inconsistent with any other provisions
thereof, provided that such action shall not adversely affect the interest
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of any Holder;
(iii) to provide for the assumption by the Lessee of the obligations
of the Owner Trustee under this Indenture in accordance with the terms and
conditions applicable thereto specified in Section 3.04, including without
limitation, such amendments to Exhibit C to this Indenture or the
Participation Agreement as may be necessary or desirable in order to
effectuate such assumption and accomplish the purposes thereof (provided
--------
that such amendments to such Exhibit C or the Participation Agreement shall
not adversely affect the interests of the Loan Participants);
(iv) to evidence the succession of a new Owner Trustee in accordance
with the Trust Agreement or the succession of a new Indenture Trustee
hereunder or the appointment or removal of any co-trustee or separate
trustee thereunder or hereunder;
(v) to make any other provisions with respect to matters or questions
arising under the Participation Agreement so long as such action shall not
adversely affect the interests of the Loan Participants;
(vi) to add to the rights of the Indenture Trustee or the Holders; or
(vii) to provide for the establishment and issuance of (1) Additional
Notes pursuant to Section 14 of the Participation Agreement or Section 2.08
or (2) Refunding Secured Notes in connection with a refunding or
refinancing pursuant to Section 15 of the Participation Agreement or
Section 3.05.
(e) It shall not be necessary for Holders to approve the particular
form of any proposed amendment or supplement to this Indenture, or any
amendment, consent, waiver or other modification of any other Operative
Document, but it shall be sufficient if such action shall approve the substance
thereof.
SECTION 9.03. Execution of Indenture Supplement, Amendments, Etc. In
--------------------------------------------------
executing or accepting the additional trusts created by any amendment or
supplement to this Indenture, or any amendment, consent, waiver or other
modification permitted by this Article IX or the modifications thereby of the
trusts created by this Indenture, each of the Indenture Trustee and the Owner
Trustee shall be entitled to receive, and (subject to
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Section 6.01 and Section 6.02) shall be fully protected in relying upon, an
opinion of independent counsel stating that the execution of such amendment or
supplement to this Indenture, or of such amendment, consent, waiver or
modification, is authorized or permitted by this Indenture. Either of the
Indenture Trustee or the Owner Trustee may, but shall not be obligated to, enter
into any such amendment or supplement to this Indenture which affects its own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Indenture Supplement. Upon the execution of
------------------------------
any amendment or supplement to this Indenture pursuant to this Article IX, this
Indenture shall be modified in accordance therewith, and such amendment or
supplement shall form a part of this Indenture for all purposes; and every
Holder of a Secured Note theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.05. Reference in Secured Notes to Indenture Supplements.
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Secured Notes authenticated and delivered after the execution of any amendment
or supplement pursuant to this Article IX may, and shall if required by the
Indenture Trustee, bear a notation in form approved by the Indenture Trustee as
to any matter provided for in such amendment or supplement. If the amendment or
supplement to this Indenture shall so provide, new Secured Notes so modified as
to conform, in the opinion of the Indenture Trustee and the Owner Trustee, to
any such amendment or supplement may be prepared and executed by the Owner
Trustee and authenticated and delivered by the Corporate Indenture Trustee in
exchange for outstanding Secured Notes.
SECTION 9.06. Notices of Indenture Supplements and Amendments, Etc.
----------------------------------------------------
Promptly after the execution by the Owner Trustee and the Indenture Trustee of
any amendment or supplement to this Indenture, or any amendment, consent, waiver
or other modification pursuant to the provisions hereof, the Indenture Trustee
shall send a conformed copy of such instrument to each Holder, the Lessee, the
Owner Trustee and the Owner Participant but the failure of the Indenture Trustee
to send such a conformed copy shall not impair or affect the validity of such
document.
SECTION 9.07. Lessee Rights. Without the consent of the Lessee, no
-------------
amendment or supplement to this Indenture or amendment, waiver or other
modification of any provision of this Indenture shall alter or modify the
provisions of Section 5.09 or this Section 9.07.
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ARTICLE X
MISCELLANEOUS
SECTION 10.01. Termination of Indenture. This Indenture and the
------------------------
trusts created hereby shall terminate, and this Indenture shall be of no further
force or effect, upon the payment in full of the principal of and interest on
and all other amounts due and payable under all Secured Notes and all other
amounts due and payable to any Holder or the Indenture Trustee hereunder or
under any other Operative Document. The foregoing shall not impair any rights
of a Holder in respect of indemnification or other claims which may be available
against any party under the terms of any other Operative Document. Except as
otherwise provided in the preceding sentence, this Indenture and the trusts
created hereby shall continue in full force and effect in accordance with the
terms hereof.
SECTION 10.02. No Legal Title to Indenture Estate in Holders. No
---------------------------------------------
Holder shall have legal title to any part of the Indenture Estate. No transfer,
by operation of law or otherwise, of any Secured Note or other right, title and
interest of any Holder in and to the Indenture Estate or hereunder shall operate
to terminate this Indenture or entitle such Holder or any successor or
transferee of such Holder to an accounting or to the transfer to it of any legal
title to any part of the Indenture Estate.
SECTION 10.03. Power of Attorney. The Owner Trustee does hereby
-----------------
constitute the Indenture Trustee its true and lawful attorney-in-fact,
irrevocably and coupled with the interest of the Indenture Trustee created by
this Indenture, so long as any Secured Notes are Outstanding and so long as
there are any other amounts due hereunder, under any other Operative Documents,
or under the Secured Notes, with full power (in the name of and as attorney-in-
fact for the Owner Trustee or otherwise) to ask for, require, demand and receive
any and all moneys and claims for moneys, and all other property, which now or
hereafter constitutes part of the Indenture Estate, to endorse any checks or
other instruments or orders in connection therewith and to file any claims or to
take any action, or to institute any proceedings, which the Indenture Trustee
may deem to be necessary or advisable in the premises. The Owner Trustee has
directed the Indenture Trustee to make all necessary conveyances, assignments,
transfers and deliveries of the Indenture Estate and any rights hereunder
pursuant to the provisions of this Indenture, and for that purpose the Indenture
Trustee may execute all necessary instruments of conveyance, assignment and
transfer, and may substitute one or more persons with like power, and the Owner
Trustee
70
<PAGE>
hereby ratifies and confirms all that the Indenture Trustee, acting as its
attorney, or any such substitute, shall lawfully do by virtue hereof and whether
pursuant to the exercise of any remedies hereunder or otherwise.
SECTION 10.04. Regarding the Owner Trustee.
---------------------------
(a) Except as expressly provided herein, all and each of the
representations, warranties, undertakings and agreements herein made on the part
of the Owner Trustee are made and intended not as personal representations,
warranties, undertakings and agreements by or for the purpose or with the
intention of binding the Owner Trustee personally but are made and intended for
the purpose of binding only the Trust Estate (including the Louisiana Trust
Estate), and this Indenture is executed and delivered by the Owner Trustee
solely in the exercise of the powers expressly conferred upon it as trustee
under the Trust Agreement; and no personal liability or responsibility is
assumed hereunder by, or at any time shall be enforceable against, the Owner
Trustee or any successor in trust on account of any representation, warranty,
undertaking or agreement hereunder of the Owner Trustee, either expressed or
implied, all such personal liability, if any, being expressly waived by the
Indenture Trustee; provided, however, that (a) the Indenture Trustee or any
-------- -------
Person claiming by, through or under it, making claim hereunder, may subject to
the terms and conditions hereof, look to the Trust Estate for satisfaction of
such liability or responsibility and (b) the Corporate Owner Trustee and the
Individual Owner Trustee or its respective successor in trust, as applicable,
shall be personally liable, jointly and severally, for its own and the
Individual Owner Trustee's gross negligence and willful misconduct and for the
matters described in clauses (i) through (v) of the last sentence of Section 7.1
of the Trust Agreement. Subject to the terms and conditions hereof, each time a
successor Owner Trustee is appointed in accordance with the terms of the Trust
Agreement, such successor Owner Trustee shall, without further act, succeed to
all the rights, duties, immunities and obligations of its predecessor Owner
Trustee hereunder and under the other Operative Documents, and the predecessor
Owner Trustee shall be released from all further duties and obligations
hereunder and under the other Operative Documents, all without the necessity of
any consent or approval by the Indenture Trustee and without in any way altering
the terms of this Indenture or such other Operative Documents or the obligations
of the Indenture Trustee hereunder or thereunder.
(b) As to the aggregate unpaid principal amount of Secured Notes
Outstanding as of any date, the Owner Trustee may rely on an Officer's
Certificate of the Corporate Indenture Trustee.
71
<PAGE>
SECTION 10.05. Notices. All communications, notices and consents
-------
provided for in this Indenture shall be in writing and shall be given in person
or by courier or by means of telex, telecopy or other wire transmission (with
request for assurance of receipt in a manner typical with respect to
communications of that type), or mailed by first class mail or overnight
courier, addressed, in the case of the Owner Trustee, to Fleet National Bank of
Connecticut, 77 Main Street, MSN 238, Hartford, CT 06115, Attention: Corporate
Trust Administration (telephone: (860) 986-4236; telecopier: (860) 986-7920),
in the case of the Indenture Trustee, to First Security Bank of Utah, National
Association, 79 South Main Street, Salt Lake City, UT 84111, Attention:
Corporate Trust Department (telephone: (801) 246-5630; telecopier: (801) 246-
5053); and, in the case of all other parties, as set forth in Schedule 1 to the
Participation Agreement or at such other address as any such Person may from
time to time designate by notice duly given in accordance with the provisions of
this Section 10.05 to the other parties hereto and shall be deemed given when
received by (or when proffered to, if receipt is not accepted) the party to whom
it is addressed.
SECTION 10.06. Severability of Provisions. Any provision of this
--------------------------
Indenture which may be determined by competent authority to be invalid or
unenforceable in such jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable any remaining terms and provisions
hereof, and any such invalidity or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
The parties shall negotiate in good faith to replace such provision with an
appropriate legal provision. To the extent permitted by applicable law, the
parties hereto waive any provision thereof that renders any term or provision
hereof invalid or unenforceable in any respect.
SECTION 10.07. No Oral Modification or Continuing Waivers. No term
------------------------------------------
or provision of this Indenture or the Secured Notes may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party or the person against whom enforcement of the change, waiver,
discharge or termination is sought; and any waiver of the terms hereof or of any
Secured Note shall be effective only in the specific instance and for the
specific purpose given.
SECTION 10.08. Successors and Assigns. All covenants and agreements
----------------------
contained herein shall be binding upon each of the parties hereto and their
respective successors and permitted assigns, and inure to the benefit of each of
the parties hereto and their respective successors and permitted assigns, all as
herein provided.
72
<PAGE>
Any request, notice, direction, consent, waiver or other instrument or action by
any Holder shall bind the successors and assigns of such Holder. This Indenture
and the Indenture Estate shall not be affected by any amendment or supplement to
the Trust Agreement or by any other action taken under or in respect of the
Trust Agreement, except as otherwise provided in or permitted by this Indenture.
Each Holder by its acceptance of a Secured Note agrees to be bound by this
Indenture and all provisions of the Operative Documents applicable to it.
SECTION 10.09. Headings; Table of Contents. The division of this
---------------------------
Indenture into Articles, Sections, subsections and paragraphs, the provision of
a table of contents and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation hereof.
SECTION 10.10. Normal Commercial Relations. Notwithstanding anything
---------------------------
contained in this Indenture to the contrary, any Participant, the Indenture
Trustee, the Owner Trustee, or bank or other affiliate of any such Person may
conduct any banking or other financial transactions and have banking or other
commercial relationships with the Lessee, fully to the same extent as if this
Indenture were not in effect.
SECTION 10.11. Governing Law. THIS INDENTURE SHALL BE GOVERNED BY,
-------------
AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
EXCEPT TO THE EXTENT THAT THE LAWS OF ANY OTHER JURISDICTION MAY BE MANDATORILY
APPLICABLE TO THE CREATION, PERFECTION AND/OR ENFORCEMENT OF THE LIENS CREATED
BY THIS INDENTURE.
SECTION 10.12. Execution. This Indenture may be executed in separate
---------
counterparts by the parties thereto, each of which, when so executed and
delivered, shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.13. Security Agreement. This Indenture shall constitute a
------------------
security agreement and, in addition to all other rights of the Indenture Trustee
hereunder, the Indenture Trustee shall have for the benefit of the Holders all
of the rights conferred upon secured parties by the UCC and any other similar
legislation as from time to time in effect in any applicable jurisdiction.
SECTION 10.14. Benefits of Indenture. Nothing in this Indenture,
---------------------
whether express or implied, shall be construed to give to any Person other than
the parties hereto, the Holders and (to the extent expressly provided herein)
the Owner Participant any legal or equitable right, remedy or claim under or in
respect of this Indenture or the
73
<PAGE>
Secured Notes, and this Indenture shall be held for the sole and exclusive
benefit of the parties hereto, the Holders and (to the extent expressly provided
herein) the Owner Participant.
SECTION 10.15. Personal Property. Notwithstanding the recording of
-----------------
this Indenture in the mortgage records of St. Mary Parishes, Louisiana, it is
intended by the parties hereto that, the Undivided Interest and every portion
thereof is moveable or personal property, and shall remain moveable or personal
property, to the maximum extent permitted by law. To the maximum extent
permitted by law, the parties agree that the Undivided Interest shall constitute
moveable or personal property and shall not become fixtures or otherwise become
part of the real estate or immovable property underneath the Production System.
SECTION 10.16. Individual Indenture Trustee. The Individual Indenture
----------------------------
Trustee signs this Indenture to accept the duties and responsibilities granted
hereunder.
SECTION 10.17 Special Louisiana Provisions.
----------------------------
(a) The assignment of Lease and Rent provided in this Indenture is
made pursuant to La. R.S. 9:4401 et seq.
-- ---
(b) Pursuant to the provisions of La. R.S. 9:5301 et seq., each of
-- ---
the Holders has appointed the Indenture Trustee as agent, fiduciary and
mortgagee in the exercise of all of the Holder's rights and remedies under this
Indenture.
(c) The Secured Notes and other Indenture Indebtedness have not been
paraphed for identification with this Indenture.
(d) The taxpayer identification number of the Owner Trustee is 06-
6420276, the taxpayer identification number of the Corporate Indenture Trustee
is 87-0131890 and the taxpayer identification number of the Individual Indenture
Trustee is ###-##-####.
(e) The maximum amount of the Indenture Indebtedness that this
Indenture (including the assignment of Lease and Rent contained herein) secures
that may be outstanding at any time and from time to time is fixed at
$1,000,000,000, and the maximum amount which the Indenture Trustee or the
Holders may claim for damages that the Indenture Trustee or the Holders may
suffer from a breach of any covenant, condition or agreement secured by this
Indenture (other than for the payment of money) is fixed at $$1,000,000,000.
74
<PAGE>
(f) For purposes of executory process, the Owner Trustee acknowledges
the Indenture Indebtedness secured hereby, whether now existing or to arise
hereafter, and confesses judgment thereon if not paid when due. Upon the
occurrence of an Event of Default and at any time thereafter so long as the same
shall be continuing, and, so long as the Indenture Trustee has complied with all
of its obligations hereunder, including those set forth in Section 5.04, in
addition to all other rights and remedies granted to the Indenture Trustee
hereunder, it shall be lawful for and the Owner Trustee hereby authorizes the
Indenture Trustee, without making a demand or putting the Owner Trustee into
default, and putting in default being expressly waived, to cause all and
singular the Indenture Estate to be seized and sold after due process of law,
the Owner Trustee waiving the benefit of any and all laws or parts of laws
relative to appraisement of property seized and sold under executory process or
other legal process, and consenting that the Indenture Estate be sold without
appraisement, either in its entirety or in lots or parcels, as the Indenture
Trustee may determine, to the highest bidder for cash or on such other terms as
the Indenture Trustee in such proceeding may direct. The Indenture Trustee
shall be granted all rights and remedies granted a mortgagee or secured party
under applicable Louisiana law, including the Uniform Commercial Code in effect
in the State of Louisiana.
(g) The Owner Trustee hereby waives: (i) the benefit of appraisement
provided for in articles 2332, 2336, 2723 and 2724 of the Louisiana Code of
Civil Procedure and all other laws conferring the same; (ii) the demand and
three days notice of demand as provided in articles 2629 and 2721 of the
Louisiana Code of Civil Procedure; and (iii) the three days delay provided for
in articles 2331 and 2722 of the Louisiana Code of Civil Procedure.
75
<PAGE>
THUS DONE AND PASSED on this 12th day of December, 1995, but effective
for all purposes as of December 12, 1995, before me, the undersigned Notary
Public, in and for the County of New York, State of New York, and in the
presence of the undersigned competent witnesses, who have hereunto signed their
names with the Corporate Owner Trustee, the Individual Owner Trustee, the
Corporate Indenture Trustee, the Individual Indenture Trustee and me, said
Notary, after reading of the whole.
WITNESSES TO ALL SIGNATURES: FLEET NATIONAL BANK OF CONNECTICUT, not in its
individual capacity, except as expressly provided
herein, but solely as Corporate Owner Trustee
____________________________ By:/s/ Michael M. Hopkins
---------------------------
____________________________ Its: Vice President
--------------------------
MICHAEL M. HOPKINS, not in his individual
capacity, except as expressly provided herein, but
solely as Individual Owner Trustee
/s/ Michael M. Hopkins
------------------------------
Michael M. Hopkins
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION,
not in its individual capacity, except as
expressly provided herein, but solely as Corporate
Indenture Trustee
By:/s/ Val T. Orton
---------------------------
Its: Vice President
--------------------------
[SIGNATURE PAGE]
76
[TRUST INDENTURE]
<PAGE>
VAL T. ORTON, not in his individual capacity,
except as expressly provided herein, but solely as
Individual Indenture Trustee
/s/ Val T. Orton
----------------------------
Val T. Orton
---------------------------------
NOTARY PUBLIC
In and for the County of New York,
State of New York
My commission expires:____________
[SIGNATURE PAGE]
77
[TRUST INDENTURE]
<PAGE>
Schedule 1
to Indenture
------------
DESCRIPTION OF UNDIVIDED INTEREST IN PRODUCTION SYSTEM
------------------------------------------------------
A forty percent undivided interest in the Production System described below:
PIPELINE
- --------
The Pipeline is comprised of the following:
54 MILE 12 3/4" GAS PIPELINE
54 MILE 12 3/4" OIL PIPELINE
RISER CONNECTION
SUBSEA CONNECTIONS
SALES GAS METER SKID/PIG LAUNCHER
12" SALES GAS LINE - P/L
SALES OIL LACT UNIT/PIG LAUNCHER
8" SALES OIL LINE
The Pipeline is installed on the rights-of-way and in the locations
described in paragraphs 1-4 on Schedule 1-1 which is attached hereto and
made a part hereof for all purposes.
PLATFORM
- --------
The vessel ENSERCH GARDEN BANKS, including boats, tackles, mooring system,
drilling rig with associated equipment, and other appurtenances belonging
to the said vessel, of Panamanian nationality, carrying Provisional
Navigation License (Patente) Number 8521-PEXT-5, with call letters H3BT and
the following dimensions; length 107.29 mts; breadth 84.48 mts; and depth
36.58 mts; registered tonnages: gross 14,817; net 4445.
The Platform is located on the following Oil and Gas Lease, Outer
Continental Shelf, Gulf of Mexico, United States of America:
Garden Banks 388
ML OL 77
MMS Serial No.: OCS-G 7486
Effective date of lease: October 1, 1984
Lessor: United States of America
Lessee: Placid Oil Company, et al.
Legal Description:
SCH-1-1
<PAGE>
Block 388, Garden Banks Area, OCS Official Protraction Diagram, NG 15-
2, containing approximately 5,760 acres.
SHALLOW WATER PROCESSING FACILITY
- ---------------------------------
The Shallow Water Processing Facility is comprised of the following:
4 PILE JACKET
DECK
CRANE
QUARTERS BUILDING
MISCELLANEOUS PUMPS
FLASH GAS COMPRESSOR
WATER TREATMENT SYSTEM
MOTOR CONTROL CENTER BLDG/CONTROL
INSTRUMENTATION
SUMP TANKS
VENT SNUFFING UNIT
FLAME ARRESTORS
LIFE SUPPORT
FIRE FIGHTING EQUIPMENT
OIL TREATING
LOW PRESSURE OIL SEPARATOR
LACT UNIT
VAPOR RECOVERY UNIT
GLYCOL SYSTEM
HIGH/LOW PRESSURE RELIEF SCRUBBER
HEAT MEDIUM SYSTEM
PIPELINE SLUG CATCHER
PIPELINE PIG RECEIVER/LAUNCH
FIREWATER PUMP
PIPELINE PUMPS
INSTRUMENT UTILITY AIR COMPRESSOR
GAS COMPRESSOR
TURBINE GENERATOR SKID
LOW PRESSURE CRUDE OIL SURGE TANK
FUEL GAS FILTER SKID
STANDBY DIESEL GENERATOR
SHOP BUILDING
HIGH PRESSURE WASHDOWN UNIT
The Shallow Water Processing Facility is installed on the right-of-way and
in the location identified in paragraph 5 of Schedule 1-1 which is attached
hereto and made a part hereof for all purposes.
SCH-1-2
<PAGE>
TEMPLATE
- --------
The Template is comprised of the following:
24 SLOT SUBSEA DRILLING AND PRODUCTION TEMPLATE AND PIPING
RISER BASE
EXPORT PIPE CONNECTIONS
PRODUCTION CONTROLS
PIG LAUNCHER
SURFACE CONTROLS
SURFACE & SUBSEA DISTRIBUTION
ELECTRICAL POWER SUPPLY
TEST EQUIPMENT
HYDRAULIC POWER SUPPLY-3
The Template is located at the same location as the Platform.
PRODUCTION RISER
- ----------------
The Production Riser System is identified as a "Cooper-Cameron Free-standing
Production Riser". It is comprised of two (2) basic parts: (1) a free-standing
riser and (2) flexible conduits. The free-standing riser is a package of fifty
(50) hard pipelines (forty-eight (48) three and one-half inch (3 1/2") diameter
pipelines--two (2) per well slot for the twenty-four (24) well slots, one twelve
inch (12") diameter pipeline, and one eight inch (8") diameter pipeline) and two
(2) control umbilicals, surrounding a forty-two inch (42") diameter structural
center column measuring +/- two thousand feet (2000') in length; this column is
attached at its base to the Subsea Template and terminates at a water depth of
+/- one hundred eighty feet (180') below the water surface. The flexible
conduits begin at the top of the free-standing riser where the riser's fifty
(50) hard pipelines connect to an equal number of continuous flexible pipelines
and the two (2) control umbilicals continue, all of which then extend for a
length of +/- three hundred (300') until they terminate at connections on the
pontoons (subsea porches) of the PLATFORM.
The Production Riser is located at the same location as the platform.
SCH-1-3
<PAGE>
Schedule 1-1
to Indenture
------------
The Components of the Pipeline System are located as follows:
1. 12 3/4" Gas Pipeline: 12" Gas Pipeline Right-of-Way extending from
--------------------
Platform B (Shallow Water Facility), Block 315, Eugene Island Area to Block
388, Garden Banks Area. Approved by the Minerals Management Service, U.S.
Department of the Interior, May 19, 1994, and assigned Right-of-Way No.
OCS-G 14290, Segment No. 10229.
2. 12 3/4" Oil Pipeline: 12" Oil Pipeline Right-of-Way extending from
--------------------
Platform B (Shallow Water Facility) Block 315, Eugene Island Area to Block
388, Garden Banks Area. Approved by the Minerals Management Service, U.S.
Department of the Interior, May 19, 1994, and assigned Right-of-Way No.
OCS-G 14288, Segment No. 10227.
3. 12 3/4" Gas Export Pipeline: Plat and legal description of 12" Gas Export
---------------------------
Pipeline Right-of-Way extending from Platform B (Shallow Water Facility),
Block 315, Eugene Island Area to Sea Robin Pipeline Company's 24 inch
pipeline (OCS-G 19071). Approved by the Minerals Management Service, U.S.
Department of the Interior, April 29, 1994, and assigned Right-of-Way No.
OCS-G 14678, Segment No. 10267.
4. 8 6/8" Oil Export Pipeline: Plat and legal description of 8 3/4" Oil
--------------------------
Export Pipeline Right-of-Way extending from Platform B (Shallow Water
Facility), Block 315, Eugene Island Area to Texaco Pipeline Inc.'s 20 inch
pipeline (OCS-G 3303). Approved by the Minerals Management Service,
U.S.Department of the Interior, April 21, 1994, and assigned Right-of-Way
No. OCS-G 14287, Segment No. 10226.
The Components of the Shallow Water Processing Facility are located as follows:
5. Approval Letter dated April 22, 1994, from the Minerals Management Service,
U.S. Department of the Interior to EP Operating Limited Partnership
amending Right-of-Way OCS-G 14287, Segment No. 10226, to include Platform B
(Shallow Water Facility) located in Block 315, Eugene Island Area, Outer
Continental Shelf, Gulf of Mexico.
SCH-1-1-1
<PAGE>
Schedule 2
to Indenture
------------
CERTIFIED COPY OF RESOLUTION
----------------------------
SCH-2-1
<PAGE>
Exhibit A-1
to Indenture
------------
[FORM OF SERIES 1995 A-1 SECURED NOTE]
FLEET NATIONAL BANK OF CONNECTICUT,
not in its individual capacity but
solely as Corporate Owner Trustee under the Trust Agreement
and
MICHAEL M. HOPKINS,
not in his individual capacity but
solely as Individual Owner Trustee under the Trust Agreement
Series 1995 A-1 Secured Non-Recourse Note
Due ____
Undivided Interest in Production System
---------------------------------------
Registered No. _______
$____________ New York, New York
_____________, 19__
Interest Rate Per Annum: __%
FLEET NATIONAL BANK OF CONNECTICUT, a national banking association,
not in its individual capacity but solely as Corporate Owner Trustee under the
Trust Agreement, dated as of December 12, 1995, as amended (the "Trust
-----
Agreement"), among the Owner Participant named therein, the Corporate Owner
- ---------
Trustee and the Individual Owner Trustee, and MICHAEL M. HOPKINS, an individual,
not in his individual capacity but solely as Individual Owner Trustee under the
Trust Agreement, for value received hereby promise to pay to
________________________, or registered assigns, on or before
_______________________, ____, as herein provided, the principal sum of
____________ DOLLARS ($___________), and to pay interest on the unpaid principal
amount of this Secured Note from time to time from the date hereof until the
principal amount hereof shall have been paid in full at the rate of []% per
annum (based on a 360-day year of twelve 30-day months), and (to the extent not
prohibited by applicable law) to pay interest on any overdue principal at the
Overdue Rate; provided, that, in the event that neither (a) the shelf
--------
registration described in the Registration Rights Agreement nor (b) the Exchange
Registration is declared effective by June 12, 1996, the aforementioned interest
rate shall be permanently increased by .50% per annum as of such date. The
principal amount of this Secured Note shall be payable in full on the Maturity
Date. The first payment of accrued and unpaid interest on the unpaid principal
of this Secured Note shall be payable on January 3, 1996. Thereafter, subject
to Section 2.03(b) of the
EXHA1-1
<PAGE>
Indenture (as defined below), all accrued and unpaid interest on the unpaid
principal amount of this Secured Note shall be payable on each January 2 and
July 2 in each year commencing on July 2, 1996.
This Secured Note is one of the Secured Notes issued by the Owner
Trustee pursuant to the terms of the Trust Indenture, Mortgage, Assignment of
Lease and Security Agreement, dated as of December 12, 1995 (the "Indenture"),
---------
among the Corporate Owner Trustee, the Individual Owner Trustee, First Security
Bank of Utah, National Association, a national banking association, not in its
individual capacity but solely as Corporate Indenture Trustee thereunder for the
Holder of this Secured Note and the Holders of all other Secured Notes
Outstanding thereunder and Val T. Orton, an individual, not in his individual
capacity but solely as Individual Indenture Trustee thereunder for the Holder of
this Secured Note and the Holders of all other Secured Notes Outstanding
thereunder (collectively, the "Indenture Trustee"). Capitalized terms used in
-----------------
this Secured Note and not otherwise defined shall have the respective meanings
assigned to them in the Indenture.
Each payment of principal and interest shall be due and payable at the
times, places and in the manner as specified herein and in the Indenture.
Each payment on this Secured Note shall be applied, first, to the
-----
payment of accrued interest on this Secured Note to the date of such payment,
second, to the payment of any principal on this Secured Note then due hereunder,
- ------
and third, to the payment of the installments of principal remaining unpaid on
-----
this Secured Note in the inverse order of the maturity thereof.
This Secured Note is one of the Owner Trustee's Series 1995 A-1
Secured Notes, which, together with the Series 1995 A-2 Secured Notes, the
Series 1995 A-3 Secured Notes, the Series 1995 A-4 Secured Notes, the Series
1995 A-5 Secured Notes and the Series 1995 A-6 Secured Notes of the Owner
Trustee, all issued pursuant to the Indenture, as well as any Additional Notes
and any note or notes issued in exchange or substitution respectively therefor
in accordance with the terms of the Indenture, are equally and ratably secured
by the Indenture, except as otherwise provided therein. The properties of the
Owner Trustee (excluding Excepted Payments) included in the Indenture Estate are
pledged or mortgaged to the Indenture Trustee to the extent provided in the
Indenture as security for the payment of the principal of and interest on this
Secured Note and all other Secured Notes issued and Outstanding from time to
time under the Indenture. Reference is hereby made to the Indenture for a
description of the Indenture Estate, and for a
EXHA1-2
<PAGE>
statement of the rights of the Holder of, and the nature and extent of the
security for, this Secured Note and of the rights of, and the nature and extent
of the security for, the Holders of the other Secured Notes and of certain
rights of the Owner Trustee and the Owner Participant, as well as for a
statement of the terms and conditions of the trusts created by the Indenture, to
all of which terms and conditions in the Indenture the Holder agrees by its
acceptance of this Secured Note.
This Secured Note is subject to redemption, in whole or in part, all
as specified in Article III of the Indenture. This Secured Note is also subject
to refunding, refinancing, assumption or purchase, all as specified in Sections
3.04, 3.05 and 3.06 of the Indenture.
In case an Indenture Event of Default shall occur and be continuing,
the unpaid balance of the principal of the Secured Notes, together with all
accrued but unpaid interest, may be declared or may otherwise become due and
payable in the manner and with the effect provided in Article V of the
Indenture.
The Secured Notes are issuable only as registered notes. There shall
be maintained a note register for the purpose of registering transfers and
exchanges of the Secured Notes at the principal corporate trust office of the
Indenture Trustee, or of any successor Indenture Trustee, in the manner provided
in Section 2.05 of the Indenture. The Owner Trustee and the Indenture Trustee
may deem and treat the Person in whose name this Secured Note is registered on
the Note Register as the absolute owner hereof (whether or not this Secured Note
shall be overdue) for the purpose of receiving payments of principal and
interest and for all other purposes, and neither the Owner Trustee nor the
Indenture Trustee shall be affected by any notice to the contrary.
All payments of principal and interest to be made by the Owner Trustee
and, except as otherwise provided in the Operative Documents, all payments of
any other amounts payable by or on behalf of the Owner Trustee under the Secured
Notes or under the Indenture, shall be made only from the income and proceeds
from the Indenture Estate, and only to the extent that the Indenture Trustee
shall have received sufficient income and proceeds from the Indenture Estate to
make such payments in accordance with the Indenture. The Holder, by its
acceptance of this Secured Note, agrees that it will look solely to the income
and proceeds from the Indenture Estate to the extent available for payment as
provided in the Indenture, and that none of the Owner Participant, the Owner
Trustee, the Trust Company, Michael M. Hopkins or the Indenture Trustee (whether
in its individual or trust capacity) shall be personally liable to
EXHA1-3
<PAGE>
the Indenture Trustee or to the Holder for any amounts payable under this or any
Secured Note, nor, except as specifically provided in the Indenture or any other
Operative Document, for any amounts payable or any liability, under the
Indenture.
This Secured Note shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
certificate of authentication hereon shall have been signed by the Corporate
Indenture Trustee.
No delay or omission of the Holder to exercise its rights hereunder
shall impair any such right or power or shall be construed to be a waiver of any
Indenture Event of Default, or an acquiescence therein. No waiver of any
Indenture Event of Default shall be construed, taken or held to be a waiver of
any other Indenture Event of Default, or a waiver, acquiescence in, or consent
to any further or succeeding Indenture Event of Default. The Owner Trustee
waives demand, notice and protest in any defense by reason of extension of time
for payment or other indulgence granted by the Holder.
This Secured Note shall be governed by and construed in accordance
with the laws of the State of New York.
EXHA1-4
<PAGE>
IN WITNESS WHEREOF, each of the Corporate Owner Trustee and the
Individual Owner Trustee has caused this Secured Note to be duly executed.
FLEET NATIONAL BANK OF CONNECTICUT,
not in its individual capacity, but solely as
Corporate Owner Trustee under the Trust Agreement
By:_______________________________________________
Title:
MICHAEL M. HOPKINS,
not in his individual capacity, but solely as
Individual Owner Trustee under the Trust Agreement
__________________________________________________
Michael M. Hopkins
EXHA1-5
<PAGE>
Certificate of Authentication
-----------------------------
This Secured Note is one of the Series 1995 A-1 Secured Notes of FLEET
NATIONAL BANK OF CONNECTICUT, as Corporate Owner Trustee and MICHAEL M. HOPKINS,
as Individual Owner Trustee, described in the within-mentioned Indenture.
FIRST SECURITY BANK OF UTAH, National Association,
not in its individual capacity but solely as
Corporate Indenture Trustee
By:_______________________________________________
Title:
EXHA1-6
<PAGE>
Exhibit A-2
to Indenture
------------
[FORM OF SERIES 1995 A-2 SECURED NOTE]
FLEET NATIONAL BANK OF CONNECTICUT,
not in its individual capacity but
solely as Corporate Owner Trustee under the Trust Agreement
and
MICHAEL M. HOPKINS,
not in his individual capacity but
solely as Individual Owner Trustee under the Trust Agreement
Series 1995 A-2 Secured Non-Recourse Note
Due ____
Undivided Interest in Production System
---------------------------------------
Registered No. _______
$____________ New York, New York
_____________, 19__
Interest Rate Per Annum: __%
FLEET NATIONAL BANK OF CONNECTICUT, a national banking association,
not in its individual capacity but solely as Corporate Owner Trustee under the
Trust Agreement, dated as of December 12, 1995, as amended (the "Trust
-----
Agreement"), among the Owner Participant named therein, the Corporate Owner
- ---------
Trustee and the Individual Owner Trustee, and MICHAEL M. HOPKINS, an individual,
not in his individual capacity but solely as Individual Owner Trustee under the
Trust Agreement, for value received hereby promise to pay to
________________________, or registered assigns, on or before
_______________________, ____, as herein provided, the principal sum of
____________ DOLLARS ($___________), and to pay interest on the unpaid principal
amount of this Secured Note from time to time from the date hereof until the
principal amount hereof shall have been paid in full at the rate of []% per
annum (based on a 360-day year of twelve 30-day months), and (to the extent not
prohibited by applicable law) to pay interest on any overdue principal at the
Overdue Rate; provided, that, in the event that neither (a) the shelf
--------
registration described in the Registration Rights Agreement nor (b) the Exchange
Registration is declared effective by June 12, 1996, the aforementioned interest
rate shall be permanently increased by .50% per annum as of such date. The
principal amount of this Secured Note shall be payable in full on the Maturity
Date. The first payment of accrued and unpaid interest on the unpaid principal
of this Secured Note shall be payable on January 3, 1996. Thereafter, subject
to Section 2.03(b) of the
EXHA2-1
<PAGE>
Indenture (as defined below), all accrued and unpaid interest on the unpaid
principal amount of this Secured Note shall be payable on each January 2 and
July 2 in each year commencing on July 2, 1996.
This Secured Note is one of the Secured Notes issued by the Owner
Trustee pursuant to the terms of the Trust Indenture, Mortgage, Assignment of
Lease and Security Agreement, dated as of December 12, 1995 (the "Indenture"),
---------
among the Corporate Owner Trustee, the Individual Owner Trustee, First Security
Bank of Utah, National Association, a national banking association, not in its
individual capacity but solely as Corporate Indenture Trustee thereunder for the
Holder of this Secured Note and the Holders of all other Secured Notes
Outstanding thereunder and Val T. Orton, an individual, not in his individual
capacity but solely as Individual Indenture Trustee thereunder for the Holder of
this Secured Note and the Holders of all other Secured Notes Outstanding
thereunder (collectively, the "Indenture Trustee"). Capitalized terms used in
-----------------
this Secured Note and not otherwise defined shall have the respective meanings
assigned to them in the Indenture.
Each payment of principal and interest shall be due and payable at the
times, places and in the manner as specified herein and in the Indenture.
Each payment on this Secured Note shall be applied, first, to the
-----
payment of accrued interest on this Secured Note to the date of such payment,
second, to the payment of any principal on this Secured Note then due hereunder,
- ------
and third, to the payment of the installments of principal remaining unpaid on
-----
this Secured Note in the inverse order of the maturity thereof.
This Secured Note is one of the Owner Trustee's Series 1995 A-2
Secured Notes, which, together with the Series 1995 A-1 Secured Notes, the
Series 1995 A-3 Secured Notes, the Series 1995 A-4 Secured Notes, the Series
1995 A-5 Secured Notes and the Series 1995 A-6 Secured Notes of the Owner
Trustee, all issued pursuant to the Indenture, as well as any Additional Notes
and any note or notes issued in exchange or substitution respectively therefor
in accordance with the terms of the Indenture, are equally and ratably secured
by the Indenture, except as otherwise provided therein. The properties of the
Owner Trustee (excluding Excepted Payments) included in the Indenture Estate are
pledged or mortgaged to the Indenture Trustee to the extent provided in the
Indenture as security for the payment of the principal of and interest on this
Secured Note and all other Secured Notes issued and Outstanding from time to
time under the Indenture. Reference is hereby made to the Indenture for a
description of the Indenture Estate, and for a
EXHA2-2
<PAGE>
statement of the rights of the Holder of, and the nature and extent of the
security for, this Secured Note and of the rights of, and the nature and extent
of the security for, the Holders of the other Secured Notes and of certain
rights of the Owner Trustee and the Owner Participant, as well as for a
statement of the terms and conditions of the trusts created by the Indenture, to
all of which terms and conditions in the Indenture the Holder agrees by its
acceptance of this Secured Note.
This Secured Note is subject to redemption, in whole or in part, all
as specified in Article III of the Indenture. This Secured Note is also subject
to refunding, refinancing, assumption or purchase, all as specified in Sections
3.04, 3.05 and 3.06 of the Indenture.
In case an Indenture Event of Default shall occur and be continuing,
the unpaid balance of the principal of the Secured Notes, together with all
accrued but unpaid interest, may be declared or may otherwise become due and
payable in the manner and with the effect provided in Article V of the
Indenture.
The Secured Notes are issuable only as registered notes. There shall
be maintained a note register for the purpose of registering transfers and
exchanges of the Secured Notes at the principal corporate trust office of the
Indenture Trustee, or of any successor Indenture Trustee, in the manner provided
in Section 2.05 of the Indenture. The Owner Trustee and the Indenture Trustee
may deem and treat the Person in whose name this Secured Note is registered on
the Note Register as the absolute owner hereof (whether or not this Secured Note
shall be overdue) for the purpose of receiving payments of principal and
interest and for all other purposes, and neither the Owner Trustee nor the
Indenture Trustee shall be affected by any notice to the contrary.
All payments of principal and interest to be made by the Owner Trustee
and, except as otherwise provided in the Operative Documents, all payments of
any other amounts payable by or on behalf of the Owner Trustee under the Secured
Notes or under the Indenture, shall be made only from the income and proceeds
from the Indenture Estate, and only to the extent that the Indenture Trustee
shall have received sufficient income and proceeds from the Indenture Estate to
make such payments in accordance with the Indenture. The Holder, by its
acceptance of this Secured Note, agrees that it will look solely to the income
and proceeds from the Indenture Estate to the extent available for payment as
provided in the Indenture, and that none of the Owner Participant, the Owner
Trustee, the Trust Company, Michael M. Hopkins or the Indenture Trustee (whether
in its individual or trust capacity) shall be personally liable to
EXHA2-3
<PAGE>
the Indenture Trustee or to the Holder for any amounts payable under this or any
Secured Note, nor, except as specifically provided in the Indenture or any other
Operative Document, for any amounts payable or any liability, under the
Indenture.
This Secured Note shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
certificate of authentication hereon shall have been signed by the Corporate
Indenture Trustee.
No delay or omission of the Holder to exercise its rights hereunder
shall impair any such right or power or shall be construed to be a waiver of any
Indenture Event of Default, or an acquiescence therein. No waiver of any
Indenture Event of Default shall be construed, taken or held to be a waiver of
any other Indenture Event of Default, or a waiver, acquiescence in, or consent
to any further or succeeding Indenture Event of Default. The Owner Trustee
waives demand, notice and protest in any defense by reason of extension of time
for payment or other indulgence granted by the Holder.
This Secured Note shall be governed by and construed in accordance
with the laws of the State of New York.
EXHA2-4
<PAGE>
IN WITNESS WHEREOF, each of the Corporate Owner Trustee and the
Individual Owner Trustee has caused this Secured Note to be duly executed.
FLEET NATIONAL BANK OF CONNECTICUT,
not in its individual capacity, but solely as
Corporate Owner Trustee under the Trust
Agreement
By:_____________________________________________
Title:
MICHAEL M. HOPKINS,
not in his individual capacity, but solely as
Individual Owner Trustee under the Trust
Agreement
________________________________________________
Michael M. Hopkins
EXHA2-5
<PAGE>
Certificate of Authentication
-----------------------------
This Secured Note is one of the Series 1995 A-2 Secured Notes of FLEET
NATIONAL BANK OF CONNECTICUT, as Corporate Owner Trustee and MICHAEL M. HOPKINS,
as Individual Owner Trustee, described in the within-mentioned Indenture.
FIRST SECURITY BANK OF UTAH, National
Association,
not in its individual capacity but solely as
Corporate Indenture Trustee
By:_____________________________________________
Title:
EXHA2-6
<PAGE>
Exhibit A-3
to Indenture
------------
[FORM OF SERIES 1995 A-3 SECURED NOTE]
FLEET NATIONAL BANK OF CONNECTICUT,
not in its individual capacity but
solely as Corporate Owner Trustee under the Trust Agreement
and
MICHAEL M. HOPKINS,
not in his individual capacity but
solely as Individual Owner Trustee under the Trust Agreement
Series 1995 A-3 Secured Non-Recourse Note
Due ____
Undivided Interest in Production System
---------------------------------------
Registered No. _______
$____________ New York, New York
_____________, 19__
Interest Rate Per Annum: __%
FLEET NATIONAL BANK OF CONNECTICUT, a national banking association,
not in its individual capacity but solely as Corporate Owner Trustee under the
Trust Agreement, dated as of December 12, 1995, as amended (the "Trust
-----
Agreement"), among the Owner Participant named therein, the Corporate Owner
- ---------
Trustee and the Individual Owner Trustee, and MICHAEL M. HOPKINS, an individual,
not in his individual capacity but solely as Individual Owner Trustee under the
Trust Agreement, for value received hereby promise to pay to
________________________, or registered assigns, on or before
_______________________, ____, as herein provided, the principal sum of
____________ DOLLARS ($___________), and to pay interest on the unpaid principal
amount of this Secured Note from time to time from the date hereof until the
principal amount hereof shall have been paid in full at the rate of []% per
annum (based on a 360-day year of twelve 30-day months), and (to the extent not
prohibited by applicable law) to pay interest on any overdue principal at the
Overdue Rate; provided, that, in the event that neither (a) the shelf
--------
registration described in the Registration Rights Agreement nor (b) the Exchange
Registration is declared effective by June 12, 1996, the aforementioned interest
rate shall be permanently increased by .50% per annum as of such date. The
principal amount of this Secured Note shall be payable in full on the Maturity
Date. The first payment of accrued and unpaid interest on the unpaid principal
of this Secured Note shall be payable on January 3, 1996. Thereafter, subject
to Section 2.03(b) of the
EXHA3-1
<PAGE>
Indenture (as defined below), all accrued and unpaid interest on the unpaid
principal amount of this Secured Note shall be payable on each January 2 and
July 2 in each year commencing on July 2, 1996.
This Secured Note is one of the Secured Notes issued by the Owner
Trustee pursuant to the terms of the Trust Indenture, Mortgage, Assignment of
Lease and Security Agreement, dated as of December 12, 1995 (the "Indenture"),
---------
among the Corporate Owner Trustee, the Individual Owner Trustee, First Security
Bank of Utah, National Association, a national banking association, not in its
individual capacity but solely as Corporate Indenture Trustee thereunder for the
Holder of this Secured Note and the Holders of all other Secured Notes
Outstanding thereunder and Val T. Orton, an individual, not in his individual
capacity but solely as Individual Indenture Trustee thereunder for the Holder of
this Secured Note and the Holders of all other Secured Notes Outstanding
thereunder (collectively, the "Indenture Trustee"). Capitalized terms used in
-----------------
this Secured Note and not otherwise defined shall have the respective meanings
assigned to them in the Indenture.
Each payment of principal and interest shall be due and payable at the
times, places and in the manner as specified herein and in the Indenture.
Each payment on this Secured Note shall be applied, first, to the
-----
payment of accrued interest on this Secured Note to the date of such payment,
second, to the payment of any principal on this Secured Note then due hereunder,
- ------
and third, to the payment of the installments of principal remaining unpaid on
-----
this Secured Note in the inverse order of the maturity thereof.
This Secured Note is one of the Owner Trustee's Series 1995 A-3
Secured Notes, which, together with the Series 1995 A-1 Secured Notes, the
Series 1995 A-2 Secured Notes, the Series 1995 A-4 Secured Notes, the Series
1995 A-5 Secured Notes and the Series 1995 A-6 Secured Notes of the Owner
Trustee, all issued pursuant to the Indenture, as well as any Additional Notes
and any note or notes issued in exchange or substitution respectively therefor
in accordance with the terms of the Indenture, are equally and ratably secured
by the Indenture, except as otherwise provided therein. The properties of the
Owner Trustee (excluding Excepted Payments) included in the Indenture Estate are
pledged or mortgaged to the Indenture Trustee to the extent provided in the
Indenture as security for the payment of the principal of and interest on this
Secured Note and all other Secured Notes issued and Outstanding from time to
time under the Indenture. Reference is hereby made to the Indenture for a
description of the Indenture Estate, and for a
EXHA3-2
<PAGE>
statement of the rights of the Holder of, and the nature and extent of the
security for, this Secured Note and of the rights of, and the nature and extent
of the security for, the Holders of the other Secured Notes and of certain
rights of the Owner Trustee and the Owner Participant, as well as for a
statement of the terms and conditions of the trusts created by the Indenture, to
all of which terms and conditions in the Indenture the Holder agrees by its
acceptance of this Secured Note.
This Secured Note is subject to redemption, in whole or in part, all
as specified in Article III of the Indenture. This Secured Note is also subject
to refunding, refinancing, assumption or purchase, all as specified in Sections
3.04, 3.05 and 3.06 of the Indenture.
In case an Indenture Event of Default shall occur and be continuing,
the unpaid balance of the principal of the Secured Notes, together with all
accrued but unpaid interest, may be declared or may otherwise become due and
payable in the manner and with the effect provided in Article V of the
Indenture.
The Secured Notes are issuable only as registered notes. There shall
be maintained a note register for the purpose of registering transfers and
exchanges of the Secured Notes at the principal corporate trust office of the
Indenture Trustee, or of any successor Indenture Trustee, in the manner provided
in Section 2.05 of the Indenture. The Owner Trustee and the Indenture Trustee
may deem and treat the Person in whose name this Secured Note is registered on
the Note Register as the absolute owner hereof (whether or not this Secured Note
shall be overdue) for the purpose of receiving payments of principal and
interest and for all other purposes, and neither the Owner Trustee nor the
Indenture Trustee shall be affected by any notice to the contrary.
All payments of principal and interest to be made by the Owner Trustee
and, except as otherwise provided in the Operative Documents, all payments of
any other amounts payable by or on behalf of the Owner Trustee under the Secured
Notes or under the Indenture, shall be made only from the income and proceeds
from the Indenture Estate, and only to the extent that the Indenture Trustee
shall have received sufficient income and proceeds from the Indenture Estate to
make such payments in accordance with the Indenture. The Holder, by its
acceptance of this Secured Note, agrees that it will look solely to the income
and proceeds from the Indenture Estate to the extent available for payment as
provided in the Indenture, and that none of the Owner Participant, the Owner
Trustee, the Trust Company, Michael M. Hopkins or the Indenture Trustee (whether
in its individual or trust capacity) shall be personally liable to
EXHA3-3
<PAGE>
the Indenture Trustee or to the Holder for any amounts payable under this or any
Secured Note, nor, except as specifically provided in the Indenture or any other
Operative Document, for any amounts payable or any liability, under the
Indenture.
This Secured Note shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
certificate of authentication hereon shall have been signed by the Corporate
Indenture Trustee.
No delay or omission of the Holder to exercise its rights hereunder
shall impair any such right or power or shall be construed to be a waiver of any
Indenture Event of Default, or an acquiescence therein. No waiver of any
Indenture Event of Default shall be construed, taken or held to be a waiver of
any other Indenture Event of Default, or a waiver, acquiescence in, or consent
to any further or succeeding Indenture Event of Default. The Owner Trustee
waives demand, notice and protest in any defense by reason of extension of time
for payment or other indulgence granted by the Holder.
This Secured Note shall be governed by and construed in accordance
with the laws of the State of New York.
EXHA3-4
<PAGE>
IN WITNESS WHEREOF, each of the Corporate Owner Trustee and the
Individual Owner Trustee has caused this Secured Note to be duly executed.
FLEET NATIONAL BANK OF CONNECTICUT,
not in its individual capacity, but solely as
Corporate Owner Trustee under the Trust
Agreement
By:_____________________________________________
Title:
MICHAEL M. HOPKINS,
not in his individual capacity, but solely as
Individual Owner Trustee under the Trust
Agreement
________________________________________________
Michael M. Hopkins
EXHA3-5
<PAGE>
Certificate of Authentication
-----------------------------
This Secured Note is one of the Series 1995 A-3 Secured Notes of FLEET
NATIONAL BANK OF CONNECTICUT, as Corporate Owner Trustee and MICHAEL M. HOPKINS,
as Individual Owner Trustee, described in the within-mentioned Indenture.
FIRST SECURITY BANK OF UTAH, National
Association,
not in its individual capacity but solely as
Corporate Indenture Trustee
By:_____________________________________________
Title:
EXHA3-6
<PAGE>
Exhibit A-4
to Indenture
------------
[FORM OF SERIES 1995 A-4 SECURED NOTE]
FLEET NATIONAL BANK OF CONNECTICUT,
not in its individual capacity but
solely as Corporate Owner Trustee under the Trust Agreement
and
MICHAEL M. HOPKINS,
not in his individual capacity but
solely as Individual Owner Trustee under the Trust Agreement
Series 1995 A-4 Secured Non-Recourse Note
Due ____
Undivided Interest in Production System
---------------------------------------
Registered No. _______
$____________ New York, New York
_____________, 19__
Interest Rate Per Annum: __%
FLEET NATIONAL BANK OF CONNECTICUT, a national banking association,
not in its individual capacity but solely as Corporate Owner Trustee under the
Trust Agreement, dated as of December 12, 1995, as amended (the "Trust
-----
Agreement"), among the Owner Participant named therein, the Corporate Owner
- ---------
Trustee and the Individual Owner Trustee, and MICHAEL M. HOPKINS, an individual,
not in his individual capacity but solely as Individual Owner Trustee under the
Trust Agreement, for value received hereby promise to pay to
________________________, or registered assigns, on or before
_______________________, ____, as herein provided, the principal sum of
____________ DOLLARS ($___________), and to pay interest on the unpaid principal
amount of this Secured Note from time to time from the date hereof until the
principal amount hereof shall have been paid in full at the rate of []% per
annum (based on a 360-day year of twelve 30-day months), and (to the extent not
prohibited by applicable law) to pay interest on any overdue principal at the
Overdue Rate; provided, that, in the event that neither (a) the shelf
--------
registration described in the Registration Rights Agreement nor (b) the Exchange
Registration is declared effective by June 12, 1996, the aforementioned interest
rate shall be permanently increased by .50% per annum as of such date. The
principal amount of this Secured Note shall be payable in full on the Maturity
Date. The first payment of accrued and unpaid interest on the unpaid principal
of this Secured Note shall be payable on January 3, 1996. Thereafter, subject to
Section 2.03(b) of the
EXHA4-1
<PAGE>
Indenture (as defined below), all accrued and unpaid interest on the unpaid
principal amount of this Secured Note shall be payable on each January 2 and
July 2 in each year commencing on July 2, 1996.
This Secured Note is one of the Secured Notes issued by the Owner
Trustee pursuant to the terms of the Trust Indenture, Mortgage, Assignment of
Lease and Security Agreement, dated as of December 12, 1995 (the "Indenture"),
---------
among the Corporate Owner Trustee, the Individual Owner Trustee, First Security
Bank of Utah, National Association, a national banking association, not in its
individual capacity but solely as Corporate Indenture Trustee thereunder for the
Holder of this Secured Note and the Holders of all other Secured Notes
Outstanding thereunder and Val T. Orton, an individual, not in his individual
capacity but solely as Individual Indenture Trustee thereunder for the Holder of
this Secured Note and the Holders of all other Secured Notes Outstanding
thereunder (collectively, the "Indenture Trustee"). Capitalized terms used in
-----------------
this Secured Note and not otherwise defined shall have the respective meanings
assigned to them in the Indenture.
Each payment of principal and interest shall be due and payable at the
times, places and in the manner as specified herein and in the Indenture.
Each payment on this Secured Note shall be applied, first, to the
-----
payment of accrued interest on this Secured Note to the date of such payment,
second, to the payment of any principal on this Secured Note then due hereunder,
- ------
and third, to the payment of the installments of principal remaining unpaid on
-----
this Secured Note in the inverse order of the maturity thereof.
This Secured Note is one of the Owner Trustee's Series 1995 A-4
Secured Notes, which, together with the Series 1995 A-1 Secured Notes, the
Series 1995 A-2 Secured Notes, the Series 1995 A-3 Secured Notes, the Series
1995 A-5 Secured Notes and the Series 1995 A-6 Secured Notes of the Owner
Trustee, all issued pursuant to the Indenture, as well as any Additional Notes
and any note or notes issued in exchange or substitution respectively therefor
in accordance with the terms of the Indenture, are equally and ratably secured
by the Indenture, except as otherwise provided therein. The properties of the
Owner Trustee (excluding Excepted Payments) included in the Indenture Estate are
pledged or mortgaged to the Indenture Trustee to the extent provided in the
Indenture as security for the payment of the principal of and interest on this
Secured Note and all other Secured Notes issued and Outstanding from time to
time under the Indenture. Reference is hereby made to the Indenture for a
description of the Indenture Estate, and for a
EXHA4-2
<PAGE>
statement of the rights of the Holder of, and the nature and extent of the
security for, this Secured Note and of the rights of, and the nature and extent
of the security for, the Holders of the other Secured Notes and of certain
rights of the Owner Trustee and the Owner Participant, as well as for a
statement of the terms and conditions of the trusts created by the Indenture, to
all of which terms and conditions in the Indenture the Holder agrees by its
acceptance of this Secured Note.
This Secured Note is subject to redemption, in whole or in part, all
as specified in Article III of the Indenture. This Secured Note is also subject
to refunding, refinancing, assumption or purchase, all as specified in Sections
3.04, 3.05 and 3.06 of the Indenture.
In case an Indenture Event of Default shall occur and be continuing,
the unpaid balance of the principal of the Secured Notes, together with all
accrued but unpaid interest, may be declared or may otherwise become due and
payable in the manner and with the effect provided in Article V of the
Indenture.
The Secured Notes are issuable only as registered notes. There shall
be maintained a note register for the purpose of registering transfers and
exchanges of the Secured Notes at the principal corporate trust office of the
Indenture Trustee, or of any successor Indenture Trustee, in the manner provided
in Section 2.05 of the Indenture. The Owner Trustee and the Indenture Trustee
may deem and treat the Person in whose name this Secured Note is registered on
the Note Register as the absolute owner hereof (whether or not this Secured Note
shall be overdue) for the purpose of receiving payments of principal and
interest and for all other purposes, and neither the Owner Trustee nor the
Indenture Trustee shall be affected by any notice to the contrary.
All payments of principal and interest to be made by the Owner Trustee
and, except as otherwise provided in the Operative Documents, all payments of
any other amounts payable by or on behalf of the Owner Trustee under the Secured
Notes or under the Indenture, shall be made only from the income and proceeds
from the Indenture Estate, and only to the extent that the Indenture Trustee
shall have received sufficient income and proceeds from the Indenture Estate to
make such payments in accordance with the Indenture. The Holder, by its
acceptance of this Secured Note, agrees that it will look solely to the income
and proceeds from the Indenture Estate to the extent available for payment as
provided in the Indenture, and that none of the Owner Participant, the Owner
Trustee, the Trust Company, Michael M. Hopkins or the Indenture Trustee (whether
in its individual or trust capacity) shall be personally liable to
EXHA4-3
<PAGE>
the Indenture Trustee or to the Holder for any amounts payable under this or any
Secured Note, nor, except as specifically provided in the Indenture or any other
Operative Document, for any amounts payable or any liability, under the
Indenture.
This Secured Note shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
certificate of authentication hereon shall have been signed by the Corporate
Indenture Trustee.
No delay or omission of the Holder to exercise its rights hereunder
shall impair any such right or power or shall be construed to be a waiver of any
Indenture Event of Default, or an acquiescence therein. No waiver of any
Indenture Event of Default shall be construed, taken or held to be a waiver of
any other Indenture Event of Default, or a waiver, acquiescence in, or consent
to any further or succeeding Indenture Event of Default. The Owner Trustee
waives demand, notice and protest in any defense by reason of extension of time
for payment or other indulgence granted by the Holder.
This Secured Note shall be governed by and construed in accordance
with the laws of the State of New York.
EXHA4-4
<PAGE>
IN WITNESS WHEREOF, each of the Corporate Owner Trustee and the
Individual Owner Trustee has caused this Secured Note to be duly executed.
FLEET NATIONAL BANK OF CONNECTICUT,
not in its individual capacity, but solely as
Corporate Owner Trustee under the Trust
Agreement
By:_____________________________________________
Title:
MICHAEL M. HOPKINS,
not in his individual capacity, but solely as
Individual Owner Trustee under the Trust
Agreement
________________________________________________
Michael M. Hopkins
EXHA4-5
<PAGE>
Certificate of Authentication
-----------------------------
This Secured Note is one of the Series 1995 A-4 Secured Notes of FLEET
NATIONAL BANK OF CONNECTICUT, as Corporate Owner Trustee and MICHAEL M. HOPKINS,
as Individual Owner Trustee, described in the within-mentioned Indenture.
FIRST SECURITY BANK OF UTAH, National
Association,
not in its individual capacity but solely as
Corporate Indenture Trustee
By:_____________________________________________
Title:
EXHA4-6
<PAGE>
Exhibit A-5
to Indenture
------------
[FORM OF SERIES 1995 A-5 SECURED NOTE]
FLEET NATIONAL BANK OF CONNECTICUT,
not in its individual capacity but
solely as Corporate Owner Trustee under the Trust Agreement
and
MICHAEL M. HOPKINS,
not in his individual capacity but
solely as Individual Owner Trustee under the Trust Agreement
Series 1995 A-5 Secured Non-Recourse Note
Due ____
Undivided Interest in Production System
---------------------------------------
Registered No. _______
$____________ New York, New York
_____________, 19__
Interest Rate Per Annum: __%
FLEET NATIONAL BANK OF CONNECTICUT, a national banking association,
not in its individual capacity but solely as Corporate Owner Trustee under the
Trust Agreement, dated as of December 12, 1995, as amended (the "Trust
-----
Agreement"), among the Owner Participant named therein, the Corporate Owner
- ---------
Trustee and the Individual Owner Trustee, and MICHAEL M. HOPKINS, an individual,
not in his individual capacity but solely as Individual Owner Trustee under the
Trust Agreement, for value received hereby promise to pay to
________________________, or registered assigns, on or before
_______________________, ____, as herein provided, the principal sum of
____________ DOLLARS ($___________), and to pay interest on the unpaid principal
amount of this Secured Note from time to time from the date hereof until the
principal amount hereof shall have been paid in full at the rate of []% per
annum (based on a 360-day year of twelve 30-day months), and (to the extent not
prohibited by applicable law) to pay interest on any overdue principal at the
Overdue Rate; provided, that, in the event that neither (a) the shelf
--------
registration described in the Registration Rights Agreement nor (b) the Exchange
Registration is declared effective by June 12, 1996, the aforementioned interest
rate shall be permanently increased by .50% per annum as of such date. The
principal amount of this Secured Note shall be payable in full on the Maturity
Date. The first payment of accrued and unpaid interest on the unpaid principal
of this Secured Note shall be payable on January 3, 1996. Thereafter, subject
to Section 2.03(b) of the
EXHA5-1
<PAGE>
Indenture (as defined below), all accrued and unpaid interest on the unpaid
principal amount of this Secured Note shall be payable on each January 2 and
July 2 in each year commencing on July 2, 1996.
This Secured Note is one of the Secured Notes issued by the Owner
Trustee pursuant to the terms of the Trust Indenture, Mortgage, Assignment of
Lease and Security Agreement, dated as of December 12, 1995 (the "Indenture"),
---------
among the Corporate Owner Trustee, the Individual Owner Trustee, First Security
Bank of Utah, National Association, a national banking association, not in its
individual capacity but solely as Corporate Indenture Trustee thereunder for the
Holder of this Secured Note and the Holders of all other Secured Notes
Outstanding thereunder and Val T. Orton, an individual, not in his individual
capacity but solely as Individual Indenture Trustee thereunder for the Holder of
this Secured Note and the Holders of all other Secured Notes Outstanding
thereunder (collectively, the "Indenture Trustee"). Capitalized terms used in
-----------------
this Secured Note and not otherwise defined shall have the respective meanings
assigned to them in the Indenture.
Each payment of principal and interest shall be due and payable at the
times, places and in the manner as specified herein and in the Indenture.
Each payment on this Secured Note shall be applied, first, to the
-----
payment of accrued interest on this Secured Note to the date of such payment,
second, to the payment of any principal on this Secured Note then due hereunder,
- ------
and third, to the payment of the installments of principal remaining unpaid on
-----
this Secured Note in the inverse order of the maturity thereof.
This Secured Note is one of the Owner Trustee's Series 1995 A-5
Secured Notes, which, together with the Series 1995 A-1 Secured Notes, the
Series 1995 A-2 Secured Notes, the Series 1995 A-3 Secured Notes, the Series
1995 A-4 Secured Notes and the Series 1995 A-6 Secured Notes of the Owner
Trustee, all issued pursuant to the Indenture, as well as any Additional Notes
and any note or notes issued in exchange or substitution respectively therefor
in accordance with the terms of the Indenture, are equally and ratably secured
by the Indenture, except as otherwise provided therein. The properties of the
Owner Trustee (excluding Excepted Payments) included in the Indenture Estate are
pledged or mortgaged to the Indenture Trustee to the extent provided in the
Indenture as security for the payment of the principal of and interest on this
Secured Note and all other Secured Notes issued and Outstanding from time to
time under the Indenture. Reference is hereby made to the Indenture for a
description of the Indenture Estate, and for a
EXHA5-2
<PAGE>
statement of the rights of the Holder of, and the nature and extent of the
security for, this Secured Note and of the rights of, and the nature and extent
of the security for, the Holders of the other Secured Notes and of certain
rights of the Owner Trustee and the Owner Participant, as well as for a
statement of the terms and conditions of the trusts created by the Indenture, to
all of which terms and conditions in the Indenture the Holder agrees by its
acceptance of this Secured Note.
This Secured Note is subject to redemption, in whole or in part, all
as specified in Article III of the Indenture. This Secured Note is also subject
to refunding, refinancing, assumption or purchase, all as specified in Sections
3.04, 3.05 and 3.06 of the Indenture.
In case an Indenture Event of Default shall occur and be continuing,
the unpaid balance of the principal of the Secured Notes, together with all
accrued but unpaid interest, may be declared or may otherwise become due and
payable in the manner and with the effect provided in Article V of the
Indenture.
The Secured Notes are issuable only as registered notes. There shall
be maintained a note register for the purpose of registering transfers and
exchanges of the Secured Notes at the principal corporate trust office of the
Indenture Trustee, or of any successor Indenture Trustee, in the manner provided
in Section 2.05 of the Indenture. The Owner Trustee and the Indenture Trustee
may deem and treat the Person in whose name this Secured Note is registered on
the Note Register as the absolute owner hereof (whether or not this Secured Note
shall be overdue) for the purpose of receiving payments of principal and
interest and for all other purposes, and neither the Owner Trustee nor the
Indenture Trustee shall be affected by any notice to the contrary.
All payments of principal and interest to be made by the Owner Trustee
and, except as otherwise provided in the Operative Documents, all payments of
any other amounts payable by or on behalf of the Owner Trustee under the Secured
Notes or under the Indenture, shall be made only from the income and proceeds
from the Indenture Estate, and only to the extent that the Indenture Trustee
shall have received sufficient income and proceeds from the Indenture Estate to
make such payments in accordance with the Indenture. The Holder, by its
acceptance of this Secured Note, agrees that it will look solely to the income
and proceeds from the Indenture Estate to the extent available for payment as
provided in the Indenture, and that none of the Owner Participant, the Owner
Trustee, the Trust Company, Michael M. Hopkins or the Indenture Trustee (whether
in its individual or trust capacity) shall be personally liable to
<PAGE>
the Indenture Trustee or to the Holder for any amounts payable under this or any
Secured Note, nor, except as specifically provided in the Indenture or any other
Operative Document, for any amounts payable or any liability, under the
Indenture.
This Secured Note shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
certificate of authentication hereon shall have been signed by the Corporate
Indenture Trustee.
No delay or omission of the Holder to exercise its rights hereunder
shall impair any such right or power or shall be construed to be a waiver of any
Indenture Event of Default, or an acquiescence therein. No waiver of any
Indenture Event of Default shall be construed, taken or held to be a waiver of
any other Indenture Event of Default, or a waiver, acquiescence in, or consent
to any further or succeeding Indenture Event of Default. The Owner Trustee
waives demand, notice and protest in any defense by reason of extension of time
for payment or other indulgence granted by the Holder.
This Secured Note shall be governed by and construed in accordance
with the laws of the State of New York.
EXHA5-4
<PAGE>
IN WITNESS WHEREOF, each of the Corporate Owner Trustee and the
Individual Owner Trustee has caused this Secured Note to be duly executed.
FLEET NATIONAL BANK OF
CONNECTICUT,
not in its individual
capacity, but solely as
Corporate Owner Trustee
under the Trust Agreement
By:________________________________
Title:
MICHAEL M. HOPKINS,
not in his individual
capacity, but solely as
Individual Owner Trustee
under the Trust Agreement
___________________________________
Michael M. Hopkins
EXHA5-5
<PAGE>
Certificate of Authentication
-----------------------------
This Secured Note is one of the Series 1995 A-5 Secured Notes of FLEET
NATIONAL BANK OF CONNECTICUT, as Corporate Owner Trustee and MICHAEL M. HOPKINS,
as Individual Owner Trustee, described in the within-mentioned Indenture.
FIRST SECURITY BANK OF UTAH,
National Association,
not in its individual
capacity but solely as
Corporate Indenture Trustee
By:________________________________
Title:
EXHA5-6
<PAGE>
Exhibit A-6
to Indenture
------------
[FORM OF SERIES 1995 A-6 SECURED NOTE]
FLEET NATIONAL BANK OF CONNECTICUT,
not in its individual capacity but
solely as Corporate Owner Trustee under the Trust Agreement
and
MICHAEL M. HOPKINS,
not in his individual capacity but
solely as Individual Owner Trustee under the Trust Agreement
Series 1995 A-6 Secured Non-Recourse Note
Due ____
Undivided Interest in Production System
---------------------------------------
Registered No. _______
$____________ New York, New York
_____________, 19__
Interest Rate Per Annum: __%
FLEET NATIONAL BANK OF CONNECTICUT, a national banking association,
not in its individual capacity but solely as Corporate Owner Trustee under the
Trust Agreement, dated as of December 12, 1995, as amended (the "Trust
-----
Agreement"), among the Owner Participant named therein, the Corporate Owner
Trustee and the Individual Owner Trustee, and MICHAEL M. HOPKINS, an individual,
not in his individual capacity but solely as Individual Owner Trustee under the
Trust Agreement, for value received hereby promise to pay to
________________________, or registered assigns, on or before
_______________________, ____, as herein provided, the principal sum of
____________ DOLLARS ($___________), and to pay interest on the unpaid principal
amount of this Secured Note from time to time from the date hereof until the
principal amount hereof shall have been paid in full at the rate of []% per
annum (based on a 360-day year of twelve 30-day months), and (to the extent not
prohibited by applicable law) to pay interest on any overdue principal at the
Overdue Rate; provided, that, in the event that neither (a) the shelf
--------
registration described in the Registration Rights Agreement nor (b) the Exchange
Registration is declared effective by June 12, 1996, the aforementioned interest
rate shall be permanently increased by .50% per annum as of such date. The
principal amount of this Secured Note shall be payable in installments on each
Installment Payment Date specified in the Amortization Schedule attached hereto,
each such installment to be in an amount equal to the respective Installment
Payment
EXHA6-1
<PAGE>
Percentage (as such Installment Payment Percentage may be adjusted in accordance
with the definition thereof) of the remaining unpaid principal amount of this
Secured Note set forth in such Amortization Schedule opposite the applicable
Installment Payment Date for such installment. The first payment of accrued and
unpaid interest on the unpaid principal of this Secured Note shall be payable on
January 3, 1996. Thereafter, subject to Section 2.03(b) of the Indenture (as
defined below), all accrued and unpaid interest on the unpaid principal amount
of this Secured Note shall be payable on each January 2 and July 2 in each year
commencing on July 2, 1996.
This Secured Note is one of the Secured Notes issued by the Owner
Trustee pursuant to the terms of the Trust Indenture, Mortgage, Assignment of
Lease and Security Agreement, dated as of December 12, 1995 (the "Indenture"),
---------
among the Corporate Owner Trustee, the Individual Owner Trustee, First Security
Bank of Utah, National Association, a national banking association, not in its
individual capacity but solely as Corporate Indenture Trustee thereunder for the
Holder of this Secured Note and the Holders of all other Secured Notes
Outstanding thereunder and Val T. Orton, an individual, not in his individual
capacity but solely as Individual Indenture Trustee thereunder for the Holder of
this Secured Note and the Holders of all other Secured Notes Outstanding
thereunder (collectively, the "Indenture Trustee"). Capitalized terms used in
-----------------
this Secured Note and not otherwise defined shall have the respective meanings
assigned to them in the Indenture.
Each payment of principal and interest shall be due and payable at the
times, places and in the manner as specified herein and in the Indenture.
Each payment on this Secured Note shall be applied, first, to the
-----
payment of accrued interest on this Secured Note to the date of such payment,
second, to the payment of any principal on this Secured Note then due hereunder,
- ------
and third, to the payment of the installments of principal remaining unpaid on
-----
this Secured Note in the inverse order of the maturity thereof.
This Secured Note is one of the Owner Trustee's Series 1995 A-6
Secured Notes, which, together with the Series 1995 A-1 Secured Notes, the
Series 1995 A-2 Secured Notes, the Series 1995 A-3 Secured Notes, the Series
1995 A-4 Secured Notes and the Series 1995 A-5 Secured Notes of the Owner
Trustee, all issued pursuant to the Indenture, as well as any Additional Notes
and any note or notes issued in exchange or substitution respectively therefor
in accordance with the terms of the Indenture, are equally and ratably secured
by the Indenture, except as otherwise provided
EXHA6-2
<PAGE>
therein. The properties of the Owner Trustee (excluding Excepted Payments)
included in the Indenture Estate are pledged or mortgaged to the Indenture
Trustee to the extent provided in the Indenture as security for the payment of
the principal of and interest on this Secured Note and all other Secured Notes
issued and Outstanding from time to time under the Indenture. Reference is
hereby made to the Indenture for a description of the Indenture Estate, and for
a statement of the rights of the Holder of, and the nature and extent of the
security for, this Secured Note and of the rights of, and the nature and extent
of the security for, the Holders of the other Secured Notes and of certain
rights of the Owner Trustee and the Owner Participant, as well as for a
statement of the terms and conditions of the trusts created by the Indenture, to
all of which terms and conditions in the Indenture the Holder agrees by its
acceptance of this Secured Note.
This Secured Note is subject to redemption, in whole or in part, all
as specified in Article III of the Indenture. This Secured Note is also subject
to refunding, refinancing, assumption or purchase, all as specified in Sections
3.04, 3.05 and 3.06 of the Indenture.
In case an Indenture Event of Default shall occur and be continuing,
the unpaid balance of the principal of the Secured Notes, together with all
accrued but unpaid interest, may be declared or may otherwise become due and
payable in the manner and with the effect provided in Article V of the
Indenture.
The Secured Notes are issuable only as registered notes. There shall
be maintained a note register for the purpose of registering transfers and
exchanges of the Secured Notes at the principal corporate trust office of the
Indenture Trustee, or of any successor Indenture Trustee, in the manner provided
in Section 2.05 of the Indenture. The Owner Trustee and the Indenture Trustee
may deem and treat the Person in whose name this Secured Note is registered on
the Note Register as the absolute owner hereof (whether or not this Secured Note
shall be overdue) for the purpose of receiving payments of principal and
interest and for all other purposes, and neither the Owner Trustee nor the
Indenture Trustee shall be affected by any notice to the contrary.
All payments of principal and interest to be made by the Owner Trustee
and, except as otherwise provided in the Operative Documents, all payments of
any other amounts payable by or on behalf of the Owner Trustee under the Secured
Notes or under the Indenture, shall be made only from the income and proceeds
from the Indenture Estate, and only to the extent that the Indenture Trustee
shall have received sufficient income and proceeds from the Indenture
EXHA6-3
<PAGE>
Estate to make such payments in accordance with the Indenture. The Holder, by
its acceptance of this Secured Note, agrees that it will look solely to the
income and proceeds from the Indenture Estate to the extent available for
payment as provided in the Indenture, and that none of the Owner Participant,
the Owner Trustee, the Trust Company, Michael M. Hopkins or the Indenture
Trustee (whether in its individual or trust capacity) shall be personally liable
to the Indenture Trustee or to the Holder for any amounts payable under this or
any Secured Note, nor, except as specifically provided in the Indenture or any
other Operative Document, for any amounts payable or any liability, under the
Indenture.
This Secured Note shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
certificate of authentication hereon shall have been signed by the Corporate
Indenture Trustee.
No delay or omission of the Holder to exercise its rights hereunder
shall impair any such right or power or shall be construed to be a waiver of any
Indenture Event of Default, or an acquiescence therein. No waiver of any
Indenture Event of Default shall be construed, taken or held to be a waiver of
any other Indenture Event of Default, or a waiver, acquiescence in, or consent
to any further or succeeding Indenture Event of Default. The Owner Trustee
waives demand, notice and protest in any defense by reason of extension of time
for payment or other indulgence granted by the Holder.
This Secured Note shall be governed by and construed in accordance
with the laws of the State of New York.
EXHA6-4
<PAGE>
IN WITNESS WHEREOF, each of the Corporate Owner Trustee and the
Individual Owner Trustee has caused this Secured Note to be duly executed.
FLEET NATIONAL BANK OF
CONNECTICUT
not in its individual
capacity, but solely as
Corporate Owner Trustee
under the Trust Agreement
By:___________________________
Title:
MICHAEL M. HOPKINS,
not in his individual
capacity, but solely as
Individual Owner Trustee
under the Trust Agreement
______________________________
Michael M. Hopkins
EXHA6-5
<PAGE>
Certificate of Authentication
-----------------------------
This Secured Note is one of the Series 1995 A-6 Secured Notes of FLEET
NATIONAL BANK OF CONNECTICUT, as Corporate Owner Trustee and MICHAEL M. HOPKINS,
as Individual Owner Trustee, described in the within-mentioned Indenture.
FIRST SECURITY BANK OF UTAH,
National Association,
not in its individual
capacity but solely as
Corporate Indenture Trustee
By:___________________________
Title:
EXHA6-6
<PAGE>
Series 1995 A-6 Secured Notes
Amortization Schedule
---------------------
Installment Payment
Installment Percentage of Remaining
Payment Date Unpaid Principal Amount
- ------------ -----------------------------
EXHA6-7
<PAGE>
Exhibit B
to Indenture
------------
<TABLE>
<CAPTION>
Maturity Dates, Aggregate Principal Amounts
================================================================================
Interest Rate of Secured Notes
------------------------------
Maturity Aggregate Interest Premium
Date Principal Rate Per Termina-
---- Amount Annum tion Date
------ ----- ---------
<S> <C> <C> <C> <C>
Series 1995 January $ 4,917,000 5.52% January
A-1 Secured 2, 1997 2, 1997
Note
- --------------------------------------------------------------------------------
Series 1995 January $ 5,173,000 5.57% January
A-2 Secured 2, 1998 2, 1998
Note
- --------------------------------------------------------------------------------
Series 1995 January $ 5,462,000 5.65% January
A-3 Secured 2, 1999 2, 1999
Note
- -------------------------------------------------------------------------------
Series 1995 January $ 5,770,000 5.74% January
A-4 Secured 2, 2000 2, 2000
Note
- -------------------------------------------------------------------------------
Series 1995 January $ 6,101,000 5.79% January
A-5 Secured 2, 2001 2, 2001
Note
- --------------------------------------------------------------------------------
Series 1995 July 2, $64,762,000 6.15% March 23,
A-6 Secured 2008 2005
Note
================================================================================
</TABLE>
EXHB-1
<PAGE>
Exhibit B-1
to Indenture
------------
Installment Payment Dates and
Installment Payment Percentages
-------------------------------
<TABLE>
<CAPTION>
================================================
SERIES 1995 A-6 SECURED NOTE
Installment Installment
Payment Date Payment Percentage
------------ of Remaining
Unpaid Principal
Amount
------
<S> <C>
January 2, 2002 9.97876069%
------------------------------------------------
January 2, 2003 15.73086278%
------------------------------------------------
January 2, 2004 19.81545266%
------------------------------------------------
January 2, 2005 26.23211535%
------------------------------------------------
January 2, 2006 12.07543975%
------------------------------------------------
July 2, 2006 36.56760162%
------------------------------------------------
July 2, 2007 74.80050461%
------------------------------------------------
July 2, 2008 100.00000000%
================================================
</TABLE>
EXHB1-1
<PAGE>
Exhibit B-2
to Indenture
------------
Issuance of Series 1995 A Secured Notes
---------------------------------------
The issuance of the Series 1995 A Secured Notes issued hereunder shall be
issued to and shall be payable to the Pass Through Trustee under the related
Pass Through Trust Agreement with respect to the grantor trust created thereby,
in each case as set forth below.
1995 A1 Pass Through Trust:
Series 1995 A-1 Secured Note
1995 A2 Pass Through Trust:
Series 1995 A-2 Secured Note
1995 A3 Pass Through Trust:
Series 1995 A-3 Secured Note
1995 A4 Pass Through Trust:
Series 1995 A-4 Secured Note
1995 A5 Pass Through Trust:
Series 1995 A-5 Secured Note
1995 A6 Pass Through Trust:
Series 1995 A-6 Secured Note
EXHB2-1
<PAGE>
Exhibit C
to Indenture
------------
RELEVANT AMENDMENT
------------------
TABLE OF CONTENTS
LISTED BELOW ARE THE DOCUMENTS WHICH ARE AMENDED OR REPLACED BY THE RELEVANT
AMENDMENT AND THE CORRESPONDING PAGE NUMBERS OF THE RELEVANT AMENDMENT ON WHICH
THE AMENDMENT THERETO OR REPLACEMENT THEREOF, AS THE CASE MAY BE, IS MADE. THIS
TABLE OF CONTENTS IS FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT AFFECT THE
CONSTRUCTION OR INTERPRETATION OF THE RELEVANT AMENDMENT.
<TABLE>
<CAPTION>
Document Page
- -------- ----
<S> <C>
Definitions C-2
Indenture C-8
Participation Agreement C-47
Pass Through Trust Agreement C-48
</TABLE>
EXHC-1
<PAGE>
RELEVANT AMENDMENT
------------------
As provided for in Section 3.04 of the Indenture to which this is
Exhibit C and in Section 11.6 of the Participation Agreement, the Indenture, the
other Operative Documents and the Pass Through Trust Agreement will, subject to
the satisfaction of the conditions specified in such Section 3.04 (including
without limitation, the execution and delivery of the Relevant Date Supplement),
be deemed to have been amended, automatically and without the requirement of
further action by any Person effective as of the Relevant Date (provided that
--------
such amendments shall not constitute a waiver by any party to the Operative
Documents of any claims or rights to indemnity such party has against any other
party to the Operative Documents accrued in favor of such party prior to the
Relevant Date arising under the Operative Documents as in existence prior to the
Relevant Date) and so that:
(A) (I) The following defined terms in Appendix A to each of the
Indenture and the other Operative Documents and, to the extent applicable, in
Section 1.01 of the Pass Through Trust Agreement shall read as follows:
"Additional Notes" shall mean notes issued pursuant to Section 2.08 of
----------------
the Indenture.
"Appraisal Procedure" shall mean a procedure for determining any
-------------------
amount, value or period. Such procedure shall be commenced by the delivery
of written notification by Mobil G.B. to the Indenture Trustee, or by the
Indenture Trustee to Mobil G.B., that it desires to obtain an appraisal
with respect to such amount, value or period. If required by the terms of
the applicable Operative Documents, such parties shall first attempt to
agree on such matter. If such parties are unable to agree on such matter
within the time period specified in the applicable Operative Document, or
if such parties are not required to attempt to agree, such parties shall
thereupon consult for the purpose of selecting a mutually acceptable
Independent appraiser. If within 10 days from the date the parties are
required to so consult, they are unable to agree upon the appointment of a
mutually acceptable Independent appraiser, then each of such parties shall
appoint an Independent appraiser, and such Independent appraisers shall
jointly determine such matter. If one party does not so appoint an
Independent appraiser, then the Independent appraiser appointed by the
other shall determine such matter as the sole appraiser. If such two
Independent appraisers cannot agree on such matter within 20 days, such
matters shall be determined by such two Independent appraisers and a third
Independent appraiser chosen within 10 days after
EXHC-2
<PAGE>
such 20-day period by such two Independent appraisers or, if such three
Independent appraisers fail to reach an agreement, the determination of the
appraiser that differs most from the second highest determination shall be
excluded (unless such difference is less than ten percent from either of
the other determinations), the remaining two determinations shall be
averaged (or all three shall be averaged, if the third determination is not
discarded due to the preceding parenthetical) and such average shall
constitute the determination of the appraisers. If such two Independent
appraisers fail to agree upon the appointment of a third Independent
appraiser within the allotted time period, such appointment shall be made
by the New York City office of the American Arbitration Association or any
organization successor thereto, upon the request of any such parties from a
panel of arbitrators having familiarity with assets similar to the assets
comprised by the Production System. The determination of the appraisers so
chosen shall be given within 20 days of the appointment of such third
appraiser. Fees and expenses of the appraisers appointed in connection with
an Appraisal Procedure shall be paid by Mobil G.B.
"Business Day" shall mean any day other than a Saturday or Sunday or
------------
any other day on which banks located in New York, New York, Fairfax,
Virginia, the city in which the Indenture Trustee Office is located, or, so
long as any Pass Through Certificate is Outstanding, the city in which the
corporate trust department of the Pass Through Trustee is located, are
required or authorized to remain closed.
"Event of Loss" shall mean any of the following events: (a) the (i)
-------------
loss, theft, destruction or disappearance of, or (ii) occurrence of damage
(which, in Mobil G.B.'s reasonable, good faith opinion, renders repair or
replacement uneconomic) to, the Production System (or substantially the
entirety of the Production System) or a Significant Portion thereof; (b)
the permanent condemnation, confiscation or seizure of, or requisition of
title to, the Production System or a Significant Portion thereof by any
Governmental Authority; (c) the requisition of use of the Production System
or a Significant Portion thereof by any Governmental Authority for a period
beyond the latest Maturity Date; (d) the receipt of insurance proceeds
based upon an actual or constructive total loss of the Production System or
a Significant Portion thereof; (e) the parties to the Operating Agreement
have determined, after the fifth anniversary of the Closing Date, to
abandon the Production System or any Significant Portion thereof; or (f)
the parties to the Operating Agreement have determined, after the second
anniversary of the
<PAGE>
Closing Date and prior to the fifth anniversary of the Closing Date and
after MPTM has taken all commercially reasonable steps to exercise its
rights under the Operating Agreement to prevent such abandonment, to
abandon the Production System or a Significant Portion thereof . An Event
of Loss with respect to a Significant Portion of the Production System may
constitute an Event of Loss with respect to the Production System. Such
determination shall be made by Mobil G.B. in its reasonable judgement.
"Fair Market Rental Value" or "Fair Market Sales Value" of any
------------------------ -----------------------
property or service as of any date shall mean the cash rent or cash price
that would be obtained in an arm's-length lease or sale, respectively,
between an informed and willing lessee or buyer (under no compulsion to
lease or purchase) and an informed and willing lessor or seller (under no
compulsion to lease or sell) of the property or services in question and
shall be determined on the basis that the Production System has been
maintained in accordance with the requirements of Section 11 of Article XI
of the Indenture (but otherwise on an "as-is" basis).
"Independent" shall mean, when used with respect to any specified
-----------
Person, a Person who (1) is in fact independent, (2) does not have any
direct financial interest in Mobil G.B. or any Affiliate and (3) is not
connected with Mobil G.B. or any Affiliate as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing
similar functions. Whenever it is provided that any Independent Person's
opinion or certificate shall be furnished to the Indenture Trustee, such
Person shall be appointed by Mobil G.B. and approved by the Indenture
Trustee in the exercise of reasonable care and such opinion or certificate
shall state that the signer has read this definition and that the signer is
Independent within the meaning hereof.
"Lease Event of Default" shall mean an Indenture Event of Default.
----------------------
"Outstanding", (a) when used with respect to the Secured Notes, shall
-----------
mean, as of the date of determination, all Secured Notes theretofore
authenticated and delivered under the Indenture, except:
(i) Secured Notes theretofore cancelled by the Indenture
Trustee or delivered to the Indenture Trustee for cancellation;
(ii) Secured Notes or portions thereof for whose payment or
redemption money in the necessary
EXHC-4
<PAGE>
amount has been theretofore deposited with the Indenture Trustee,
provided that such Secured Notes are to be redeemed and notice of such
--------
redemption has been duly given pursuant to the Indenture; and
(iii) Secured Notes paid or in exchange for or in lieu of which
other Secured Notes have been authenticated and delivered pursuant to
the Indenture;
provided, however, that in determining whether the Holders of the requisite
-------- -------
principal amount of Secured Notes Outstanding have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Secured Notes owned by Mobil G.B. or any Affiliate thereof, shall be
disregarded and deemed not to be Outstanding, unless such Person owns 100%
of the Secured Notes owned by all Persons, except that, in determining
whether the Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Secured Notes which the Indenture Trustee knows to be so owned shall be so
disregarded. Secured Notes so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Indenture Trustee the pledgee's right so to act with
respect to such Secured Notes and that the pledgee is not Mobil G.B., or
any Affiliate thereof, and;
(b) when used with respect to Pass Through Certificates, shall mean,
as of the date of determination, all Pass Through Certificates theretofore
authenticated and delivered under the Pass Through Trust Agreement, except:
(i) Pass Through Certificates theretofore cancelled by the
Registrar or delivered to the Pass Through Trustee or the Registrar
for cancellation;
(ii) all of the Pass Through Certificates if money in the full
amount required to make the final distribution payment to be made
pursuant to Section 11.01 of the Pass Through Trust Agreement has been
theretofore deposited with the Pass Through Trustee in trust for the
Certificateholders as provided in Section 4.01 of the Pass Through
Trust Agreement pending distribution of such money to the
Certificateholders pursuant to such final distribution payment; and
(iii) Pass Through Certificates in exchange for or in lieu of
which other Pass Through Certificates have been authenticated and
delivered pursuant to the Pass Through Trust Agreement.
EXHC-5
<PAGE>
"Overdue Rate" shall mean a rate per annum equal to (i) with respect
------------
to amounts owing to any Loan Participant constituting payments or
prepayments of the principal amount of the Secured Notes of any series, the
rate of interest on such series of Secured Notes and (ii) with respect to
amounts owing to any Loan Participant not constituting payments or
prepayments of the principal amount of the Secured Notes of any series, a
zero percent rate of interest.
"Permitted Liens" shall mean (a) the respective rights and interests
---------------
of Mobil G.B., the Indenture Trustee and the Holders, as provided in the
Operative Documents, (b) Lessor's Liens, Owner Participant's Liens and
Indenture Trustee's Liens, (c) Liens for Taxes either not delinquent or
being contested in good faith and by appropriate proceedings, so long as
such proceedings do not involve any material danger of the sale, forfeiture
or loss of any part of, the Production System, the Trust Estate or the
Indenture Estate, or title thereto or any interest therein or any material
danger of the interference with the payment of Rent, (d) materialmen's,
mechanics', workers', repairmen's, employees' or other like Liens, arising
in the ordinary course of business, or arising in the course of
constructing, repairing, equipping or installing, modifying or expanding
the Production System or any part thereof, for amounts either not more than
60 days past due or being contested in good faith and by appropriate
proceedings so long as such proceedings do not involve any material danger
of the sale, forfeiture or loss of any part of the Production System, the
Trust Estate or the Indenture Estate, or title thereto or any interest
therein and any material danger of the interference with the payment of
Rent, (e) Liens arising out of judgments or awards against Mobil G.B. with
respect to which at the time an appeal or proceeding for review is being
prosecuted in good faith so long as such judgment, award or appeal does not
involve any material danger of the sale, forfeiture or loss of any part of
the Production System, the Trust Estate or the Indenture Estate, or title
thereto or any interest therein or any material danger of the interference
with the payment of Rent, (f) the rights and interests of any Governmental
Authority of the United States pursuant to the Federal Leases, (g) liens
for current crew's wages, for general average or salvage (including
contract salvage) or for wages of stevedores employed directly by Mobil
G.B., MPTM, the Operator, or the operator, agent or master of the Platform
which in each case (A) are unclaimed or covered by insurance or (B) for
amounts either not more than 60 days past due or being contested in good
faith and by appropriate proceedings so long as such proceedings do not
involve any material danger of the sale, forfeiture or loss of any part of
the
EXHC-6
<PAGE>
Production System, the Trust Estate or the Indenture Estate, or title
thereto or any interest therein or any material danger of the interference
with the payment of Rent, (h) Liens, assignments and subleases permitted by
Section 14 of the Lease and the rights of MPTM under the Initial Sublease
and the rights of any other sublessee or any sub-sublessor under any other
sublease (or sub-sublease) permitted by Section 14 of the Lease and (i) the
Operating Agreement and the rights of the Operator and the Other Owner
thereunder and the rights of their successors, assigns or mortgagees.
"Relevant Amendment" shall have the meaning specified in Section
-------------------
3.04 of the Indenture, as originally executed.
"Relevant Date" shall have the meaning specified in Section 3.04 of
-------------
the Indenture, as originally executed.
"Responsible Officer", when used with respect to the Indenture Trustee
-------------------
or the Pass Through Trustee, shall mean an officer in its corporate trust
administration department (or any successor group of the Indenture Trustee
or the Pass Through Trustee, as the case may be) or any other officer
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"Severable Modification" shall mean any Modification to the Production
--------- ------------
System permitted under Section XI of Article 11 of the Indenture and which
can be readily removed from the Production System without causing material
damage to the Production System.
(II) The following defined term shall be added to each such Appendix
A:
"United States Government Obligations" means securities that are
------------------------------------
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged which are not callable or redeemable,
and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such United States Government
Obligation or a specified payment of interest on or principal of any such
United States Government Obligation held by such custodian for the account
of the holder of a depository receipt so long as such custodian is not
authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in
respect of the United States Government
EXHC-7
<PAGE>
Obligation or the specific payment of interest on or principal of the
United States Government Obligation evidenced by such depository receipt.
(III) Section 1.01 of the Indenture shall read as follows:
SECTION 1.01. Definitions. Unless otherwise defined herein, for the
-----------
purposes hereof, terms used herein and not otherwise defined shall have the
meanings assigned to them in Appendix A. References in this Indenture to
Sections, subsections, paragraphs, Schedules, Appendices and Exhibits are to
Sections, subsections and paragraphs in Articles I through X of, and Schedules,
Appendices and Exhibits to, this Indenture unless otherwise indicated.
(B) (I) Section 2.01(h) of the Indenture shall read as follows:
(d) Each Secured Note issued after the Relevant Date shall be signed
on behalf of Mobil G.B. by the Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, the Controller, the
Treasurer or the Secretary (or any other officer or employee authorized in
writing by one of the foregoing officers) of Mobil G.B., manually. No Secured
Note shall be secured by or entitled to any benefit under this Indenture, or be
valid for any purpose, unless there appears thereon a certificate of
authentication executed by or on behalf of the Indenture Trustee by the manual
signature of a Responsible Officer of the Indenture Trustee, and such
certificate on any Secured Note shall be conclusive evidence that such Secured
Note has been duly authenticated and delivered hereunder. Notwithstanding any
provision to the contrary contained herein, any Secured Note issued after the
Relevant Date shall be issued (i) in the case of any Series A-1 Secured Note,
substantially in the form set forth in Exhibit A-1 to Exhibit C hereto, (ii) in
the case of any Series A-2 Secured Note, substantially in the form set forth in
Exhibit A-2 to Exhibit C hereto, (iii) in the case of any Series A-3 Secured
Note, substantially in the form set forth in Exhibit A-3 to Exhibit C hereto,
(iv) in the case of any Series A-4 Secured Note, substantially in the form set
forth in Exhibit A-4 to Exhibit C hereto, (v) in the case of any Series A-5
Secured Note, substantially in the form set forth in Exhibit A-5 to Exhibit C
hereto, and (vi) in the case of any Series A-6 Secured Note, substantially in
the form set forth in Exhibit A-6 to Exhibit C hereto.
(II) Sections 2.02 and 2.08 of the Indenture shall read as follows:
SECTION 2.02. Payments from Indenture Estate and Mobil G.B. All
---------------------------------------------
payments of principal and interest to be made by Mobil G.B. and, except as
otherwise provided in the
EXHC-8
<PAGE>
Operative Documents, all payments of any other amounts payable by or on behalf
of Mobil G.B. under the Secured Notes and this Indenture, shall be payable from
the income and proceeds from the Indenture Estate and shall be direct
obligations of Mobil G.B. Each Holder, by its acceptance of a Secured Note,
agrees that it will look solely to Mobil G.B., the Guarantor and the income and
proceeds from the Indenture Estate to the extent available for payment as herein
provided and that the Indenture Trustee (whether in its individual or trust
capacity) shall not be personally liable to such Holder for any amounts payable
under the Secured Notes, or, except as specifically provided herein or in the
other Operative Documents, for any amounts payable or any liability under this
Indenture.
SECTION 2.08 Additional Notes. (a) So long as no Indenture Event of
----------------
Default shall have occurred and be continuing, Additional Notes of one or more
series may be issued under and secured by this Indenture at any time or from
time to time, and subject to the conditions hereinafter provided in this Section
2.08, for the purpose of financing Mobil G.B. share of the cost of any
Modification to the Production System or any Component thereof.
(b) Prior to the issuance of any Additional Notes of any series
pursuant to this Section 2.08, Mobil G.B. shall have delivered to the Indenture
Trustee, not less than thirty (30) days prior to the proposed date of issuance
of such Additional Notes, a request and authorization to issue Additional Notes
(a "Request"), which Request shall include the amount and series of such
-------
Additional Notes, the proposed date of issuance of such Additional Notes, and
other details with respect thereto which are not inconsistent with this Section
2.08. Such Additional Notes shall have a designation so as to distinguish such
Additional Notes from the Initial Secured Notes and Additional Notes of any
other series, but otherwise shall be substantially similar in form to the
Initial Secured Notes, with such omissions therefrom, variations therein and
additions thereto as shall be appropriate. Such Additional Notes shall not rank
senior in any respect to other Secured Notes issued pursuant to the terms
hereof.
(c) The terms, conditions and designations of such Additional Notes
(which shall be consistent with the Request and with the terms of this
Indenture) shall be set forth in a supplement to this Indenture which shall be
executed by Mobil G.B. and the Indenture Trustee.
(i) after giving effect to the issuance of the Additional Notes,
the aggregate principal amount outstanding of all Secured Notes (which
shall not exceed 85% of the total Fair Market Value of the Undivided
Interest (as determined pursuant to the Appraisal Procedure) after giving
effect to such Modifications);
EXHC-9
<PAGE>
(ii) the text of such Additional Notes (which, except for the terms
of payment thereof, shall be of substantially the same effect as the text
of the Initial Secured Notes set forth in this Indenture, with such changes
as are consistent with and permitted by this Indenture and which in all
events shall provide that such Additional Notes are never more than pari
passu in priority of payment, in right of security and in all other
respects with the Initial Secured Notes);
(iii) the date of maturity of such Additional Notes;
(iv) the date from which, and the date or dates on which, interest
is payable (which shall be Interest Payment Dates);
(v) the terms for the repayment of the principal amount of such
Additional Notes (each regularly scheduled payment of principal shall be an
Interest Payment Date);
(vi) the terms, if any, as to prepayment or redemption of such
Additional Notes at the option of Mobil G.B., and as to the premium, if
any, payable on any redemption or prepayment of such Additional Notes; and
(vii) any other terms and agreements in respect thereof provided or
permitted by this Indenture or necessary to specify the terms and
conditions on which such additional notes shall be issued.
(d) Such Additional Notes shall be executed by Mobil G.B. as provided
in Section 2.01 and deposited with the Corporate Indenture Trustee for
authentication and delivery, but before such Additional Notes shall be
authenticated and delivered by the Indenture Trustee, there shall be delivered
to or deposited with the Indenture Trustee the following:
(i) the Request;
(ii) such supplement to this Indenture, duly executed by Mobil
G.B.;
(iii) such instruments as may be necessary to perfect the security
interest in Mobil G.B.'s 405 undivided interest in such Modification under
this Indenture;
(iv) such evidence of the due filing of financing statements and
other filings with respect to the Modification as may be required to
subject such property to the Lien of this Indenture, subject to no Liens
except Permitted Liens;
EXHC-10
<PAGE>
(v) originals or certified copies of all corporate actions
necessary for the due and valid issue of such Additional Notes, the due and
valid authorization, execution, delivery and performance by Mobil G.B. of
the supplement to this Indenture relating thereto, and the creation of the
Lien and security interest thereon referred to above, all of which
corporate actions shall have been duly obtained and shall be in full force
and effect; together with reasonable evidence as to the due occurrence of
all such authorization, execution, delivery and performance;
(vi) documentation, duly executed and delivered by the respective
parties thereto whereby the proposed holders of the Additional Notes agree
to be bound by the terms of the Operative Documents (including, without
limitation, representations and covenants corresponding to those contained
in Section 7 of the Participation Agreement);
(vii) an Officer's Certificate of Mobil G.B. certifying as to its
share of the cost of such Modification; and
(viii) such opinions of counsel as are customary in transactions of
this type, including, without limitation, opinions as to the due
authorization, execution, delivery and enforceability (subject to usual or
customary exceptions, qualifications and assumptions) of such supplement to
this Indenture and such Additional Notes, and such other certificates and
other documents as may be reasonably requested by the Indenture Trustee to
evidence the validity and binding effect of such supplement to this
Indenture and such Additional Notes and compliance with this Section 2.08.
(e) When the documents referred to in Section 2.08(d) shall have been
delivered to or deposited with the Indenture Trustee and when such Additional
Notes described in the Request and the supplement to this Indenture have been
executed by Mobil G.B. as required by this Indenture, the Indenture Trustee
shall authenticate and deliver such Additional Notes in the manner described in
such Request, but only upon payment to Mobil G.B. of the sum or sums specified
in such Request.
SECTION 2.12. Certain References and Obligations. Notwithstanding
-----------------------------------
any provision to the contrary contained herein, Sections 2.01, 2.03, 2.05, 2.06
and 2.07 shall be deemed amended to provide that any reference to or obligation
of the Owner Trustee contained in such Sections shall after the Relevant Date be
deemed to be a reference to or obligation of Mobil G.B.
EXHC-11
<PAGE>
(C) Sections 3.02, 3.03, 3.04, 3.06, 3.08 and 3.11 of the Indenture
shall read as follows:
SECTION 3.02. Mandatory Redemption. Casualty Redemption. (i) In
-------------------- -------------------
the event that an Event of Loss shall occur with respect to the Production
System or a Significant Portion thereof then, unless, in the case of an Event of
Loss with respect to such a Significant Portion where such Significant Portion
is rebuilt or replaced pursuant to Section 12.06 of Article XI, Mobil G.B. shall
redeem on the date of payment of the amount required to be paid as a result of
such Event of Loss pursuant to Section 12.02 of Article XI (the date of any
redemption under this Section 3.02 being herein called a "Casualty Redemption
-------------------
Date") (i) if the Event of Loss shall have occurred with respect to the
- ----
Production System, the entire unpaid principal amount of the Secured Notes
Outstanding on such Casualty Redemption Date, at a redemption price equal to
100% of such unpaid principal amount of such Secured Notes, together with any
accrued and unpaid interest thereon to such Casualty Redemption Date and without
Make-Whole Amount or any other premium and (ii) if the Event of Loss shall have
occurred with respect to a Significant Portion of the Production System, such of
the unpaid principal amount of the Secured Notes of each series Outstanding on
such Casualty Redemption Date (assuming, only for purposes of this calculation,
that if such Casualty Redemption Date is coincident with an Installment Payment
Date or a Maturity Date, the scheduled principal payment due, if any, on such
Casualty Redemption Date on the Secured Notes of such series is paid prior to
the time the Redemption Price is calculated pursuant to this Section 3.02(ii)
and applied to principal in accordance with Section 4.01) as shall be equal to
the product of (x) the entire unpaid principal amount of the Secured Notes of
such series Outstanding on such Casualty Redemption Date (assuming, only for
purposes of this calculation, that if such Casualty Redemption Date is
coincident with an Installment Payment Date or a Maturity Date, the scheduled
principal payment due, if any, on such Casualty Redemption Date on the Secured
Notes of such series is paid prior to the time the Redemption Price is
calculated pursuant to this Section 3.02(ii) and applied to principal in
accordance with Section 4.01) and (y) a fraction, the numerator of which shall
be the Original Cost of the Significant Portion of the Undivided Interest
suffering such Event of Loss and the denominator of which shall be Lessor's
Cost, at a redemption price equal to 100% of such unpaid principal amount of the
Secured Notes of such series to be redeemed on such Casualty Redemption Date
pursuant to the terms of this Section 3.02(ii), together with any accrued and
unpaid interest thereon to such Casualty Redemption Date (assuming, only for
purposes of this calculation, that if such Casualty Redemption Date is
coincident with an Interest Payment Date, the interest due on such Interest
Payment Date is paid prior to the time the Redemption Price is calculated
pursuant to this Section
EXHC-12
<PAGE>
3.02(ii) and applied to interest in accordance with Section 4.01) and without
Make-Whole Amount or any other premium; provided that each Holder of a Secured
--------
Note of such series shall receive, as to the principal thereof, the same portion
of such Redemption Price of such series in its entirety as the principal value
of such Secured Note at such Casualty Redemption Date represents of the total
value of the principal value of all Secured Notes of such series at such
Casualty Redemption Date.
SECTION 3.03. Optional Redemption. The Secured Notes may not be
-------------------
optionally redeemed on or prior to the fifth anniversary of the Closing Date.
Following the fifth anniversary of the Closing Date, Mobil G.B. at its option
may redeem the Secured Notes on any date, in whole, at a redemption price equal
to 100% of the unpaid principal amount of the Secured Notes to be redeemed
pursuant to this Section 3.03, together with any accrued and unpaid interest
thereon to the date of redemption, plus the Make-Whole Amount, if any.
SECTION 3.04. [Intentionally Omitted]
SECTION 3.06. [Intentionally Omitted]
SECTION 3.08. [Intentionally Omitted]
SECTION 3.11. Certain References and Obligations. Notwithstanding
----------------------------------
any provision to the contrary contained herein, Section 3.05 shall be deemed
amended to provide that any reference to or obligation of the Owner Trustee
contained in such Section shall after the Relevant Date be deemed to be a
reference to or obligation of Mobil G.B.
(D) Article IV of the Indenture shall read as follows:
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE INDENTURE ESTATE
SECTION 4.01. [Intentionally Omitted]
SECTION 4.02. Certain Distributions. (a) Any payment received by
---------------------
the Indenture Trustee (i) pursuant to Section 12 of Article XI as a result of
the occurrence of an Event of Loss with respect to the Production System or a
Significant Portion thereof or (ii) pursuant to Section 3.03, shall be
distributed forthwith in the following order of priority:
first, in the manner provided in clause "first" of Section 4.03;
-----
EXHC-13
<PAGE>
second, in the manner provided in clause "third" of Section 4.03 but
------
only with respect to those Secured Notes to be redeemed pursuant to Section
3.02 as a result of such Event of Loss;
third, in the manner provided in clause "second" of Section 4.03;
-----
fourth, in the manner provided in clause "fourth" of Section 4.03; and
------
fifth, in the manner provided in clause "fifth" of Section 4.03.
-----
(b) The portion of each payment referred to in this Section 4.02
distributed to a Holder on account of principal or interest on any Secured Note
held by such Holder shall be applied by such Holder in payment of such Secured
Note in accordance with the terms of Section 4.04.
SECTION 4.03. Distribution After Indenture Event of Default. If (a)
---------------------------------------------
an Indenture Event of Default shall have occurred and be continuing, and (b)
either the Indenture Trustee shall have given notice to declare this Indenture
to be in default pursuant to Section 5.04(a), or any of the Secured Notes shall
have been declared or otherwise shall have become immediately due and payable
pursuant to Section 5.04, then, to the extent that each such declaration shall
not have been rescinded or the Secured Notes shall remain immediately due and
payable, (i) all amounts then held by the Indenture Trustee pursuant to Section
4.05 or 4.06 or then otherwise held by the Indenture Trustee hereunder or under
any Operative Document (other than amounts held for its own account), and (ii)
all payments and amounts thereafter realized by the Indenture Trustee through
the exercise of remedies hereunder or under any of the agreements assigned or
pledged to the Indenture Trustee under this Indenture or otherwise as trustee
under this Indenture (for purposes of this Section 4.03, all such amounts and
payments held or realized being herein called "proceeds"), other than amounts
--------
expressly paid to it for its own account, shall be distributed forthwith by the
Indenture Trustee in the following order of priority:
first, so much of such proceeds as shall be required to reimburse the
-----
Indenture Trustee for any unpaid fees for its services under this Indenture
and any unreimbursed tax, expense (including reasonable legal fees) or
other loss incurred by it (in each case to the extent reimbursable under
the Operative Documents) shall be distributed to the Indenture Trustee for
application to itself;
second, so much of the remaining proceeds as shall be required to
------
reimburse the then existing or prior
EXHC-14
<PAGE>
Holders for amounts paid or advanced by the Holders pursuant to Section
6.04 (to the extent not previously reimbursed), shall be distributed to the
then existing and prior Holders as their respective interests may appear,
and if the proceeds remaining are insufficient to pay all such amounts in
full, they shall be distributed ratably, without priority of any recipient
over any other recipient (except as otherwise expressly provided herein),
in the proportion the aggregate amount due each such Person under this
clause "second" bears to the aggregate amount and interest due all such
Persons under this clause "second";
third, so much of the proceeds remaining as shall be required to pay
-----
in full the aggregate unpaid principal amount of each Secured Note then
Outstanding and all accrued but unpaid interest thereon to the date of
distribution, shall be distributed to the Holder of such Secured Note, and
if the proceeds remaining are insufficient to pay all such amounts in full,
they shall be distributed to all Holders ratably, without priority of any
Holder over any other Holder (except as otherwise expressly provided
herein), in the proportion that the aggregate amount due each such Holder
under this clause "third" bears to the aggregate amount due all such
Holders under this clause "third";
fourth, so much of the proceeds remaining as shall be required to pay
------
to each Holder all other amounts payable pursuant to the indemnification
provisions of Section 12 of the Participation Agreement or pursuant to any
other provision of any Operative Document and secured hereunder to such
Holder or to its predecessors and remaining unpaid shall be distributed to
such Holder for distribution to itself and such predecessors, as their
respective interests may appear, and if the proceeds remaining are
insufficient to pay all such amounts in full, they shall be distributed
ratably, without priority of any Holder over any other Holder (except as
otherwise expressly provided herein), in the proportion that the aggregate
amount due each such Holder under this clause "fourth" bears to the
aggregate amount due all such Holders under this clause "fourth"; and
fifth, the balance, if any, of the proceeds remaining shall be
-----
distributed to Mobil G.B.
All amounts distributed to any Holder pursuant to clause "third" of
-----
this Section 4.03 shall be applied by such Holder in payment of the Secured
Notes held by it in accordance with the terms of Section 4.04.
SECTION 4.04. Application of Payments on Secured Notes. Each payment
----------------------------------------
on a Secured Note shall be applied,
EXHC-15
<PAGE>
first, to the payment of accrued interest on such Secured Note to the date of
- -----
such payment, second, to the payment of any principal on such Secured Note then
------
due thereunder, and third, to the payment of the installments of principal
-----
remaining unpaid on such Secured Note in the inverse order of the installment
due date thereof.
SECTION 4.05. Applications of Payments According to Applicable
------------------------------------------------
Operative Document Provisions. (a) Any payments or amounts received by the
- -----------------------------
Indenture Trustee, provision for the application of which is made in any
Operative Document, shall be applied promptly as provided in such Operative
Document, unless an Indenture Event of Default shall have occurred and be
continuing at the time the Indenture Trustee receives such payment and the
Indenture Trustee has Actual Knowledge of such Indenture Event of Default, in
which case the Indenture Trustee shall hold such payment as part of the
Indenture Estate, as cash collateral security hereunder for the obligations of
Mobil G.B. under the Operative Documents and shall invest such payments and
amounts in accordance with the terms of Section 7.04, and, subject to earlier
distribution thereof under Section 4.03, such payments and amounts, and the
proceeds of any investment thereof, shall be paid by the Indenture Trustee to
Mobil G.B. at such time as any applicable conditions shall have been satisfied
and no Indenture Event of Default shall be continuing.
(b) Notwithstanding any other provision of this Indenture to the
contrary, and whether or not any such provision refers to this Section 4.05, any
Excepted Payment (as defined prior to the Relevant Date) to be paid directly to
the Trust Company or to the Owner Participant shall, if received by the
Indenture Trustee, be paid or distributed immediately by the Indenture Trustee
to the Trust Company or the Owner Participant, as the case may be.
SECTION 4.06. Amounts Received for Which No Provision Is Made. (a)
-----------------------------------------------
Any payment received or amounts realized by the Indenture Trustee for which no
provision as to the application thereof is made elsewhere in this Indenture or
any other Operative Document shall be held by the Indenture Trustee as part of
the Indenture Estate in a cash collateral account maintained under Section 7.04,
and (b) all payments received and amounts realized by the Indenture Trustee
under this Indenture or otherwise with respect to the Undivided Interest, to the
extent received or realized at any time after payment in full of the principal
of and interest on all Secured Notes issued hereunder or the conditions set
forth in Section 10.01 for the defeasance of the Secured Notes shall have been
satisfied, as well as any other amounts remaining as part of or as proceeds of
the Indenture Estate after payment in full of the principal of and interest on
all such Secured Notes or the conditions set forth in Section 10.01 for the
defeasance of the Secured Notes shall have been satisfied,
EXHC-16
<PAGE>
shall be distributed forthwith by the Indenture Trustee in the order of priority
set forth in Section 4.03, omitting clause "third" thereof. The Indenture
-----
Trustee shall give prompt notice to Mobil G.B. and each Holder of the receipt of
any moneys by the Indenture Trustee subject to the provisions of this Section
4.06.
SECTION 4.07. Payment Procedures. All amounts which are
------------------
distributable from time to time by the Indenture Trustee to Mobil G.B. or any
Holder shall be paid by the Indenture Trustee in immediately available funds
promptly after such amounts become immediately available to it, and the
Indenture Trustee shall not be obligated to see to the application of any such
payment made by it. All payments made by the Indenture Trustee to Mobil G.B.
shall be made in the manner and to the address set forth in Schedule 1 to the
Participation Agreement or to such other address as may be specified from time
to time by notice to the Indenture Trustee from Mobil G.B.
(E) Sections 5.01, 5.02, 5.03, 5.04, 5.05, 5.09 and 5.11 of the
Indenture shall read as follows:
SECTION 5.01. [Intentionally Omitted]
SECTION 5.02. Indenture Events of Default. "Indenture Event of
--------------------------- ------------------
Default" means any of the following events (whatever the reason for such
- -------
Indenture Event of Default and whether such event shall be voluntary or
involuntary or come about or be effected by operation of law or be pursuant to
or in compliance with any judgment, decree or order of any court or any
Governmental Rule):
(a) any payment of principal of, Make-Whole Amount, if any, or
interest on any Secured Note shall not have been made on or prior to the tenth
(10th) Business Day after the same shall have become due and payable; or
(b) Mobil G.B. shall fail to maintain the insurance required to be
maintained pursuant to Section 13.1 of Article XI of this Indenture; or
(c) Mobil G.B. shall fail to perform or observe any material covenant
or agreement to be performed or observed by it under this Indenture or any other
Operative Document (but in the case of the Participation Agreement, only as such
covenant or agreement relates to the Indenture Trustee and the Loan Participants
and other than any covenant or agreement under the Tax Indemnity Agreement) and
such failure shall continue for a period of thirty (30) days after receipt by
Mobil G.B. of a written notice from the Indenture Trustee specifying such
failure and requiring it to be remedied; provided, however, that the
continuation of any such failure for such period of thirty (30) days or such
longer period (not
EXHC-17
<PAGE>
to exceed 365 days) after receipt of such notice shall not constitute an
Indenture Event of Default so long as (i) such failure is curable or correctable
and (ii) Mobil G.B. is diligently pursuing the cure or correction of such
failure; or
(d) the Guarantor shall fail in any material respect to perform or
observe any covenant or agreement to be performed or observed by it under the
Guaranty (other than any covenant or agreement in respect of Mobil G.B.'s
obligations under the Operative Documents) and such failure shall continue for a
period of thirty (30) days after receipt by the Guarantor of a written notice
from the Indenture Trustee specifying such failure and requiring it to be
remedied; provided, however, that the continuation of any such failure for such
period of thirty (30) days or such longer period (not to exceed 365 days) after
receipt of such notice shall not constitute an Indenture Event of Default so
long as (i) such failure is curable or correctable and (ii) the Guarantor is
diligently pursuing the cure or correction of such failure; or
(e) any representation or warranty made by Mobil G.B. in Section 5 of
the Participation Agreement or in any Officer's Certificate of Mobil G.B.
delivered pursuant to the Participation Agreement shall prove to have been
inaccurate in any material respect when made, unless such inaccuracy shall not
be material to the recipient at the time when the notice referred to below shall
have been received by Mobil G.B. or any adverse impact thereof shall have been
cured within thirty (30) days after receipt by Mobil G.B. of a written notice
thereof from the Indenture Trustee; provided, however, that the continuation of
any such inaccuracy for such period of thirty (30) days or such longer period
(not to exceed 365 days) after receipt of such notice shall not constitute a
Indenture Event of Default so long as (i) any material adverse impact of such
inaccuracy is curable or correctable and (ii) Mobil G.B. is diligently pursuing
the cure or correction of such material adverse impact; or
(f) any material representation or warranty made by the Guarantor in
the Guaranty or in any Officer's Certificate of the Guarantor delivered pursuant
to the Participation Agreement shall prove to have been inaccurate in any
material respect when made, unless such inaccuracy shall not be material to the
recipient at the time when the notice referred to below shall have been received
by the Guarantor or any material adverse impact thereof shall have been cured or
corrected within thirty (30) days after receipt by Mobil G.B. of a written
notice thereof from the Indenture Trustee; provided, however, that the
-------- -------
continuation of any such inaccuracy for such period of thirty (30) days or such
longer period (not to exceed 365 days) after receipt of such notice shall not
constitute an Indenture Event of Default so long as (i) any material adverse
impact of such inaccuracy is curable
EXHC-18
<PAGE>
or correctable and (ii) the Guarantor is diligently pursuing the cure or
correction of such material adverse impact; or
(g) Mobil G.B. or the Guarantor shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment or taking possession by any such official or agency in an
involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall take any corporate
action to authorize any of the foregoing, or an involuntary case or other
proceeding shall be commenced against Mobil G.B. or the Guarantor seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official or agency of it or any substantial part of its property,
and such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of ninety (90) days.
SECTION 5.03. [Intentionally Omitted]
SECTION 5.04. Remedies. (a) If an Indenture Event of Default shall
--------
have occurred and be continuing and so long as the same shall be unremedied,
then and in every such case the Indenture Trustee may declare this Indenture to
be in default by written notice to such effect given to Mobil G.B., and at any
time thereafter, provided that such declaration shall not have been rescinded,
the Indenture Trustee, to the extent permitted by applicable law and subject to
Sections 5.05 and 5.09 may: (i) exercise any or all of the rights and powers
and pursue any and all of the remedies herein provided or available under
applicable law, (ii) take possession of all or any part of the Indenture Estate
and exclude Mobil G.B. and all Persons claiming under Mobil G.B. wholly or
partly therefrom, (iii) upon reasonable prior written notice to Mobil G.B.,
invoke and exercise the power of sale and sell any or all of the Indenture
Estate in the manner required by law at public auction, or in any other manner
which shall be in accordance with applicable law, or, in lieu of sale pursuant
to the power of sale, foreclose the Indenture Estate and (iv) exercise all
rights and remedies of a secured party under the Uniform Commercial Code as in
effect in any applicable jurisdiction. The Indenture Trustee shall notify Mobil
G.B. as soon as is reasonably practicable after its commencement of the exercise
of any remedy pursuant to this Section 5.04.
EXHC-19
<PAGE>
(b) If an Indenture Event of Default (other than an Indenture Event
of Default specified in Section 5.02(g)) shall have occurred and be continuing,
then the Indenture Trustee may at any time, by written notice to Mobil G.B.,
immedialtely declare all (but not less than all) of the Secured Notes to be due
and payable. Upon such declaration the unpaid principal of all Secured Notes
then Outstanding, together with accrued but unpaid interest thereon and any
other amounts due there under, shall immediately become due and payable without
pre sentment, demand, protest or notice, all of which are hereby waived.
(c) If an Indenture Event of Default of the type specified in Section
5.02(g) shall have occurred and be continuing, the principal of all Secured
Notes then Outstanding, together with accrued but unpaid interest thereon and
any other amounts due thereunder, shall become and be due and payable
automatically, without declaration, notice, demand or any other action on the
part of the Indenture Trustee or any Holder, all of which are hereby waived.
Each of Section 5.04(b) and this Section 5.04(c), however, is subject to the
condition that, if at any time after the principal of the Secured Notes shall
have become due and payable upon a declared or automatic acceleration thereof as
provided herein, and before any judgment or decree for the payment of the money
so due, or any portion thereof, shall be entered, all overdue payments of
interest upon the Secured Notes and all other amounts payable under the Secured
Notes (except the principal of the Secured Notes which by such declaration shall
have become payable) shall have been duly paid, and every other Indenture Event
of Default with respect to any covenant or provision of this Indenture shall
have been cured, then and in every such case a Majority in Interest of Holders
of Notes, by written instrument filed with the Indenture Trustee, may (but shall
not be obligated to) rescind and annul the Indenture Trustee's declaration and
its consequences; but no such rescission or annulment shall extend to or affect
any subsequent Indenture Event of Default or impair any right consequent
thereon.
(d) Notwithstanding any provision in any document or instruction that
purports to require the Indenture Trustee to acquire title to any or all of the
Indenture Estate upon foreclosure, or pursuant to instructions, the Indenture
Trustee shall not be obligated to acquire any such title unless: (i) the
Indenture Trustee is provided with such security or indemnity as it shall deem
satisfactory to it, (ii) such acquisition of title complies with all applicable
Operative Documents, laws, rules and regulations, which shall be evidenced by an
opinion of counsel to such effect in form and substance satisfactory to the
Indenture Trustee and (iii) the Indenture Trustee shall have obtained such
executed certificates, instruments or other documents, in accordance with its
reasonable inquiries or requests.
EXHC-20
<PAGE>
SECTION 5.05. Suit; Possession; Title; Sale of Indenture Estate. (a)
-------------------------------------------------
Mobil G.B. agrees that, if an Indenture Event of Default shall have occurred and
be continuing and the Indenture Trustee shall be entitled to exercise remedies
hereunder as provided in Section 5.04, the Indenture Trustee may take possession
of all or any part of the Indenture Estate and may exclude Mobil G.B., and all
Persons claiming under Mobil G.B., wholly or partly therefrom; provided,
--------
however, that reasonable prior notice of such taking of possession shall be
- -------
given to Mobil G.B. If an Indenture Event of Default shall have occurred and be
continuing and the Indenture Trustee shall be entitled to exercise remedies
hereunder as provided in Section 5.04, at the request of the Indenture Trustee,
Mobil G.B. shall promptly execute and deliver to the Indenture Trustee such
instruments of title and other documents as the Indenture Trustee may deem
necessary or advisable to enable the Indenture Trustee or any agent or
representative designated by the Indenture Trustee, at such time or times and
place or places as the Indenture Trustee may specify, to obtain possession of
all or any part of the Indenture Estate to which the Indenture Trustee shall at
the time be entitled hereunder. If Mobil G.B. shall for any reason fail to
execute and deliver such instruments and documents after such request by the
Indenture Trustee, the Indenture Trustee may (i) obtain a judgment conferring on
the Indenture Trustee the right to immediate possession of any property,
comprising a portion of the Indenture Estate and requiring Mobil G.B. to execute
and deliver such instruments and documents to the Indenture Trustee or (ii)
pursue all or part of such property wherever it may be found, and the Indenture
Trustee may enter any of the premises where such property or any portion thereof
may be or is supposed to be and search for such property; provided, further,
-------- -------
that notwithstanding any provision herein to the contrary, the Indenture Trustee
shall not sell, assign, transfer or deliver any of the Indenture Estate or take
possession of the Indenture Estate unless the Secured Notes shall have been
accelerated pursuant to Section 5.04(b) or 5.04(c). All expenses of obtaining
such judgment or of pursuing, searching for and taking such property shall,
until paid, be secured by the Lien of this Indenture.
(b) Upon every such taking of possession, the Indenture Trustee may
make, from time to time and at the expense of the Indenture Estate, such
expenditures for maintenance, insurance, repairs, replacements, alterations,
additions and improvements to and of the Indenture Estate as it may deem proper.
In each such case, the Indenture Trustee shall have the right to maintain, use,
operate, store, lease, control or manage the Indenture Estate and to exercise
all rights and power of Mobil G.B. relating to the Indenture Estate as the
Indenture Trustee shall deem to be in the best interest of the Holders. The
Indenture Trustee shall be entitled to collect and receive directly all tolls,
rents,
EXHC-21
<PAGE>
revenue, issues, income, products and profits of the Indenture Estate and every
part thereof, other than Excepted Payments. Such tolls, rents, revenues,
issues, income, products and profits shall be applied (i) to pay the expenses of
the use, operation, storage, leasing, control, management or disposition of the
Indenture Estate, (ii) to pay the expense of all maintenance, repairs,
replacements, alterations, additions and improvements, (iii) to make all
payments which the Indenture Trustee may be required or may elect to make, if
any, for taxes, assessments, insurance or other proper charges upon the
Indenture Estate or any portion thereof, including without limitation the
employment of engineers and accountants to examine, inspect and make reports
upon the properties and books and records of Mobil G.B., and (iv) to pay amounts
owing in respect of the Secured Notes in accordance with the provisions thereof
and hereof and to make all other payments which the Indenture Trustee may be
required or authorized to make under any provision of this Indenture, as well as
just and reasonable compensation for the services of the Indenture Trustee and
of all Persons properly engaged and employed by the Indenture Trustee.
(c) Any of the Indenture Trustee, any Holder or Mobil G.B. may be a
purchaser of the Indenture Estate or any portion thereof or any interest therein
at any sale thereof, whether pursuant to foreclosure or power of sale or
otherwise. The Indenture Trustee may apply against the purchase price therefor
the amount then due to it hereunder or under any of the Secured Notes secured
hereby and any Holder may apply against the purchase price therefor the amount
then due to it hereunder or under the Secured Notes held by such Holder, to the
extent of such portion of the purchase price as it would have received had it
been entitled to share in any distribution thereof. The Indenture Trustee or
any Holder or any nominee of any such Holder shall acquire, upon any such
purchase, good title to the property so purchased, free of the Lien of this
Indenture and, to the extent permitted by applicable law, free of all rights of
redemption in Mobil G.B. in respect of the property so purchased.
(d) Any sale or other conveyance of any of the Indenture Estate by
the Indenture Trustee made pursuant to the terms of this Indenture shall bind
Mobil G.B. and the Holders and shall be effective to transfer or convey all
right, title and interest of the Indenture Trustee, Mobil G.B. and the Holders
in and to such Indenture Estate or portion thereof, as the case may be. No
purchaser or other grantee shall be required to inquire as to the authorization,
necessity, expediency or regularity of such sale or conveyance, or as to the
application of any sale or other proceeds with respect thereto by the Indenture
Trustee. In the event of any such sale, Mobil G.B. shall execute any and all
such bills of sale and other documents, and perform and do all other acts and
things requested by the Indenture Trustee in order to permit contin-
EXHC-22
<PAGE>
uation of such sale and to effectuate the transfer or conveyance referred to in
the first sentence of this Section 5.05(d). Mobil G.B. shall ratify and confirm
any such sale or sales by executing and delivering to the Indenture Trustee or
to such purchaser or purchasers all instruments as may reasonably be requested
for such purpose. Any such sale or sales made hereunder shall operate to divest
all the estate, right, title, interest, claim and demand whatsoever, whether at
law or in equity, of Mobil G.B. in and to the properties and rights so sold, and
shall be a perpetual bar both at law and in equity against Mobil G.B. and
against any and all persons claiming or who may claim the same, or any part
thereof from, through or under Mobil G.B. Upon any sale or other disposition of
the Indenture Estate by the Indenture Trustee, the Indenture Trustee will
promptly account in writing, in reasonable detail, to Mobil G.B. for the amount
of such sale, the costs and expenses incurred in connection therewith and any
surplus proceeds.
(e) The Indenture Trustee shall as a matter of right, be entitled to
the appointment of a receiver or a keeper pursuant to the terms and provisions
of La. R.S. 9:5136 et seq. (who may be the Indenture Trustee or any successor or
-- ---
nominee thereof), at any time after an Indenture Event of Default either before
or after declaring due and payable the principal of all Secured Notes then
Outstanding, together with accrued but unpaid interest thereon and any other
amounts due thereunder, for all or any portion of the Indenture Estate, whether
such receivership or keepership be incidental to a proposed sale of the
Indenture Estate or the taking of possession thereof or otherwise, and Mobil
G.B. hereby consents to the appointment of such a receiver, and agrees that it
will not oppose any such appointment. Any receiver appointed for all or any
portion of the Indenture Estate shall be entitled in addition to any powers
available under applicable law, to exercise all the rights and powers of the
Indenture Trustee with respect to the Indenture Estate.
(f) To the extent now or at any time hereafter enforceable under
applicable law, Mobil G.B. covenants that it will not at any time insist upon or
plead, or in any manner whatsoever claim or take any benefit or advantage of any
stay, extension, moratorium, any exemption from execution or sale or other
similar law or from any law now or hereafter in force providing for the
valuation or appraisement of the Indenture Estate or any part thereof, prior to
any sale or sales thereof to be made pursuant to any provision herein contained,
or prior to any applicable decree, judgment or order of any court of competent
jurisdiction; nor, after such sale or sales, claim or exercise any right under
any statute now or hereafter made or enacted by any state or any right to have a
portion of the Indenture Estate or the security for the Secured Notes marshalled
or otherwise redeem the property so sold or any part thereof, and hereby
expressly waives for itself and on
EXHC-23
<PAGE>
behalf of each and every Person, except decree or judgment creditors of Mobil
G.B. acquiring any interest in or title to the Indenture Estate or any part
thereof subsequent to the date of this Indenture, all benefit and advantage of
any such law or laws, and covenants that it will not invoke or use any such law
or laws, but will suffer and permit the execution of every such power as though
no such law or laws had been made or enacted.
The Indenture Trustee may maintain such a pleading, or, in any manner
whatsoever, claim or take any benefit or advantage of or from any law now or
hereafter in force even if it does not possess any of the Secured Notes or does
not produce any of them in the proceeding. A delay or omission by the Indenture
Trustee or any Holder in exercising any right or remedy accruing upon an
Indenture Event of Default under this Indenture shall not impair the right or
remedy or constitute a waiver of or acquiescence in such Indenture Event of
Default.
(g) The Indenture Trustee may adjourn from time to time any sale to
be made under or by virtue of this Indenture for such sale or for such adjourned
sale or sales, and, except as otherwise provided by any applicable provision of
law, the Indenture Trustee, without further notice or publication, may make such
sale at the time and place to which the same shall be so adjourned.
(h) Any recovery of any judgment by the Indenture Trustee under the
Secured Notes and any levy of any execution under any such judgment upon the
Indenture Estate shall not affect in any manner or to any extent the security
title and security interest conveyed hereby upon the Indenture Estate or any
part thereof, or any conveyances, powers, rights and remedies of the Indenture
Trustee hereunder, but such conveyances, powers, rights and remedies shall
continue unimpaired as before.
(i) Notwithstanding anything contained herein, so long as the
relevant Pass Through Trustee is a registered Holder, the Indenture Trustee is
not authorized or empowered to acquire title to all or any portion of the
Indenture Estate or take any action with respect to all or any portion of the
Indenture Estate so acquired by it if such acquisition or action would cause the
relevant Pass Through Trust to fail to qualify as a "grantor trust" for federal
income tax purposes.
(j) Mobil G.B. shall be liable for all reasonable legal fees and
other reasonable costs and expenses incurred by each Loan Participant and the
Indenture Trustee by reason of the occurrence of any Indenture Event of Default
or the exercise of remedies with respect thereto.
EXHC-24
<PAGE>
SECTION 5.09. Quiet Enjoyment. Notwithstanding any other provision
---------------
of any Operative Document, unless an Indenture Event of Default shall have
occurred and be continuing and this Indenture shall have been declared in
default pursuant to Section 5.04(a), the Indenture Trustee shall not take or
cause to be taken any action contrary to, or disturb, Mobil G.B.'s rights to
uninterrupted possession and use of, and quiet enjoyment of, the Production
System or a Significant Portion thereof. Without limiting the foregoing, the
Indenture Trustee (for itself and its successors and assigns, it being agreed
that the following provisions of this sentence run with the Undivided Interest
and shall be binding on any transferee or assignee of the whole or any part of
the Undivided Interest) hereby waives the right to bring any action for
partition of the Production System or Mobil G.B.'s or the Indenture Trustee's
interest therein and hereby covenants that, for so long as there are
economically producible Hydrocarbon reserves in the Federal Leases ("Unit
----
Reserves"), (i) the Indenture Trustee shall not commence, prosecute or join in
- --------
any legal, equitable or administrative action or proceeding to partition the
Production System or Mobil G.B.'s or the Indenture Trustee's interest therein,
(ii) the Indenture Trustee shall not commence, prosecute or join in any legal,
equitable or administrative action or proceeding, or take or permit any other
action that would remove the Production System from the location thereof or
require that the Production System be sold, abandoned or moved such that it is
made unavailable to produce the Unit Reserves, and (iii) the Indenture Trustee
shall not interfere in any manner with the quiet use and enjoyment of the Other
Undivided Interest by the Other Owner or any other Person which becomes entitled
to possession of the Other Undivided Interest. The Other Owner and its
successors and assigns shall be third-party beneficiaries of the Indenture
Trustee's waiver and covenants contained in the immediately preceding sentence.
The Indenture agrees that any transferee of its interest in the Undivided
Interest shall agree in writing to be bound by the provisions of the second
preceding sentence.
SECTION 5.12. Certain References and Obligations. Notwithstanding
----------------------------------
any provision to the contrary contained herein, (a) the reference to the Lessee
in Section 5.07 shall after the Relevant Date be deemed to be deleted and (b)
Sections 5.07 and 5.10 shall be deemed amended to provide that any reference to
or obligation of the Owner Trustee contained in such Sections shall after the
Relevant Date be deemed to be a reference to or obligation of Mobil G.B.
(F) Sections 6.01, 6.02, 6.03, 6.07, 6.08, 6.10 and 6.12 of the
Indenture shall read as follows:
EXHC-25
<PAGE>
SECTION 6.01. Certain Actions. If the Indenture Trustee shall have
---------------
Actual Knowledge of any Indenture Event of Default or any Indenture Default or
any material fact relating to the Production System, the Indenture Trustee shall
(a) give prompt telephonic notice (promptly confirmed in writing) to Mobil G.B.
and (b) within 90 days after obtaining such Actual Knowledge, mail to each
Holder, notice of all Indenture Events of Default unless, in each case, such
Indenture Event of Default has been remedied before the giving of such notice
and the Indenture Trustee has Actual Knowledge that such Indenture Event of
Default has been so remedied; provided, however, that the failure by the
-------- -------
Indenture Trustee to provide such notice shall not invalidate any actions
subsequently taken by the Indenture Trustee in connection with such Indenture
Event of Default. Except in the case of a default in the payment of the
principal or interest on any Secured Note, the Indenture Trustee shall be
protected in withholding the notice required under clause (b) above if and so
long as Responsible Officers of the Indenture Trustee in good faith determine
that withholding such notice is in the interest of the Holders.
SECTION 6.02. Action Upon Instructions. The Indenture Trustee shall,
------------------------
upon the written instruction at any time and from time to time of a Majority in
Interest of Holders of Notes, give such notice, consent or direction or exercise
such right, remedy or power hereunder or any other agreement constituting part
of the Indenture Estate as shall be specified in such instruction; provided,
--------
however, that nothing set forth in this Section 6.02 shall entitle the Holders
- -------
to cause the Indenture Trustee to give any notice or exercise any right, power
or remedy that is not elsewhere authorized by, or is otherwise restricted or
prohibited by, this Indenture. If the Indenture Trustee shall not have received
instructions as above provided within twenty (20) calendar days after mailing of
the notice pursuant to Section 6.01 to the Holders, the Indenture Trustee may
take such action, or refrain from taking such action, but shall be under no duty
to take or refrain from taking any action, with respect to such Indenture Event
of Default or fact as it shall determine to be advisable and in the best
interest of the Holders. If the Indenture Trustee receives any instructions
after the expiration of the aforementioned twenty day period, the Indenture
Trustee shall use its best efforts to conform any action being taken to comply
with those instructions.
SECTION 6.03. Release of Lien of Indenture. (a) Release of
---------------------------- ----------
Indenture Estate. Upon satisfaction of the conditions for termination of this
- ----------------
Indenture set forth in Section 10.01, the Indenture Trustee, upon the written
request of Mobil G.B., shall execute and deliver to, or as directed by, Mobil
G.B., all appropriate instruments provided by Mobil G.B. (in due form for
recording or filing) releasing the Indenture Estate from the Lien of this
Indenture and terminating the Easements, and the Indenture Trustee shall pay
EXHC-26
<PAGE>
all moneys or other properties or proceeds held by it under this Indenture to
Mobil G.B. The cost and expense associated with any action taken by the
Indenture Trustee pursuant to the provisions of this Section 6.03(a) shall be
borne by Mobil G.B.
(b) Release of Undivided Interest Upon Event of Loss. Upon the
------------------------------------------------
occurrence of an Event of Loss with respect to the Undivided Interest or a
Significant Portion thereof and receipt by the Indenture Trustee of all amounts
due and payable by Mobil G.B. as a result of such Event of Loss pursuant to
Section 12.02 of Article XI and the concurrent redemption of Secured Notes as
set forth in Section 3.02, the Indenture Trustee, upon the written request of
Mobil G.B., shall execute and deliver to, or as directed by, Mobil G.B., all
appropriate instruments provided by Mobil G.B. (in due form for recording or
filing) releasing the Undivided Interest or such Significant Portion, as the
case may be, and all other property solely relating thereto and then
constituting a portion of the Indenture Estate (or if not solely relating
thereto, but such other property can be reasonably partitioned without undue
burden or delay, such other property), as the case may be, from the Lien of this
Indenture. The cost and expense associated with any action taken by the
Indenture Trustee pursuant to the provisions of this Section 6.03(b) shall be
borne by Mobil G.B.
(c) Release of Liens upon Full Payment of Secured Notes. Upon
---------------------------------------------------
payment in full of the principal of and interest on and all other amounts due
and payable under the Secured Notes, and all other amounts due and payable to
any Holder or the Indenture Trustee hereunder or under any other Operative
Document, the Indenture Trustee, upon the written request of Mobil G.B., shall
execute and deliver to, or as directed by, Mobil G.B., all appropriate
instruments provided by Mobil G.B. (in due form for recording or filing)
releasing the Undivided Interest, and all other property relating thereto and
then constituting a portion of the Indenture Estate from the Lien of this
Indenture. The cost and expense associated with any action taken by the
Indenture Trustee pursuant to the provisions of this Section 6.03(c) shall be
borne by Mobil G.B.
SECTION 6.07. No Action Except Under Operative Documents or
---------------------------------------------
Instructions. The Indenture Trustee agrees that it will not use, operate,
- ------------
store, lease, control, manage, sell, dispose of or otherwise deal with the
Undivided Interest or any other part of the Indenture Estate except (a) in
accordance with the terms of the Operative Documents or (b) in accordance with
the powers granted to, or the authority conferred upon, the Indenture Trustee
pursuant to the express terms of this Indenture.
SECTION 6.08. [Intentionally Omitted]
EXHC-27
<PAGE>
SECTION 6.10. [Intentionally Omitted]
SECTION 6.12. Certain References and Obligations. Notwithstanding
----------------------------------
any provision to the contrary contained herein, (a) the reference to the Lessee
in Section 6.09 shall after the Relevant Date be deemed to be deleted, (b)
Sections 6.09 and 6.11 shall be deemed amended to provide that any reference to
or obligation of the Owner Trustee contained in any such Section shall after the
Relevant Date be deemed to be a reference to or obligation of Mobil G.B. and (c)
the phrase "the Owner Participant or" in Section 6.11 shall after the Relevant
Date be deemed to be deleted.
(G) Sections 7.02, 7.03, 7.04, 7.05, 7.07 and 7.10 of the Indenture
shall read as follows:
SECTION 7.02. Absence of Duties Except as Specified. Except in
-------------------------------------
accordance with written instructions furnished pursuant to Section 6.01 or 6.02,
and except as provided in, and without limiting the generality of, Sections
6.04, 6.05, 6.06 and 6.07, the Indenture Trustee shall have no duty (a) to
record or file this Indenture or any other document, or to maintain any such
recording or filing, or to rerecord or refile any such document, (b) to effect
or maintain any such insurance, whether or not Mobil G.B. shall be in default
with respect thereto, (c) to discharge any Lien of any kind against any part of
the Indenture Estate, or (d) to inspect the Undivided Interest at any time, or
to ascertain or inquire as to the performance or observance of any of Mobil
G.B.'s covenants hereunder.
SECTION 7.03. No Representations or Warranties. NEITHER MOBIL G.B.
--------------------------------
NOR THE INDENTURE TRUSTEE (IN ITS INDIVIDUAL AND TRUST CAPACITIES) MAKES (a) ANY
REPRESENTATION OR WARRANTY, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, AS TO THE
VALUE, COMPLIANCE WITH SPECIFICATIONS, DURABILITY, OPERATION, CONSTRUCTION,
PERFORMANCE, DESIGN OR CONDITION OF THE PRODUCTION SYSTEM OR ANY COMPONENT
THEREOF, THE MERCHANTABILITY THEREOF OR THE FITNESS THEREOF FOR ANY PARTICULAR
PURPOSE, TITLE TO THE PRODUCTION SYSTEM OR ANY COMPONENT OF THE PRODUCTION
SYSTEM, THE QUALITY OF THE MATERIALS OR WORKMANSHIP THEREOF OR CONFORMITY
THEREOF TO SPECIFICATIONS, OR THE PRESENCE OR ABSENCE OF ANY LATENT OR OTHER
DEFECTS, WHETHER OR NOT DISCOVERABLE, OR ANY OTHER REPRESENTATION OR WARRANTY
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTION SYSTEM, OR ANY
COMPONENT OF THE PRODUCTION SYSTEM, except, in the case of MOBIL G.B., as
expressly provided in Section 5 of the Participation Agreement, or (b) any
representation or warranty as to the validity, legality or enforceability of
this Indenture, any of the other Operative Documents or the Secured Notes, or as
to the correctness of any statement contained in any thereof, except as set
forth in Sections 5 and 9 of the Participation Agreement.
EXHC-28
<PAGE>
SECTION 7.04. No Segregation of Moneys; No Interest; Investments.
--------------------------------------------------
Any moneys paid to or retained by the Indenture Trustee pursuant to any
provision hereof and not then required to be distributed to the Holders or Mobil
G.B. shall be deposited in a separate, interest bearing cash collateral account;
provided that any payments received or applied hereunder by the Indenture
- --------
Trustee shall be accounted for by the Indenture Trustee so that any portion
thereof paid or applied pursuant hereto shall be identifiable as to the source
thereof. Any amounts held by the Indenture Trustee pursuant to the express
terms of this Indenture or any other Operative Document shall be invested and
reinvested by the Indenture Trustee from time to time in Permitted Investments
at the direction of Mobil G.B.; provided, however, that in the event there shall
-------- -------
be continuing any Indenture Event of Default such directions may be given
exclusively by a Majority in Interest of Holders of Notes. The Indenture
Trustee shall have no liability for any loss resulting from any investment
required to be made hereunder other than by reason of its own willful misconduct
or negligence in failing to comply with such instructions. Any net income or
gain realized as a result of any such investment or reinvestment shall be held
as part of the Indenture Estate and shall be applied by the Indenture Trustee at
the same time, on the same conditions and in the same manner as the amounts in
respect of which such income or gain was realized are required to be distributed
in accordance with the provisions hereof. Mobil G.B. shall be responsible for
any net loss realized as a result of any such investment or reinvestment and
shall reimburse the Indenture Trustee therefor on demand. Any Permitted
Investment may be sold or otherwise reduced to cash (without regard to maturity)
by the Indenture Trustee whenever necessary to make any application as required
by the terms of this Indenture or of any applicable Operative Document.
SECTION 7.05. Reliance; Agents; Advice of Counsel. The Indenture
-----------------------------------
Trustee (in its individual or trust capacity) shall not incur any liability to
anyone in acting upon any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or paper
reasonably believed by it to be genuine and believed by it to be signed by the
proper party or parties. The Indenture Trustee may accept a copy of a
resolution of the Board of Directors or other governing body of any party to the
Participation Agreement or other Operative Document, certified by the Secretary
or any Assistant Secretary thereof as duly adopted and in full force and effect,
as conclusive evidence that such resolution has been duly adopted and that the
same is in full force and effect. As to any fact or matter relating to Mobil
G.B. the manner of ascertainment of which is not specifically described herein,
the Indenture Trustee may for all purposes hereof rely on an Officer's
Certificate of Mobil G.B. as to such fact or matter, and such Officer's
Certificate shall constitute full protection to the Indenture
EXHC-29
<PAGE>
Trustee (in its individual or trust capacity), for any action taken or omitted
to be taken by it in good faith in reliance thereon. In the administration of
the trusts hereunder, the Indenture Trustee may execute any of the trusts or
powers hereof and perform its powers and duties hereunder directly or through
agents or attorneys and at the expense of the Indenture Estate may consult with
counsel, accountants and other skilled Persons to be selected and retained by
it, and the Indenture Trustee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the written advice or written
opinion of any such counsel, accountant or other skilled Person acting within
such Person's area of competence (so long as the Indenture Trustee shall have
exercised due care in selecting such Person).
SECTION 7.07. Right of the Indenture Trustee to Perform Covenants,
----------------------------------------------------
Etc. If Mobil G.B. shall fail to make any payment or perform any act required
- ----
to be made or performed by it hereunder or under any other Operative Document to
which it is a party or if Mobil G.B. shall fail to release any Lien affecting
the Indenture Estate which it is required to release by the terms of this
Indenture or any other Operative Document to which it is a party, the Indenture
Trustee, after notice to and demand upon Mobil G.B. and affording Mobil G.B. a
reasonable opportunity to cure and without waiving or releasing any obligation
or Indenture Event of Default, may (but shall be under no obligation to) at any
time thereafter make such payment or perform such act for the account of and at
the expense of the Indenture Estate, and may enter upon any property for such
purpose and take all such action with respect thereto as, in the Indenture
Trustee's opinion, may be necessary or appropriate therefor. No such entry
shall be deemed an eviction. All sums so paid by the Indenture Trustee and all
costs and expenses (including, without limitation, legal fees and expenses) so
incurred, shall constitute additional indebtedness secured by this Indenture and
shall be paid from the Indenture Estate to the Indenture Trustee on demand. The
Indenture Trustee shall not be liable for any damages resulting from any such
payment or action unless such damages shall be a consequence of willful
misconduct or gross negligence on the part of the Indenture Trustee.
SECTION 7.10. Certain References and Obligations. Notwithstanding
----------------------------------
any provision to the contrary contained herein, Section 7.09 shall be deemed
amended to provide that any reference to or obligation of the Owner Trustee
contained in such Section shall after the Relevant Date be deemed to be a
reference to or an obligation of Mobil G.B.
EXHC-30
<PAGE>
(H) Sections 8.01 and 8.04 of the Indenture shall read as follows:
SECTION 8.01. [Intentionally Omitted]
SECTION 8.04. Certain References and Obligations. Notwithstanding
----------------------------------
any provision to the contrary contained herein, (a) Sections 8.02 and 8.03 shall
be deemed amended to provide that any reference to or obligation of the Owner
Trustee contained in any such Section shall after the Relevant Date be deemed to
be a reference to or an obligation of Mobil G.B. and (b) Section 8.02 shall be
deemed amended to provide that any reference to the Lessee or the Owner
Participant contained in such Section shall be deemed to be deleted.
(I) (I) Sections 9.02(a), 9.02(b) and 9.02(c) of the Indenture shall
read as follows:
(a) [Intentionally Omitted]
(b) Except as provided in Section 9.01 or 9.02(c) or 9.02(d), at any
time and from time to time, with the written consent of a Majority in Interest
of Holders of Notes and upon the written request of Mobil G.B., the Indenture
Trustee (x) shall execute an amendment or supplement to this Indenture for the
purpose of adding provisions to, or changing in any manner or eliminating any of
the provisions of, this Indenture or (y) shall execute an amendment or
supplement to, or give a consent, waiver, authorization or approval, for the
purposes of adding any provisions to or changing in any manner or eliminating
any of the provisions of, any of the Operative Documents; provided, however,
-------- -------
that no such amendment or supplement to this Indenture, or consent, waiver,
authorization, approval, amendment or supplement to any such Operative Document
shall, without the consent of each Holder of a Secured Note then Outstanding:
(i) change the stated maturity of the principal of, or any
installment of interest on, or any mandatory or optional repayment,
purchase or redemption provision with respect to, any Secured Note, or
change the principal amount thereof or any other amount payable in respect
thereof or reduce the Make-Whole Amount, if any, or interest thereon, or
change the place of payment where, or the coin or currency in which, any
Secured Note or the interest thereon is payable;
(ii) permit the creation of any Lien on the Indenture Estate not
otherwise permitted hereunder or deprive any Holder of the benefit of the
Lien of this Indenture upon the Indenture Estate, or any portion thereof,
for the security of its Secured Notes;
EXHC-31
<PAGE>
(iii) change the percentage of the aggregate principal amount of
Secured Notes required to take or approve any action hereunder or any other
Operative Document;
(iv) modify the definitions of "Indenture Default", "Indenture
Event of Default" or "Majority in Interest of Holders of Notes";
(v) modify the order of priorities in which distributions are
to be made under Article IV;
(vi) [Intentionally Omitted]
(vii) modify, amend or supplement any of the provisions of this
Section 9.02;
(viii) [Intentionally Omitted]
(ix) adversely affect any indemnities in favor of any Holder as
provided pursuant to the terms of any Operative Document, except as may be
consented to by each Person adversely affected thereby.
(c) Notwithstanding anything to the contrary contained in Section
9.02(b) (except as provided in the proviso to Section 9.02(b)), without the
necessity of the consent of any of the Holders, the Indenture Trustee may:
(i) [Intentionally Omitted]
(ii) [Intentionally Omitted]
(iii) modify, amend or supplement the Participation Agreement,
or give any consent, waiver, authorization or approval with respect
thereto, except that without compliance with Section 9.02(b), the Indenture
Trustee shall not modify, amend or supplement, or give any consent, waiver,
authorization or approval for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions thereof or of
modifying in any manner the rights of the respective parties thereunder,
with respect to the following provisions of the Participation Agreement as
originally executed: Section 5 (insofar as such Section 5 relates to the
Indenture Trustee, the Indenture Estate and the Holders), Section 10,
Section 11.4, Section 12 (insofar as such Section 12 relates to the
Indenture Trustee, the Indenture Estate and the Holders) and, to the extent
the Loan Participant would be adversely affected thereby, Section 15 and
any definition of terms used in the Participation Agreement to the extent
that any modification of such definition would result in a
EXHC-32
<PAGE>
modification of the Participation Agreement not permitted pursuant to this
Section 9.02(c);
(iv) modify, amend or supplement either of Article XII or
Article XIII of this Indenture, or give any consent, waiver, authorization
or approval with respect thereto, except that without the written consent
of a Majority in Interest of Holders of Notes, the Indenture Trustee shall
not modify, amend or supplement, or give any consent, waiver, authorization
or approval for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions thereof or of modifying in any
manner the rights of the respective parties thereunder, with respect to the
following provisions of such Article: Section 2, Section 3, Section 7,
Section 9 and Section 11;
(v) modify, amend or supplement any of said agreements in order
to cure any ambiguity, to correct or supplement any provisions thereof
which may be defective or inconsistent with any other provision thereof or
of any provision of this Indenture, or to make any other provision with
respect to matters or questions arising thereunder or under this Indenture
which shall not be inconsistent with the provisions of this Indenture,
provided the making of any such other provision shall not adversely affect
the interests of the Holders unless such provision corrects a mistake or
cures an ambiguity.
(II) Sections 9.07 and 9.08 of the Indenture shall read as follows:
SECTION 9.07. [Intentionally Omitted]
SECTION 9.08. Certain References and Obligations. Notwithstanding
----------------------------------
any provision to the contrary contained herein:
(a) the phrases "the succession of a new Owner Trustee in accordance
with the Trust Agreement or" and "thereunder or" in each of Sections 9.01(f) and
9.02(d)(iv) shall after the Relevant Date be deemed to be deleted;
(b) the reference to the Lessee in each of Sections 9.01(c) and 9.06
shall after the Relevant Date be deemed to be deleted; and Sections 9.01, 9.03,
9.05 and 9.06 shall be deemed amended to provide that any reference to or
obligation of the Owner Trustee contained in such Sections shall after the
Relevant Date be deemed to be a reference to or an obligation of Mobil G.B.; and
(c) all provisions requiring delivery of documents to the Owner
Participant in Section 9.06 shall be deemed to be deleted.
EXHC-33
<PAGE>
(J) Sections 10.01, 10.03, 10.04, 10.05, 10.08, 10.10, 10.11 and 10.14
of the Indenture shall read as follows:
SECTION 10.01. Termination of Indenture. This Indenture and the
------------------------
trusts created hereby shall terminate, and this Indenture shall be of no further
force or effect, when:
(a) the principal of and interest on and all other amounts due and
payable under all Secured Notes and all other amounts due and payable to any
Holder or the Indenture Trustee hereunder or under any other Operative Document
shall have been paid in full; or
(b) the Indenture Trustee shall have sold or made other final
disposition of all property and all moneys or other property or proceeds
constituting part of the Indenture Estate in accordance with the terms hereof;
or
(c) all Secured Notes not theretofore delivered to the Indenture
Trustee for cancellation have become due and payable (whether upon stated
maturity, as a result of redemption or upon acceleration), or will become due
and payable (including as a result of redemption in respect of which irrevocable
notice has been given to the Indenture Trustee on or prior to the date of such
deposit) at maturity within one year, and there has been deposited with the
Indenture Trustee in trust for the purpose of paying and discharging the entire
indebtedness on the Secured Notes not theretofore cancelled by the Indenture
Trustee or delivered to the Indenture Trustee for cancellation, an amount in
cash sufficient without reinvestment thereof to discharge such indebtedness,
including the principal of and interest on the Secured Notes to the date of such
deposit (in the case of Secured Notes which have become due and payable), or to
the maturity thereof, as the case may be; or
(d) (i) Mobil G.B. has deposited or caused to be deposited
irrevocably (except as provided in Section 10.03(b)) with the Indenture Trustee
as trust funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Loan Participants, (A) money in an amount, or (B)
United States Government Obligations which, through the payment of interest and
principal in respect thereof in accordance with their terms, will provide (not
later than one Business Day before the due date or any payment referred to below
in this clause) money in an amount, or (C) a combination of money and United
States Government Obligations referred to in the foregoing clause (B),
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Indenture Trustee, to pay and discharge each installment of
principal of and interest on the Outstanding Secured Notes on the dates such
payments of principal or interest are due (including as a result of redemption
in
EXHC-34
<PAGE>
respect of which irrevocable notice has been given to the Indenture Trustee on
or prior to the date of such deposit), and no Indenture Event of Default under
Section 5.02(g) shall have occurred and be continuing on the date of such
deposit or at any time during the period ending on the 91st day after such date;
provided, however, that upon the making of the deposit referred to above in
- -------- -------
clause (A), the right of Mobil G.B. to cause the redemption of Secured Notes
(except a redemption in respect of which irrevocable notice has theretofore been
given) shall terminate; and (ii) Mobil G.B. has delivered to the Indenture
Trustee an Officer's Certificate of Mobil G.B. to the effect that (A) such
deposit will not constitute an Indenture Event of Default under this Indenture
or a default or event of default under any other agreement or instrument to
which Mobil G.B. is a party or by which it is bound and (B) all conditions
precedent relating to the termination of this Indenture under this Section
10.01(d) have been complied with; and (iii) Mobil G.B. has delivered to the
Indenture Trustee an Officer's Certificate of Mobil G.B. and an Opinion of
Counsel to the effect that there has been published by the Internal Revenue
Service a ruling to the effect that Loan Participants will not recognize income,
gain or loss for Federal income tax purposes as a result of the exercise by
Mobil G.B. of its option under this Section 10.01(d) and will be subject to
Federal income tax in respect of the interest received from such deposit on the
same amount and in the same manner and at the same times as would have been the
case if such option had not been exercised; and (iv) all other amounts then due
and payable hereunder to any Holder or the Indenture Trustee have been paid.]
Except as otherwise provided in the preceding sentence, this Indenture
and the trusts created hereby shall continue in full force and effect in
accordance with the terms hereof.
SECTION 10.03. Monies to Be Held in Trust; Monies to be Returned to
----------------------------------------------------
Mobil G.B. (a) All moneys and United States Government Obligations deposited
- ----------
with the Indenture Trustee pursuant to Section 10.01 shall be held in trust and
applied by it, in accordance with the provisions of the Secured Notes and this
Indenture, to the payment to the Holders of all sums due and to become due
thereon for principal and interest, but such money need not be segregated from
other funds except to the extent required by law.
(b) The Indenture Trustee shall promptly pay or return to Mobil G.B.
upon request of Mobil G.B. any money or United States Government Obligations
held by it at any time that are not required for the payment of the amounts
described in Section 10.03(a) for which money or United States Government
Obligations have been deposited pursuant to Section 10.01.
EXHC-35
<PAGE>
SECTION 10.04. Aggregate Unpaid Principal Amount of Secured Notes
--------------------------------------------------
Outstanding. As to the aggregate unpaid principal amount of Secured Notes
- -----------
Outstanding as of any date, Mobil G.B. may rely on an Officer's Certificate of
the Indenture Trustee.
SECTION 10.05. Notices. All communications, notices and consents
-------
provided for in this Indenture shall be in writing and shall be given in person
or by courier or by means of telex, telecopy or other wire transmission (with
request for assurance of receipt in a manner typical with respect to
communications of that type), or mailed by first class mail, addressed, in the
case of Mobil G.B., to Mobil G.B. Finance Inc., 3225 Gallows Road, Fairfax,
Virginia 22037-0001 Attention: Treasurer; telecopier (703) 846-1469, in the case
of the Indenture Trustee, to First Security Bank of Utah, National Association,
79 South Main Street, Salt Lake City, Utah 84111, Attention: Corporate Trust
Department; Telecopier: (801) 246-5053; and, in the case of all other parties,
as set forth in Schedule 1 to the Participation Agreement or at such other
address as any such Person may from time to time designate by notice duly given
in accordance with the provisions of this Section 10.05 to the other parties
hereto and shall be deemed given when received by (or when proffered to, if
receipt is not accepted) the party to whom it is addressed.
SECTION 10.08. Successors and Assigns. All covenants and agreements
----------------------
contained herein shall be binding upon each of the parties hereto and their
respective successors and permitted assigns, and inure to the benefit of each
of the parties hereto and their respective successors and permitted assigns, all
as herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by any Holder shall bind the successors and assigns of such
Holder. Each Holder by its acceptance of a Secured Note agrees to be bound by
this Indenture and all provisions of the Operative Documents applicable to it.
SECTION 10.10. Normal Commercial Relations. Notwithstanding anything
---------------------------
contained in this Indenture to the contrary, any Loan Participant, the Indenture
Trustee or bank or other affiliate of any such Person may conduct any banking or
other financial transactions and have banking or other commercial relationships
with Mobil G.B. fully to the same extent as if this Indenture were not in
effect.
SECTION 10.11. Governing Law. THIS INDENTURE SHALL BE GOVERNED BY,
-------------
AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
EXCEPT TO THE EXTENT THAT THE LAWS OF ANY OTHER JURISDICTION MAY BE MANDATORILY
APPLICABLE TO THE CREATION, PERFECTION AND/OR ENFORCEMENT OF THE LIENS CREATED
BY THIS INDENTURE.
EXHC-36
<PAGE>
SECTION 10.14. Benefits of Indenture. Nothing in this Indenture,
---------------------
whether express or implied, shall be construed to give to any Person other than
the parties hereto and the Holders any legal or equitable right, remedy or claim
under or in respect of this Indenture or the Secured Notes, and this Indenture
shall be held for the sole and exclusive benefit of the parties hereto and the
Holders.
(K) The Indenture shall include the following Article XI, Article XII
and Article XIII:
ARTICLE XI
CERTAIN ADDITIONAL PROVISIONS
This Article XI consists of Sections 10 through 14 and 20. Sections 1
through 9 and 15 through 19 are intentionally omitted.
SECTION 10. LIENS.
-----
Mobil G.B. will not, directly or indirectly, create, incur, assume or
suffer to exist any Liens on or with respect to all or any part of the Undivided
Interest, title thereto or any interest therein, other than Permitted Liens, and
Mobil G.B. promptly, at its own expense, will take such actions as may be
necessary duly to discharge any such Lien not excepted above.
SECTION 11. OPERATION AND MAINTENANCE;
INSPECTION; REPLACEMENTS AND
MODIFICATIONS; IDENTIFICATION.
-----------------------------
11.01. Operation and Maintenance. So long as the Operating Agreement
-------------------------
is in effect, Mobil G.B. will, at its own expense, cause MPTM to use reasonable
efforts to enforce the obligations of the Operator thereunder relating to the
Production System (including the obligations of the Operator to maintain and
operate the Production System in accordance with the applicable provisions of
the Operating Agreement). At all other times, Mobil G.B. shall, at its own
expense, operate and maintain (or cause the operator thereof to operate and
maintain) the Production System in accordance with MPTM's established
maintenance, rebuild and repair programs so as to keep the Undivided Interest
(a) in good working order and condition, ordinary wear and tear excepted and (b)
in compliance in all material respects with all applicable Governmental Rules
and Governmental Actions; provided, however, that Mobil G.B. shall not be
-------- -------
obligated to comply with any Governmental Rule or Governmental Action (i) whose
application or validity is being contested diligently and in good faith by
appropriate proceedings, (ii) compliance with which shall have been excused or
exempted by a nonconforming
EXHC-37
<PAGE>
use permit, waiver, extension or forbearance exempting it from such Governmental
Rule or Governmental Action but only to the extent that Mobil G.B.'s
noncompliance is in accordance therewith, (iii) if good faith efforts and
appropriate steps are being taken to comply, or (iv) if failure of compliance
(individually and in the aggregate with all other instances of continuing
noncompliance by Mobil G.B.) would result in no material adverse consequences to
Mobil G.B., so long as, in the case of each of clauses (i) through (iv) of this
provison, neither such failure of compliance nor such contest shall result in
any material risk or danger of (1) the sale, forfeiture or loss of any material
part of or interest in the Production System or the Undivided Interest or the
Indenture Estate or title thereto or interest therein, or any interference with
the payment of principal or interest hereunder or any other amount due by Mobil
G.B. hereunder or under the Operative Documents to the Indenture Trustee or any
Holder, or (2) any material adverse effect on, the Indenture Trustee, any Loan
Participant, the Indenture Estate or the Undivided Interest.
11.02. Inspection and Reports. The Indenture Trustee shall have the
----------------------
right to inspect the Production System and the books and records of Mobil G.B.
relating thereto to the extent provided in, and subject to the restrictions set
forth in, Sections 10.6 and 11.5 of the Participation Agreement. Mobil G.B.
shall cause to be prepared and filed in timely fashion, or, in the event the
Indenture Trustee shall be required to file, Mobil G.B. shall prepare and
deliver (or cause to be prepared and delivered) to the Indenture Trustee within
a reasonable time prior to the date for filing, any reports with respect to the
condition or operation of the Production System that shall be required to be
filed by any Governmental Rule or Governmental Action.
11.03. Required Modifications. So long as the Operating Agreement is
----------------------
in effect, Mobil G.B. shall have the right to propose, or approve all
Modifications to the Production System in accordance with the provisions of the
Operating Agreement and Mobil G.B. shall cause MPTM to take all actions
thereunder which may be required to permit the Operator to make (or cause to be
made) all Severable and Nonseverable Modifications to the Production System as
may be required from time to time to comply in all material respects with the
requirements of all applicable Governmental Rules and Governmental Actions. At
all other times, Mobil G.B. shall make (or cause to be made) all Severable and
Nonseverable Modifications to the Production System as may be required from time
to time to meet the requirements of clause (b) of Section 11.01 of this Article
XI or to maintain any insurance coverage required by Section 13.01 of this
Article XI (subject to the qualifications set forth in such Section). So long
as the Operating Agreement is in effect, Mobil G.B. shall, at its own expense,
cause MPTM to use reasonable efforts to enforce the
EXHC-38
<PAGE>
obligations of the Operator thereunder with respect to such Modifications. At
all other times, Mobil G.B. shall complete (or cause to be completed) all such
Modifications in a good and workmanlike manner, with reasonable dispatch and in
a manner (but only to the extent practicable in the case of Modifications to the
Production System required pursuant to clause (b) of Section 11.01 of this
Article XI or to maintain any insurance coverage required by Section 13.01 of
this Article XI) which does not decrease the Fair Market Sales Value of the
Production System or decrease the remaining useful life or utility of the
Production System.
11.04. Optional Modifications. Mobil G.B. may, at no expense to the
----------------------
Indenture Trustee, make (or cause or allow to be made) such other Severable and
Nonseverable Modifications to the Production System not required by Section
11.03 of this Article XI as do not decrease the Fair Market Sales Value (except
to a de minimis extent) of the Production System or decrease the remaining
-- -------
useful life.
11.05. Title to Modifications and Components; Purchase Option for
----------------------------------------------------------
Severable Modifications. (a) Title to Mobil G.B.'s 40% undivided interest of
- -----------------------
all Severable Modifications to the Production System not required by any
Governmental Rule or Governmental Action shall vest in Mobil G.B. or any Person
designated by Mobil G.B, free and clear of the Lien of this Indenture.
(b) All of Mobil G.B.'s 40% undivided interest in and to (i) all
Replacement Components of the Production System, (ii) Severable Modifications to
the Production System required by any Governmental Rule or Governmental Action
and (iii) Nonseverable Modifications to the Production System shall without
further act be subject to the Lien of this Indenture.
11.06. Payment for Modifications and Replacement Components. (a)
----------------------------------------------------
Mobil G.B. shall be permitted at any time to finance its share of the cost of
any Severable Modification to the Production System not required by any
Governmental Rule or Governmental Action, directly or indirectly, including,
without limitation, on a third party ownership basis.
(b) Mobil G.B. shall be permitted at any time to finance its share of
the cost of any Severable Modification that Mobil G.B. is required by any
Governmental Rule or Governmental Action to make or any Nonseverable
Modification through the issuance of Additional Notes in accordance with Section
2.08 or any alternative means of financing; provided, however, that such
-------- -------
alternative financing does not and will not result in any Lien (other than
Permitted Liens) on or with respect to the Production System as modified by such
Modification.
EXHC-39
<PAGE>
11.07. Replacement of Components; Removal of Property. (a) In the
----------------------------------------------
ordinary course of maintenance, service, repair or testing, any Component or
Replacement Component may be removed and replaced with a Replacement Component
and, upon such replacement, Mobil G.B. (or its designee) shall be entitled to
retain the amount of the net proceeds of any sale or disposition of any such
removed Component or Replacement Component. Any such Replacement Components
shall be free and clear of all Liens, except Permitted Liens, and in as good
operating condition as, and with a value, utility and useful life at least equal
to, the Components or Replacement Components replaced, assuming such replaced
Components or Replacement Components were in at least the condition and repair
required to be maintained hereunder. Immediately upon any Replacement Component
becoming incorporated in the Production System, without further act, (i) Mobil
G.B.'s 40% undivided interest in such Replacement Component shall become subject
to the Lien of the Indenture, (ii) Mobil G.B.'s 40% undivided interest in such
Replacement Component shall be deemed a part of the Undivided Interest for all
purposes hereof to the same extent as Mobil G.B.'s 40 undivided interest in the
Component or Replacement Component it replaced and (iii) title to Mobil G.B.'s
40% undivided interest in such removed Component or Replacement Component shall
vest in Mobil G.B. or such Person as shall be designated by Mobil G.B., free and
clear of all rights of the Indenture Trustee and shall no longer be deemed a
Component or a Replacement Component hereunder.
(b) If, at any time Mobil G.B. (or the Operator) shall conclude that
any property included in the Production System is obsolete, redundant or
unnecessary and can be removed without diminishment of the value or utility of
the Production System or reduction of the remaining useful life of the
Production System, Mobil G.B. may remove (or allow to be removed) such property
and upon such removal, without further act, title to Mobil G.B. 40% undivided
interest in such property shall vest in Mobil G.B. or in such Person as shall be
designated by Mobil G.B., free of the Lien of this Indenture.
11.08. Identification of Platform. At all times Mobil G.B. shall
--------------------------
cause to be placed and kept prominently displayed in the chart room of the
Platform a notice, in English, framed under glass, printed in plain type of such
size that the paragraph of reading matter thereof shall cover a space not less
than six inches wide by nine inches high, reading as follows:
"NOTICE OF MORTGAGE"
This vessel is covered by a first priority naval mortgage dated as of
December 12, 1995 in favor of First Security Bank of Utah, National
Association,
EXHC-40
<PAGE>
as Mortgagee. Said mortgage provides that no person shall create,
incur or permit to be placed or imposed upon this vessel any lien or
encumbrance whatsoever except as expressly permitted therein. A copy
of said mortgage is carried on this vessel and must be exhibited on
demand to any person having business with this vessel."
Such notice shall be changed to reflect the identity of any successor Indenture
Trustee. Mobil G.B. shall not take any action or omit to take any action that
would (i) cause the Platform to cease to be documented as a vessel pursuant to
the laws of the Republic of Panama, (ii) cause the Ship Mortgage on the Platform
to cease to be a first priority naval mortgage under the laws of the Republic of
Panama or (iii) cause the Platform to cease to be entitled to the same
classification that the Platform had from the Classification Society on the
Closing Date (subject to any reduction in classification and rating resulting
from the age of the Platform).
11.09. Repair of Production System. In the event of any damage to
---------------------------
the Production System equal to or in excess of $5,000,000 which does not
constitute an Event of Loss, Mobil G.B. shall, at no expense to the Indenture
Trustee, as soon as commercially practicable, repair, restore or rebuild (or
shall cause to be repaired, restored or rebuilt) the damaged or destroyed
property so that upon completion of such repair, restoration or rebuilding, the
value, utility and remaining useful life of such property shall be at least
equal to the value, utility and remaining useful life of such property
immediately prior to such damage or destruction, assuming such property was
maintained in accordance with the terms hereof.
SECTION 12. EVENT OF LOSS.
-------------
12.01. Notice of Event of Loss. If there shall occur an Event of
-----------------------
Loss, Mobil G.B. shall promptly notify the Indenture Trustee of the occurrence
thereof.
12.02. Payment Upon Event of Loss, Etc. (a) If an Event of Loss
-------------------------------
with respect to the Production System shall occur, Mobil G.B. shall pay to the
Indenture Trustee as compensation for such Event of Loss, on the date which is
the latest monthly anniversary of the Basic Lease Term Commencement Date not
later than 180 days after the date of such Event of Loss, an amount in cash
which is sufficient to redeem each outstanding Secured Note required to be
redeemed pursuant to Section 3.02 as a result of such Event of Loss.
(b) If an Event of Loss with respect to a Significant Portion of the
Production System shall occur, Mobil G.B. shall within 120 days of the
occurrence of such
EXHC-41
<PAGE>
Event of Loss give the Indenture Trustee written notice of its election to
either:
(i) pay to the Indenture Trustee as compensation for such Event of
Loss, on the date which is the latest monthly anniversary of the Basic
Lease Term Commencement Date not later than 180 days after the date of such
Event of Loss, an amount in cash which is sufficient to redeem each
Outstanding Secured Note required to be redeemed pursuant to Section 3.02
as a result of such Event of Loss; or
(ii) rebuild or cause to be rebuilt (or replace or cause to be
replaced) the Significant Portion of the Production System suffering such
Event of Loss which such rebuilt portion (or replacement portion) shall
have at least the same value, utility and remaining useful life as such
Significant Portion had prior to the Event of Loss (assuming the Production
System has been maintained in accordance with the terms of this Indenture).
12.03. Application of Other Payments upon the Occurrence of an Event
-------------------------------------------------------------
of Loss. Any amounts of condemnation or requisition proceeds received at any
- -------
time by the Indenture Trustee or Mobil G.B. as a result of the occurrence of an
Event of Loss shall be paid over to or retained, as the case may be, by Mobil
G.B.
12.04. Application of Payments Not Relating to an Event of Loss.
--------------------------------------------------------
Payments (except for payments under insurance policies described in Section 13
of this Article XI) received at any time by the Indenture Trustee or Mobil G.B.
from any Governmental Authority or other Person with respect to any destruction,
damage, loss, condemnation, confiscation, theft or seizure of or requisition of
title to or use of the Undivided Interest or any part thereof not constituting
an Event of Loss shall be paid over to Mobil G.B. or as it may direct and all
such amounts paid to Mobil G.B. shall be retained by Mobil G.B.
12.05. Other Dispositions. Notwithstanding the foregoing provisions
------------------
of this Section 12, so long as any Indenture Event of Default shall have
occurred and be continuing, any amount (except for payments under insurance
policies described in Section 13) that otherwise would be payable to or for the
account of, or that otherwise would be retained by, Mobil G.B. pursuant to this
Section 12 shall be paid to the Indenture Trustee as security for the
obligations of Mobil G.B. under this Indenture and, at such time thereafter as
no Indenture Event of Default shall be continuing, such amount shall be paid
promptly to Mobil G.B. or as it may direct, unless the Indenture Trustee shall
be entitled to exercise remedies hereunder as provided in Section
EXHC-42
<PAGE>
5.04, in which event such amount shall be applied in accordance with the
provisions of this Indenture.
SECTION 13. INSURANCE.
---------
13.01. Coverage. (a) Mobil G.B., at its own cost and expense, shall
--------
carry and maintain or cause to be carried and maintained at all times (i)
insurance with respect to the Undivided Interest against loss or damage by fire,
lightning and other risks from time to time included under "all-risk" policies
in such amounts and in such forms as is consistent with MPTM's practice for
other properties owned or leased by MPTM and (ii) public liability, including
personal injury and property damage and comprehensive general liability
insurance against claims arising out of or connected with the possession, use,
leasing, operation or condition of the Production System in such amounts and in
such forms as is consistent with MPTM's practice for other properties similar to
the Production System owned or leased by MPTM. The insurance required under
clause (i) or (ii) of this Section 13.01(a) may be subject to deductible amounts
and self-insured retentions as is consistent with MPTM's practice for other
properties similar to the Production System owned or leased by MPTM. Such
insurance may be carried under blanket policies maintained by or on behalf of
Mobil G.B. so long as such policies otherwise comply with the provisions of this
Section 13.
(b) Any insurance carried in accordance with Section 13.1(a)(i) and
(ii) shall, to the extent the following can be effected without Mobil G.B. or
the Operator incurring any material costs in connection therewith, provide in
the policy or by special endorsement that:
(i) the Indenture Trustee (in its individual and trust capacities)
and each Loan Participant are included as additional insureds and shall
provide that no such Person shall have any obligation or liability for
payment of premiums;
(ii) the insurer thereunder waives all rights of subrogation against
the Indenture Trustee (in its individual and trust capacities) and each
Loan Participant, and waives any right of set-off and counterclaim and any
other right to deduction whether by attachment or otherwise;
(iii) such insurance shall be primary without right of contribution
of any other insurance carried by or on behalf of the Indenture Trustee (in
its individual and trust capacities) and each Loan Participant;
(iv) the respective interests of the Indenture Trustee (in its
individual and trust capacities), each
EXHC-43
<PAGE>
Loan Participant, and the Owner Participant under all insurance policies
required hereunder shall not be invalidated by any action or inaction of
Mobil G.B. or any other Person (other than, with respect to any such
insured, such insured) and such insurance shall insure the Indenture
Trustee and each Loan Participant as their interests may appear, regardless
of any breach or violation of any warranty, declaration or condition
contained in such policies by Mobil G.B. or any other Person (other than,
with respect to any such insured, such insured);
(v) if the insurers cancel such insurance for any reason
whatsoever or any materially adverse change is made in policy terms or
conditions, or if such insurance is allowed to lapse for nonpayment of
premium, such cancellation, change or lapse shall not be effective as to
each Loan Participant or the Indenture Trustee (in its individual and trust
capacities) for thirty days after receipt by each Loan Participant or the
Indenture Trustee (in its individual and trust capacities), respectively,
of written notice from such insurers of such cancellation, change or lapse;
and
(vi) with respect to all liability insurance, in as much as the
policies are written to cover more than one insured, all terms, conditions,
insuring agreements and endorsements, with the exception of the limits of
liability shall operate in the same manner as if there were a separate
policy covering each insured.
13.02. Adjustment of Losses. Losses, if any, with respect to the
--------------------
Production System under any property damage policies required to be carried
under Section 13.01(a) of this Article XI shall be adjusted with the insurance
companies, including the filing of appropriate proceedings, by Mobil G.B.
13.03. Application of Insurance Proceeds. All proceeds of insurance
---------------------------------
maintained pursuant to Section 13.01(a)(i) on account of any damage to or
destruction of the Production System or any part thereof shall be paid over to
Mobil G.B. or as it may direct.
13.04. Additional Insurance. Nothing in this Section 13 shall
--------------------
prohibit Mobil G.B. or the Indenture Trustee from acquiring or maintaining, at
its own expense, additional insurance for its own account with respect to loss
or damage to the Undivided Interest or any part thereof provided that any such
additional insurance shall not interfere with or in any way limit insurance
maintained under Section 13.01(a) of this Article XI or increase the amount of
any premium payable with respect to any such insurance. The proceeds of any
such additional insurance will be for the account of the party maintaining such
additional insurance.
EXHC-44
<PAGE>
13.05. Annual Insurance Report. Prior to December 31 of each year,
-----------------------
Mobil G.B. will provide to the Indenture Trustee an insurance report and
certificate, substantially in the form of the report and the certificate
provided by Mobil G.B. pursuant to Section 4.6 of the Participation Agreement,
with respect to the insurance then required to be maintained by Mobil G.B.
pursuant to Section 13 of this Article XI.
SECTION 14. RIGHTS TO SUBLEASE.
------------------
14.01. [Intentionally Omitted]
14.02. Lease by Mobil G.B. Mobil G.B. may, without the consent of
-------------------
the Indenture Trustee, at any time and from time to time, lease the Undivided
Interest to another Person (including to MPTM pursuant to the Initial Sublease);
provided that (i) such lease shall be subject and subordinate to this Indenture
- --------
(and such lease shall contain a provision providing that any sublease permitted
thereunder shall be so subject and subordinate), (ii) Mobil G.B. shall remain
primarily liable under this Indenture, and all terms and conditions hereof and
of the other Operative Documents shall be complied with as though no such lease
was in existence and (iii) the Guaranty shall remain in full force and effect.
Any lessee under a lease permitted hereunder may sublease the Undivided Interest
to another Person under a sublease that otherwise complies with the provisions
hereunder applicable to a lease hereunder. Mobil G.B. shall give prompt written
notice to the Indenture Trustee of any lease or sublease of the Undivided
Interest.
SECTION 20. General. (a) As provided in the Relevant Date
-------
Supplement, effective upon the execution and delivery by Mobil G.B. and the
Indenture Trustee of the Relevant Date Supplement on the Relevant Date, Mobil
G.B. assumed on a full recourse basis all of the obligations of the Owner
Trustee under this Indenture and the Secured Notes and shall be entitled to all
the rights and benefits of the Owner Trustee hereunder and thereunder, in each
case to the extent provided for in Exhibit C hereto, and the Owner Trustee is,
effective upon such execution and delivery on the Relevant Date, released from
all obligations and rights under this Indenture and the Secured Notes; provided,
--------
however, that any obligations or liabilities of the Owner Trustee in its
- -------
individual capacity incurred on or prior to the Relevant Date or arising out of
or based upon events occurring on or prior to the Relevant Date, shall remain
the responsibility of the Owner Trustee.
(b) As provided in Section 2 of the Relevant Date Supplement, Mobil
G.B. confirmed and ratified the security interest which the Owner Trustee
granted to the Indenture Trustee pursuant to the Granting Clause of this
Indenture in all of the Owner Trustee's right, title and interest in and to the
Indenture Estate and Mobil G.B. explicitly agreed that
EXHC-45
<PAGE>
Mobil G.B. is acquiring the Undivided Interest identified in such Section 2
subject to such security interest, which shall remain in full force and effect
until the Lien of this Indenture on the Undivided Interest is discharged in
accordance with the terms hereof, and the Indenture Trustee acknowledges that
the Lease and the obligations of Mobil G.B. thereunder as the Lessee have been
terminated, except as specifically provided for therein. Each of Mobil G.B. and
the Indenture Trustee hereby agree that:
(i) the comma at the end of clause (i) of the paragraph
preceding the Granting Clause of this Indenture shall after the Relevant
Date be deemed to be "and"; the reference to the Owner Trustee in clause
(ii) of the paragraph preceding the Granting Clause of this Indenture shall
after the Relevant Date be deemed to be a reference to Mobil G.B.; the
phrase ", and (iii) the performance and observance by the Owner Participant
of its covenants and agreements in the Operative Documents (other than the
Tax Indemnity Agreement) contained" in the paragraph preceding the Granting
Clause of this Indenture shall after the Relevant Date be deemed to be
deleted; and the phrase "(the obligations described in the above clauses
(i), (ii) and (iii) collectively, the "Indenture Indebtedness")" in the
----------------------
paragraph preceding the Granting Clause of this Indenture shall after the
Relevant Date be deemed to be "(the obligations described in the above
clauses (i) and (ii) collectively, the "Indenture Indebtedness")";
----------------------
(ii) the paragraph preceding clause (a) of the Granting Clause of
this Indenture shall be deemed amended to provide that any reference to the
Owner Trustee contained in such paragraph shall after the Relevant Date be
deemed to be a reference to Mobil G.B.;
(iii) clauses (a) through (j) of the Granting Clause of this
Indenture and the two paragraphs following clause (j) of such Granting
Clause shall be deemed amended to read as follows after the Relevant Date:
(a) the Undivided Interest, which is both (x) described in
Schedule 1 or as may be described in any Indenture Supplement or any
other supplement to this Indenture and (y) as to which Mobil G.B.
agrees, pursuant to Section 2 of the Relevant Date Supplement, is
subject to the security interest and Lien of the Indenture Trustee,
including without limitation any Component or Replacement Component
thereof or Modification thereto which, pursuant to the terms of
Article XI of this Indenture, are at any time subject to the Lien of
this Indenture; and
EXHC-46
<PAGE>
(b) all rights or property which may be received upon the
exercise of any remedy or option contained in any of the above-
described instruments and all proceeds in whatever form of all or any
part of any of the foregoing;
(c) [Intentionally Omitted]
(d) [Intentionally Omitted]
(e) [Intentionally Omitted]
(f) [Intentionally Omitted]
(g) [Intentionally Omitted]
(h) [Intentionally Omitted].
SUBJECT to the rights of Mobil G.B. hereunder.
(L) Sections 10.6 and 14.1 of the Participation Agreement shall read
as follows:
10.6 Further Assurances. Mobil G.B., at its own cost and expense,
------------------
will cause to be promptly and duly taken, executed, acknowledged and delivered
all such further acts, documents and assurances as the Owner Trustee, the Owner
Participant, the Pass Through Trustees and the Indenture Trustee reasonably may
request from time to time in order to carry out more effectively the intent and
purposes of this Agreement, the Pass Through Trust Agreements and the other
Operative Documents and the transactions contemplated hereby and thereby. Mobil
G.B., at is own cost and expense, will cause the Indenture and supplements or
amendments thereto and restatements thereof and all financing statements,
fixture filings and other documents, to be recorded or filed at such places and
times and in such manner, as may be necessary or as may be reasonably requested
so long as any Secured Notes are Outstanding, by the Indenture Trustee or the
Pass Through Trustees in order to establish, preserve, protect and perfect the
mortgage and security interest of the Indenture Trustee in the Indenture Estate
granted or intended to be created under the Indenture and the Indenture
Trustee's rights under this Agreement and the other Operative Documents, subject
only to Permitted Liens.
10.13 Certain References and Obligations. (a) After the Relevant
----------------------------------
Date, the provisions of Section 10 which require or permit any action by, any
consent, approval or authorization of, the furnishing of any document, paper or
information to, or the performance of any other obligation to, the Owner Trustee
or the Owner Participant shall not be effective, and the Sections containing
such provisions shall
EXHC-47
<PAGE>
be read as though there were no such refere nces to any such requirements or
permissions.
14.1 [Intentionally Omitted]
(M) (I) Section 1.04(c) of each Pass Through Trust Agreement shall
read as follows:
(c) In determining whether the Certificateholders of the requisite
Fractional Undivided Interests of Certificates Outstanding have given any
direction, consent or waiver (a "Direction"), under this Pass Through Trust
---------
Agreement, Certificates owned by the Company or any Affiliate thereof shall be
disregarded and deemed not to be Outstanding under this Pass Through Trust
Agreement for purposes of any such determination. In determining whether the
Pass Through Trustee shall be protected in relying upon any such Direction, only
Certificates about which the Pass Through Trustee has Actual Knowledge regarding
such ownership shall be so disregarded. Notwithstanding the foregoing, (i) if
any such Person owns 100% of the Certificates Outstanding, such Certificates
shall not be so disregarded as aforesaid, and (ii) if any amount of Certificates
so owned by any such Person have been pledged in good faith, such Certificates
shall not be disregarded as aforesaid if the pledgee establishes to the
satisfaction of the Pass Through Trustee the pledgee's right so to act with
respect to such Certificates and that the pledgee is not the Company or any
Affiliate thereof.
(II) Sections 6.03 and 12.11 of each Pass Through Trust Agreement
shall read as follows:
Section 6.03. Judicial Proceedings Instituted by Trustee.
------------------------------------------
(a) Trustee May Bring Suit. If there shall be a failure to make
----------------------
payment of the principal of or interest on any Secured Note, or if there be any
failure to pay any other amount payable by Mobil G.B. to the Indenture Trustee
or the Holders under any Operative Document when due and payable, then the
Trustee, in its own name, and as trustee of an express trust, as holder of such
Secured Notes, shall be, to the extent permitted by and in accordance with the
terms of the Note Documents, entitled and empowered to institute any suits,
actions or proceedings at law, in equity or otherwise, for the collection of the
sums so due and unpaid on such Secured Notes or under the Lease and may
prosecute any such claim or proceeding to judgment or final decree with respect
to the whole amount of any such sums so due and unpaid.
(b) Trustee May File Proofs of Claim; Appointment of Trustee as
-----------------------------------------------------------
Attorney-in-Fact in Judicial Proceedings. The Trustee in its own name, or as
- ----------------------------------------
trustee of an express trust, or as attorney-in-fact for the Certificateholders,
or in any one
EXHC-48
<PAGE>
or more of such capacities (irrespective of whether distributions on the
Certificates shall then be due and payable, or the payment of the principal on
the Secured Notes shall then be due and payable, as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand to the Indenture Trustee for the payment of overdue principal,
premium (if any) or interest on the Secured Notes), shall be entitled and
empowered to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee and of the
Certificateholders allowed in any receivership, insolvency, bankruptcy,
liquidation, readjustment, reorganization or any other judicial proceedings
relative to Mobil or the Indenture Trustee, their respective creditors or
property. Any receiver, assignee, trustee, liquidator, sequestrator (or similar
official) in any such judicial proceeding is hereby authorized by each
Certificateholder to make payments in respect of such claim to the Trustee, and
in the event that the Trustee shall consent to the making of such payments
directly to the Certificateholders, to pay to the Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel. Nothing contained in this Trust Agreement
shall be deemed to give to the Trustee any right to accept or consent to any
plan of reorganization or otherwise by action of any character in any such
proceeding to waive or change in any way any right of any Certificateholder.
Section 12.11. Certain References and Obligations. Notwithstanding
----------------------------------
any provision to the contrary contained herein:
(a) The phrase "(with the consent of the Owner Trustee, such consent
not to be unreasonably withheld)" in Section 9.02 shall after the Relevant Date
be deemed to be deleted; and
(b) Sections 1.02, 7.02, 7.03(c), 7.05, 7.09(b), 7.09(c), 7.09(e),
7.09(f), 7.12(a), 7.12(d), 9.02, 11.01 and 12.03 shall be deemed amended to
provide that any reference to the Owner Trustee contained in such Sections (but
not any reference to the "Owner Trustee or its designee the Company" in such
Sections) shall after the Relevant Date be deemed to be deleted.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
All provisions of this Indenture, the other Operative Documents and
the Pass Through Trust Agreements not specifically amended by operation of this
Exhibit C shall remain in full force and effect.
EXHC-49
<PAGE>
Exhibit A-1 to Exhibit C
to Indenture
------------------------
[FORM OF Series 1995 A-1 SECURED NOTE]
MOBIL G.B. 388 FINANCE INC.
Series 1995 A-1 Secured Non-Recourse Note
Due ____
Undivided Interest in Production System
---------------------------------------
Registered No. _______
New York, New York
____________$ _____________, 19__
Interest Rate Per Annum: __%
MOBIL G.B. 388 FINANCE INC., a Delaware Corporation, for value
received hereby promises to pay to ________________________, or registered
assigns, on or before _______________________, ____, as herein provided, the
principal sum of ____________ DOLLARS ($___________), and to pay interest on the
unpaid principal amount of this Secured Note from time to time from the date
hereof until the principal amount hereof shall have been paid in full at the
rate of []% per annum (based on a 360-day year of twelve 30-day months), and (to
the extent not prohibited by applicable law) to pay interest on any overdue
principal at the Overdue Rate. The principal amount of this Secured Note shall
be payable in full on the Maturity Date. Subject to 2.03(b) of the Indenture,
all accrued and unpaid interest on the unpaid principal amount of this Secured
Note shall be payable on each January 2 and July 2 in each year commencing [_].
This Secured Note is one of the Secured Notes issued by Mobil G.B.
pursuant to the terms of the Trust Indenture, Mortgage, Assignment of Lease, and
Security Agreement, dated as of December 12, 1995, between the Owner Trustee,
and First Security Bank of Utah, National Association, a national banking
association, not in its individual capacity but solely as indenture trustee
thereunder for the Holder of this Secured Note and the Holders of all other
Secured Notes Outstanding thereunder (the "Indenture Trustee"), as such Trust
-----------------
Indenture, Mortgage, Assignment of Lease, and Security Agreement has been
assumed by Mobil G.B. pursuant to the Indenture Supplement dated the date hereof
among, Mobil G.B., the Corporate Indenture Trustee and the Individual Indenture
Trustee and as such Trust Indenture, Mortgage, Assignment of Lease, and Security
Agreement has been amended pursuant to the Relevant Amendment (such Trust
Indenture, Mortgage, Assignment of Lease, and Security Agreement as so assumed
and amended,
EXHC-50
<PAGE>
the "Indenture"). Capitalized terms used in this Secured Note and not otherwise
---------
defined shall have the respective meanings assigned to them in the Indenture.
Each payment of principal and interest shall be due and payable at the
times, places and in the manner as specified herein and in the Indenture.
Each payment on this Secured Note shall be applied, first, to the
-----
payment of accrued interest on this Secured Note to the date of such payment,
second, to the payment of any principal on this Secured Note then due hereunder,
- ------
and third, to the payment of the installments of principal remaining unpaid on
-----
this Secured Note in the inverse order of the maturity thereof.
This Secured Note is one of Mobil G.B.'s Series 1995 A-1 Secured
Notes, which, together with the Series 1995 A-2 Secured Notes, the Series 1995
A-3 Secured Notes, the Series 1995 A-4 Secured Notes, the Series 1995 A-5
Secured Notes and the Series 1995 A-6 Secured Notes of the Owner Trustee, all
issued pursuant to the Indenture, as well as any Additional Notes and any note
or notes issued in exchange or substitution respectively therefor in accordance
with the terms of the Indenture, are equally and ratably secured by the
Indenture, except as otherwise provided therein. The properties of Mobil G.B.
(excluding Excepted Payments) included in the Indenture Estate are pledged or
mortgaged to the Indenture Trustee to the extent provided in the Indenture as
security for the payment of the principal of and interest on this Secured Note
and all other Secured Notes issued and Outstanding from time to time under the
Indenture. Reference is hereby made to the Indenture for a description of the
Indenture Estate, and for a statement of the rights of the Holder of, and the
nature and extent of the security for, this Secured Note and of the rights of,
and the nature and extent of the security for, the Holders of the other Secured
Notes and of certain rights of Mobil G.B., as well as for a statement of the
terms and conditions of the trusts created by the Indenture, to all of which
terms and conditions in the Indenture the Holder agrees by its acceptance of
this Secured Note.
This Secured Note is subject to redemption, in whole or in part, all
as specified in Article III of the Indenture. This Secured Note is also subject
to refunding, refinancing, assumption or purchase, all as specified in Sections
3.04, 3.05 and 3.06 of the Indenture.
In case an Indenture Event of Default shall occur and be continuing,
the unpaid balance of the principal of the Secured Notes, together with all
accrued but unpaid interest, may be declared or may otherwise become due and
payable in the manner and with the effect provided in Article V of the
Indenture.
EXHC-51
<PAGE>
The Secured Notes are issuable only as registered notes. There shall
be maintained a note register for the purpose of registering transfers and
exchanges of the Secured Notes at the principal corporate trust office of the
Indenture Trustee, or of any successor Indenture Trustee, in the manner provided
in Section 2.05 of the Indenture. Mobil G.B. and the Indenture Trustee may deem
and treat the Person in whose name this Secured Note is registered on the Note
Register as the absolute owner hereof (whether or not this Secured Note shall be
overdue) for the purpose of receiving payments of principal and interest and for
all other purposes, and neither Mobil G.B. nor the Indenture Trustee shall be
affected by any notice to the contrary.
All payments of principal and interest to be made by Mobil G.B. and,
except as otherwise provided in the Operative Documents, all payments of any
other amounts payable by or on behalf of Mobil G.B. under the Secured Notes or
under the Indenture, shall be made only from the income and proceeds from the
Indenture Estate, and only to the extent that the Indenture Trustee shall have
received sufficient income and proceeds from the Indenture Estate to make such
payments in accordance with the Indenture. The Holder, by its acceptance of
this Secured Note, agrees that it will look solely to the income and proceeds
from the Indenture Estate to the extent available for payment as provided in the
Indenture, and that the Indenture Trustee (whether in its individual or trust
capacity) shall not be personally liable to the Indenture Trustee or to the
Holder for any amounts payable under this or any Secured Note, nor, except as
specifically provided in the Indenture or any other Operative Document, for any
amounts payable or any liability, under the Indenture.
This Secured Note shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
certificate of authentication hereon shall have been signed by the Indenture
Trustee.
No delay or omission of the Holder to exercise its rights hereunder
shall impair any such right or power or shall be construed to be a waiver of any
Indenture Event of Default, or an acquiescence therein. No waiver of any
Indenture Event of Default shall be construed, taken or held to be a waiver of
any other Indenture Event of Default, or a waiver, acquiescence in, or consent
to any further or succeeding Indenture Event of Default. Mobil G.B. waives
demand, notice and protest in any defense by reason of extension of time for
payment or other indulgence granted by the Holder.
This Secured Note shall be governed by and construed in accordance
with the laws of the State of New York.
EXHC-52
<PAGE>
IN WITNESS WHEREOF, Mobil G.B. has caused this Secured Note to be duly
executed.
MOBIL G.B. 388 FINANCE INC.
By:____________________________
Title:
EXHC-53
<PAGE>
Certificate of Authentication
-----------------------------
This Secured Note is one of the Series 1995 A-1 Secured Notes of MOBIL
G.B. 388 FINANCE INC. described in the within-mentioned Indenture.
MOBIL G.B. 388 FINANCE INC.
By:____________________________
Title:
EXHC-54
<PAGE>
Exhibit A-2 To Exhibit C
to Indenture
------------------------
[FORM OF Series 1995 A-2 SECURED NOTE]
MOBIL G.B. 388 FINANCE INC.
Series 1995 A-2 Secured Non-Recourse Note
Due ____
Undivided Interest in Production System
---------------------------------------
Registered No. _______
New York, New York
$____________ _____________, 19__
Interest Rate Per Annum: __%
MOBIL G.B. 388 FINANCE INC., a Delaware Corporation, for value
received hereby promises to pay to ________________________, or registered
assigns, on or before _______________________, ____, as herein provided, the
principal sum of ____________ DOLLARS ($___________), and to pay interest on the
unpaid principal amount of this Secured Note from time to time from the date
hereof until the principal amount hereof shall have been paid in full at the
rate of []% per annum (based on a 360-day year of twelve 30-day months), and (to
the extent not prohibited by applicable law) to pay interest on any overdue
principal at the Overdue Rate. The principal amount of this Secured Note shall
be payable in full on the Maturity Date. Subject to 2.03(b) of the Indenture,
all accrued and unpaid interest on the unpaid principal amount of this Secured
Note shall be payable on each January 2 and July 2 in each year commencing [].
This Secured Note is one of the Secured Notes issued by Mobil G.B.
pursuant to the terms of the Trust Indenture, Mortgage, Assignment of Lease, and
Security Agreement, dated as of December 12, 1995, between the Owner Trustee,
and First Security Bank of Utah, National Association, a national banking
association, not in its individual capacity but solely as indenture trustee
thereunder for the Holder of this Secured Note and the Holders of all other
Secured Notes Outstanding thereunder (the "Indenture Trustee"), as such Trust
-----------------
Indenture, Mortgage, Assignment of Lease, and Security Agreement has been
assumed by Mobil G.B. pursuant to the Indenture Supplement dated the date hereof
among, Mobil G.B., the Corporate Indenture Trustee and the Individual Indenture
Trustee and as such Trust Indenture, Mortgage, Assignment of Lease, and Security
Agreement has been amended pursuant to the Relevant Amendment (such Trust
Indenture, Mortgage, Assignment of Lease, and Security Agreement as so assumed
and amended,
EXHC-55
<PAGE>
the "Indenture"). Capitalized terms used in this Secured Note and not otherwise
---------
defined shall have the respective meanings assigned to them in the Indenture.
Each payment of principal and interest shall be due and payable at the
times, places and in the manner as specified herein and in the Indenture.
Each payment on this Secured Note shall be applied, first, to the
-----
payment of accrued interest on this Secured Note to the date of such payment,
second, to the payment of any principal on this Secured Note then due hereunder,
- ------
and third, to the payment of the installments of principal remaining unpaid on
-----
this Secured Note in the inverse order of the maturity thereof.
This Secured Note is one Mobil G.B.'s Series 1995 A-2 Secured Notes,
which, together with the Series 1995 A-1 Secured Notes, the Series 1995 A-3
Secured Notes, the Series 1995 A-4 Secured Notes, the Series 1995 A-5 Secured
Notes and the Series 1995 A-6 Secured Notes of the Owner Trustee, all issued
pursuant to the Indenture, as well as any Additional Notes and any note or notes
issued in exchange or substitution respectively therefor in accordance with the
terms of the Indenture, are equally and ratably secured by the Indenture, except
as otherwise provided therein. The properties of Mobil G.B. (excluding Excepted
Payments) included in the Indenture Estate are pledged or mortgaged to the
Indenture Trustee to the extent provided in the Indenture as security for the
payment of the principal of and interest on this Secured Note and all other
Secured Notes issued and Outstanding from time to time under the Indenture.
Reference is hereby made to the Indenture for a description of the Indenture
Estate, and for a statement of the rights of the Holder of, and the nature and
extent of the security for, this Secured Note and of the rights of, and the
nature and extent of the security for, the Holders of the other Secured Notes
and of certain rights of Mobil G.B., as well as for a statement of the terms and
conditions of the trusts created by the Indenture, to all of which terms and
conditions in the Indenture the Holder agrees by its acceptance of this Secured
Note.
This Secured Note is subject to redemption, in whole or in part, all
as specified in Article III of the Indenture. This Secured Note is also subject
to refunding, refinancing, assumption or purchase, all as specified in Sections
3.04, 3.05 and 3.06 of the Indenture.
In case an Indenture Event of Default shall occur and be continuing,
the unpaid balance of the principal of the Secured Notes, together with all
accrued but unpaid interest, may be declared or may otherwise become due and
payable in the manner and with the effect provided in Article V of the
Indenture.
EXHC-56
<PAGE>
The Secured Notes are issuable only as registered notes. There shall
be maintained a note register for the purpose of registering transfers and
exchanges of the Secured Notes at the principal corporate trust office of the
Indenture Trustee, or of any successor Indenture Trustee, in the manner provided
in Section 2.05 of the Indenture. Mobil G.B. and the Indenture Trustee may deem
and treat the Person in whose name this Secured Note is registered on the Note
Register as the absolute owner hereof (whether or not this Secured Note shall be
overdue) for the purpose of receiving payments of principal and interest and for
all other purposes, and neither Mobil G.B. nor the Indenture Trustee shall be
affected by any notice to the contrary.
All payments of principal and interest to be made by Mobil G.B. and,
except as otherwise provided in the Operative Documents, all payments of any
other amounts payable by or on behalf of Mobil G.B. under the Secured Notes and
the Indenture, shall be payable from the income and proceeds from the Indenture
Estate and shall be direct obligations of Mobil G.B. Each Holder, by its
acceptance of a Secured Note, agrees that it will look solely to Mobil G.B., the
Guarantor and the income and proceeds from the Indenture Estate to the extent
available for payment as herein provided and that the Indenture Trustee (whether
in its individual or trust capacity) shall not be personally liable to such
Holder for any amounts payable under the Secured Notes, or, except as
specifically provided herein or in the other Operative Documents, for any
amounts payable or any liability under the Indenture.
This Secured Note shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
certificate of authentication hereon shall have been signed by the Indenture
Trustee.
No delay or omission of the Holder to exercise its rights hereunder
shall impair any such right or power or shall be construed to be a waiver of any
Indenture Event of Default, or an acquiescence therein. No waiver of any
Indenture Event of Default shall be construed, taken or held to be a waiver of
any other Indenture Event of Default, or a waiver, acquiescence in, or consent
to any further or succeeding Indenture Event of Default. Mobil G.B. waives
demand, notice and protest in any defense by reason of extension of time for
payment or other indulgence granted by the Holder.
This Secured Note shall be governed by and construed in accordance
with the laws of the State of New York.
EXHC-57
<PAGE>
IN WITNESS WHEREOF, Mobil G.B. has caused this Secured Note to be duly
executed.
MOBIL G.B. 388 FINANCE INC.
By:_____________________________
Title:
EXHC-58
<PAGE>
Certificate of Authentication
-----------------------------
This Secured Note is one of the Series 1995 A-2 Secured Notes of MOBIL
G.B. 388 FINANCE INC., described in the within-mentioned Indenture.
MOBIL G.B. 388 FINANCE INC.
By:______________________________
Title:
EXHC-59
<PAGE>
Exhibit A-3 to Exhibit C
to Indenture
------------------------
[FORM OF Series 1995 A-3 SECURED NOTE]
MOBIL G.B. 388 FINANCE INC.
Series 1995 A-3 Secured Non-Recourse Note
Due ____
Undivided Interest in Production System
---------------------------------------
Registered No. _______
New York, New York
$___________ _____________, 19__
Interest Rate Per Annum: __%
MOBIL G.B. 388 FINANCE INC., a Delaware Corporation, for value
received hereby promises to pay to ________________________, or registered
assigns, on or before _______________________, ____, as herein provided, the
principal sum of ____________ DOLLARS ($___________), and to pay interest on the
unpaid principal amount of this Secured Note from time to time from the date
hereof until the principal amount hereof shall have been paid in full at the
rate of []% per annum (based on a 360-day year of twelve 30-day months), and (to
the extent not prohibited by applicable law) to pay interest on any overdue
principal at the Overdue Rate. The principal amount of this Secured Note shall
be payable in full on the Maturity Date. Subject to 2.03(b) of the Indenture,
all accrued and unpaid interest on the unpaid principal amount of this Secured
Note shall be payable on each January 2 and July 2 in each year commencing [].
This Secured Note is one of the Secured Notes issued by Mobil G.B.
pursuant to the terms of the Trust Indenture, Mortgage, Assignment of Lease, and
Security Agreement, dated as of December 12, 1995, between the Owner Trustee,
and First Security Bank of Utah, National Association, a national banking
association, not in its individual capacity but solely as indenture trustee
thereunder for the Holder of this Secured Note and the Holders of all other
Secured Notes Outstanding thereunder (the "Indenture Trustee"), as such Trust
-----------------
Indenture, Mortgage, Assignment of Lease, and Security Agreement has been
assumed by Mobil G.B. pursuant to the Indenture Supplement dated the date hereof
among, Mobil G.B., the Corporate Indenture Trustee and the Individual Indenture
Trustee and as such Trust Indenture, Mortgage, Assignment of Lease, and Security
Agreement has been amended pursuant to the Relevant Amendment (such Trust
Indenture, Mortgage, Assignment
EXHC-60
<PAGE>
of Lease, and Security Agreement as so assumed and amended, the "Indenture").
---------
Capitalized terms used in this Secured Note and not otherwise defined shall have
the respective meanings assigned to them in the Indenture.
Each payment of principal and interest shall be due and payable at the
times, places and in the manner as specified herein and in the Indenture.
Each payment on this Secured Note shall be applied, first, to the
-----
payment of accrued interest on this Secured Note to the date of such payment,
second, to the payment of any principal on this Secured Note then due hereunder,
- ------
and third, to the payment of the installments of principal remaining unpaid on
-----
this Secured Note in the inverse order of the maturity thereof.
This Secured Note is one of Mobil G.B.'s Series 1995 A-3 Secured
Notes, which, together with the Series 1995 A-1 Secured Notes, the Series 1995
A-2 Secured Notes, the Series 1995 A-4 Secured Notes, the Series 1995 A-5
Secured Notes and the Series 1995 A-6 Secured Notes of the Owner Trustee, all
issued pursuant to the Indenture, as well as any Additional Notes and any note
or notes issued in exchange or substitution respectively therefor in accordance
with the terms of the Indenture, are equally and ratably secured by the
Indenture, except as otherwise provided therein. The properties of Mobil G.B.
(excluding Excepted Payments) included in the Indenture Estate are pledged or
mortgaged to the Indenture Trustee to the extent provided in the Indenture as
security for the payment of the principal of and interest on this Secured Note
and all other Secured Notes issued and Outstanding from time to time under the
Indenture. Reference is hereby made to the Indenture for a description of the
Indenture Estate, and for a statement of the rights of the Holder of, and the
nature and extent of the security for, this Secured Note and of the rights of,
and the nature and extent of the security for, the Holders of the other Secured
Notes and of certain rights of Mobil G.B., as well as for a statement of the
terms and conditions of the trusts created by the Indenture, to all of which
terms and conditions in the Indenture the Holder agrees by its acceptance of
this Secured Note.
This Secured Note is subject to redemption, in whole or in part, all
as specified in Article III of the Indenture. This Secured Note is also subject
to refunding, refinancing, assumption or purchase, all as specified in Sections
3.04, 3.05 and 3.06 of the Indenture.
In case an Indenture Event of Default shall occur and be continuing,
the unpaid balance of the principal of the Secured Notes, together with all
accrued but unpaid interest, may be declared or may otherwise become due and
payable in the
EXHC-61
<PAGE>
manner and with the effect provided in Article V of the Indenture.
The Secured Notes are issuable only as registered notes. There shall
be maintained a note register for the purpose of registering transfers and
exchanges of the Secured Notes at the principal corporate trust office of the
Indenture Trustee, or of any successor Indenture Trustee, in the manner provided
in Section 2.05 of the Indenture. Mobil G.B. and the Indenture Trustee may deem
and treat the Person in whose name this Secured Note is registered on the Note
Register as the absolute owner hereof (whether or not this Secured Note shall be
overdue) for the purpose of receiving payments of principal and interest and for
all other purposes, and neither Mobil G.B. nor the Indenture Trustee shall be
affected by any notice to the contrary.
All payments of principal and interest to be made by Mobil G.B. and,
except as otherwise provided in the Operative Documents, all payments of any
other amounts payable by or on behalf of Mobil G.B. under the Secured Notes and
the Indenture, shall be payable from the income and proceeds from the Indenture
Estate and shall be direct obligations of Mobil G.B. Each Holder, by its
acceptance of a Secured Note, agrees that it will look solely to Mobil G.B., the
Guarantor and the income and proceeds from the Indenture Estate to the extent
available for payment as herein provided and that the Indenture Trustee (whether
in its individual or trust capacity) shall not be personally liable to such
Holder for any amounts payable under the Secured Notes, or, except as
specifically provided herein or in the other Operative Documents, for any
amounts payable or any liability under the Indenture.
This Secured Note shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
certificate of authentication hereon shall have been signed by the Indenture
Trustee.
No delay or omission of the Holder to exercise its rights hereunder
shall impair any such right or power or shall be construed to be a waiver of any
Indenture Event of Default, or an acquiescence therein. No waiver of any
Indenture Event of Default shall be construed, taken or held to be a waiver of
any other Indenture Event of Default, or a waiver, acquiescence in, or consent
to any further or succeeding Indenture Event of Default. Mobil G.B. waives
demand, notice and protest in any defense by reason of extension of time for
payment or other indulgence granted by the Holder.
This Secured Note shall be governed by and construed in accordance
with the laws of the State of New York.
EXHC-62
<PAGE>
IN WITNESS WHEREOF, Mobil G.B. has caused this Secured Note to be duly
executed.
MOBIL G.B. 388 FINANCE INC.
By:____________________________
Title:
EXHC-63
<PAGE>
Certificate of Authentication
-----------------------------
This Secured Note is one of the Series 1995 A-3 Secured Notes of MOBIL
G.B. 388 FINANCE INC., described in the within-mentioned Indenture.
MOBIL G.B. 388 FINANCE INC.
By:_______________________________
Title:
EXHC-64
<PAGE>
Exhibit A-4 to Exhibit C
to Indenture
------------------------
[FORM OF Series 1995 A-4 SECURED NOTE]
MOBIL G.B. 388 FINANCE INC.
Series 1995 A-4 Secured Non-Recourse Note
Due ____
Undivided Interest in Production System
---------------------------------------
Registered No. _______
$____________ New York, New York
_____________, 19__
Interest Rate Per Annum: __%
MOBIL G.B. 388 FINANCE INC., a Delaware Corporation, for value
received hereby promises to pay to ________________________, or registered
assigns, on or before _______________________, ____, as herein provided, the
principal sum of ____________ DOLLARS ($___________), and to pay interest on the
unpaid principal amount of this Secured Note from time to time from the date
hereof until the principal amount hereof shall have been paid in full at the
rate of []% per annum (based on a 360-day year of twelve 30-day months), and (to
the extent not prohibited by applicable law) to pay interest on any overdue
principal at the Overdue Rate. The principal amount of this Secured Note shall
be payable in full on the Maturity Date. Subject to 2.03(b) of the Indenture,
all accrued and unpaid interest on the unpaid principal amount of this Secured
Note shall be payable on each January 2 and July 2 in each year commencing [].
This Secured Note is one of the Secured Notes issued by Mobil G.B.
pursuant to the terms of the Trust Indenture, Mortgage, Assignment of Lease, and
Security Agreement, dated as of December 12, 1995, between the Owner Trustee,
and First Security Bank of Utah, National Association, a national banking
association, not in its individual capacity but solely as indenture trustee
thereunder for the Holder of this Secured Note and the Holders of all other
Secured Notes Outstanding thereunder (the "Indenture Trustee"), as such Trust
-----------------
Indenture, Mortgage, Assignment of Lease, and Security Agreement has been
assumed by Mobil G.B. pursuant to the Indenture Supplement dated the date hereof
among, Mobil G.B., the Corporate Indenture Trustee and the Individual Indenture
Trustee and as such Trust Indenture, Mortgage, Assignment of Lease, and Security
Agreement has been amended pursuant to the Relevant Amendment (such Trust
Indenture, Mortgage, Assignment of Lease, and Security Agreement as so assumed
and amended,
EXHC-65
<PAGE>
the "Indenture"). Capitalized terms used in this Secured Note and not otherwise
---------
defined shall have the respective meanings assigned to them in the Indenture.
Each payment of principal and interest shall be due and payable at the
times, places and in the manner as specified herein and in the Indenture.
Each payment on this Secured Note shall be applied, first, to the
-----
payment of accrued interest on this Secured Note to the date of such payment,
second, to the payment of any principal on this Secured Note then due hereunder,
- ------
and third, to the payment of the installments of principal remaining unpaid on
-----
this Secured Note in the inverse order of the maturity thereof.
This Secured Note is one of the Mobil G.B.'s Series 1995 A-4 Secured
Notes, which, together with the Series 1995 A-1 Secured Notes, the Series 1995
A-2 Secured Notes, the Series 1995 A-3 Secured Notes, the Series 1995 A-5
Secured Notes and the Series 1995 A-6 Secured Notes of the Owner Trustee, all
issued pursuant to the Indenture, as well as any Additional Notes and any note
or notes issued in exchange or substitution respectively therefor in accordance
with the terms of the Indenture, are equally and ratably secured by the
Indenture, except as otherwise provided therein. The properties of Mobil G.B.
(excluding Excepted Payments) included in the Indenture Estate are pledged or
mortgaged to the Indenture Trustee to the extent provided in the Indenture as
security for the payment of the principal of and interest on this Secured Note
and all other Secured Notes issued and Outstanding from time to time under the
Indenture. Reference is hereby made to the Indenture for a description of the
Indenture Estate, and for a statement of the rights of the Holder of, and the
nature and extent of the security for, this Secured Note and of the rights of,
and the nature and extent of the security for, the Holders of the other Secured
Notes and of certain rights of Mobil G.B., as well as for a statement of the
terms and conditions of the trusts created by the Indenture, to all of which
terms and conditions in the Indenture the Holder agrees by its acceptance of
this Secured Note.
This Secured Note is subject to redemption, in whole or in part, all
as specified in Article III of the Indenture. This Secured Note is also subject
to refunding, refinancing, assumption or purchase, all as specified in Sections
3.04, 3.05 and 3.06 of the Indenture.
In case an Indenture Event of Default shall occur and be continuing,
the unpaid balance of the principal of the Secured Notes, together with all
accrued but unpaid interest, may be declared or may otherwise become due and
payable in the
EXHC-66
<PAGE>
manner and with the effect provided in Article V of the Indenture.
The Secured Notes are issuable only as registered notes. There shall
be maintained a note register for the purpose of registering transfers and
exchanges of the Secured Notes at the principal corporate trust office of the
Indenture Trustee, or of any successor Indenture Trustee, in the manner provided
in Section 2.05 of the Indenture. Mobil G.B. and the Indenture Trustee may deem
and treat the Person in whose name this Secured Note is registered on the Note
Register as the absolute owner hereof (whether or not this Secured Note shall be
overdue) for the purpose of receiving payments of principal and interest and for
all other purposes, and neither the Owner Trustee nor the Indenture Trustee
shall be affected by any notice to the contrary.
All payments of principal and interest to be made by Mobil G.B. and,
except as otherwise provided in the Operative Documents, all payments of any
other amounts payable by or on behalf of Mobil G.B. under the Secured Notes and
the Indenture, shall be payable from the income and proceeds from the Indenture
Estate and shall be direct obligations of Mobil G.B. Each Holder, by its
acceptance of a Secured Note, agrees that it will look solely to Mobil G.B., the
Guarantor and the income and proceeds from the Indenture Estate to the extent
available for payment as herein provided and that the Indenture Trustee (whether
in its individual or trust capacity) shall not be personally liable to such
Holder for any amounts payable under the Secured Notes, or, except as
specifically provided herein or in the other Operative Documents, for any
amounts payable or any liability under the Indenture.
This Secured Note shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
certificate of authentication hereon shall have been signed by the Indenture
Trustee.
No delay or omission of the Holder to exercise its rights hereunder
shall impair any such right or power or shall be construed to be a waiver of any
Indenture Event of Default, or an acquiescence therein. No waiver of any
Indenture Event of Default shall be construed, taken or held to be a waiver of
any other Indenture Event of Default, or a waiver, acquiescence in, or consent
to any further or succeeding Indenture Event of Default. Mobil G.B. waives
demand, notice and protest in any defense by reason of extension of time for
payment or other indulgence granted by the Holder.
This Secured Note shall be governed by and construed in accordance
with the laws of the State of New York.
EXHC-67
<PAGE>
IN WITNESS WHEREOF, Mobil G.B. has caused this Secured Note to be duly
executed.
MOBIL G.B. 388 FINANCE INC.
By:_______________________________
Title:
EXHC-68
<PAGE>
Certificate of Authentication
-----------------------------
This Secured Note is one of the Series 1995 A-4 Secured Notes of MOBIL
G.B. 388 FINANCE INC., described in the within-mentioned Indenture.
MOBIL G.B. 388 FINANCE INC.
By:_______________________________
Title:
EXHC-69
<PAGE>
Exhibit A-5 to Exhibit C
to Indenture
------------------------
[FORM OF Series 1995 A-5 SECURED NOTE]
MOBIL G.B. 388 FINANCE INC.
Series 1995 A-5 Secured Non-Recourse Note
Due ____
Undivided Interest in Production System
---------------------------------------
Registered No. _______
$____________ New York, New York
_____________, 19__
Interest Rate Per Annum: __%
MOBIL G.B. 388 FINANCE INC., a Delaware Corporation, for value
received hereby promises to pay to ________________________, or registered
assigns, on or before _______________________, ____, as herein provided, the
principal sum of ____________ DOLLARS ($___________), and to pay interest on the
unpaid principal amount of this Secured Note from time to time from the date
hereof until the principal amount hereof shall have been paid in full at the
rate of []% per annum (based on a 360-day year of twelve 30-day months), and (to
the extent not prohibited by applicable law) to pay interest on any overdue
principal at the Overdue Rate. The principal amount of this Secured Note shall
be payable in full on the Maturity Date. Subject to 2.03(b) of the Indenture,
all accrued and unpaid interest on the unpaid principal amount of this Secured
Note shall be payable on each January 2 and July 2 in each year commencing [].
This Secured Note is one of the Secured Notes issued by Mobil G.B.
pursuant to the terms of the Trust Indenture, Mortgage, Assignment of Lease, and
Security Agreement, dated as of December 12, 1995, between the Owner Trustee,
and First Security Bank of Utah, National Association, a national banking
association, not in its individual capacity but solely as indenture trustee
thereunder for the Holder of this Secured Note and the Holders of all other
Secured No tes Outstanding thereunder (the "Indenture Trustee"), as such Trust
-----------------
Indenture, Mortgage, Assignment of Lease, and Security Agreement has been
assumed by Mobil G.B. pursuant to the Indenture Supplement dated the date hereof
among, Mobil G.B., the Corporate Indenture Trustee and the Individual Indenture
Trustee and as such Trust Indenture, Mortgage, Assignment of Lease, and Security
Agreement has been amended pursuant to the Relevant Amendment (such Trust
Indenture, Mortgage, Assignment of Lease, and Security Agreement as so assumed
and amended,
EXHC-70
<PAGE>
the "Indenture"). Capitalized terms used in this Secured Note and not otherwise
---------
defined shall have the respective meanings assigned to them in the Indenture.
Each payment of principal and interest shall be due and payable at the
times, places and in the manner as specified herein and in the Indenture.
Each payment on this Secured Note shall be applied, first, to the
-----
payment of accrued interest on this Secured Note to the date of such payment,
second, to the payment of any principal on this Secured Note then due hereunder,
- ------
and third, to the payment of the installments of principal remaining unpaid on
-----
this Secured Note in the inverse order of the maturity thereof.
Each payment on this Secured Note shall be applied, first, to the
-----
payment of accrued interest on this Secured Note to the date of such payment,
second, to the payment of any principal on this Secured Note then due hereunder,
- ------
and third, to the payment of the installments of principal remaining unpaid on
-----
this Secured Note in the inverse order of the maturity thereof.
This Secured Note is one of Mobil G.B.'s Series 1995 A-5 Secured
Notes, which, together with the Series 1995 A-1 Secured Notes, the Series 1995
A-2 Secured Notes, the Series 1995 A-3 Secured Notes, the Series 1995 A-4
Secured Notes and the Series 1995 A-6 Secured Notes of the Owner Trustee, all
issued pursuant to the Indenture, as well as any Additional Notes and any note
or notes issued in exchange or substitution respectively therefor in accordance
with the terms of the Indenture, are equally and ratably secured by the
Indenture, except as otherwise provided therein. The properties of Mobil G.B.
(excluding Excepted Payments) included in the Indenture Estate are pledged or
mortgaged to the Indenture Trustee to the extent provided in the Indenture as
security for the payment of the principal of and interest on this Secured Note
and all other Secured Notes issued and Outstanding from time to time under the
Indenture. Reference is hereby made to the Indenture for a description of the
Indenture Estate, and for a statement of the rights of the Holder of, and the
nature and extent of the security for, this Secured Note and of the rights of,
and the nature and extent of the security for, the Holders of the other Secured
Notes and of certain rights of Mobil G.B., as well as for a statement of the
terms and conditions of the trusts created by the Indenture, to all of which
terms and conditions in the Indenture the Holder agrees by its acceptance of
this Secured Note.
This Secured Note is subject to redemption, in whole or in part, all
as specified in Article III of the Indenture. This Secured Note is also subject
to refunding, refinancing,
EXHC-71
<PAGE>
assumption or purchase, all as specified in Sections 3.04, 3.05 and 3.06 of the
Indenture.
In case an Indenture Event of Default shall occur and be continuing,
the unpaid balance of the principal of the Secured Notes, together with all
accrued but unpaid interest, may be declared or may otherwise become due and
payable in the manner and with the effect provided in Article V of the
Indenture.
The Secured Notes are issuable only as registered notes. There shall
be maintained a note register for the purpose of registering transfers and
exchanges of the Secured Notes at the principal corporate trust office of the
Indenture Trustee, or of any successor Indenture Trustee, in the manner provided
in Section 2.05 of the Indenture. Mobil G.B. and the Indenture Trustee may deem
and treat the Person in whose name this Secured Note is registered on the Note
Register as the absolute owner hereof (whether or not this Secured Note shall be
overdue) for the purpose of receiving payments of principal and interest and for
all other purposes, and neither the Owner Trustee nor the Indenture Trustee
shall be affected by any notice to the contrary.
All payments of principal and interest to be made by Mobil G.B. and,
except as otherwise provided in the Operative Documents, all payments of any
other amounts payable by or on behalf of Mobil G.B. under the Secured Notes and
the Indenture, shall be payable from the income and proceeds from the Indenture
Estate and shall be direct obligations of Mobil G.B. Each Holder, by its
acceptance of a Secured Note, agrees that it will look solely to Mobil G.B., the
Guarantor and the income and proceeds from the Indenture Estate to the extent
available for payment as herein provided and that the Indenture Trustee (whether
in its individual or trust capacity) shall not be personally liable to such
Holder for any amounts payable under the Secured Notes, or, except as
specifically provided herein or in the other Operative Documents, for any
amounts payable or any liability under the Indenture.
This Secured Note shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
certificate of authentication hereon shall have been signed by the Indenture
Trustee.
No delay or omission of the Holder to exercise its rights hereunder
shall impair any such right or power or shall be construed to be a waiver of any
Indenture Event of Default, or an acquiescence therein. No waiver of any
Indenture Event of Default shall be construed, taken or held to be a waiver of
any other Indenture Event of Default, or a waiver, acquiescence in, or consent
to any further or succeeding
EXHC-72
<PAGE>
Indenture Event of Default. Mobil G.B. waives demand, notice and protest in any
defense by reason of extension of time for payment or other indulgence granted
by the Holder.
This Secured Note shall be governed by and construed in accordance
with the laws of the State of New York.
EXHC-73
<PAGE>
IN WITNESS WHEREOF, Mobil G.B. has caused this Secured Note to be duly
executed.
MOBIL G.B. 388 FINANCE INC.
By:________________________________
Title:
EXHC-74
<PAGE>
Certificate of Authentication
-----------------------------
This Secured Note is one of the Series 1995 A-5 Secured Notes of FLEET
NATIONAL BANK OF CONNECTICUT, as Owner Trustee, described in the within-
mentioned Indenture.
First Security Bank of Utah, National
Association, not in its individual capacity but
solely as Indenture Trustee
By:_______________________________
Title:
EXHC-75
<PAGE>
Exhibit A-6 to Exhibit C
to Indenture
------------------------
[FORM OF Series 1995 A-6 SECURED NOTE]
MOBIL G.B. 388 FINANCE INC.
Series 1995 A-6 Secured Non-Recourse Note
Due ____
Undivided Interest in Production System
---------------------------------------
Registered No. _______
$____________ New York, New York
_____________, 19__
Interest Rate Per Annum: __%
MOBIL G.B. 388 FINANCE INC., a Delaware corporation, for value
received hereby promises to pay to ________________________, or registered
assigns, on or before _______________________, ____, as herein provided, the
principal sum of ____________ DOLLARS ($___________), and to pay interest on the
unpaid principal amount of this Secured Note from time to time from the date
hereof until the principal amount hereof shall have been paid in full at the
rate of []% per annum (based on a 360-day year of twelve 30-day months), and (to
the extent not prohibited by applicable law) to pay interest on any overdue
principal at the Overdue Rate. The principal amount of this Secured Note shall
be payable in installments on each Installment Payment Date specified in the
Amortization Schedule attached hereto, each such installment to be in an amount
equal to the respective Installment Payment Percentage (as such Installment
Payment Percentage may be adjusted in accordance with the definition thereof) of
the remaining unpaid principal amount of this Secured Note set forth in such
Amortization Schedule opposite the applicable Installment Payment Date for such
installment. Subject to 2.03(b) of the Indenture, all accrued and unpaid
interest on the unpaid principal amount of this Secured Note shall be payable on
each January 2 and July 2 in each year commencing [].
This Secured Note is one of the Secured Notes issued by Mobil G.B.
pursuant to the terms of the Trust Indenture, Mortgage, Assignment of Lease, and
Security Agreement, dated as of December 12, 1995, between the Owner Trustee,
and First Security Bank of Utah, National Association, a national banking
association, not in its individual capacity but solely as indenture trustee
thereunder for the Holder of this Secured Note and the Holders of all other
Secured Notes Outstanding thereunder (the "Indenture Trustee"), as such Trust
-----------------
Indenture, Mortgage, Assignment of Lease, and Security
EXHC-76
<PAGE>
Agreement has been assumed by Mobil G.B. pursuant to the Indenture Supplement
dated the date hereof among, Mobil G.B., the Corporate Indenture Trustee and the
Individual Indenture Trustee and as such Trust Indenture, Mortgage, Assignment
of Lease, and Security Agreement has been amended pursuant to the Relevant
Amendment (such Trust Indenture, Mortgage, Assignment of Lease, and Security
Agreement as so assumed and amended, the "Indenture"). Capitalized terms used
---------
in this Secured Note and not otherwise defined shall have the respective
meanings assigned to them in the Indenture.
Each payment of principal and interest shall be due and payable at the
times, places and in the manner as specified herein and in the Indenture.
Each payment on this Secured Note shall be applied, first, to the
-----
payment of accrued interest on this Secured Note to the date of such payment,
second, to the payment of any principal on this Secured Note then due hereunder,
- ------
and third, to the payment of the installments of principal remaining unpaid on
-----
this Secured Note in the inverse order of the maturity thereof.
This Secured Note is one of Mobil G.B.'s Series 1995 A-6 Secured
Notes, which, together with the Series 1995 A-1 Secured Notes, the Series 1995
A-2 Secured Notes, the Series 1995 A-3 Secured Notes, the Series 1995 A-4
Secured Notes and the Series 1995 A-5 Secured Notes of the Owner Trustee, all
issued pursuant to the Indenture, as well as any Additional Notes and any note
or notes issued in exchange or substitution respectively therefor in accordance
with the terms of the Indenture, are equally and ratably secured by the
Indenture, except as otherwise provided therein. The properties of Mobil G.B.
(excluding Excepted Payments) included in the Indenture Estate are pledged or
mortgaged to the Indenture Trustee to the extent provided in the Indenture as
security for the payment of the principal of and interest on this Secured Note
and all other Secured Notes issued and Outstanding from time to time under the
Indenture. Reference is hereby made to the Indenture for a description of the
Indenture Estate, and for a statement of the rights of the Holder of, and the
nature and extent of the security for, this Secured Note and of the rights of,
and the nature and extent of the security for, the Holders of the other Secured
Notes and of certain rights of Mobil G.B., as well as for a statement of the
terms and conditions of the trusts created by the Indenture, to all of which
terms and conditions in the Indenture the Holder agrees by its acceptance of
this Secured Note.
This Secured Note is subject to redemption, in whole or in part, all
as specified in Article III of the Indenture. This Secured Note is also subject
to refunding, refinancing, assumption or purchase, all as specified in Sections
3.04, 3.05 and 3.06 of the Indenture.
EXHC-77
<PAGE>
In case an Indenture Event of Default shall occur and be continuing,
the unpaid balance of the principal of the Secured Notes, together with all
accrued but unpaid interest, may be declared or may otherwise become due and
payable in the manner and with the effect provided in Article V of the
Indenture.
The Secured Notes are issuable only as registered notes. There shall
be maintained a note register for the purpose of registering transfers and
exchanges of the Secured Notes at the principal corporate trust office of the
Indenture Trustee, or of any successor Indenture Trustee, in the manner provided
in Section 2.05 of the Indenture. The Owner Trustee and the Indenture Trustee
may deem and treat the Person in whose name this Secured Note is registered on
the Note Register as the absolute owner hereof (whether or not this Secured
Note shall be overdue) for the purpose of receiving payments of principal and
interest and for all other purposes, and neither the Owner Trustee nor the
Indenture Trustee shall be affected by any notice to the contrary.
All payments of principal and interest to be made by Mobil G.B. and,
except as otherwise provided in the Operative Documents, all payments of any
other amounts payable by or on behalf of Mobil G.B. under the Secured Notes and
the Indenture, shall be payable from the income and proceeds from the Indenture
Estate and shall be direct obligations of Mobil G.B. Each Holder, by its
acceptance of a Secured Note, agrees that it will look solely to Mobil G.B., the
Guarantor and the income and proceeds from the Indenture Estate to the extent
available for payment as herein provided and that the Indenture Trustee (whether
in its individual or trust capacity) shall not be personally liable to such
Holder for any amounts payable under the Secured Notes, or, except as
specifically provided herein or in the other Operative Documents, for any
amounts payable or any liability under the Indenture.
This Secured Note shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
certificate of authentication hereon shall have been signed by the Indenture
Trustee.
No delay or omission of the Holder to exercise its rights hereunder
shall impair any such right or power or shall be construed to be a waiver of any
Indenture Event of Default, or an acquiescence therein. No waiver of any
Indenture Event of Default shall be construed, taken or held to be a waiver of
any other Indenture Event of Default, or a waiver, acquiescence in, or consent
to any further or succeeding Indenture Event of Default. Mobil G.B. waives
demand, notice and protest in any defense by reason of extension of time for
payment or other indulgence granted by the Holder.
EXHC-78
<PAGE>
This Secured Note shall be governed by and construed in accordance
with the laws of the State of New York.
EXHC-79
<PAGE>
IN WITNESS WHEREOF, Mobil G.B. has caused this Secured Note to be duly
executed.
MOBIL G.B. 388 FINANCE INC.
By:_______________________________
Title:
EXHC-80
<PAGE>
Certificate of Authentication
-----------------------------
This Secured Note is one of the Series 1995 A-6 Secured Notes of MOBIL
G.B. 388 FINANCE INC., described in the within-mentioned Indenture.
MOBIL G.B. 388 FINANCE INC.
By:_______________________________
Title:
EXHC-81
<PAGE>
Series 1995 A-6 Secured Notes
Amortization Schedule
---------------------
Installment Payment
Installment Percentage of Remaining
Payment Date Unpaid Principal Amount
- ------------ -----------------------------
EXHX-82
<PAGE>
Exhibit D
to Indenture
------------
TRUST INDENTURE, MORTGAGE, ASSIGNMENT OF
LEASE AND SECURITY AGREEMENT
SUPPLEMENT NO. ____
BE IT KNOWN, that on the date hereinafter set forth, before me, the undersigned
Notary Public, duly commissioned and qualified in and for the State of New York,
and in the presence of the undersigned, competent witnesses, personally came and
appeared: FLEET NATIONAL BANK OF CONNECTICUT, a national banking association,
not in its individual capacity, except as expressly provided herein, but solely
as Corporate Owner Trustee under the Trust Agreement (the "Corporate
---------
Owner Trustee"), MICHAEL M. HOPKINS, an individual, not in his individual
- -------------
capacity, except as expressly provided herein, but solely as Individual Owner
Trustee under the Trust Agreement (the "Individual Owner Trustee"; together with
------------------------
the Corporate Owner Trustee, the "Owner Trustee"), FIRST SECURITY BANK OF UTAH,
-------------
NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity, except as expressly provided herein, but solely as Corporate Indenture
Trustee (the "Corporate Indenture Trustee"), and VAL T. ORTON, an individual,
---------------------------
not in his individual capacity, except as expressly provided herein, but solely
as Individual Indenture Trustee (the "Individual Indenture Trustee"; together
----------------------------
with the Corporate Indenture Trustee, the "Identure Trustee") who each being
----------------
duly sworn, did declare and say as follows:
W I T N E S E T H :
- - - - - - - - -
WHEREAS, terms used herein and not otherwise defined shall have the respective
meanings assigned to them in the Indenture;
WHEREAS, the Indenture was recorded in []; and
WHEREAS, the Indenture provides for the execution and delivery of one or more
supplements substantially in the form of this Indenture Supplement, which
supplement shall describe the property from time to time included in the
Indenture Estate;
NOW, THEREFORE, THIS INDENTURE SUPPLEMENT WITNESSETH, that, to secure (i) the
prompt payment when and as due and payable of the principal of and interest on
all the Secured Notes from time to time Outstanding under the Indenture and all
other amounts payable to the Holders thereunder, under the Participation
Agreement and under the Secured Notes, (ii) the performance and observance by
the Owner Trustee of all its covenants and agreements for the benefit of the
Indenture Trustee or the Holders in the Indenture, in the Participation
Agreement and in the Secured Notes contained, and (iii) the
EXHD-1
<PAGE>
performance and observance by the Owner Participant of its covenants and
agreements in the Participation Agreement contained, and for the uses and
purposes and subject to the terms and provisions of the Indenture, and in
consideration of the premises and of the covenants contained in the Indenture
and of the acceptance of the Secured Notes by the Holders thereof, the Owner
Trustee, for valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, has granted, assigned, bargained, released, conveyed,
transferred, mortgaged, hypothecated, pledged, confirmed and created a security
interest in and hereby presently grants, assigns, bargains, releases, conveys,
transfers, mortgages, hypothecates, pledges, confirms and creates a security
interest in, to and for the benefit of the Indenture Trustee in all of the
estate right, title and interest of the Owner Trustee in and to the Undivided
Interest described in Annex I to this Indenture Supplement, including without
limitation the Lessor's Share of any Component or Replacement Component thereof
or Modification thereto which, pursuant to the terms of the Lease, are at any
time the property of the Owner Trustee, and any Lease Supplement covering such
Asset.
TO HAVE AND TO HOLD the aforesaid property unto the Indenture Trustee, its
successors and assigns, for the benefit and security of the Holders, without any
priority of any Secured Note over any other except as otherwise expressly
provided in the Indenture, and for the uses and purposes and subject to the
terms and provisions set forth in the Indenture.
This Indenture Supplement shall be construed as supplemental to the Indenture
and shall form a part thereof, and the Indenture is hereby incorporated by
reference in this Indenture Supplement and is hereby ratified, approved and
confirmed.
This Indenture Supplement may be executed by the Owner Trustee and the Indenture
Trustee in separate counterparts, each of which, when so executed and delivered,
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
This Indenture Supplement shall be governed by, and shall be construed in
accordance with, the laws of the State of New York applicable to contracts made
and to be performed entirely within such State, except to the extent that the
laws of any other jurisdiction may be mandatorily applicable.
EXHD-2
<PAGE>
THUS DONE AND PASSED on this ____ day of [], before me, the undersigned Notary
Public, in and for the County of New York, State of New York, and in the
presence of the undersigned competent witnesses, who have hereunto signed their
names with the Corporate Owner Trustee, the Individual Owner Trustee, the
Corporate Indenture Trustee, the Individual Indenture Trustee and me, said
Notary, after reading of the whole.
WITNESSES TO ALL SIGNATURES: FLEET NATIONAL BANK OF CONNECTICUT, not in its
individual capacity, except as expressly provided herein, but solely as
Corporate Owner Trustee
____________________________________________________________________________
By:________________________________
Its:________________________________________________________________________
MICHAEL M. HOPKINS, not in his individual capacity, except as expressly provided
herein, but solely as Individual Owner Trustee
___________________________________
Michael M. Hopkins
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION, not in its
individual capacity, except as expressly provided herein, but solely as
Corporate Indenture Trustee
By:_____________________________________Its:_________________________________
EXHD-3
<PAGE>
VAL T. ORTON, not in his individual capacity, except as expressly provided
herein, but solely as Individual Indenture Trustee
___________________________________
Val T. Orton
__________________________________
NOTARY PUBLIC
In and for the County of New York,
State of New York
My commission expires:____________
EXHD-4
<PAGE>
Exhibit E
to Indenture
------------
RELEVANT DATE SUPPLEMENT
BE IT KNOWN, that on the date hereinafter set forth, before me, the
undersigned Notary Public, duly commissioned and qualified in and for the State
of New York, and in the presence of the undersigned, competent witnesses,
personally came and appeared: MOBIL G.B. 388 FINANCE INC., a Delaware
corporation ("MGB"), FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION, a
---
national banking association, not in its individual capacity, except as
expressly provided herein, but solely as Corporate Indenture Trustee (the
"Corporate Indenture Trustee"), and VAL T. ORTON, an individual, not in his
---------------------------
individual capacity, except as expressly provided herein, but solely as
Individual Indenture Trustee (the "Individual Indenture Trustee"; together with
----------------------------
the Corporate Indenture Trustee, the "Indenture Trustee") who each being duly
-----------------
sworn, did declare and say as follows.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Indenture;
WHEREAS, the Indenture was recorded in []; and
WHEREAS, the Indenture provides for the execution and delivery of a
supplement thereto substantially in the form of this Supplement, which
supplement shall provide for certain matters relating to the assumption by MGB
of the obligations of the Owner Trustee pursuant to Section 3.04 of the
Indenture;
NOW, THEREFORE, the parties hereto agree as follows:
1. Effective as of the date of this Supplement (the "Relevant Date"),
-------------
MGB assumes on a full recourse basis all of the obligations of the Owner Trustee
under the Indenture and the Secured Notes and shall be entitled to all the
rights and benefits of the Owner Trustee thereunder, in each case to the extent
provided for in Exhibit C thereto, and the Owner Trustee is, effective upon the
Relevant Date, released from all obligations and rights under the Indenture and
the Secured Notes; provided, however, that any obligations or liabilities of the
-------- -------
Owner Trustee in its individual capacity incurred on or prior to the Relevant
Date or arising out of or based upon events occurring on or prior to the
Relevant Date, shall remain the responsibility of the Owner Trustee.
EXHE-1
<PAGE>
2. MGB confirms and ratifies the security interest and Lien which the Owner
Trustee granted to the Indenture Trustee pursuant to the Granting Clause of the
Indenture in all of the Owner Trustee's right, title and interest in and to the
Indenture Estate and MGB explicitly agrees that MGB is acquiring the Undivided
Interest, and all property relating thereto, constituting a portion of the
Indenture Estate, subject to such security interest and Lien, which shall remain
in full force and effect until the Lien of the Indenture on the Undivided
Interest is discharged in accordance with the terms thereof, and the Indenture
Trustee acknowledges that the Lease and the obligations of MGB thereunder as the
Lessee have been terminated, except as specifically provided for therein.
2. MGB confirms and ratifies the security interest and Lien which the Owner
Trustee granted to the Indenture Trustee pursuant to the Granting Clause of the
Ship Mortgage in all of the Owner Trustee's right, title and interest in and to
its undivided interest in the Platform and MGB explicitly agrees that MGB is
acquiring the undivided interest in the Ship Mortgage, and all property relating
thereto subject to the Lien of the Ship Mortgage, subject to such security
interest and Lien, which shall remain in full force and effect until the Lien of
the Ship Mortgage on such undivided interest in the Platform is discharged in
accordance with the terms thereof, and the Indenture Trustee acknowledges that
the Lease and the obligations of MGB thereunder as the Lessee have been
terminated, except as specifically provided for therein.
3. This Supplement shall be construed as supplemental to the Indenture and
shall form a part thereof, and the Indenture is hereby incorporated by reference
in this Supplement and is hereby ratified, approved and confirmed.
4. This Supplement may be executed by MGB and the Indenture Trustee in
separate counterparts, each of which, when so executed and delivered, shall be
an original, but all such counterparts shall together constitute but one and the
same instrument.
5. This Supplement shall be governed by, and shall be construed in
accordance with, the laws of the State of New York applicable to contracts made
and to be performed entirely within such State, except to the extent that the
laws of any other jurisdiction may be mandatorily applicable.
EXHE-2
<PAGE>
THUS DONE AND PASSED on this ____ day of [], before me, the undersigned
Notary Public, in and for the County of New York, State of New York, and in the
presence of the undersigned competent witnesses, who have hereunto signed their
names with MGB, the Corporate Indenture Trustee, the Individual Indenture
Trustee and me, said Notary, after reading of the whole.
WITNESSES TO ALL SIGNATURES: MOBIL G.B. 388 FINANCE INC.
____________________________ By:__________________________
Its:_________________________
____________________________
MICHAEL M. HOPKINS, not in his
individual capacity, except as
expressly provided herein, but
solely as Individual Owner
Trustee
____________________________
Michael M. Hopkins
FIRST SECURITY BANK OF UTAH,
NATIONAL ASSOCIATION, not in
its individual capacity, except
as expressly provided herein,
but solely as Corporate
Indenture Trustee
By:_________________________
Its:________________________
EXHE-3
<PAGE>
VAL T. ORTON, not in his
individual capacity, except as
expressly provided herein, but
solely as Individual Indenture
Trustee
____________________________
Val T. Orton
MOBIL G.B. 388 FINANCE INC.
By:_________________________
Its:________________________
_________________________________
NOTARY PUBLIC
In and for the County of New York,
State of New York
My commission expires:____________
EXHE-4
<PAGE>
Exhibit F
to Indenture
------------
FORM OF RELEVANT GUARANTY
THIS GUARANTY, dated as of ________ __, ____ (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"), the Corporate Indenture Trustee, in both
---------
its individual capacity and as Corporate Indenture Trustee, the Individual
Indenture Trustee, in both his individual capacity and as Individual Indenture
Trustee, and the Pass Through Trustee, in both its individual capacity and as
Pass Through Trustee and as Loan Participants (collectively, together with their
successors and permitted assigns, the "Beneficiaries" and, individually, a
-------------
"Beneficiary").
- ------------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Mobil G.B. 388 Finance Inc., a Delaware corporation, and wholly-
owned subsidiary of the Guarantor (together with its successors and permitted
assigns, ("Mobil G.B."), entered into that certain Participation Agreement dated
----------
as of December 12, 1995 (the "Participation Agreement"), among Mobil G.B., the
-----------------------
Owner Participant, Fleet National Bank of Connecticut, acting not in its
individual capacity except as expressly set forth therein, but solely as
Corporate Owner Trustee the ("Corporate Owner Trustee"), Michael M. Hopkins,
-----------------------
acting not in his individual capacity except as expressly set forth therein, but
solely as Individual Owner Trustee (the "Individual Owner Trustee"), First
------------------------
Security Bank of Utah, National Association, acting not in its individual
capacity except as expressly provided therein, but solely as Corporate Indenture
Trustee (the "Corporate Indenture Trustee"), Val T. Orton, acting not in his
---------------------------
individual capacity except as expressly provided therein, but solely as
Individual Indenture Trustee (the "Individual Indenture Trustee"), and First
----------------------------
Security Bank of Utah, National Association, acting not in its individual
capacity except as expressly provided therein, but solely as Pass Through
Trustee and Loan Participant; and
WHEREAS, the Individual Owner Trustee, the Corporate Owner Trustee, the
Individual Indenture Trustee and the Corporate Indenture Trustee entered into
that certain Trust Indenture, Mortgage Assignment of Lease, and Security
Agreement dated as of December 12, 1995 (the "Indenture"); and
---------
WHEREAS, pursuant to Section 3.04 of the Indenture, Mobil G.B. has
elected to assume all of the rights and obligations of the Individual Owner
Trustee and the Corporate
EXHF-1
<PAGE>
Owner Trustee under the Indenture and in respect of the Secured Notes; and
WHEREAS, it is a condition precedent to such assumption by Mobil G.B.
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 date hereof 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 the Indenture):
ARTICLE I.
REPRESENTATIONS AND WARRANTIES OF GUARANTOR
Section 1.1. Representations and Warranties of Guarantor. The Guarantor
-------------------------------------------
hereby represents and warrants that:
(1) The Guarantor is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, has the corporate
power and authority to carry on its business as presently conducted, to own or
hold under lease its properties, and to enter into and perform its obligations
under this Guaranty, and is duly qualified to do business in each jurisdiction
in which it has operations or a principal office and where failure so to
qualify could reasonably be expected to materially adversely affect its
financial condition, business, 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.
EXHF-2
<PAGE>
(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, (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.
[(6) The Guarantor owns, directly or indirectly, 100% of the equity
interest in the Lessee.]/*/
ARTICLE II.
GUARANTEE OF OBLIGATIONS
Section 2.1. Guarantee of Obligations. (a) The Guarantor hereby
------------------------
guarantees to each of the Beneficiaries, as primary obligor and not as surety,
the full and prompt payment by Mobil G.B. 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 Mobil G.B. under
(i) the Trust Indenture, Mortgage, Assignment of Lease and Security Agreement
dated as of December 12, 1995 among the Corporate Owner Trustee, the Individual
Owner Trustee, the Corporate Indenture Trustee and the Individual Indenture
Trustee, as such Trust Indenture, Mortgage, Assignment of Lease and Security
Agreement has been (1) assumed by Mobil G.B. on the date hereof pursuant to the
Supplement to the Indenture dated the date hereof among Mobil G.B., the
Corporate Indenture Trustee and the Individual Indenture Trustee and (2) amended
by the Relevant Amendment (such Trust Indenture, Mortgage, Assignment of Lease,
and Security Agreement, the "Indenture") and (ii) the Secured Notes of Mobil
---------
G.B. dated the date hereof issued under the Indenture (the "Mobil G.B. Secured
------------------
Notes") owed to the Beneficiaries strictly in accordance with the terms thereof,
- -----
however created, arising or evidenced, whether direct or
/*/ This representation does not have to be provided if it is not accurate
as of the date of execution of the Relevant Guaranty.
EXHF-3
<PAGE>
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 Mobil
G.B. 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 Mobil
G.B. (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
principal of, Make-Whole Amount, or interest on any Secured Note, perform or
observe or cause to be performed or observed each such Obligation and shall pay
such amount at the place and to the Person or entity entitled thereto pursuant
to the Indenture or the Mobil G.B. Secured Notes, 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 Mobil G.B. 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 Indenture or the Mobil G.B. Secured Notes, as
the case may be, or at law or in equity, or otherwise, and regardless of any
other condition or contingency.
Section 2.2. Nature of Guarantee. The obligations, covenants, agreements
-------------------
and duties of the Guarantor 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 Indenture or the Mobil G.B. Secured
Notes, 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 or Mobil G.B. of any or
all of their respective agreements, covenants, terms or conditions
contained in this Guaranty (other than
EXHF-4
<PAGE>
Section 2.1 hereof), the Indenture or the Mobil G.B. Secured Notes;
(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 Indenture, the Mobil G.B. Secured
Notes or this Guaranty, or the inability of the Beneficiaries to enforce
any provision of the Indenture, the Mobil G.B. Secured Notes 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
Mobil G.B. in the Undivided Interest or the Production System or the
invalidity, unenforceability or termination of the Indenture, or the Mobil
G.B. Secured Notes or any defect in the title of the Production System or
any part thereof or any loss of possession, use or operational control of
the Production System or any part thereof by Mobil G.B.;
(d) the modification or amendment (whether material or otherwise) of
any obligation, covenant or agreement set forth in the Indenture or the
Mobil G.B. Secured Notes;
(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
Mobil G.B. or any of its assets or any allegation or contest of the
validity of this Guaranty, the Indenture or the Mobil G.B. Secured Notes in
any such proceeding;
(f) the surrender or impairment of any security for the performance
or observance of any of the Obligations;
(g) any failure of the Guarantor or Mobil G.B. to perform and
observe any agreement or covenant, or to discharge any duty or obligation,
arising out of or connected with this Guaranty, the Indenture or the Mobil
G.B. Secured Notes or the occurrence or pendency of any Indenture Default
or Indenture Event of Default or any proceedings or actions as a result of,
or attendant upon, such Indenture Default or Indenture Event of Default;
EXHF-5
<PAGE>
(h) the inability of the Guarantor, the Beneficiaries or Mobil G.B.
to enforce any provision of this Guaranty, the Indenture or the Mobil G.B.
Secured Notes for any reason;
(i) the failure to give notice to the Guarantor or Mobil G.B. of the
occurrence of an event of default under the terms and provisions of the
Indenture or the Mobil G.B. Secured Notes;
(j) the disposition by the Guarantor of any or all of its interest
in any capital stock of Mobil G.B. or any change, restructuring or
termination of the corporate structure, ownership or existence of Mobil
G.B.;
(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 Mobil G.B. 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
--------------------
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 Mobil G.B., (b) require the Beneficiaries to
proceed against or exhaust any security granted by Mobil G.B. 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 Mobil G.B. under the
Indenture or the Mobil G.B. Secured Notes.
Section 2.4. Subrogation of Guarantor; Subordination. Notwithstanding
---------------------------------------
any payment or payments made by the Guarantor, the Guarantor shall not be
subrogated to any rights of the Beneficiaries against Mobil G.B. 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
Mobil G.B. arising from payments made by
EXHF-6
<PAGE>
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
-------------
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 Mobil G.B. 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 Mobil G.B., or upon or as a result
of the appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, Mobil G.B. 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 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. 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
----------------------
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
Indenture, the Mobil G.B. Secured Notes 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 the Beneficiaries herein or in the Indenture or the Mobil G.B. Secured Notes
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
EXHF-7
<PAGE>
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 in any payment or performance of any Obligation when and as the same
shall become due, whether at the stated maturity thereof, by acceleration or
otherwise, the Beneficiaries may proceed to enforce their respective rights
hereunder and the 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.
Section 3.4. Guarantor to Pay Costs of Enforcement. The Guarantor agrees
-------------------------------------
to pay all costs, expenses and fees, including, without limitation, all
reasonable attorneys' fees, which may be incurred by the Beneficiaries in
enforcing or attempting to enforce this Guaranty or protecting the rights of the
Beneficiaries hereunder following any default on the part of the Guarantor
hereunder, whether the same shall be enforced by suit or otherwise.
Section 3.5. No Waiver of Rights. No delay in exercising or omission to
-------------------
exercise any right or power accruing upon any default, omission or failure of
performance hereunder shall impair any such right or power or shall be construed
to be a waiver thereof, but any such right and power may be exercised from time
to time and as often as may be deemed expedient.
ARTICLE IV.
COVENANTS OF GUARANTOR
Section 4.1. Maintenance of Corporate Existence. So long as any of the
----------------------------------
Obligations remain outstanding or any amounts due and owing by Mobil G.B. 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) (a) shall expressly and unconditionally assume, in a written
instrument delivered to the Corporate Indenture Trustee, the punctual
performance and observance of all covenants, conditions and obligations of this
Guaranty to be performed by the Guarantor, and (b) shall not, immediately after
such merger, consolidation, sale or disposition, be in default in the
performance of any covenant, condition or obligation of the Guarantor pursuant
to this Guaranty.
EXHF-8
<PAGE>
Section 4.2. Financial Statements. The Guarantor shall provide to the
--------------------
Corporate Indenture Trustee, promptly upon its becoming available, a copy of
each annual report and any amendment to an annual report, filed by the Guarantor
with the Securities and Exchange Commission (the "SEC") or any successor agency
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 securities and all regular and periodic reports filed by the
Guarantor with the SEC except for reports on SEC Forms 3, 4 or 5.
ARTICLE V.
GENERAL
Section 5.1. Benefitted Parties. This Guaranty is entered into by the
------------------
Guarantor for the benefit of the Beneficiaries in accordance with the provisions
of this Guaranty, the Indenture and the Mobil G.B. Secured Notes. 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
---------------
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. 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
EXHF-9
<PAGE>
not invalidate or render unenforceable such provision in any other jurisdiction.
To the extent permitted by applicable law, the parties hereto hereby waive any
provision thereof that renders any term or provision hereof invalid or
unenforceable in any respect.
Section 5.4. Further Assurances. The Guarantor will execute and deliver
------------------
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
-------
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 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 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.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee Agreement 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:
FIRST SECURITY BANK OF UTAH, NATIONAL
ASSOCIATION, in its individual capacity and
as Corporate Indenture Trustee
By:__________________
Name:
Title:
EXHF-10
<PAGE>
VAL T. ORTON,
in his individual capacity and as Individual
Indenture Trustee
By:__________________
Name:
Title:
Pass Through Trustee,
in his individual capacity and as Pass
Through Trustee and as Loan Participant
By:__________________
Name:
Title:
EXHF-11
<PAGE>
Each of the Secured Non-Recourse Notes dated December 12, 1995 relating to
Series 1995-A2 through A5 is the same in all material respects as the Series
1995-A1 Secured Non-Recourse Note dated December 12, 1995, except for the
following information:
<TABLE>
<CAPTION>
Principal Interest Final
Secured Note Amount Rate Distribution Date
- ------------- ----------- -------- -----------------
<S> <C> <C> <C>
1995-A1 $ 4,917,000 5.52% January 2, 1997
1995-A2 5,173,000 5.57 January 2, 1998
1995-A3 5,462,000 5.65 January 2, 1999
1995-A4 5,770,000 5.74 January 2, 2000
1995-A5 6,101,000 5.79 January 2, 2001
</TABLE>
<PAGE>
EXHIBIT 4.4(a)
SPECIMEN
FLEET NATIONAL BANK OF CONNECTICUT,
not in its individual capacity but
solely as Corporate Owner Trustee under the Trust Agreement
and
MICHAEL M. HOPKINS,
not in his individual capacity but
solely as Individual Owner Trustee under the Trust Agreement
Series 1995 A-1 Secured Non-Recourse Note
Due January 2, 1997
Undivided Interest in Production System
---------------------------------------
Registered No. 1
$4,917,000.00 New York, New York
December 12, 1995
Interest Rate Per Annum: 5.52%
FLEET NATIONAL BANK OF CONNECTICUT, a national banking association,
not in its individual capacity but solely as Corporate Owner Trustee under the
Trust Agreement, dated as of December 12, 1995, as amended (the "Trust
-----
Agreement"), among the Owner Participant named therein, the Corporate Owner
Trustee and the Individual Owner Trustee, and MICHAEL M. HOPKINS, an individual,
not in his individual capacity but solely as Individual Owner Trustee under the
Trust Agreement, for value received hereby promise to pay to First Security
Bank of Utah, National Association as Pass Through Trustee under the Pass
Through Trust Agreement, or registered assigns, on or before January 2, 1997, as
herein provided, the principal sum of Four Million Nine Hundred Seventeen
Thousand and 00/100 DOLLARS ($4,917,000.00), and to pay interest on the unpaid
principal amount of this Secured Note from time to time from the date hereof
until the principal amount hereof shall have been paid in full at the rate of
5.52% per annum (based on a 360-day year of twelve 30-day months), and (to the
extent not prohibited by applicable law) to pay interest on any overdue
principal at the Overdue Rate; provided, that, in the event that neither (a) the
--------
shelf registration described in the Registration Rights Agreement nor (b) the
Exchange Registration is declared effective by June 12, 1996, the aforementioned
interest rate shall be permanently increased by .50% per annum as of such date.
The principal amount of this Secured Note shall be payable in full on the
Maturity Date. The first payment of accrued and unpaid interest on the unpaid
principal of this Secured Note shall be payable on January 3, 1996. Thereafter,
subject to Section 2.03(b) of the Indenture (as defined below), all accrued and
unpaid interest on the unpaid principal amount of this Secured Note shall
be payable on each January 2 and July 2 in each year commencing on July 2, 1996.
This Secured Note is one of the Secured Notes issued by the Owner
Trustee pursuant to the terms of the
<PAGE>
Trust Indenture, Mortgage, Assignment of Lease and Security Agreement, dated
as of December 12, 1995 (the "Indenture"), among the Corporate Owner Trustee,
---------
the Individual Owner Trustee, First Security Bank of Utah, National Association,
a national banking association, not in its individual capacity but solely as
Corporate Indenture Trustee thereunder for the Holder of this Secured Note and
the Holders of all other Secured Notes Outstanding thereunder and Val T. Orton,
an individual, not in his individual capacity but solely as Individual Indenture
Trustee thereunder for the Holder of this Secured Note and the Holders of all
other Secured Notes Outstanding thereunder (collectively, the "Indenture
---------
Trustee"). Capitalized terms used in this Secured Note and not otherwise
- -------
defined shall have the respective meanings assigned to them in the Indenture.
Each payment of principal and interest shall be due and payable at the
times, places and in the manner as specified herein and in the Indenture.
Each payment on this Secured Note shall be applied, first, to the
-----
payment of accrued interest on this Secured Note to the date of such payment,
second, to the payment of any principal on this Secured Note then due hereunder,
- ------
and third, to the payment of the installments of principal remaining unpaid on
-----
this Secured Note in the inverse order of the maturity thereof.
This Secured Note is one of the Owner Trustee's Series 1995 A-1
Secured Notes, which, together with the Series 1995 A-2 Secured Notes, the
Series 1995 A-3 Secured Notes, the Series 1995 A-4 Secured Notes, the Series
1995 A-5 Secured Notes and the Series 1995 A-6 Secured Notes of the Owner
Trustee, all issued pursuant to the Indenture, as well as any Additional Notes
and any note or notes issued in exchange or substitution respectively therefor
in accordance with the terms of the Indenture, are equally and ratably secured
by the Indenture, except as otherwise provided therein. The properties of the
Owner Trustee (excluding Excepted Payments) included in the Indenture Estate are
pledged or mortgaged to the Indenture Trustee to the extent provided in the
Indenture as security for the payment of the principal of and interest on this
Secured Note and all other Secured Notes issued and Outstanding from time to
time under the Indenture. Reference is hereby made to the Indenture for a
description of the Indenture Estate, and for a statement of the rights of the
Holder of, and the nature and extent of the security for, this Secured Note and
of the rights of, and the nature and extent of the security for, the Holders of
the other Secured Notes and of certain rights of the Owner Trustee and the Owner
Participant, as well as for a statement of the terms and conditions of the
trusts created by the Indenture, to all of which terms and conditions in the
Indenture the Holder agrees by its acceptance of this Secured Note.
<PAGE>
This Secured Note is subject to redemption, in whole or in part, all
as specified in Article III of the Indenture. This Secured Note is also subject
to refunding, refinancing, assumption or purchase, all as specified in Sections
3.04, 3.05 and 3.06 of the Indenture.
In case an Indenture Event of Default shall occur and be continuing,
the unpaid balance of the principal of the Secured Notes, together with all
accrued but unpaid interest, may be declared or may otherwise become due and
payable in the manner and with the effect provided in Article V of the
Indenture.
The Secured Notes are issuable only as registered notes. There shall
be maintained a note register for the purpose of registering transfers and
exchanges of the Secured Notes at the principal corporate trust office of the
Indenture Trustee, or of any successor Indenture Trustee, in the manner provided
in Section 2.05 of the Indenture. The Owner Trustee and the Indenture Trustee
may deem and treat the Person in whose name this Secured Note is registered on
the Note Register as the absolute owner hereof (whether or not this Secured Note
shall be overdue) for the purpose of receiving payments of principal and
interest and for all other purposes, and neither the Owner Trustee nor the
Indenture Trustee shall be affected by any notice to the contrary.
All payments of principal and interest to be made by the Owner Trustee
and, except as otherwise provided in the Operative Documents, all payments of
any other amounts payable by or on behalf of the Owner Trustee under the Secured
Notes or under the Indenture, shall be made only from the income and proceeds
from the Indenture Estate, and only to the extent that the Indenture Trustee
shall have received sufficient income and proceeds from the Indenture Estate to
make such payments in accordance with the Indenture. The Holder, by its
acceptance of this Secured Note, agrees that it will look solely to the income
and proceeds from the Indenture Estate to the extent available for payment as
provided in the Indenture, and that none of the Owner Participant, the Owner
Trustee, the Trust Company, Michael M. Hopkins or the Indenture Trustee (whether
in its individual or trust capacity) shall be personally liable to the Indenture
Trustee or to the Holder for any amounts payable under this or any Secured Note,
nor, except as specifically provided in the Indenture or any other Operative
Document, for any amounts payable or any liability, under the Indenture.
This Secured Note shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
certificate of authentication hereon shall have been signed by the Corporate
Indenture Trustee.
No delay or omission of the Holder to exercise its rights hereunder
shall impair any such right or power or
<PAGE>
shall be construed to be a waiver of any Indenture Event of Default, or an
acquiescence therein. No waiver of any Indenture Event of Default shall be
construed, taken or held to be a waiver of any other Indenture Event of Default,
or a waiver, acquiescence in, or consent to any further or succeeding Indenture
Event of Default. The Owner Trustee waives demand, notice and protest in any
defense by reason of extension of time for payment or other indulgence granted
by the Holder.
This Secured Note shall be governed by and construed in accordance
with the laws of the State of New York.
<PAGE>
IN WITNESS WHEREOF, each of the Corporate Owner Trustee and the
Individual Owner Trustee has caused this Secured Note to be duly executed.
FLEET NATIONAL BANK OF CONNECTICUT,
not in its individual
capacity, but solely as
Corporate Owner Trustee under
the Trust Agreement
By: /s/ Michael Hopkins
-----------------------------
Title: Vice President
MICHAEL M. HOPKINS,
not in his individual
capacity, but solely as
Individual Owner Trustee under
the Trust Agreement
/s/ Michael M. Hopkins
--------------------------------
Michael M. Hopkins
[SIGNATURE PAGE]
5
[SECURED NOTE]
<PAGE>
Certificate of Authentication
-----------------------------
This Secured Note is one of the Series 1995 A-1 Secured Notes of FLEET
NATIONAL BANK OF CONNECTICUT, as Corporate Owner Trustee and MICHAEL M. HOPKINS,
as Individual Owner Trustee, described in the within-mentioned Indenture.
FIRST SECURITY BANK OF UTAH,
National Association,
not in its individual capacity
but solely as
Corporate Indenture Trustee
By: /s/ Val T. Orton
-----------------------------
Title: Vice President
[SIGNATURE PAGE]
6
[SECURED NOTE]
<PAGE>
EXHIBIT 4.4(b)
SPECIMEN
FLEET NATIONAL BANK OF CONNECTICUT,
not in its individual capacity but
solely as Corporate Owner Trustee under the Trust Agreement
and
MICHAEL M. HOPKINS,
not in his individual capacity but
solely as Individual Owner Trustee under the Trust Agreement
Series 1995 A-6 Secured Non-Recourse Note
Due July 2, 2008
Undivided Interest in Production System
---------------------------------------
Registered No. 1
$64,762,000.00 New York, New York
December 12, 1995
Interest Rate Per Annum: 6.15%
FLEET NATIONAL BANK OF CONNECTICUT, a national banking association,
not in its individual capacity but solely as Corporate Owner Trustee under the
Trust Agreement, dated as of December 12, 1995, as amended (the "Trust
-----
Agreement"), among the Owner Participant named therein, the Corporate Owner
Trustee and the Individual Owner Trustee, and MICHAEL M. HOPKINS, an individual,
not in his individual capacity but solely as Individual Owner Trustee under the
Trust Agreement, for value received hereby promise to pay to First Security
Bank of Utah, National Association as Pass Through Trustee under the Pass
Through Trust Agreement, or registered assigns, on or before July 2, 2008, as
herein provided, the principal sum of Sixty-Four Million Seven Hundred Sixty-Two
Thousand and 00/100 DOLLARS ($64,762,000.00), and to pay interest on the unpaid
principal amount of this Secured Note from time to time from the date hereof
until the principal amount hereof shall have been paid in full at the rate of
6.15% per annum (based on a 360-day year of twelve 30-day months), and (to the
extent not prohibited by applicable law) to pay interest on any overdue
principal at the Overdue Rate; provided, that, in the event that neither (a) the
--------
shelf registration described in the Registration Rights Agreement nor (b) the
Exchange Registration is declared effective by June 12, 1996, the aforementioned
interest rate shall be permanently increased by .50% per annum as of such date.
The principal amount of this Secured Note shall be payable in installments on
each Installment Payment Date specified in the Amortization Schedule attached
hereto, each such installment to be in an amount equal to the respective
Installment Payment Percentage of the remaining unpaid principal amount of this
Secured Note set forth in such Amortization Schedule opposite the applicable
Installment Payment Date for such installment. The first payment of accrued and
unpaid interest on the unpaid principal of this Secured Note shall be payable on
January 3, 1996. Thereafter, subject to Section 2.03(b) of the Indenture (as
defined below), all
<PAGE>
accrued and unpaid interest on the unpaid principal amount of this Secured Note
shall be payable on each January 2 and July 2 in each year commencing on July 2,
1996.
This Secured Note is one of the Secured Notes issued by the Owner
Trustee pursuant to the terms of the Trust Indenture, Mortgage, Assignment of
Lease and Security Agreement, dated as of December 12, 1995 (the "Indenture"),
---------
among the Corporate Owner Trustee, the Individual Owner Trustee, First Security
Bank of Utah, National Association, a national banking association, not in its
individual capacity but solely as Corporate Indenture Trustee thereunder for the
Holder of this Secured Note and the Holders of all other Secured Notes
Outstanding thereunder and Val T. Orton, an individual, not in his individual
capacity but solely as Individual Indenture Trustee thereunder for the Holder of
this Secured Note and the Holders of all other Secured Notes Outstanding
thereunder (collectively, the "Indenture Trustee"). Capitalized terms used in
-----------------
this Secured Note and not otherwise defined shall have the respective meanings
assigned to them in the Indenture.
Each payment of principal and interest shall be due and payable at the
times, places and in the manner as specified herein and in the Indenture.
Each payment on this Secured Note shall be applied, first, to the
-----
payment of accrued interest on this Secured Note to the date of such payment,
second, to the payment of any principal on this Secured Note then due hereunder,
- ------
and third, to the payment of the installments of principal remaining unpaid on
-----
this Secured Note in the inverse order of the maturity thereof.
This Secured Note is one of the Owner Trustee's Series 1995 A-6
Secured Notes, which, together with the Series 1995 A-1 Secured Notes, the
Series 1995 A-2 Secured Notes, the Series 1995 A-3 Secured Notes, the Series
1995 A-4 Secured Notes and the Series 1995 A-5 Secured Notes of the Owner
Trustee, all issued pursuant to the Indenture, as well as any Additional Notes
and any note or notes issued in exchange or substitution respectively therefor
in accordance with the terms of the Indenture, are equally and ratably secured
by the Indenture, except as otherwise provided therein. The properties of the
Owner Trustee (excluding Excepted Payments) included in the Indenture Estate are
pledged or mortgaged to the Indenture Trustee to the extent provided in the
Indenture as security for the payment of the principal of and interest on this
Secured Note and all other Secured Notes issued and Outstanding from time to
time under the Indenture. Reference is hereby made to the Indenture for a
description of the Indenture Estate, and for a statement of the rights of the
Holder of, and the nature and extent of the security for, this Secured Note and
of the rights of, and the nature and extent of the security for, the Holders of
the other Secured Notes and of certain rights of the Owner Trustee and the Owner
Participant, as well as
<PAGE>
for a statement of the terms and conditions of the trusts created by the
Indenture, to all of which terms and conditions in the Indenture the Holder
agrees by its acceptance of this Secured Note.
This Secured Note is subject to redemption, in whole or in part, all
as specified in Article III of the Indenture. This Secured Note is also subject
to refunding, refinancing, assumption or purchase, all as specified in Sections
3.04, 3.05 and 3.06 of the Indenture.
In case an Indenture Event of Default shall occur and be continuing,
the unpaid balance of the principal of the Secured Notes, together with all
accrued but unpaid interest, may be declared or may otherwise become due and
payable in the manner and with the effect provided in Article V of the
Indenture.
The Secured Notes are issuable only as registered notes. There shall
be maintained a note register for the purpose of registering transfers and
exchanges of the Secured Notes at the principal corporate trust office of the
Indenture Trustee, or of any successor Indenture Trustee, in the manner provided
in Section 2.05 of the Indenture. The Owner Trustee and the Indenture Trustee
may deem and treat the Person in whose name this Secured Note is registered on
the Note Register as the absolute owner hereof (whether or not this Secured Note
shall be overdue) for the purpose of receiving payments of principal and
interest and for all other purposes, and neither the Owner Trustee nor the
Indenture Trustee shall be affected by any notice to the contrary.
All payments of principal and interest to be made by the Owner Trustee
and, except as otherwise provided in the Operative Documents, all payments of
any other amounts payable by or on behalf of the Owner Trustee under the Secured
Notes or under the Indenture, shall be made only from the income and proceeds
from the Indenture Estate, and only to the extent that the Indenture Trustee
shall have received sufficient income and proceeds from the Indenture Estate to
make such payments in accordance with the Indenture. The Holder, by its
acceptance of this Secured Note, agrees that it will look solely to the income
and proceeds from the Indenture Estate to the extent available for payment as
provided in the Indenture, and that none of the Owner Participant, the Owner
Trustee, the Trust Company, Michael M. Hopkins or the Indenture Trustee (whether
in its individual or trust capacity) shall be personally liable to the Indenture
Trustee or to the Holder for any amounts payable under this or any Secured Note,
nor, except as specifically provided in the Indenture or any other Operative
Document, for any amounts payable or any liability, under the Indenture.
This Secured Note shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
certificate of
<PAGE>
authentication hereon shall have been signed by the Corporate Indenture Trustee.
No delay or omission of the Holder to exercise its rights hereunder
shall impair any such right or power or shall be construed to be a waiver of any
Indenture Event of Default, or an acquiescence therein. No waiver of any
Indenture Event of Default shall be construed, taken or held to be a waiver of
any other Indenture Event of Default, or a waiver, acquiescence in, or consent
to any further or succeeding Indenture Event of Default. The Owner Trustee
waives demand, notice and protest in any defense by reason of extension of time
for payment or other indulgence granted by the Holder.
This Secured Note shall be governed by and construed in accordance
with the laws of the State of New York.
<PAGE>
IN WITNESS WHEREOF, each of the Corporate Owner Trustee and the
Individual Owner Trustee has caused this Secured Note to be duly executed.
FLEET NATIONAL BANK OF CONNECTICUT,
not in its individual
capacity, but solely as
Corporate Owner Trustee under
the Trust Agreement
By: /s/ MICHAEL M. HOPKINS
--------------------------
Title: Vice President
MICHAEL M. HOPKINS,
not in his individual
capacity, but solely as
Individual Owner Trustee under
the Trust Agreement
/s/ MICHAEL M. HOPKINS
------------------------------
Michael M. Hopkins
[SIGNATURE PAGE]
5
[SECURED NOTE]
<PAGE>
Certificate of Authentication
-----------------------------
This Secured Note is one of the Series 1995 A-6 Secured Notes of FLEET
NATIONAL BANK OF CONNECTICUT, as Corporate Owner Trustee and MICHAEL M. HOPKINS,
as Individual Owner Trustee, described in the within-mentioned Indenture.
FIRST SECURITY BANK OF UTAH,
National Association,
not in its individual capacity
but solely as Corporate
Indenture Trustee
By: /s/ VAL T. ORTON
----------------------
Title: Vice President
[SIGNATURE PAGE]
6
[SECURED NOTE]
<PAGE>
Series 1995 A-6 Secured Notes
Amortization Schedule
---------------------
Installment Payment
Percentage of
Installment Remaining Unpaid
Payment Date Principal Amount
------------ ---------------------
January 2, 2002 9.97876069%
January 2, 2003 15.73086278%
January 2, 2004 19.81545266%
January 2, 2005 26.23211535%
January 2, 2006 12.07543975%
July 2, 2006 36.56760162%
July 2, 2007 74.80050461%
July 2, 2008 100.00000000%
<PAGE>
EXHIBIT 4.5
[CONFORMED COPY]
================================================================================
PARTICIPATION AGREEMENT
among
MOBIL G.B. 388 FINANCE INC.,
Lessee
GENERAL ELECTRIC CREDIT CORPORATION OF GEORGIA,
Owner Participant
FLEET NATIONAL BANK OF CONNECTICUT,
Corporate Owner Trustee
MICHAEL M. HOPKINS,
Individual Owner Trustee
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION,
Pass Through Trustee and Loan Participant
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION,
Corporate Indenture Trustee
and
VAL T. ORTON
Individual Indenture Trustee
Dated as of December 12, 1995
================================================================================
Sale Leaseback of an Undivided Interest in an
Oil and Gas Production System
================================================================================
<PAGE>
2
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
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<S> <C> <C>
RECITALS............................................................... 1
SECTION 1. DEFINITIONS; INTERPRETATION................................ 3
SECTION 2. COMMITMENTS OF PARTICIPANTS; CLOSING;
FUNDING; TRANSACTION EXPENSES.................... 3
2.1 Commitment of Owner Participant............................. 3
2.2 Commitments of Pass Through Trustee; Secured
Notes.................................................... 3
2.3 Expiration of Commitments................................... 3
2.4 Notice of Closing Dates..................................... 3
2.5 Time and Place of Closing................................... 4
2.6 Delivery of Funds........................................... 4
2.7 Application of Funds by Owner Trustee....................... 4
2.8 Actions on Closing Date..................................... 5
2.9 Transaction Expenses........................................ 5
2.10 Authorization to Owner Trustee.............................. 6
2.11 Registration Statement...................................... 6
SECTION 3. CONDITIONS TO CLOSING BY THE LESSEE........................ 7
3.1 Operative Documents......................................... 7
3.2 Legality, Etc............................................... 8
3.3 Event of Loss............................................... 8
3.4 Consents and Approvals...................................... 8
3.5 Representations and Warranties;
Certificates.............................................. 8
3.6 Opinions.................................................... 9
3.7 Litigation.................................................. 9
3.8 Appraisal................................................... 9
3.9 Equity Offering............................................. 9
3.10 Payment of Lessor's Cost.................................... 9
3.11 Sale of Pass Through Certificates........................... 9
SECTION 4. CONDITIONS TO CLOSING BY PARTICIPANTS...................... 10
4.1 Notice of Closing........................................... 10
4.2 Operative Documents......................................... 10
4.3 Legality, Etc............................................... 11
4.4 Event of Loss............................................... 11
</TABLE>
i
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<TABLE>
<CAPTION>
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<S> <C> <C>
4.5 Appraisal................................................... 11
4.6 Insurance................................................... 11
4.7 Opinions.................................................... 11
4.8 Taxes....................................................... 12
4.9 Officer's Certificates...................................... 13
4.10 Resolutions, Etc............................................ 14
4.11 Litigation.................................................. 16
4.12 Equity Offering............................................. 16
4.13 Investment and Loans........................................ 16
4.14 Consents and Approvals...................................... 16
4.15 Title; Filings and Recordings............................... 17
4.16 Sale of Pass Through Certificates........................... 18
4.17 No Default Under Operating Agreement, etc................... 18
4.18 No Default Under Lease...................................... 18
4.19 No Material Adverse Change.................................. 18
SECTION 5. REPRESENTATIONS AND WARRANTIES OF
THE LESSEE....................................... 18
5.1 Due Organization............................................ 18
5.2 Authorization............................................... 19
5.3 Execution; Enforceability................................... 19
5.4 No Violation................................................ 19
5.5 Consents and Approvals...................................... 19
5.6 Securities Act.............................................. 20
5.7 Title; Filings and Recordings............................... 21
5.8 Chief Place of Business..................................... 21
5.9 Litigation.................................................. 21
5.10 No Default.................................................. 22
5.11 Event of Loss............................................... 22
5.12 Environmental Matters....................................... 22
5.13 Description of Production System............................ 23
5.14 Certain Documents........................................... 23
5.15 Payment of Taxes, etc....................................... 23
5.16 Disclosure Representation................................... 23
5.17 Investment Company Act...................................... 23
5.18 No Brokers' Fees............................................ 23
5.19 Federal Reserve Regulations................................. 24
5.20 [Intentionally Omitted]
5.21 Holding Company............................................. 24
5.22 Not Subject to Governmental Regulation...................... 24
5.23 Condition of Production System.............................. 24
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
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<S> <C> <C>
SECTION 6. REPRESENTATIONS AND WARRANTIES OF
OWNER PARTICIPANT............................... 25
6.1 Due Organization............................................ 25
6.2 Authorization; Execution; Enforceability.................... 25
6.3 No Violation................................................ 25
6.4 Owner Participant's Liens................................... 26
6.5 Acquisition for Investment.................................. 26
6.6 Securities Act.............................................. 26
6.7 ERISA....................................................... 26
6.8 Investment Company Act...................................... 27
6.9 Litigation.................................................. 27
6.10 No Default.................................................. 27
6.11 Federal Reserve Regulations................................. 27
6.12 No Brokers' Fees............................................ 27
SECTION 7. REPRESENTATIONS AND WARRANTIES OF EACH
PASS THROUGH TRUSTEE............................. 27
7.1 Due Organization............................................ 28
7.2 Authorization; Execution; Enforceability.................... 28
7.3 No Violation................................................ 28
7.4 Litigation.................................................. 29
7.5 Pass Through Trustee's Liens................................ 29
7.6 Securities Act.............................................. 29
7.7 No Taxes Payable............................................ 29
SECTION 8. REPRESENTATIONS AND WARRANTIES OF
TRUST COMPANY AND THE CORPORATE OWNER
TRUSTEE.......................................... 30
8.1 Due Organization............................................ 30
8.2 Authorization; Execution; Enforceability.................... 30
8.3 No Violation................................................ 31
8.4 No Default.................................................. 32
8.5 Litigation.................................................. 32
8.6 Lessor's Liens.............................................. 32
8.7 Securities Act.............................................. 33
8.8 Chief Place of Business..................................... 33
8.9 No Taxes Payable............................................ 33
8.10 Title....................................................... 33
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
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<S> <C> <C>
8.11 Federal Reserve Regulations................................. 34
SECTION 9. REPRESENTATIONS AND WARRANTIES OF
THE CORPORATE INDENTURE TRUSTEE.................. 34
9.1 Due Organization............................................ 34
9.2 Authorization; Execution; Enforceability.................... 34
9.3 No Violation................................................ 35
9.4 Litigation.................................................. 35
9.5 Indenture Trustee's Liens................................... 36
9.6 No Taxes Payable............................................ 36
SECTION 10. LESSEE COVENANTS.......................................... 36
10.1 Officer's Certificate...................................... 36
10.2 Requested Information...................................... 36
10.3 Maintenance of Corporate Existence, Etc.................... 36
10.4 Merger, Consolidation, Sale, Etc........................... 37
10.5 Change in Name or Chief Place of Business.................. 38
10.6 Further Assurances......................................... 38
10.7 Inspection................................................. 39
10.8 Limitation on Acquisition of Secured Notes
or Pass Through Certificates; Pass Through
Trust Agreements.......................................... 40
10.9 Operating Agreement........................................ 40
10.10 Documentation of Platform.................................. 41
10.11 Notice of Certain Events................................... 41
10.12 Environmental Notices...................................... 41
SECTION 11. OTHER COVENANTS AND AGREEMENTS............................ 42
11.1 Agreements of Owner Participant............................ 42
11.2 Agreements of Michael M. Hopkins, Trust
Company and Owner Trustee................................. 46
11.3 Agreements of Pass Through Trustee......................... 48
11.4 Agreements of Indenture Trustee............................ 49
11.5 Confidentiality............................................ 50
11.6 Assumption of Secured Notes................................ 50
SECTION 12. INDEMNIFICATION........................................... 51
12.1 General Indemnification.................................... 51
12.2 General Tax Indemnification................................ 56
</TABLE>
iv
<PAGE>
<TABLE>
<CAPTION>
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<S> <C> <C>
12.3 No Guarantee............................................... 66
SECTION 13. TRANSFER OF OWNER PARTICIPANT'S
INTEREST........................................ 66
13.1 Restrictions on Transfer................................... 66
13.2 Permitted Transfers........................................ 66
13.3 Effect of Transfer......................................... 68
SECTION 14. FINANCING FOR MODIFICATIONS............................... 69
14.1 Financing for Modifications................................ 69
SECTION 15. REFUNDING OF SECURED NOTES................................ 70
15.1 Refunding of Secured Notes................................. 70
15.2 Notice..................................................... 72
15.3 Rights of Parties.......................................... 72
SECTION 16. BENEFICIAL INTEREST PURCHASE OPTION....................... 73
16.1 Option to Purchase......................................... 73
16.2 Notice of Election; Manner of Purchase;
Transfer After Purchase
SECTION 17. MISCELLANEOUS............................................. 74
17.1 Survival................................................... 74
17.2 Binding Effect............................................. 74
17.3 Notices.................................................... 74
17.4 Counterpart Execution...................................... 75
17.5 GOVERNING LAW............................................... 75
17.6 Amendments, Supplements, Etc............................... 75
17.7 Headings; Table of Contents................................ 75
17.8 Severability of Provisions................................. 75
17.9 Entire Agreement........................................... 76
17.10 Limitation of Liability of Owner Trustee,
Indenture Trustee and each Pass Through
Trustee................................................... 76
17.11 Jurisdiction; Service of Process........................... 78
17.12 Instructions............................................... 79
</TABLE>
v
<PAGE>
Appendix A Definitions
SCHEDULES
Schedule 1 Addresses for Notices and Payments
Schedule 2 Pricing Assumptions
Schedule 3 Certain Filings and Recordings
Schedule 4 Disclosure Schedule
Schedule 5 Original Cost of Major Components
EXHIBITS
Exhibit A-1 Form of Opinion of Ralph N. Johanson, Jr., Esq., Assistant
General Counsel to the Guarantor
Exhibit A-2 Form of Opinion of Dewey Ballantine, special counsel to the
Lessee and the Guarantor
Exhibit A-3 Form of Opinion of Fort & Schlefer, special admiralty counsel
Exhibit A-4 Form of Opinion of Liskow & Lewis, special Louisiana counsel
Exhibit A-5 Form of Opinion of Skadden, Arps, Slate, Meagher & Flom, special
counsel to the Owner Participant
Exhibit A-6 Form of Opinion of Shipman & Goodwin, special counsel to the
Trust Company and the Owner Trustee
Exhibit A-7 Form of Opinion of Ray Quinney & Nebeker, special counsel to the
Indenture Trustee
Exhibit A-8 Form of Opinion of Ray Quinney & Nebeker, counsel to the Pass
Through Trustee
Exhibit A-9 Form of Opinion of Arias, Fabrega & Fabrega, special Panama
counsel
Exhibit B Agency and Support Agreement
Exhibit C Form of OP Transfer Document
vi
<PAGE>
PARTICIPATION AGREEMENT
-----------------------
THIS PARTICIPATION AGREEMENT, dated as of December 12, 1995, is among
MOBIL G.B. 388 FINANCE INC., a Delaware corporation, GENERAL ELECTRIC CREDIT
CORPORATION OF GEORGIA, a Georgia corporation, FIRST SECURITY BANK OF UTAH,
NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity except to the extent expressly set forth herein but solely as Pass
Through Trustee under each of the Pass Through Trust Agreements, FLEET NATIONAL
BANK OF CONNECTICUT, a national banking association, not in its individual
capacity except to the extent expressly set forth herein but solely as Corporate
Owner Trustee under the Trust Agreement, MICHAEL M. HOPKINS, not in his
individual capacity except to the extent expressly set forth herein but solely
as Individual Owner Trustee under the Trust Agreement, FIRST SECURITY BANK OF
UTAH, NATIONAL ASSOCIATION, a national banking association, not in its
individual capacity except to the extent expressly set forth herein but solely
as Indenture Trustee under the Indenture, and VAL T. ORTON, not in his
individual capacity except to the extent expressly set forth herein but solely
as Individual Indenture Trustee under the Indenture.
RECITALS:
A. Pursuant to the Participation Agreement, dated June 15, 1994 (as
amended), between Enserch and MPTM, MPTM purchased all of Enserch Holdings'
right, title and interest in and to the Undivided Interest.
B. MPTM, as of the date hereof, owns all of the right, title and
interest in and to the Undivided Interest.
C. Subject to the terms and conditions set forth herein, (1) the
Lessee desires to cause MPTM to sell all of its right, title and interest in and
to the Undivided Interest to the Lessee, (2) the Lessee shall sell all of its
right, title and interest in and to the Undivided Interest to the Owner Trustee
pursuant to the Bill of Sale; (3) the Owner Trustee desires to purchase all of
the Lessee's right, title and interest in and to the Undivided Interest pursuant
to the
<PAGE>
Bill of Sale and to, simultaneously with such purchase, to lease the Undivided
Interest to the Lessee pursuant to the Lease and (4) the Lessee desires to lease
the Undivided Interest from the Owner Trustee pursuant to the Lease and to
sublease the Undivided Interest to MPTM pursuant to the Initial Sublease.
D. Concurrently with the execution and delivery of this Agreement,
the Owner Trustee and the Lessee have entered into the Lease, pursuant to which
the Owner Trustee has agreed, among other things, to lease the Undivided
Interest to Lessee and the Lessee has agreed to lease the Undivided Interest
from the Owner Trustee on the terms specified therein.
E. Concurrently with the execution and delivery of this Agreement,
the Owner Participant and the Owner Trustee have entered into the Trust
Agreement, pursuant to which Trust Agreement the Owner Trustee has agreed, among
other things, to hold the Trust Estate for the benefit of the Owner Participant
on the terms specified therein, subject, however, to the Lien created under the
Indenture.
F. Concurrently with the execution and delivery of this Agreement,
the Owner Trustee and the Indenture Trustee have entered into the Indenture,
pursuant to which the Owner Trustee, for the benefit of the Loan Participant,
has agreed, among other things, to mortgage and pledge unto the Indenture
Trustee, all of the Owner Trustee's right, title and interest in and to the
Indenture Estate.
G. Concurrently with the execution and delivery of this Agreement,
the Lessee has entered into the Tax Indemnity Agreement, pursuant to which,
among other things, the Lessee has agreed to provide, in addition to the
indemnities provided to the Indemnitees pursuant to Section 12 hereof, certain
indemnities to the Owner Participant.
H. Concurrently with the execution and delivery of this Agreement,
the applicable Pass Through Trustee and the Lessee have entered into the related
Pass Through Trust Agreement pursuant to which, among other things, the related
Pass Through Certificates will be issued.
2
<PAGE>
I. Concurrently with the execution and delivery of this Agreement,
the Guarantor has entered into the Guaranty whereby the Guarantor will guaranty
the Lessee's obligations hereunder and under the other Operative Documents to
which the Lessee is a party.
J. The Owner Participant desires to participate in the payment of
Lessor's Cost by providing its Investment to the Owner Trustee. Each Pass
Through Trustee, as a Loan Participant, desires to participate in the payment of
Lessor's Cost by purchasing the applicable Secured Notes from the Owner Trustee.
Accordingly, in consideration of the premises and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS; INTERPRETATION.
---------------------------
For the purposes hereof, capitalized terms used herein (including
those used in the preamble and the foregoing recitals) and not otherwise defined
shall have the meanings assigned to them in Appendix A. References in this
Agreement to Sections, subsections, paragraphs, Schedules, Appendices and
Exhibits are to Sections, subsections and paragraphs in, and Schedules,
Appendices and Exhibits to, this Agreement unless otherwise indicated.
SECTION 2. COMMITMENTS OF PARTICIPANTS; CLOSING; FUNDING;
----------------------------------------------
TRANSACTION EXPENSES.
--------------------
2.1 Commitment of Owner Participant. Subject to the terms and
-------------------------------
conditions of this Agreement, the Owner Participant agrees to participate on the
Closing Date in the payment of Lessor's Cost by making an equity investment (the
"Investment") in the beneficial ownership of the Undivided Interest in an amount
----------
equal to the product of (i) Lessor's Cost and (ii) the Equity Percentage, and
shall, on the Closing Date, take and cause the Owner Trustee to take the
respective actions specified in Sections 2.7 and 2.8 to be taken by the Owner
Participant and the Owner Trustee.
3
<PAGE>
2.2 Commitments of Pass Through Trustee; Secured Notes. Subject to
--------------------------------------------------
the terms and conditions of this Agreement, each Pass Through Trustee, as a Loan
Participant, agrees to participate on the Closing Date in the payment of
Lessor's Cost by purchasing from the Owner Trustee the Secured Notes specified
to be purchased by it on Exhibit B-2 to the Indenture at a purchase price equal
to 100% of the aggregate original principal amount of such Secured Notes, and
shall, on the Closing Date, take and cause the Indenture Trustee to take the
respective actions specified in Section 2.8 to be taken by such Pass Through
Trustee, as a Loan Participant, and the Indenture Trustee. The applicable
Secured Notes shall be issued to each Pass Through Trustee, as a Loan
Participant, under and in accordance with the terms of the Indenture.
2.3 Expiration of Commitments. Unless the Owner Participant shall
-------------------------
agree to a later date, the Owner Participant's commitment to make the Investment
on the Closing Date pursuant to Section 2.1 shall expire if the Closing Date
shall not have occurred before midnight on the Cut-off Date. Unless the Pass
Through Trustee, as Loan Participant, shall agree to a later date, the Pass
Through Trustee's commitment, as Loan Participant, to purchase the Secured Notes
pursuant to Section 2.2 shall expire if the Closing Date or purchase shall not
have occurred before midnight on the Cut-off Date.
2.4 Notice of Closing Dates. On or before the second Business Day
-----------------------
prior to the Closing Date, the Lessee shall deliver to each Participant written
notice of the Closing Date, which notice shall contain (a) the date of the
Closing Date, (b) the amount of Lessor's Cost, (c) the amount of the Investment
and (d) the principal amount of the Secured Notes to be purchased by each Pass
Through Trustee, as a Loan Participant, on the Closing Date; provided, however,
-------- -------
that the funding of the Owner Participant's Investment or the funding of the
purchase price for the Secured Notes to be purchased by the Pass Through
Trustee, as Loan Participant, on the Closing Date, as the case may be, and the
taking of the other actions contemplated to be taken hereby in each case on the
Closing Date shall be deemed a waiver of the requirement of notice of the
Closing Date set forth in this Section 2.4.
2.5 Time and Place of Closing. The closing on the Closing Date
-------------------------
shall commence at 12:00 noon, New York City time,
4
<PAGE>
at the offices of Dewey Ballantine, New York, New York, or at such other
location in New York City as the Lessee may specify in the notice of closing for
the Closing Date delivered pursuant to Section 2.4.
2.6 Delivery of Funds. Subject to the terms and conditions of this
-----------------
Agreement, on or before 12:00 noon, New York City time, on the Closing Date, the
Owner Participant shall deliver to the Owner Trustee by wire transfer of
immediately available funds an amount equal to the Investment to be made by the
Owner Participant on the Closing Date and each Pass Through Trustee, as a Loan
Participant, shall deliver to the Owner Trustee by wire transfer of immediately
available funds an amount equal to the purchase price of the Secured Notes to be
purchased by such Pass Through Trustee, as a Loan Participant, on the Closing
Date, in each case to the account of the Owner Trustee specified in Schedule 1
or to such other account as shall be specified in writing by the Owner Trustee
to the Owner Participant and each Pass Through Trustee, as a Loan Participant,
at least one Business Day prior to the Closing Date, which amounts shall be held
by the Owner Trustee in trust, solely on behalf of the Participant delivering or
transferring such amount (and not as part of the Trust Estate), until such
Participant shall have instructed the Owner Trustee that such amount is
available to be applied by the Owner Trustee pursuant to Section 2.7. No
Participant shall be obligated to deliver such instruction if the conditions to
its participation set forth in Section 4 have not been met to its satisfaction
or waived by it.
2.7 Application of Funds by Owner Trustee. On the Closing Date,
-------------------------------------
upon receipt by the Owner Trustee of (a) the amount of the Investment to be made
by the Owner Participant on the Closing Date, (b) the purchase price of the
applicable Secured Notes to be paid by each Pass Through Trustee, as a Loan
Participant, on the Closing Date, and (c) the instruction pursuant to Section
2.6 that each of such amounts is available to be applied by the Owner Trustee
pursuant to this Section 2.7, the Owner Trustee shall pay to the Lessee by wire
transfer of immediately available funds to the account of the Lessee specified
in Schedule 1 an amount equal to Lessor's Cost.
5
<PAGE>
2.8 Actions on Closing Date. Subject to satisfaction of the
-----------------------
applicable conditions precedent set forth in Sections 3 and 4, on the Closing
Date:
(a) the Owner Participant shall make the Investment required to be
made by it on the Closing Date;
(b) each Pass Through Trustee, as a Loan Participant, shall pay to
the Owner Trustee the purchase price for the Secured Notes required to be
purchased by it on the Closing Date, the Owner Trustee shall execute and
deliver to the Indenture Trustee the Secured Notes, and the Indenture
Trustee shall authenticate and register the Secured Notes and shall deliver
the applicable Secured Notes to each Pass Through Trustee, as a Loan
Participant;
(c) the Lessee shall purchase from MPTM and MPTM shall sell to the
Lessee all of MPTM's right, title and interest in and to the Undivided
Interest, together with an undivided interest in any manufacturer's or
vendor's warranties applicable to the Production System or any part
thereof, and immediately thereafter the Owner Trustee shall purchase from
the Lessee with funds made available from the Corporate Owner Trustee and
the Lessee shall sell to the Owner Trustee, all of the Lessee's right,
title and interest in and to the Undivided Interest, together with an
undivided interest in the Lessee's interest in any manufacturer's or
vendor's warranties applicable to the Production System or any part
thereof, for a purchase price equal to Lessor's Cost pursuant to the Bill
of Sale;
(d) simultaneously with the transfer of title to the Undivided
Interest, the Owner Trustee shall lease to the Lessee, and the Lessee shall
lease from the Owner Trustee, the Undivided Interest pursuant to the Lease;
and
(e) the Lessee shall sublease the Undivided Interest to MPTM pursuant
to the Initial Sublease.
2.9 Transaction Expenses. (a) If the transactions contemplated by
--------------------
this Agreement are consummated, the Owner
6
<PAGE>
Trustee shall as soon as practicable after the Closing Date pay, or reimburse
the Lessee for, all Transaction Expenses (subject to paragraph (b) of this
Section 2.9), and the Owner Participant will provide to the Owner Trustee funds
therefor and instructions with respect to the payment thereof; provided that the
--------
underwriting commissions of Morgan Stanley & Co. Incorporated as underwriter of
the Pass Through Certificates shall be paid by the Owner Trustee in immediately
available funds on the Closing Date. If the transactions contemplated by this
Agreement to be consummated on the Closing Date are not consummated for any
reason whatsoever, the Lessee shall pay all Transaction Expenses; provided,
--------
however, that if such transactions shall not be consummated by reason of a
- -------
breach by Owner Participant of its obligations hereunder or under any other
Operative Document to which Owner Participant is a party, the Lessee shall not
be obligated to pay any fees and expenses of the Owner Participant, including,
without limitation, its counsel's fees and expenses.
(b) If the actual amount of Transaction Expenses exceeds the
estimated amount thereof as set forth in Schedule 2, the Owner Participant shall
promptly pay when due, or reimburse the Owner Trustee for, such excess
Transaction Expenses pursuant to paragraph (a) of this Section 2.9, except to
the extent the Lessee elects to pay such excess.
(c) Each of the Transaction Expenses shall be evidenced by
appropriate bills or invoices. The Lessee shall have the right to receive and
review any substantiation relating to any Transaction Expenses as it may
reasonably request.
2.10 Authorization to Owner Trustee. The Owner Participant agrees
------------------------------
that on the Closing Date the receipt by the Owner Trustee of an instruction from
each Participant pursuant to Section 2.6 making the amount delivered by each
such Participant to the Owner Trustee available for application pursuant to
Section 2.7 shall constitute, without further act, authorization and direction
by each such Participant to the Owner Trustee to take the actions contemplated
to be taken by the Owner Trustee on the Closing Date in the Operative Documents,
including, without limitation, the execution and delivery of all other documents
and instruments contemplated
7
<PAGE>
to be executed and delivered by the Owner Trustee on or prior to the Closing
Date in the Operative Documents.
2.11 Registration Statement. Each of the Owner Participant, the
----------------------
Owner Trustee, the Indenture Trustee and each Pass Through Trustee, as a Loan
Participant, acknowledges that the Lessee and the Guarantor intend to file with
the SEC a registration statement on Form S-4 with respect to the Pass Through
Certificates to be issued in connection with the Exchange Offer. If, in
connection with the review by the SEC of such registration statement or any
amendments thereto any modifications or additions are required to be made in the
Operative Documents or any Pass Through Trust Agreement, each of the parties
named above in this Section 2.11 agree to, at the Lessee's expense, negotiate in
good faith with respect to, and to enter into amendments to the Operative
Documents or the Pass Through Trust Agreements, as the case may be, reflecting,
such modifications or additions; provided that no party hereto shall be required
--------
to agree to any such modification or addition that adversely affects the rights
of, or increases the obligations of, such party under any of the Operative
Documents or any Pass Through Trust Agreement.
SECTION 3. CONDITIONS TO CLOSING BY THE LESSEE.
-----------------------------------
The obligation of the Lessee pursuant to Section 2 (i) to cause MPTM
to transfer MPTM's right, title and interest in and to the Undivided Interest to
the Lessee and to immediately thereafter transfer all of its right, title and
interest in and to the Undivided Interest to the Owner Trustee and (ii) to lease
the Undivided Interest from the Owner Trustee and take the other actions
contemplated by Section 2 to be taken by it on the Closing Date are subject only
to the fulfillment on the Closing Date to the satisfaction of or waiver by the
Lessee of each of the following conditions precedent, except that the
obligations of the Lessee shall not be subject to the Lessee's or MPTM's own
performance or, if MPTM or the Lessee shall have the power to cause another
Person to perform, MPTM's or the Lessee's failure to cause such performance:
3.1 Operative Documents. Each of the following documents shall have
-------------------
been duly authorized, executed and
8
<PAGE>
delivered by the respective parties thereto (other than the Lessee, MPTM or the
Guarantor):
(a) this Agreement;
(b) the Lease;
(c) the Bill of Sale;
(d) the Indenture;
(e) the Tax Indemnity Agreement;
(f) the Secured Notes;
(g) the Trust Agreement;
(h) the Ship Mortgage;
(i) the Pass Through Trust Agreements; and
(j) the Placement Agreement
and (i) each such document shall be in full force and effect on the Closing
Date, and an executed counterpart of each of the same shall have been
delivered to the Lessee (except that each original Secured Note shall be
delivered only to the applicable Pass Through Trustee) and (ii) the Federal
Leases, the Operating Agreement and the Unit Agreement shall be in full
force and effect on the Closing Date.
3.2 Legality, Etc. No change shall have occurred after November 1,
-------------
1995 in Governmental Rules that, in the reasonable opinion of the Lessee, would
make it illegal or unduly burdensome for the Lessee, the Guarantor, the Owner
Trustee, the Indenture Trustee, any Pass Through Trustee or any Participant to
participate in any of the transactions contemplated by the Operative Documents
to be consummated on the Closing Date.
3.3 Event of Loss. No Event of Loss shall have occurred and no event
-------------
described in clause (c) of the definition of Event of Loss shall have occurred.
9
<PAGE>
3.4 Consents and Approvals. On the Closing Date, all Governmental
----------------------
Actions required to be taken, given or obtained, as the case may be, by or from
any Governmental Authority which are required in connection with the
transactions contemplated by the Operative Documents and the Pass Through Trust
Agreements, or to authorize the execution, delivery and performance by the
Lessee and/or the Guarantor, as the case may be, of the Pass Through Trust
Agreements, the Placement Agreement, and the Operative Documents to which it is
a party, other than those constituting filings, recordings or other actions of
the types referred to in Section 4.15, shall have been duly taken, given or
obtained, as the case may be, shall be in full force and effect on the Closing
Date, shall not be subject to any pending proceedings or appeals
(administrative, judicial or otherwise) and shall be adequate to authorize the
consummation of the transactions contemplated by the Pass Through Trust
Agreements, the Placement Agreement and the Operative Documents and the
performance by each of the Lessee and the Guarantor of its obligations under
such thereof to which it is a party, except such as may be required to be taken,
obtained, given, accomplished or renewed from time to time in connection with
the maintenance or operation of the Production System or which are otherwise
required in connection with the transactions contemplated by the Pass Through
Trust Agreements, the Placement Agreement and the Operative Documents which have
been applied for but which cannot be obtained, or which are not normally applied
for or taken, given or obtained, prior to the Closing Date, and which in the
normal course would be granted; provided that the failure to obtain such
--------
Governmental Actions, consents or approvals by the Closing Date would not
materially adversely affect the ability of (x) the Lessee to perform its
obligations under this Agreement, the Pass Through Trust Agreements or any other
Operative Document to which it is a party or (y) the ability of the Guarantor to
perform its obligations under the Guaranty.
3.5 Representations and Warranties; Certificates. The
--------------------------------------------
representations and warranties of each of the Owner Participant, each Pass
Through Trustee, the Trust Company and the Owner Trustee, and the Indenture
Trustee contained in Sections 6, 7, 8 and 9, respectively, shall be true and
accurate on and as of the Closing Date as though made on and as of such date,
except to the extent that such
10
<PAGE>
representations and warranties relate solely to an earlier date (in which case
the same shall be true and accurate as of such earlier date), and the Lessee
shall have received executed copies of each of the certificates referred to in
Section 4.9 and Section 4.10 (other than Sections 4.9(a) and (f) and Sections
4.10(a) and (f)) required to be delivered on the Closing Date, which
certificates shall be dated the Closing Date.
3.6 Opinions. A signed original of each opinion referred to in
--------
Section 4.7 (other than Sections 4.7(a), 4.7(b) and 4.7(i)) shall have been
addressed to and delivered to the Lessee. The Lessee shall have received an
opinion from Dewey Ballantine in form and substance satisfactory to the Lessee
as to such tax matters related to the transactions contemplated hereby as the
Lessee may reasonably request.
3.7 Litigation. There shall be no actions, suits, investigations or
----------
proceedings pending or, to the knowledge of the Lessee, threatened against the
Lessee, the Guarantor, the Owner Participant, any Pass Through Trustee, the
Owner Trustee or the Indenture Trustee or the properties of any of such Persons
before any Governmental Authority to set aside, restrain, enjoin or prevent the
consummation of this Agreement or the transactions contemplated hereby or by any
of the other Operative Documents, the Pass Through Trust Agreements, the Federal
Leases, the Operating Agreement, the Unit Agreement or the Placement Agreement.
3.8 Appraisal. The Lessee shall have received a copy of the Final
---------
Appraisal which Final Appraisal shall be in form and substance satisfactory to
the Lessee.
3.9 Equity Offering. MPTM shall have received an executed copy of
---------------
the letter referred to in Section 4.12, which letter shall be dated the Closing
Date.
3.10 Payment of Lessor's Cost. The Lessee shall have received
------------------------
payment of an amount equal to Lessor's Cost in accordance with Section 2.7.
3.11 Sale of Pass Through Certificates. The Pass Through
---------------------------------
Certificates shall have been issued pursuant to the Pass Through Trust
Agreements and sold pursuant to the
11
<PAGE>
Placement Agreement and the Underwriters shall have transferred to each Pass
Through Trustee in immediately available funds an amount equal to the purchase
price for the Pass Through Certificates sold pursuant to the related Pass
Through Trust Agreement.
SECTION 4. CONDITIONS TO CLOSING BY PARTICIPANTS.
-------------------------------------
The obligations of the Owner Participant and each Pass Through Trustee
pursuant to Section 2 to participate in the payment of Lessor's Cost and to take
the other actions contemplated by Section 2 to be taken by them on the Closing
Date are subject only to the fulfillment on the Closing Date to the satisfaction
of (including, with respect to writings, such writings being in form and
substance reasonably satisfactory to the addressee or the beneficiary thereof)
or waiver by such Participant of each of the following conditions precedent
(other than (i) in the case of the Owner Participant, Sections 4.5(b), 4.7(e),
4.9(b) and 4.10(b), and (ii) in the case of any Pass Through Trustee, Sections
4.5(a), 4.7(h) and (i), 4.8, 4.9(e) and 4.10(e)), except that the obligations
of such Participant shall not be subject to such Participant's own performance
or, if such Participant shall have the power to cause another Person to perform,
such Participant's failure to cause such performance:
4.1 Notice of Closing. Such Participant shall have received the
-----------------
notice of closing for such Closing Date required to be delivered pursuant to
Section 2.4.
4.2 Operative Documents. Each of the following documents shall have
-------------------
been duly authorized, executed and delivered by the respective parties thereto:
(a) this Agreement;
(b) the Lease;
(c) the Bill of Sale;
(d) the Indenture;
(e) the Tax Indemnity Agreement;
12
<PAGE>
(f) the Secured Notes;
(g) the Trust Agreement;
(h) the Guaranty; and
(i) the Ship Mortgage;
and each such document and the Pass Through Trust Agreements, the Federal
Leases, the Operating Agreement and the Unit Agreement shall be in full force
and effect on the Closing Date, and no event or condition shall have occurred
that, with or without the lapse of time or the giving of notice, shall give any
other party thereto the right to terminate such document and an executed
counterpart (or, in the case of the Pass Through Trust Agreements, the Federal
Leases, the Operating Agreement and the Unit Agreement, a true, correct and
complete copy) of each of the same shall have been delivered to such Participant
(except that the Tax Indemnity Agreement shall be delivered only to the parties
thereto and each original Secured Note shall be delivered only to the applicable
Pass Through Trustee).
4.3 Legality, Etc. No change shall have occurred after November 1,
-------------
1995 in Governmental Rules that, in the reasonable opinion of such Participant,
would make it illegal or unduly burdensome for the Trust Company, the Owner
Trustee, the Lessee, the Guarantor, the Indenture Trustee or any Participant to
participate in any of the transactions contemplated by the Operative Documents
to be consummated on the Closing Date.
4.4 Event of Loss. No Event of Loss shall have occurred and no event
-------------
described in clause (c) of the definition of Event of Loss shall have occurred.
4.5 Appraisal. (a) The Owner Participant shall have received an
---------
appraisal of the Appraiser dated the Closing Date with respect to the Undivided
Interest, which appraisal shall be satisfactory in form and substance to the
Owner Participant.
(b) The Indenture Trustee shall have received a letter from the
Appraiser setting forth the conclusions of the
13
<PAGE>
Appraiser with respect to the fair market value of the Undivided Interest as of
the Closing Date.
(c) The Owner Participant shall have received a copy of the Reserve
Report.
4.6 Insurance. Insurance complying in all respects with the
---------
provisions of Section 13.1 of the Lease shall be in full force and effect and
the Owner Participant and the Indenture Trustee shall have received a
certificate of an independent insurance broker or consultant, which broker or
consultant may be the Lessee's independent insurance broker or consultant, dated
the Closing Date, setting forth in reasonable detail the insurance obtained by
or on behalf of the Lessee in accordance with Section 13.1(a) of the Lease and
as then in effect, stating that such insurance is in full force and effect and
that all premiums then due thereon have been paid and an Officer's Certificate
of the Lessee, dated the Closing Date, stating that such insurance complies in
all respects with the provisions of such Section 13.1(a).
4.7 Opinions. Opinions dated the Closing Date of the following
--------
counsel, each such opinion substantially in the form of the indicated Exhibit
hereto (with such changes to such form as contemplated by such Exhibit) and
addressed as provided in such Exhibit (or, in lieu of including the Underwriter
as an addressee, such counsel may deliver a reliance letter to the Underwriter),
shall have been executed and delivered by such counsel:
(a) Ralph N. Johanson, Jr., Esq., Assistant General Counsel to the
Guarantor, substantially in the form of Exhibit A-1;
(b) Dewey Ballantine, special counsel to the Lessee and the
Guarantor, substantially in the form of Exhibit A-2;
(c) Fort & Schlefer, special admiralty counsel, substantially in the
form of Exhibit A-3;
(d) Liskow & Lewis, special Louisiana counsel, substantially in the
form of Exhibit A-4;
14
<PAGE>
(e) Skadden, Arps, Slate, Meagher & Flom, special counsel to the
Owner Participant, substantially in the form of Exhibit A-5, together with
the opinion of internal counsel to the Owner Participant;
(f) Shipman & Goodwin, special counsel to the Trust Company and the
Owner Trustee, substantially in the form of Exhibit A-6;
(g) Ray Quinney & Nebeker, special counsel to the Indenture Trustee,
substantially in the form of Exhibit A-7;
(h) Ray Quinney & Nebeker, counsel to each Pass Through Trustee,
substantially in the form of Exhibit A-8;
(i) Skadden, Arps, Slate, Meagher & Flom, special counsel to the
Owner Participant, in form and substance satisfactory to the Owner
Participant as to such tax matters related to the transactions contemplated
hereby as the Owner Participant may reasonably request; and
(j) Arias, Fabrega & Fabrega, special Panama counsel, substantially
in the form of Exhibit A-9.
4.8 Taxes. All Taxes, fees and other charges, if any, payable on or
-----
prior to the Closing Date in connection with the execution, delivery,
recordation and filing of all documents and instruments referred to in Section
4.15 below, this Agreement or any other Operative Document, or in connection
with the acquisition by the Owner Trustee on the Closing Date of the Lessee's
right, title and interest in and to the Undivided Interest, the issuance and
sale of the Secured Notes and the Pass Through Certificates and the subjecting
of the Undivided Interest to the Lien of the Indenture, shall have been duly
paid in full on the Closing Date by the Lessee.
4.9 Officer's Certificates. On the Closing Date, the following
----------------------
statements shall be true and such Participant, the Owner Trustee and the
Indenture Trustee shall have received:
15
<PAGE>
(a) an Officer's Certificate of the Lessee, dated the Closing Date,
stating that (i) the representations and warranties of the Lessee contained
in Section 5 are true and accurate on and as of the Closing Date as though
made on and as of such date except to the extent that such representations
and warranties specifically relate solely to an earlier date (in which case
such representations and warranties shall have been true and accurate on
and as of such earlier date) and (ii) each Operative Document to which it
is a party and the Pass Through Trust Agreements remain in full force and
effect with respect to it;
(b) an Officer's Certificate of the Owner Participant, dated the
Closing Date, stating that (i) the representations and warranties of the
Owner Participant contained in Section 6 are true and accurate on and as of
the Closing Date as though made on and as of such date except to the extent
that such representations and warranties specifically relate solely to an
earlier date (in which case such representations and warranties shall have
been true and accurate on and as of such earlier date); and (ii) each
Operative Document to which it is a party remains in full force and effect
with respect to it;
(c) an Officer's Certificate of the Trust Company and the Corporate
Owner Trustee, dated the Closing Date, stating that (i) the representations
and warranties of the Trust Company and the Owner Trustee contained in
Section 8 are true and accurate on and as of the Closing Date as though
made on and as of such date except to the extent that such representations
and warranties specifically relate solely to an earlier date (in which case
such representations and warranties shall have been true and accurate on
and as of such earlier date); and (ii) each Operative Document to which the
Trust Company, Michael M. Hopkins or the Owner Trustee is a party remains
in full force and effect with respect to it or him, as the case may be;
(d) an Officer's Certificate of the Corporate Indenture Trustee,
dated the Closing Date, stating that (i) the representations and warranties
of the Indenture
16
<PAGE>
Trustee contained in Section 9 are true and accurate on and as of the
Closing Date as though made on and as of such date except to the extent
that such representations and warranties specifically relate solely to an
earlier date (in which case such representations and warranties shall have
been true and accurate on and as of such earlier date); and (ii) each
Operative Document to which First Security Bank of Utah, National
Association or Val T. Orton is a party remains in full force and effect
with respect to it or him, as the case may be;
(e) an Officer's Certificate of First Security Bank of Utah, National
Association (in its individual capacity and as Pass Trough Trustee, as
applicable), dated the Closing Date, stating that (i) the representations
and warranties of First Security Bank of Utah, National Association and
each Pass Through Trustee contained in Section 7 are true and accurate on
and as of the Closing Date as though made on and as of such date except to
the extent that such representations and warranties specifically relate
solely to an earlier date (in which case such representations and
warranties shall have been true and accurate on and as of such earlier
date); and (ii) each of the Participation Agreement and the Pass Through
Trust Agreements remains in full force and effect with respect to it; and
(f) an Officer's Certificate of the Guarantor, dated the Closing
Date, stating that (i) the representations and warranties of the Guarantor
contained in Section 1.1 of the Guaranty are true and accurate on and as of
the Closing Date as though made on and as of such date except to the extent
that such representations and warranties specifically relate solely to an
earlier date (in which are such representations and warranties shall have
been true and accurate on and as of such earlier date); and (ii) the
Guaranty remains in full force and effect.
4.10 Resolutions, Etc. The Owner Participant, the Owner Trustee and
----------------
the Indenture Trustee shall have received the following, in each case in form
and substance reasonably satisfactory to such Person:
17
<PAGE>
(a) a Secretary's or an Attesting Secretary's certificate of the
Lessee, dated the Closing Date, attaching and certifying as to (i)
resolutions of its Board of Directors duly authorizing the execution,
delivery and performance by the Lessee of each Operative Document to which
it is a party, and the Pass Through Trust Agreements and the transactions
contemplated thereby, certified to be in full force and effect without
modification as of the Closing Date, (ii) its charter documents, (iii) its
by-laws, and (iv) the incumbency and signature of persons authorized to
execute and deliver such documents on behalf of the Lessee;
(b) a Secretary's or an Attesting Secretary's certificate of the
Owner Participant, dated the Closing Date, attaching and certifying as to
(i) resolutions of its Board of Directors duly authorizing the execution,
delivery and performance by the Owner Participant of each Operative
Document to which it is a party, and the transactions contemplated thereby,
certified to be in full force and effect without modification as of the
Closing Date, (ii) its charter documents, (iii) its by-laws, and (iv) the
incumbency and signature of persons authorized to execute and deliver such
documents on behalf of the Owner Participant;
(c) a Secretary's or an Assistant Secretary's certificate of the
Trust Company and the Owner Trustee, dated the Closing Date, attaching and
certifying as to (i) resolutions of its Board of Directors duly authorizing
the execution, delivery and performance by the Trust Company and the Owner
Trustee of each Operative Document to which it is a party, and the
transactions contemplated thereby, certified to be in full force and effect
without modification as of the Closing Date, (ii) its charter documents,
(iii) its by-laws, and (iv) the incumbency and signature of persons
authorized to execute and deliver such documents on behalf of the Trust
Company and the Owner Trustee;
(d) a Secretary's or an Assistant Secretary's certificate of the
Indenture Trustee, dated the Closing Date, attaching and certifying as to
(i) resolutions of its Board of Directors duly authorizing the execution,
18
<PAGE>
delivery and performance by the Indenture Trustee of each Operative
Document to which it is a party, and the transactions contemplated thereby,
certified to be in full force and effect without modification as of the
Closing Date, (ii) its charter documents, (iii) its by-laws, and (iv) the
incumbency and signature of persons authorized to execute and deliver such
documents on behalf of the Indenture Trustee;
(e) a Secretary's or an Assistant Secretary's certificate of First
Security Bank of Utah, National Association, dated the Closing Date,
attaching and certifying as to (i) resolutions of its Board of Directors or
an appropriate committee thereof duly authorizing the execution, delivery
and performance by each Pass Through Trustee of the related Pass Through
Trust Agreement and the Participation Agreement, and the transactions
contemplated thereby, certified to be in full force and effect without
modification as of the Closing Date, (ii) its charter documents, (iii) its
by-laws, and (iv) the incumbency and signature of persons authorized to
execute and deliver such documents on behalf of each Pass Through Trustee;
and
(f) a Secretary's or an Assistant Secretary's certificate of the
Guarantor, dated the Closing Date, attaching and certifying as to (i)
resolutions of its Board of Directors duly authorizing the execution,
delivery and performance by the Guarantor of the Guaranty and its
obligations thereunder, certified to be in full force and effect without
modification as of the Closing Date, (ii) its charter documents, (iii) its
by-laws and (iv) the incumbency and signature of persons authorized to
execute and deliver the Guaranty on behalf of the Guarantor.
4.11 Litigation. There shall be no actions, suits, investigations or
----------
proceedings pending or, to the knowledge of the Owner Participant, any Pass
Through Trustee, the Owner Trustee or the Indenture Trustee, threatened against
any of such Persons or the Lessee or the Guarantor or the properties of any of
such Persons or the Lessee or the Guarantor before any Governmental Authority
which, if determined adversely to any of such Persons, would affect the
legality, validity or
19
<PAGE>
enforceability of the Operative Documents, the Pass Through Trust Agreements or
the Placement Agreement, nor shall any orders have been issued by any
Governmental Authority at the time of the Closing Date, to set aside, restrain,
enjoin or prevent the consummation of this Agreement or the transactions
contemplated hereby or by any of the other Operative Documents, the Pass Through
Trust Agreements or the Placement Agreement.
4.12 Equity Offering. The Owner Participant and the Indenture
---------------
Trustee shall have received a letter dated the Closing Date from Morgan Stanley
& Co. Incorporated with respect to the number of offerees of the beneficial
interest in the Trust Estate and the manner of offering thereof.
4.13 Investment and Loans. The Owner Participant shall have made
--------------------
available to the Owner Trustee the full amount of its Investment and each Pass
Through Trustee shall have purchased the applicable Secured Notes required to be
purchased by it on the Closing Date pursuant to Section 2.
4.14 Consents and Approvals. All Governmental Actions which are
----------------------
required to have been taken, given, obtained, filed or recorded, as the case may
be, on or prior to the Closing Date by, from or with any Governmental Authority,
and all other consents, filings or approvals which are required to have been
taken, given, obtained, filed or recorded, as the case may be, on or prior to
the Closing Date by, from or with any other Person, in each case, (a) in
connection with the transactions contemplated by the Operative Documents and the
Pass Through Trust Agreements, or to authorize the execution, delivery and
performance by the Lessee, the Guarantor, the Owner Participant, the Owner
Trustee, the Indenture Trustee or any Pass Through Trustee of the applicable
Pass Through Trust Agreement and each of the Operative Documents to which it is
a party, or the legality, validity, binding effect or enforceability thereof as
against the Lessee or the Guarantor, other than those constituting filings,
recordings or other actions of the type referred to in Section 4.15, (b) in
order that the Production System may be operated as of the Closing Date for its
intended purposes (including, without limitation, all Environmental Permits and
all approvals, certificates, permits, authorizations, licenses or other actions
relating to the operation and maintenance of
20
<PAGE>
the Production System), or (c) otherwise in connection with the transactions
contemplated by the Operative Documents (including, without limitation, all
filings or other actions as may be required to be taken with respect to all
leasehold interests relating to the Production System and with respect to the
Undivided Interest), shall have been duly taken, given, obtained, filed or
recorded, as the case may be, and all such approvals shall have been duly taken,
given, obtained, filed or recorded, as the case may be, shall be in full force
and effect on the Closing Date, shall not be subject to any pending proceedings
or appeals (administrative, judicial or otherwise) and shall be adequate to
authorize the consummation of the transactions contemplated by the Pass Through
Trust Agreements, the Placement Agreement and the Operative Documents and the
performance by each of the Lessee and the Guarantor of its obligations under
such thereof to which it is a party, except such as may be required to be taken,
obtained, given, accomplished or renewed from time to time in connection with
the maintenance or operation of the Production System or which are otherwise
required in connection with the transactions contemplated by the Pass Through
Trust Agreements, the Placement Agreement and the Operative Documents which have
been applied for but which cannot be obtained, or which are not normally applied
for or taken, given or obtained, prior to the Closing Date, and which in the
normal course would be granted; provided that the failure to obtain such
--------
Governmental Actions, consents or approvals by the Closing Date would not
materially adversely affect the ability of (x) the Lessee to perform its
obligations under this Agreement, the Pass Through Trust Agreements or any other
Operative Document to which it is a party or (y) the Guarantor to perform its
obligations under the Guaranty.
4.15 Title; Filings and Recordings. On the Closing Date, (a) good
-----------------------------
and marketable title in and to the Undivided Interest shall have been duly and
effectively transferred to the Owner Trustee pursuant to the Bill of Sale, free
and clear of all Liens other than Permitted Liens (other than Permitted Liens
described in clause (e) of the definition thereof), (b) all filings and
recordings necessary to establish the Owner Trustee's right, title and interest
in and to the Undivided Interest, and to perfect the mortgage Lien on and
security interest in the Indenture Estate created by the Indenture and the Ship
Mortgage (including, without
21
<PAGE>
limitation, all filings and recordings necessary to preliminarily register the
Owner Trustee's ownership interest in the Platform in the Republic of Panama and
all filings and recordings necessary to preliminarily register the Ship Mortgage
in the Republic of Panama), shall have been duly made, subject to requirements
for filing continuation statements at appropriate intervals and subject to
Permitted Liens (other than Permitted Liens described in clause (e) of the
definition thereof), and (c) no other action shall be required to perfect such
mortgage Lien and security interest (other than the taking of possession by the
Indenture Trustee of the original executed counterpart of the Lease and the
filing of the title documents with respect to the Owner Trustee's interest in
the Platform and the Ship Mortgage for definitive recordation at the Panama
Public Registry within six months of the date of preliminary recordation).
4.16 Sale of Pass Through Certificates. The Lessee and the Guarantor
---------------------------------
shall have entered into the Placement Agreement and the Pass Through Trust
Agreements, the Pass Through Certificates shall have been issued pursuant to the
Pass Through Trust Agreements and sold pursuant to the Placement Agreement and
the Underwriters shall have transferred to each Pass Through Trustee in
immediately available funds an amount equal to the purchase price for the
applicable Pass Through Certificates.
4.17 No Default Under Operating Agreement, etc. No material breach
-----------------------------------------
by MPTM or Enserch under the Federal Leases, or by any party to the Operating
Agreement or the Unit Agreement shall have occurred and be continuing.
4.18 No Default Under Lease. No Lease Default or Lease Event of
----------------------
Default shall have occurred and be continuing.
4.19 No Material Adverse Change. There shall have been no material
--------------------------
adverse change in the business, operations or financial condition of the
Guarantor since September 30, 1995.
22
<PAGE>
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE LESSEE.
--------------------------------------------
The Lessee represents and warrants to each of the other parties hereto
that:
5.1 Due Organization. The Lessee is a corporation duly organized,
----------------
validly existing and in good standing under the laws of the State of Delaware
and has the corporate power and authority to carry on its business as presently
conducted and as it is contemplated it will be conducted in connection with the
Undivided Interest, to own or hold under lease its properties, and to enter into
and perform its obligations under this Agreement, the Pass Through Trust
Agreements and each other Operative Document to which it is a party. The Lessee
has not failed to qualify to do business in any jurisdiction where failure so to
qualify could reasonably be expected to materially adversely affect its ability
to conduct its business as it is presently conducted and as it is contemplated
it will be conducted in connection with the Undivided Interest, to own or hold
under lease its properties or to perform any of its obligations under this
Agreement, the Pass Through Trust Agreements or any other Operative Document to
which it is a party.
5.2 Authorization. The execution, delivery and performance by the
-------------
Lessee of this Agreement, the Pass Through Trust Agreements and each other
Operative Document to which it is a party and of the transactions contemplated
hereby and thereby have been duly authorized by all necessary corporate action
on the part of the Lessee and do not and will not require the consent or
approval of any shareholder of the Lessee or any trustee or holder of any
indebtedness or other obligation of the Lessee.
5.3 Execution; Enforceability. This Agreement, the Pass Through
-------------------------
Trust Agreements and each other Operative Document to which the Lessee is a
party have been duly executed and delivered by the Lessee and, assuming the due
authorization, execution and delivery hereof and thereof by the other parties
hereto and thereto are legal, valid and binding obligations of the Lessee,
enforceable against the Lessee in accordance with their respective terms, except
as such enforceability may be limited by applicable bankruptcy,
23
<PAGE>
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.
5.4 No Violation. The execution and delivery by the Lessee of this
------------
Agreement, the Pass Through Trust Agreements and each other Operative Document
to which it is a party do not and will not, and the performance by the Lessee of
its obligations under each thereof 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, which, in the case of
such performance, noncompliance with which would materially adversely affect the
Undivided Interest or the ability of the Lessee to perform its obligations under
the Operative Documents; provided that no representation or warranty is made
--------
with respect to ERISA, (iii) contravene any provision of, or constitute a
default under, any indenture, mortgage, contract or other agreement or
instrument to which the Lessee is a party or by which it or any of its
properties are bound, (iv) result in or, require the creation or imposition of
any Lien (other than Permitted Liens) upon any of its properties or assets.
5.5 Consents and Approvals. All Governmental Actions which are
----------------------
required to have been taken, given, obtained, filed or recorded, as the case may
be, on or prior to the Closing Date by, from or with any Governmental Authority
and all other consents, filings or approvals which are required to have been
taken, given, obtained, filed or recorded, as the case may be, on or prior to
the Closing Date by, from or with any other Person, in each case, (a) in
connection with the transactions contemplated by the Operative Documents and the
Pass Through Trust Agreements, or to authorize the execution, delivery and
performance by the Lessee and/or the Guarantor of the Guaranty, the Pass Through
Trust Agreements and the Operative Documents to which either of them is a party,
or the legality, validity, binding effect or enforceability thereof as against
the Lessee or the Guarantor, other than those constituting filings, recordings
or other actions of the type referred to in Section 5.7 or (b) in order that the
Production System may be operated as of the Closing Date for its intended
purposes (including, without
24
<PAGE>
limitation, all Environmental Permits and all approvals, certificates, permits,
authorizations, licenses or other actions relating to the operation and
maintenance of the Production System), shall have been duly taken, given,
obtained, filed or recorded, as the case may be, and shall be in full force and
effect on the Closing Date, shall not be subject to any pending proceedings or
appeals (administrative, judicial or otherwise) and shall be adequate to
authorize the consummation by the Lessee or the Guarantor of the transactions
contemplated by the Pass Through Trust Agreements, the Placement Agreement and
the Operative Documents and the performance by each of the Lessee and the
Guarantor of its obligations under such thereof to which it is a party, except
such as may be required to be taken, obtained, given, accomplished or renewed
from time to time in connection with the maintenance or operation of the
Production System or which are otherwise required in connection with the
transactions contemplated by the Pass Through Trust Agreements, the Placement
Agreement and the Operative Documents which have been applied for but which
cannot be obtained, or which are not normally applied for or taken, given or
obtained, prior to the Closing Date, and which in the normal course would be
granted, provided that the failure to obtain such Governmental Actions,
consents, filings and approvals by the Closing Date would not materially
adversely affect the ability of (x) the Lessee to perform its obligations under
this Agreement, the Pass Through Trust Agreements or any other Operative
Document to which it is a party or (y) the Guarantor to perform its obligations
under the Guaranty.
5.6 Securities Act. Neither the Lessee nor any Person authorized on
--------------
its behalf has directly or indirectly offered or sold any interest in the Trust
Estate, or in any similar security relating to the Undivided Interest, or in any
security the offering of which for purposes of the Securities Act would be
deemed to be part of the same offering as the offering of the aforementioned
interest or similar security to, or solicited any offer to acquire any of the
same from, any Person other than the Owner Participant and the institutions
referred to in the letter referred to in Section 4.12 from Morgan Stanley & Co.
Incorporated. Neither the Lessee nor any Person authorized on its behalf has
directly or indirectly offered or sold any Pass Through Certificates, or
25
<PAGE>
solicited any offer to acquire the same from, any Person other than in a manner
required by the Securities Act. Except in connection with a refunding under
Section 15 and as may be necessary to permit the S-4 registration of the
Exchange Offer, neither the Lessee nor any Person authorized to act on its
behalf has taken or will take any action which would subject the issuance or
sale of any interest in the Trust Estate or the Secured Notes to the provisions
of Section 5 of the Securities Act or require the qualification of the Indenture
under the Trust Indenture Act.
5.7 Title; Filings and Recordings. On the Closing Date, after giving
-----------------------------
effect to the transactions contemplated hereby, (a) good and marketable title in
and to the Undivided Interest will be duly and effectively transferred to the
Owner Trustee, pursuant to the Bill of Sale free and clear of all Liens other
than Permitted Liens (provided that on the Closing Date Permitted Liens of the
type described in clause (e) of the definition thereof shall not exist), (b) the
filings and recordings listed in Schedule 3 will be all the filings and
recordings necessary to establish the Owner Trustee's right, title and interest
in and to the Undivided Interest, and to perfect the perfected mortgage Lien on
and security interest in the Indenture Estate created by the Indenture and the
Ship Mortgage, which mortgage Lien and security interest constitutes a mortgage
Lien and security interest (subject only to Permitted Liens) and all such
filings and recordings will have been duly made or arrangements shall have been
made for the due filing or recording thereof, subject to requirements for filing
continuation statements at appropriate intervals and subject to compliance with
the first sentence of Section 10.10, and (c) no other action will be required to
perfect such mortgage Lien and security interest (other than the taking of
possession by the Indenture Trustee of the original executed counterpart of the
Lease and of any cash proceeds included in the Indenture Estate and compliance
with the first sentence of Section 10.10).
5.8 Chief Place of Business. The chief place of business and chief
-----------------------
executive office of the Lessee is in Fairfax, Virginia and the offices where it
keeps its records concerning the Production System and its accounts and contract
rights are in Fairfax, Virginia. The Lessee's chief executive office in
Virginia is located in Fairfax.
26
<PAGE>
5.9 Litigation. There is no action, suit, investigation or
----------
proceeding pending or, to the Actual Knowledge of the Lessee or MPTM, threatened
against the Lessee or MPTM or affecting either of them or their properties or
rights before any Governmental Authority that questions the validity of any
Operative Document or MPTM Document which, individually or in the aggregate, is
reasonably likely materially and adversely to affect (x) the consummation of the
transactions under this Agreement, the Pass Through Trust Agreements or any
other Operative Document to which it is a party or (y) the business, operations
or properties of the Lessee, its ability to perform its obligations under any of
the Operative Documents to which it is a party, or the continued economic
operation of the Production System. The Lessee is not in default with respect to
any order of any Governmental Authority, where such default would materially and
adversely affect the business, operations or properties of the Lessee, its
ability to perform its obligations under any of the Operative Documents to which
it is a party, or the continued economic operation of the Production System or
would result in the creation or imposition of any Lien (other than a Permitted
Lien) upon the Production System or the Undivided Interest. MPTM is not in
default with respect to any order of any Governmental Authority, where such
default would materially and adversely affect its ability to perform its
obligations under the Agency and Support Agreement, or the continued economic
operation of the Production System or would result in the creation or imposition
of any Lien (other than a Permitted Lien) upon the Production System or the
Undivided Interest.
5.10 No Default. No Lease Default or Lease Event of Default has
----------
occurred and is continuing.
5.11 Event of Loss. No Event of Loss has occurred and, to the
-------------
Actual Knowledge of the Lessee, no event described in clause (c) of the
definition of Event of Loss has occurred.
5.12 Environmental Matters. Except as set forth in Schedule 4, to
---------------------
the Actual Knowledge of the Lessee or MPTM:
(a) the Lessee, MPTM or the Operator has obtained all Environmental
Permits and is in compliance with all Environmental Laws and Environmental
Permits applicable
27
<PAGE>
to the Production System, except where such failure would not in the
aggregate materially adversely affect the Production System or the
business, properties, assets, liabilities operations or condition
(financial or otherwise) of the Guarantor;
(b) there have been no Releases of Hazardous Materials at or from the
Production System which have been required to be reported to any
Governmental Authority pursuant to any applicable Environmental Laws,
except for Releases which would not in the aggregate materially adversely
affect the Production System or the business, properties, assets,
liabilities operations or condition (financial or otherwise) of the
Guarantor; and
(c) Neither MPTM nor the Operator has received any written notice
that such Person is subject to any threatened, pending or outstanding Claim
relating to the Production System with respect to any Environmental Law or
any Remedial Action, which if decided adversely to such Person, would in
the aggregate materially adversely affect the liabilities, operations or
condition (financial or otherwise) of the Guarantor.
5.13 Description of Production System. The description set forth in
--------------------------------
Schedule 1 to the Bill of Sale is a true and accurate description in all
material respects of the Production System.
5.14 Certain Documents. True, correct and complete copies of the
-----------------
Federal Leases, the Operating Agreement and the Unit Agreement (the "MPTM
----
Documents") have been delivered to the Owner Participant. Each of the MPTM
- ---------
Documents is in full force and effect, and no material breach thereof by MPTM
or, to MPTM's or the Lessee's Actual Knowledge, by any other party thereto, has
occurred and is continuing. The Participation Agreement dated as of June 15,
1994 between Enserch and MPTM does not apply to the MPTM Documents, the
Production System or the Operative Documents in any manner that would be adverse
to the interests of the Owner Participant, the Owner Trustee, the Indenture
Trustee or the holder of the Secured Notes.
5.15 Payment of Taxes, etc. All Taxes, fees and other charges
---------------------
payable on or prior to the Closing Date in
28
<PAGE>
connection with the execution, delivery, recordation and filing of all documents
and instruments, including the Operative Documents, and the performance of the
transactions contemplated by the Operative Documents occurring on or prior to
the Closing Date, have been paid in full.
5.16 Disclosure Representation. There is no fact, of which either
-------------------------
MPTM or the Lessee has Actual Knowledge, that has not been disclosed in writing
to each of the Participants that materially and adversely affects the ability of
either MPTM or the Lessee to perform their respective obligations under this
Participation Agreement, the other Operative Documents or the MPTM Documents,
and there is no fact known to the Guarantor that has not been disclosed in
writing to each of the Participants that materially and adversely affects, or
would reasonably be expected to materially and adversely affect, the ability of
the Guarantor to perform its obligations under the Guaranty.
5.17 Investment Company Act. The Lessee is not an "investment
----------------------
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
5.18 No Brokers' Fees. Neither the Lessee nor any Person acting on
----------------
its behalf has taken any actions the effect of which would be to cause the Owner
Trustee, the Indenture Trustee or any Participant to be liable for any brokers',
finders' or agents' fees or commissions or costs of any nature or kind claimed
by or on behalf of brokers, finders or agents in respect of the transactions
contemplated by this Agreement other than fees payable to Morgan Stanley & Co.
Incorporated, all of which fees, commissions or costs are included in
Transaction Expenses or will be paid or indemnified against by the Lessee.
5.19 Federal Reserve Regulations. The Lessee is not engaged
---------------------------
principally in, and does not have as one of its important activities, the
business of extending credit for the purpose of purchasing or carrying any
margin stock (within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System of the United States), and no part of the proceeds of
the Secured Notes will be used by it to purchase or carry any such margin stock
or, to its knowledge,
29
<PAGE>
to extend credit to others for the purpose of purchasing or carrying any such
margin stock or for any purpose that violates, or is inconsistent with, the
provisions of Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System of the United States.
5.20 [Intentionally Omitted].
5.21 Holding Company. The Lessee is not subject to regulation as a
---------------
"holding company," an "affiliate" of a "holding company," or a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
5.22 Not Subject to Governmental Regulation. The Owner Participant
--------------------------------------
will not become, solely by reason of its entering into the Operative Documents
to which it is or is to be a party or the consummation of the transactions
contemplated thereby, subject to regulation by any Governmental Authority.
5.23 Condition of Production System. Neither the Lessee nor MPTM
------------------------------
knows of any event or condition currently existing which presently adversely
affects the operation or maintenance of the Production System or causes MPTM to
believe the capacity of the Production System on the Closing Date is less than
61,000 BOEPD.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN OR IN ANY OTHER OPERATIVE
DOCUMENT, THE LESSEE DOES NOT MAKE NOR SHALL THE LESSEE BE DEEMED TO HAVE MADE,
AND THE LESSEE HEREBY DISCLAIMS, ANY REPRESENTATION OR WARRANTY OTHER THAN THOSE
REFERRED TO IN THIS SECTION, IN ANY OFFICER'S CERTIFICATE OF THE LESSEE OR
EXPRESSLY MADE IN ANY OTHER OPERATIVE DOCUMENT, EITHER EXPRESS OR IMPLIED, AS TO
THE DESIGN OR CONDITION OF THE PRODUCTION SYSTEM OR ANY PART THEREOF, THE
MERCHANTABILITY THEREOF OR THE FITNESS THEREOF FOR ANY PARTICULAR PURPOSE, THE
ABILITY OF THE PRODUCTION SYSTEM TO PERFORM ANY FUNCTION, THE QUALITY OF THE
MATERIALS OR WORKMANSHIP THEREOF OR CONFORMITY THEREOF TO SPECIFICATIONS, OR THE
PRESENCE OR ABSENCE OF ANY LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE;
PROVIDED THAT THE FOREGOING SHALL NOT EXCUSE THE PERFORMANCE BY THE LESSEE OF
ITS OBLIGATIONS UNDER THIS AGREEMENT OR ANY OTHER OPERATIVE DOCUMENT OR THE BILL
OF SALE.
30
<PAGE>
SECTION 6. REPRESENTATIONS AND WARRANTIES OF OWNER PARTICIPANT.
---------------------------------------------------
The Owner Participant represents and warrants to each of the other
parties hereto that:
6.1 Due Organization. The Owner Participant is a corporation duly
----------------
organized, validly existing and in good standing under the laws of the State of
Georgia and has the corporate power and authority to enter into and perform its
obligations under this Agreement and each other Operative Document to which it
is a party.
6.2 Authorization; Execution; Enforceability. The execution,
----------------------------------------
delivery and performance by the Owner Participant of this Agreement and each
other Operative Document to which it is a party and of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action on the part of the Owner Participant and do not and will not
require the consent or approval of any shareholder of the Owner Participant.
This Agreement and each other Operative Document to which the Owner Participant
is a party have been duly authorized, executed and delivered by the Owner
Participant and, assuming the due authorization, execution and delivery hereof
and thereof by the other parties hereto and thereto, are legal, valid and
binding obligations of the Owner Participant, enforceable against the Owner
Participant in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, liquidation, moratorium or similar laws affecting creditors'
rights generally and by the application of general equitable principles which
may limit the availability of certain remedies. Any direction given by the Owner
Participant to the Owner Trustee on the Closing Date pursuant to the Trust
Agreement will have been duly authorized.
6.3 No Violation. The execution and delivery by the Owner
------------
Participant of this Agreement and each other Operative Document to which it is a
party do not and will not, and the performance by the Owner Participant of its
obligations under each thereof do not and will not, (i) violate or be
inconsistent with or in violation of its
31
<PAGE>
charter documents or by-laws, (ii) assuming that the Owner Participant does not
become subject to regulation by any Governmental Authority solely by reason of
the execution, delivery and performance of the Operative Documents and not in
whole or in part as a result of its or any of its Affiliate's business or other
activities other than the activities engaged in solely by reason of the
transactions contemplated under the Operative Documents, contravene any
provision of any Governmental Rule or Governmental Action applicable to it or
require any Governmental Action, provided that no representation or warranty is
made with respect to ERISA (except as set forth in Section 6.7), and (iii)
contravene any provision of, or constitute any default or require any consent
under, any provision of any indenture, mortgage, contract or other instrument to
which the Owner Participant is a party or by which it or any of its property is
bound.
6.4 Owner Participant's Liens. There are no Owner Participant's
-------------------------
Liens on the Trust Estate or the Indenture Estate, or on any part of either
thereof and the execution, delivery and performance by the Owner Participant of
the Operative Documents to which it is a party will not subject the Trust Estate
or the Indenture Estate to any Owner Participant's Liens.
6.5 Acquisition for Investment. The Owner Participant is acquiring
--------------------------
its interest in the Trust Estate for its own account for investment and not with
a view to, or for sale in connection with, any distribution of any such interest
(it being understood that at all times the disposition of its property shall
remain within its control), except that the Owner Participant reserves the right
to transfer or assign any of or all such interest to the extent permitted by the
terms of this Agreement and the Trust Agreement.
6.6 Securities Act. Neither the Owner Participant nor any Person
--------------
authorized by the Owner Participant has directly or indirectly offered or sold
any interest in the Trust Estate or the Secured Notes, or in any similar
security relating to the Undivided Interest, or in any security the offering of
which for the purposes of the Securities Act would be deemed to be part of the
same offering as the offering of the aforementioned securities to, or solicited
any offer to acquire any of the same from, any Person other than, in the
32
<PAGE>
case of the Secured Notes, the Loan Participant, and neither the Owner
Participant nor any Person authorized to act on its behalf have taken or will
take any action which would subject the issuance or sale of any interest in the
Trust Estate or the Secured Notes to the provisions of Section 5 of the
Securities Act or require the qualification of the Indenture under the Trust
Indenture Act except to the extent required under Section 15 hereof or as may be
necessary to permit S-4 registration of the Exchange Offer.
6.7 ERISA. The Owner Participant is not acquiring any part of its
-----
interest in the Trust Estate with any ERISA Plan Assets. No plan as to which
the Owner Participant is a party in interest by virtue of (i) Section 3(14)(C)
of ERISA or (ii) Section 3(14)(E) of ERISA (to the extent it relates to
subsection (C) or (iii) Section 3(14)(G) of ERISA (to the extent it relates to
subsection (C) or (E) (but only to the extent subsection (E) relates to
subsection (C)) (each such plan, an "Employer Plan") is acquiring the Pass
-------------
Through Certificates.
6.8 Investment Company Act. The Owner Participant is not an
----------------------
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
6.9 Litigation. There is no action, suit, investigation or
----------
proceeding pending or, to the Actual Knowledge of the Owner Participant,
threatened against the Owner Participant or its properties before any
Governmental Authority which, individually or in the aggregate, is reasonably
likely materially and adversely to affect the ability of the Owner Participant
to perform its obligations under this Agreement or any other Operative Document
to which it is a party.
6.10 No Default. No Indenture Default or Indenture Event of Default
----------
attributable to the Owner Participant has occurred and is continuing.
6.11 Federal Reserve Regulations. The Owner Participant is not
---------------------------
engaged principally in, and does not have as one of its important activities,
the business of extending credit for the purpose of purchasing or carrying any
margin
33
<PAGE>
stock (within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System of the United States), and no part of the proceeds of the
Secured Notes will be used by it to purchase or carry any such margin stock or,
assuming the accuracy of the representation set forth in Section 5.19, to extend
credit to others for the purpose of purchasing or carrying any such margin stock
or for any purpose that violates, or is inconsistent with, the provisions of
Regulation G, T, U or X of the Board of Governors of the Federal Reserve System
of the United States.
6.12 No Brokers' Fees. Neither the Owner Participant nor any Person
----------------
acting on its behalf has taken any actions the effect of which would be to cause
the Lessee or any Loan Participant to be liable for any brokers', finders' or
agents' fees or commissions or costs of any nature or kind claimed by or on
behalf of brokers, finders or agents in respect of the transactions contemplated
by this Agreement not included in Transaction Expenses.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF EACH PASS THROUGH
---------------------------------------------------
TRUSTEE
-------
First Security Bank of Utah, National Association represents and
warrants in its individual capacity with respect to Sections 7.1, 7.2(a), 7.3,
7.4, 7.5(a), 7.6 and 7.7 and not in its individual capacity, but solely in its
capacity as Pass Through Trustee under each of the Pass Through Trust
Agreements, with respect to Sections 7.2(b) and 7.5(b), to each of the other
parties hereto that:
7.1 Due Organization. First Security Bank of Utah, National
----------------
Association is a national banking association duly organized, validly existing
and in good standing under the laws of the United States of America and has the
corporate power and authority to enter into and perform its obligations under
this Agreement and the Pass Through Trust Agreements.
7.2 Authorization; Execution; Enforceability. (a) This Agreement
----------------------------------------
and the Pass Through Trust Agreements have been duly authorized, executed and
delivered by First Security Bank of Utah, National Association, in its
individual capacity and, assuming the due authorization, execution and delivery
34
<PAGE>
hereof and thereof by the other parties hereto and thereto, are legal, valid and
binding obligations of First Security Bank of Utah, National Association in its
individual capacity (to the extent it is a party hereto or thereto in such
capacity), enforceable against it in accordance with their respective terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, liquidation, receivership, moratorium or similar
laws affecting creditors' rights generally and by the application of general
equitable principles which may limit the availability of certain remedies.
(b) This Agreement, each Pass Through Trust Agreement and the Pass
Through Certificates have been duly authorized, executed and delivered by the
applicable Pass Through Trustee and, assuming the due authorization, execution
and delivery hereof and thereof by the other parties hereto or thereto, are
legal, valid and binding obligations of such Pass Through Trustee, enforceable
against it in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or similar laws affecting
creditors' rights generally and the application of general equitable principles
may limit the availability of certain remedies.
7.3 No Violation. The execution, delivery and performance by First
------------
Security Bank of Utah, National Association of this Agreement and the Pass
Through Trust Agreements, the purchase by any Pass Through Trustee of the
applicable Secured Notes pursuant to this Agreement and the issuance of the Pass
Through Certificates pursuant to the applicable Pass Through Trust Agreement are
not and will not be inconsistent with its constitutional documents or do not and
will not contravene any Governmental Rule of the United States of America or the
State of Utah governing with respect to its banking or trust powers, and will
not contravene any provision of, or constitute a default under, any indenture,
mortgage, contract or other instrument to which First Security Bank of Utah,
National Association, in its individual capacity, is a party, or by which it or
any of its properties are bound, or require any Governmental Action of the
United States of America or the State of Utah governing its banking or trust
powers.
35
<PAGE>
7.4 Litigation. There is no action, suit, investigation or
----------
proceeding pending or, to the Actual Knowledge of First Security Bank of Utah,
National Association, threatened against it, whether in its individual capacity
or as a Pass Through Trustee, before any Governmental Authority governing its
banking or trust powers which, individually or in the aggregate (so far as First
Security Bank of Utah, National Association, now can reasonably foresee), is
reasonably likely materially and adversely to affect the ability of any Pass
Through Trustee (in either such capacity) to perform its obligations under this
Agreement or the applicable Pass Through Trust Agreement (in either such
capacity).
7.5 Pass Through Trustee's Liens. (a) There are no Pass Through
----------------------------
Trustee's Liens attributable to First Security Bank of Utah, National
Association in its individual capacity on the Pass Through Trust Property or on
any part thereof.
(b) There are no Pass Through Trustee's Liens on the Pass Through
Trust Property or any part thereof.
7.6 Securities Act. First Security Bank of Utah, National
--------------
Association has not offered any interest in the Pass Through Certificates or any
Secured Note or any similar securities for sale to, or solicited any offer to
acquire the same from, anyone, other than the Owner Trustee, and no responsible
officer or responsible employee of First Security Bank of Utah, National
Association has knowledge of any such offer or solicitation, except as set forth
in the Operative Documents and the Pass Through Trust Agreements.
7.7 No Taxes Payable. Except for Taxes based upon the income of any
----------------
Person, there are no Taxes payable in the state in which the principal place of
business of any Pass Through Trustee is located in connection with the
execution, delivery, consummation or recordation of this Agreement and the other
Operative Documents, upon or with respect to the Trust Estate or the Indenture
Estate, or in connection with the consummation of the transactions contemplated
hereby and by the other Operative Documents (including, without limitation, the
filing of financing statements with respect thereto or the sale or transfer of
the Undivided Interest).
36
<PAGE>
SECTION 8. REPRESENTATIONS AND WARRANTIES OF TRUST COMPANY AND THE
-------------------------------------------------------
CORPORATE OWNER TRUSTEE.
-----------------------
The Trust Company represents and warrants with respect to Sections
8.1, 8.2 (other than clause (b)(ii) thereof), 8.3, 8.4(a), 8.5, 8.6 (as
specified therein), 8.7 (as specified therein), 8.8, 8.9 and 8.10, and in its
capacity as Corporate Owner Trustee represents and warrants with respect to
Sections 8.2(b)(ii), 8.4(b), 8.6 (as specified therein), 8.7 (as specified
therein) and 8.11, to each of the other parties hereto that:
8.1 Due Organization. The Trust Company is a national banking
----------------
association duly organized, validly existing and in good standing under the laws
of the United States of America and has the corporate power and authority to
enter into and perform its obligations under the Trust Agreement, this Agreement
and each other Operative Document to which it is a party and assuming due
authorization, execution and delivery by the Owner Participant of the Trust
Agreement and upon due direction by the Owner Participant pursuant thereto, will
have the power and authority to enter into and perform its obligations as
Corporate Owner Trustee under the Trust Agreement, this Agreement and each other
Operative Document to which Corporate Owner Trustee is a party.
8.2 Authorization; Execution; Enforceability. (a) This Agreement,
----------------------------------------
the Trust Agreement and each other Operative Document to which the Trust Company
or Michael M. Hopkins is a party have been duly authorized, executed and
delivered by the Trust Company and Michael M. Hopkins, respectively, and,
assuming due authorization, execution and delivery by the other parties hereto
and thereto, are legal, valid and binding obligations of the Trust Company and
Michael M. Hopkins, respectively, enforceable against it or him in accordance
with their respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, liquidation, moratorium or
similar laws affecting creditors' rights generally and by the application of
general equitable principles which may limit the availability of certain
remedies.
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(b) This Agreement and each other Operative Document to which the
Owner Trustee is a party (i) have been (assuming due authorization, execution
and delivery by the Owner Participant of the Trust Agreement and upon due
direction by the Owner Participant pursuant thereto), in the case of the
Corporate Owner Trustee, duly authorized, executed and delivered by one of its
officers who is duly authorized to execute and deliver such Operative Document
on behalf of the Corporate Owner Trustee and, in the case of the Individual
Owner Trustee, duly executed by Michael M. Hopkins, and (ii) assuming due
authorization, execution and delivery by the other parties hereto and thereto,
are legal, valid and binding obligations of the Owner Trustee enforceable
against the Owner Trustee in accordance with their respective terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, liquidation, moratorium or similar laws affecting creditors'
rights generally and the application of general equitable principles may limit
the availability of certain remedies. Upon execution of the Secured Notes by the
Owner Trustee, authentication thereof by the Indenture Trustee and delivery
thereof against payment or the giving of consideration therefor in accordance
with the Indenture and this Agreement, the Secured Notes will be legal, valid
and binding obligations of the Owner Trustee enforceable against the Owner
Trustee in accordance with their respective terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
liquidation, moratorium or similar laws affecting creditors' rights generally
and the application of general equitable principles may limit the availability
of certain remedies.
8.3 No Violation. (a) The execution and delivery by the Trust
------------
Company of the Trust Agreement and, to the extent it is a party hereto or
thereto in its individual capacity, this Agreement and each other Operative
Document, are not or will not be, and the performance by the Trust Company of
its obligations under each will not be, inconsistent with the charter documents
or by-laws of the Trust Company, do not and will not contravene any United
States federal or Connecticut Governmental Rule governing its banking or trust
powers relating to or affecting its capacity to act as contemplated by the Trust
Agreement or the other Operative Documents to which it is a party and do not and
will not contravene any provision of, or constitute a default under, any
indenture,
38
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mortgage, contract or other instrument to which the Trust Company is a party or
by which it or any of its property is bound, or require any United States
federal or Connecticut Governmental Action relating to or affecting its capacity
to act as contemplated by the Trust Agreement or the other Operative Documents
to which it is a party. The execution and delivery by Michael M. Hopkins of the
Trust Agreement and, to the extent he is a party hereto or thereto in his
individual capacity, this Agreement and each other Operative Document, and the
performance by Michael M. Hopkins of his obligations under each do not and will
not, contravene any United States federal or Connecticut Governmental Rule
governing his banking or trust powers relating to or affecting his capacity to
act as contemplated by the Trust Agreement or the other Operative Documents to
which he is a party and do not and will not contravene any provision of, or
constitute a default under, any indenture, mortgage, contract or other
instrument to which he is a party or by which he or any of his property is
bound, or require any United States federal or Connecticut Governmental Action
relating to or affecting his capacity to act as contemplated by the Trust
Agreement or the other Operative Documents to which he is a party.
(b) The execution and delivery by the Owner Trustee of each Operative
Document to which the Owner Trustee is a party are not, and the performance by
the Owner Trustee of the Owner Trustee's obligations under each will not be,
inconsistent with the charter documents or by-laws of the Trust Company, do not
and will not contravene any United States federal or Connecticut Governmental
Rule regulating the Owner Trustee's banking or trust powers relating to or
affecting the Owner Trustee's capacity to act as contemplated by the Trust
Agreement or the Owner Trustee Documents and do not and will not contravene any
provision of, or constitute a default under, any indenture, mortgage, contract
or other instrument to which the Owner Trustee is a party or by which the Owner
Trustee or the Owner Trustee's property is bound or require any United States
federal or Connecticut Government Action relating to or affecting the Owner
Trustee's capacity to act as contemplated by the Trust Agreement or the Owner
Trustee Documents.
39
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8.4 No Default. (a) No Indenture Default or Indenture Event of
----------
Default attributable to the Trust Company or Michael M. Hopkins has occurred and
is continuing.
(b) No Indenture Default or Indenture Event of Default attributable
to the Owner Trustee has occurred and is continuing.
8.5 Litigation. (a) There is no action, suit, investigation or
----------
proceeding pending or, to the Actual Knowledge of the Trust Company, threatened
against the Trust Company or Michael M. Hopkins before any Governmental
Authority which, individually or in the aggregate (so far as the Trust Company
now can reasonably foresee), is reasonably likely materially and adversely to
affect the ability of the Trust Company or Michael M. Hopkins to perform its or
his obligations under this Agreement or any other Operative Document to which it
or he is a party.
(b) There is no action, suit, investigation or proceeding pending or,
to the Actual Knowledge of the Trust Company, threatened against the Owner
Trustee before any Governmental Authority which, individually or in the
aggregate (so far as the Trust Company now can reasonably foresee), is
reasonably likely materially and adversely to affect the ability of the Owner
Trustee to perform the Owner Trustee's obligations under this Agreement or any
other Operative Document to which the Owner Trustee is a party.
8.6 Lessor's Liens. There are no Lessor's Liens attributable to the
--------------
Owner Trustee, Michael M. Hopkins or the Trust Company on the Trust Estate or
the Indenture Estate, or on any part of either thereof and the execution,
delivery and performance by any of the Owner Trustee, the Trust Company or
Michael M. Hopkins of the Operative Documents to which any of them is a party
will not subject the Trust Estate or the Indenture Estate to any such Lessor's
Liens.
8.7 Securities Act. None of the Trust Company, Michael M. Hopkins,
--------------
the Owner Trustee or any Person authorized by any of the Trust Company, Michael
M. Hopkins or the Owner Trustee to act on its or his behalf, has directly or
indirectly offered or sold any interest in the Trust Estate or the Secured
Notes, or in any similar security relating to the
40
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Undivided Interest, or in any security the offering of which for the purposes of
the Securities Act would be deemed to be part of the same offering as the
offering of the aforementioned securities to, or solicited any offer to acquire
any of the same from, any Person, other than, in the case of the Secured Notes,
the Loan Participants, and none of the Trust Company, Michael M. Hopkins, the
Owner Trustee or any Person authorized by either of the Trust Company, Michael
M. Hopkins or the Owner Trustee to act on its or his behalf will take any action
which would subject the issuance or sale of any interest in the Trust Estate or
the Secured Notes to the provisions of Section 5 of the Securities Act or
require the qualification of the Indenture under the Trust Indenture Act except
to the extent required under Section 15 or as may be necessary to permit S-4
registration of the Exchange Offer, it being understood that no Person has been
authorized to act on behalf of the Owner Trustee, Michael M. Hopkins or the
Trust Company in connection with the issuance and sale of the Pass Through
Certificates.
8.8 Chief Place of Business. The Trust Company's chief place of
-----------------------
business, chief executive office and office where the documents, accounts and
records relating to the transactions contemplated by this Agreement and each
other Operative Document are kept are located in Hartford, Connecticut.
8.9 No Taxes Payable. Except for Taxes based upon the income of any
----------------
Person, there are no Taxes payable in the state in which the principal place of
business of the Trust Company, or the Owner Trustee, as the case may be, is
located in connection with the execution, delivery, consummation or recordation
of this Agreement and the other Operative Documents, upon or with respect to the
Trust Estate or the Indenture Estate, or in connection with the consummation of
the transactions contemplated hereby and by the other Operative Documents
(including, without limitation, the filing of financing statements with respect
thereto or the sale or transfer of the Undivided Interest, solely because the
Trust Company has its principal place of business in the State of Connecticut).
41
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8.10 Title. On the Closing Date, the Owner Trustee shall have
-----
received whatever title in and to the Undivided Interest as was conveyed to it
by the Lessee.
8.11 Federal Reserve Regulations. The Owner Trustee is not engaged
---------------------------
principally in, and does not have as one of its important activities, the
business of extending credit for the purpose of purchasing or carrying any
margin stock (within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System of the United States), and no part of the proceeds of
the Secured Notes will be used by it or him to purchase or carry any such margin
stock or, assuming the accuracy of the representation set forth in Section 5.19,
to extend credit to others for the purpose of purchasing or carrying any such
margin stock or for any purpose that violates, or is inconsistent with, the
provisions of Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System of the United States.
SECTION 9. REPRESENTATIONS AND WARRANTIES OF THE CORPORATE INDENTURE
---------------------------------------------------------
TRUSTEE.
-------
First Security Bank of Utah, National Association represents and
warrants in its individual capacity with respect to Sections 9.1, 9.2(a), 9.3,
9.4, 9.5(a) and 9.6, and not in its individual capacity, but solely in its
capacity as Corporate Indenture Trustee with respect to Sections 9.2(b) and
9.5(b), to each of the other parties hereto that:
9.1 Due Organization. First Security Bank of Utah, National
----------------
Association is a national banking association duly organized, validly existing
and in good standing under the laws of the United States of America and has the
corporate power and authority to enter into and perform its obligations under
this Agreement and each other Operative Document to which it is a party.
9.2 Authorization; Execution; Enforceability. (a) This Agreement
----------------------------------------
and each other Operative Document to which First Security Bank of Utah, National
Association, or Val T. Orton, in its or his individual capacity is a party have
been, duly authorized, executed and delivered by First Security Bank of Utah,
National Association and Val T. Orton, respectively,
42
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each in its individual capacity and, assuming the due authorization, execution
and delivery hereof and thereof by the other parties hereto and thereto, are
legal, valid and binding obligations of the Indenture Trustee in its or his
individual capacity, as the case may be, (to the extent it or he is a party
hereto or thereto in such capacity), enforceable against it or him in accordance
with their respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, liquidation, receivership,
moratorium or similar laws affecting creditors' rights generally and the
application of general equitable principles may limit the availability of
certain remedies. Assuming due authorization, execution and delivery thereof by
the Owner Trustee, each Secured Note issued on the Closing Date pursuant to the
terms of this Agreement and the Indenture on the Closing Date will have been
duly authenticated.
(b) This Agreement and each other Operative Document to which the
Indenture Trustee is a party have been duly authorized, executed and delivered
by the Indenture Trustee and, assuming the due authorization, execution and
delivery hereof and thereof by the other parties hereto or thereto, are legal,
valid and binding obligations of the Indenture Trustee, enforceable against the
Indenture Trustee in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or similar laws affecting
creditors' rights generally and the application of general equitable principles
may limit the availability of certain remedies.
9.3 No Violation. The execution and delivery by First Security Bank
------------
of Utah, National Association of this Agreement and each other Operative
Document to which it is a party are not and will not be, and the performance by
it of its obligations under each will not be, inconsistent with its charter
documents or do not and will not contravene any Governmental Rule of the United
States of America or Utah governing with respect to its banking or trust powers,
and will not contravene any provision of, or constitute a default under, any
indenture, mortgage, contract or other instrument to which First Security Bank
of Utah, National Association, in its individual capacity, is a party, or by
which it or any of its properties are bound, or require any Governmental Action
43
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of the United States of America or Utah governing its banking or trust powers.
The execution and delivery by Val T. Orton of this Agreement and each other
Operative Document to which he is a party do not and will not contravene any
Governmental Rule of the United States of America or Utah governing with respect
to his banking or trust powers, and will not contravene any provision of, or
constitute a default under, any indenture, mortgage, contract or other
instrument to which Val T. Orton, in his individual capacity, is a party, or by
which he or any of his properties are bound, or require any Governmental Action
of the United States of America or Utah governing his banking or trust powers.
9.4 Litigation. There is no action, suit, inves tigation or
----------
proceeding pending or, to the Actual Knowledge of the Indenture Trustee,
threatened against the Indenture Trustee, whether in its or his individual
capacity or as Corporate Indenture Trustee or Individual Indenture Trustee, as
the case may be, before any Governmental Authority governing its banking or
trust powers which, individually or in the aggregate (so far as the Indenture
Trustee now can reasonably foresee), is reasonably likely materially and
adversely to affect the ability of the Indenture Trustee (in either such
capacity) to perform the Indenture Trustee's obligations under this Agreement or
any other Operative Document to which the Indenture Trustee is a party (in
either such capacity).
9.5 Indenture Trustee's Liens. (a) There are no Indenture Trustee's
-------------------------
Liens attributable to First Security Bank of Utah, National Association or Val
T. Orton in its or his individual capacity on the Indenture Estate or on any
part thereof.
(b) There are no Indenture Trustee's Liens on the Indenture Estate or
any part thereof.
9.6 No Taxes Payable. Except for Taxes based upon the income of any
----------------
Person, there are no Taxes payable in the state in which the principal place of
business of the Indenture Trustee is located in connection with the execution,
delivery, consummation or recordation of this Agreement and the other Operative
Documents, upon or with respect to the Trust Estate or the Indenture Estate, or
in connection with
44
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the consummation of the transactions contemplated hereby and by the other
Operative Documents (including, without limitation, the filing of financing
statements with respect thereto or the sale or transfer of the Undivided
Interest).
SECTION 10. LESSEE COVENANTS.
----------------
The Lessee covenants and agrees that:
10.1 Officer's Certificate. The Lessee will deliver to the Owner
---------------------
Participant, the Owner Trustee and the Indenture Trustee on or before November 1
of each year during the Lease Term commencing in 1996, an Officer's Certificate
of the Lessee to the effect that the signer is familiar with or has reviewed the
relevant terms of the Lease and the other Operative Documents to which the
Lessee is a party and the signer does not have knowledge of the existence, as of
the date of such certificate, of any condition or event which constitutes a
Lease Default, Lease Event of Default, an Event of Loss or an event described in
clause (c) of the definition of Event of Loss, or if any such condition or event
exists, specifying the nature thereof, the period of existence thereof and what
action the Lessee has taken or proposes to take with respect thereto.
10.2 Requested Information. With reasonable promptness, the Lessee
---------------------
will deliver to the Owner Participant, the Owner Trustee and the Indenture
Trustee such data and information as to the Production System, the Undivided
Interest and the financial condition of the Lessee as from time to time may be
reasonably available to the Lessee and reasonably requested by any of such
parties.
10.3 Maintenance of Corporate Existence, Etc. Subject to the
---------------------------------------
provisions of Section 10.4, the Lessee shall at all times maintain its corporate
existence and preserve and keep in full force and effect its rights and
franchises, the loss of which, individually or in the aggregate, would have a
material adverse effect on the financial condition of the Lessee or its ability
to comply with its obligations under the Operative Documents.
45
<PAGE>
10.4 Merger, Consolidation, Sale, Etc. So long as any of the
Secured Notes remain Outstanding or any amounts with respect thereto remain due
and owing by the Lessee to the Loan Participant under any Operative Document
remain unpaid and so long as the Lease Term shall not have expired or been
terminated, the Lessee shall not consolidate with or merge with or into any
other corporation or sell, assign, convey, transfer, lease or otherwise dispose
of all or substantially all of its assets as an entirety to any Person, unless:
(i) the corporation formed by such consolidation or into which the
Lessee is merged or the Person which acquires by conveyance, transfer or
lease all or substantially all of the assets of the Lessee as an entirety
shall be a corporation organized and existing under the laws of the United
States of America or any State thereof or the District of Columbia, and
shall execute and deliver to the Owner Trustee, the Owner Participant, the
Indenture Trustee and the Loan Participant an agreement (in form and
substance reasonably satisfactory to each thereof) containing the
assumption by such successor corporation of the due and punctual
performance and observance of each covenant and condition of this
Agreement, the Lease, the Indenture, the Tax Indemnity Agreement and each
other Operative Document to which the Lessee is a party to be performed,
complied with or observed by the Lessee;
(ii) immediately after giving effect to such transaction, no Lease
Event of Default shall have occurred and be continuing;
(iii) the Lessee shall have delivered to each of the Owner Trustee,
the Owner Participant and the Indenture Trustee an Officer's Certificate of
the Lessee, and an opinion of counsel to the Lessee (which may be the
Guarantor's internal counsel), each stating that such consolidation,
merger, conveyance, transfer or lease and the assumption agreement
mentioned in clause (i) above comply with this Section 10.4 and that all
conditions precedent herein provided for relating to such transaction have
been satisfied (except that such opinion need not cover the matters
referred to in clause (ii) above and may rely, as to factual matters, on an
46
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Officer's Certificate of the Lessee) and, in the case of such opinion, that
(x) such assumption agreement has been duly authorized, executed and
delivered by such successor corporation and is enforceable against such
successor corporation in accordance with its terms, except as the same may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the rights of creditors generally and by general
principles of equity and (y) all filings or recordations necessary to
protect the interests of the Owner Trustee, Indenture Trustee and the Owner
Participant in and to the Production System have been made; and
(iv) after giving effect to any consolidation, merger, conveyance,
transfer or lease of all or substantially all of the assets of the Lessee
as an entirety in accordance with this Section 10.4, the Guaranty shall
remain in full force and effect and shall constitute a full and
unconditional guaranty by the Guarantor of the successor corporation's
obligations under the Operative Documents to which it is a party to the
same extent as the Lessee's obligations under such documents prior to
giving effect to any such consolidation, merger, conveyance, transfer or
lease of substantially all of the assets of the Lessee.
Upon any consolidation or merger, or any conveyance, transfer or lease of all or
substantially all of the assets of the Lessee as an entirety in accordance with
this Section 10.4, the successor corporation formed by such consolidation or
into which the Lessee is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Lessee under this Agreement and the other Operative Documents
to which the Lessee is a party with the same effect as if such successor
corporation had been named as the Lessee herein and therein. No such
consolidation, merger, conveyance, transfer or lease of all or substantially all
of the assets of the Lessee as an entirety shall have the effect of releasing
the Lessee or any successor corporation which shall theretofore have become such
in the manner prescribed in this Section 10.4 from its liability hereunder or
under any other Operative Document. Nothing contained herein shall permit any
lease, sublease or other arrangement with respect to the Undivided
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<PAGE>
Interest except in compliance with the applicable provisions of the Lease.
10.5 Change in Name or Chief Place of Business. The Lessee shall
-----------------------------------------
give notice to the Owner Trustee, the Owner Participant and the Indenture
Trustee promptly after any change in its name or chief place of business or
chief executive office.
10.6 Further Assurances. The Lessee, at its own cost and expense,
------------------
will cause to be promptly and duly taken, executed, acknowledged and delivered
all such further acts, documents and assurances as the Owner Trustee, the Owner
Participant, the Loan Participant or the Indenture Trustee reasonably may
request from time to time in order to carry out more effectively the intent and
purposes of this Agreement, the other Operative Documents and the transactions
contemplated hereby and thereby. The Lessee, at its own cost and expense, will
cause the Indenture and the Lease, any supplements or amendments thereto and
restatements thereof and all financing statements, fixture filings and other
documents, to be recorded or filed at such places and times and in such manner,
and will take all such other actions or cause such actions to be taken, as may
be necessary or as may be reasonably requested (x) by the Owner Trustee, the
Owner Participant or the Indenture Trustee in order to establish, preserve and
protect the interest of the Owner Trustee in and to the Undivided Interest and
the Owner Trustee's rights under this Agreement and the other Operative
Documents and (y) so long as any Secured Notes are Outstanding, by the Indenture
Trustee, the Loan Participant or (unless the Indenture Trustee objects thereto)
the Owner Trustee in order to establish, preserve, protect and perfect the
mortgage and security interest of the Indenture Trustee in the Indenture Estate
granted or intended to be created under the Indenture and the Ship Mortgage and
the Indenture Trustee's rights under this Agreement and the other Operative
Documents, subject only to Permitted Liens.
10.7 Inspection. (a) The Lessee shall permit the Indenture Trustee,
----------
the Owner Participant and the Owner Trustee (and any authorized representatives
of any thereof), at such Person's risk (including, without limitation, as to
personal injury and death) and, unless there is a Lease Event of
48
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Default under Section 15(a), (c) (based on default under Section 11.1 or 11.3 of
the Lease), (g) or (h) of the Lease, expense, including, without limitation, the
cost and expense for such Person's transportation to and from the Production
System by the helicopter (whether the Lessee's, the Operator's or any other
Person's helicopter), and under conditions reasonably acceptable to the Lessee
and subject to Section 11.5 hereof, to visit and inspect the Production System,
and Lessee will make available the books and records of the Lessee related
thereto, and make copies and extracts therefrom, and have access to officers and
the independent public accountants of the Lessee and will use reasonable efforts
to make available the books and records of the Operator and the officers and
independent public accountants of the Operator, all upon reasonable notice and
at such reasonable times during normal business hours and as may be reasonably
requested; provided, however, that (A) unless there is an existing Lease Event
-------- -------
of Default, the Indenture Trustee, the Owner Participant and the Owner Trustee
may not make more than one (1) such inspection in any calendar year without the
Lessee's prior written consent and (B) so long as the Operating Agreement is in
effect, such inspection rights must be exercised subject to the provisions of
the Operating Agreement and under the supervision of the Operator, provided
--------
further that the Lessee shall be liable for any losses caused by the gross
- -------
negligence or willful misconduct of the Lessee or the Operator in connection
with any inspection pursuant to this Section 10.7.
(b) No Person entitled to make any inspection or inquiry referred to
in this Section 10.7 shall have any duty to make such inspection or inquiry, or
shall incur any liability or obligation by reason of not making any such
inspection or inquiry.
10.8 Limitation on Acquisition of Secured Notes or Pass Through
----------------------------------------------------------
Certificates; Pass Through Trust Agreements. The Lessee will not, and will not
- -------------------------------------------
permit any of its Affiliates to, acquire directly or through a nominee or agent
by purchase or otherwise any interest in any Secured Notes (other than any
interest in any Secured Notes acquired by the Lessee (or its Affiliates) through
its (or any of its Affiliates') ownership of any Pass Through Certificates) (a)
prior to December 12, 1997, (b) if the result of such acquisition would be to
prevent the Owner Participant from accounting for the Lease as
49
<PAGE>
a leveraged lease in accordance with FASB 13 or (c) if the aggregate principal
amount of all Pass Through Certificates held by or for the account of the Lessee
immediately after such acquisition would exceed 25 percent of the outstanding
principal amount of Secured Notes immediately prior to such acquisition.
10.9 Operating Agreement. (a) Unless the Owner Participant and the
-------------------
Indenture Trustee shall otherwise consent, the Lessee shall cause MPTM not to
accept or approve any amendment to the Operating Agreement, the effect of which
would be to adversely affect the interests of the Owner Trustee, the Indenture
Trustee or the Owner Participant in the Production System or the Undivided
Interest or under the Operative Documents.
(b) The Lessee may (i) at any time terminate (or allow to be
terminated) the Operating Agreement and (ii) enter into (or allow to be entered
into) a new operating agreement with respect to the Production System provided:
(1) if such new operating agreement is with Enserch as the operator and does not
involve any bona fide substantive negotiation with additional parties that are
not Affiliates of either the Lessee, the Guarantor, MPTM or Enserch, the
provisions of such operating agreement shall not adversely affect the interests
of the Owner Participant and the Indenture Trustee; and (2) in all other cases,
the provisions of such operating agreement shall not (A) be less favorable in
any material respect (including income taxes) to the interests of the Owner
Participant, the Owner Trustee or the Indenture Trustee than the Operating
Agreement in effect on the Closing Date, (B) reduce the revenue to which the
Owner Trustee would be contractually entitled under the provisions of such
operating agreement upon the expiration or termination of the Lease and the
effectiveness of the Agency and Support Agreement except to a de minimis extent
or (C) increase the monetary obligations to which the Owner Trustee would be
contractually subject under the provisions of such operating agreement upon the
expiration or termination of the Lease and the effectiveness of the Agency and
Support Agreement, except to a de minimis extent.
10.10 Documentation of Platform. The Lessee agrees that, at or
-------------------------
before the time of delivery of the Platform to the
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Owner Trustee on the Closing Date, the Lessee shall cause the Platform to be
documented, on a provisional basis, in the name of the Owner Trustee at the
Lessee's expense under the laws and the flag of the Republic of Panama and
shall, at the Lessee's expense, cause the Platform to be documented on a
permanent basis in the name of the Owner Trustee promptly, but in no event later
than six months, after the Closing Date. The Lessee shall throughout the Lease
Term maintain the documentation of the Platform in the Republic of Panama (or in
any other jurisdiction selected by the Lessee provided such other jurisdiction
provides substantially equivalent protection for the rights of owner
participants, lessors, lenders for similar transactions as the law of the
Republic of Panama), and shall not do or suffer or permit to be done anything
which would prevent the maintenance of the documentation of the Platform under
the laws and the flag of the Republic of Panama (or such other jurisdiction) or
which would constitute or result in a violation of any applicable law or
regulation of the Republic of Panama (or such other jurisdiction) non-compliance
with which could create any material risk of or danger of the sale, forfeiture
or loss of any material part of or interest in the Platform.
10.11 Notice of Certain Events. Promptly after the Lessee has Actual
------------------------
Knowledge that any Lease Default has occurred and has continued for thirty days,
or any Lease Event of Default, Event of Loss or event described in clause (c) of
the definition of Event of Loss has occurred, the Lessee shall deliver to the
Indenture Trustee and the Owner Participant a notice of such Lease Default,
Lease Event of Default, Event of Loss or event described in clause (c) of the
definition of Event of Loss which with the giving of notice or lapse of time
would become an Event of Loss describing the same in reasonable detail and,
together with such notice or as soon thereafter as possible, a description of
the action that the Owner Participant has taken, is taking and proposes to take
with respect thereto.
10.12 Environmental Notices. The Lessee shall, promptly after the
---------------------
Lessee's receipt thereof, provide the Owner Participant and the Owner Trustee
with copies of all written communications from any Person (a) asserting any
violation of or noncompliance with Environmental Laws or any Release, discharge
or emission of Hazardous Materials into the
51
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environment at or from the Production System, or (b) relating to any
Environmental Claim against the Lessee, MPTM, the Operator or the Production
System that is pending or has been threatened in writing, in each case which is
reasonably likely to materially adversely effect the Production System or the
business, properties, assets, liabilities, operations or condition (financial or
otherwise) of the Guarantor.
SECTION 11. OTHER COVENANTS AND AGREEMENTS.
------------------------------
11.1 Agreements of Owner Participant. The Owner Participant
-------------------------------
covenants and agrees that:
(a) Discharge of Liens. The Owner Participant will not create or
------------------
permit to exist at any time, and will, at its own cost and expense,
promptly take such action as may be necessary duly to discharge, or to
cause to be discharged, (i) all Owner Participant's Liens and (ii) all
Lessor's Liens resulting from any act or failure to act by the Owner
Trustee at the express direction of, or with express authorization from,
the Owner Participant on all or any part of the Undivided Interest, the
Trust Estate, the Indenture Estate, or title thereto or any interest
therein; provided, however, that the Owner Participant shall not be
-------- -------
required to remove any such Owner Participant's Lien or Lessor's Lien
(other than any such Lien affirmatively imposed by the Owner Participant)
for so long as the same is being diligently contested in good faith by
appropriate proceedings so long as such proceedings do not involve any
material danger of (1) the sale, forfeiture or loss of any part of any the
Production System, the Trust Estate or the Indenture Estate, or title
thereto or any interest therein, (2) the interference with the use or
disposition of any of the foregoing or any part thereof, or title thereto
or any interest therein, or (3) interference with the payment of Rent. The
Owner Participant shall indemnify, protect, defend, save and keep harmless
the Lessee, the Loan Participant, and the Indenture Trustee from and
against any and all Claims that may be imposed on, incurred by or asserted
against such Person or the Undivided Interest arising out of any such Owner
Participant's Liens or any
52
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Lessor's Liens described in clause (ii) of the preceding sentence.
(b) Prepayment. Unless the Lease shall have been declared in default
----------
pursuant to Section 16.1 thereof, the Owner Participant will not, and will
not cause or permit the Owner Trustee to, directly or indirectly prepay,
redeem, refund, refinance or acquire any Secured Note, or give a notice of
redemption with respect thereto, without the prior written consent of the
Lessee, other than in the event of a redemption or purchase of Secured
Notes by the Owner Trustee or the Owner Participant pursuant to Section
3.06 of the Indenture or as provided in Section 15. This Section 11.1(b)
shall not be deemed to permit prepayment of Secured Notes except as
permitted by the Indenture. If (i) the Lessee shall have irrevocably
elected (A) to purchase the Undivided Interest pursuant to the Lease or (B)
to terminate the Lease with respect to the Undivided Interest or a
Significant Portion thereof pursuant to Section 7 of the Lease, and the
Lessee shall not have elected to assume the Secured Notes pursuant to
Section 11.6 or to purchase the Beneficial Interest pursuant to Section 16,
or (ii) an Event of Loss with respect to the Production System or a
Significant Portion thereof shall have occurred, then the Owner Participant
agrees, upon request of the Lessee specifying the relevant information, to
instruct the Owner Trustee to give an irrevocable notice of redemption
pursuant to Section 3.10 of the Indenture with respect to the Secured Notes
to be redeemed in connection with such purchase, termination or Event of
Loss, which notice shall specify the date for and amount of such redemption
pursuant to, and shall be given in accordance with, the terms of the
Indenture. The date so specified by the Lessee shall govern any
inconsistent date set forth in the Operative Documents for performance by
the Lessee of its obligations in respect of such purchase, termination or
Event of Loss.
(c) Cooperation with Lessee. The Owner Participant shall, to the
-----------------------
extent reasonably so requested by the Lessee, cooperate with the Lessee, at
the Lessee's expense, to enable the Lessee to make the filings and
recordings listed in Schedule 3, including, without
53
<PAGE>
limitation, at any time and from time to time, upon the request of the
Lessee promptly and duly executing and delivering, any and all such further
instruments and documents as the Lessee may reasonably request in order to
perform such covenants and to make such filings and recordings.
(d) Successor Owner Trustee. Unless the Lease shall have been
-----------------------
declared in default pursuant to Section 16.1 thereof, the Owner Participant
shall not appoint or cause or allow to be appointed a successor to any
Owner Trustee under the Trust Agreement without obtaining the prior written
consent of the Lessee which consent shall not unreasonably be withheld. The
Owner Participant shall (at the Lessee's expense) cause any such successor
trustee, simultaneously with its assumption of duties in such capacity, to
take all actions as may be reasonably requested by the Indenture Trustee,
the Loan Participant or the Lessee (including, without limitation, the
filing of financing statements) in order to establish, preserve, protect
and perfect the title of such successor trustee in and to the Undivided
Interest and its rights under this Agreement and the other Operative
Documents and, so long as any Secured Notes are Outstanding, the mortgage
and security interest of the Indenture Trustee in the Indenture Estate
granted or intended to be created under the Indenture and the Ship Mortgage
and the Indenture Trustee's rights under this Agreement and the other
Operative Documents, subject only to Permitted Liens.
(e) Performance of Obligations. The Owner Participant will perform
--------------------------
and comply with all obligations imposed on the Owner Participant pursuant
to Section 4.4(c) of the Lease and Section 5.01(h) of the Indenture in
accordance with the terms and conditions of each thereof. In addition, the
Owner Participant agrees to pay, or cause the Lessor to pay, all fees and
expenses that are for the account of the Lessor in connection with an
Appraisal Procedure.
(f) Instructions to Owner Trustee. The Owner Participant will not
-----------------------------
instruct or otherwise direct the Owner Trustee to take, or omit to take,
any action in violation of the express covenants and agreements of the
54
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Owner Trustee in any Operative Document. The Owner Participant will not
unreasonably withhold its consent to or authorization of any consent
requested of the Owner Trustee under the terms of any Operative Document
which by its express terms is not to be unreasonably withheld by the Owner
Trustee.
(g) Termination of Trust Agreement. The Owner Participant will not
------------------------------
terminate or revoke, or consent to the termination or revocation of, the
Trust Agreement prior to the release of the Lien of the Indenture on the
Indenture Estate or, except in connection with the exercise of remedies by
the Lessor following a declaration by the Lessor pursuant to Section 16.1
of the Lease that the Lease is in default, prior to the expiration or
earlier termination of the Lease pursuant to its terms. The Owner
Participant will not, prior to the release of the Lien of the Indenture on
the Indenture Estate, amend or modify the Trust Agreement in any manner
that would materially adversely affect the Indenture Estate or limit in any
material manner the rights of the Indenture Trustee set forth therein.
(h) Election to Retain Title. If the Owner Trustee shall elect to
------------------------
retain title to the Undivided Interest pursuant to Section 7.4 of the
Lease, the Owner Participant will cause the Owner Trustee to perform its
obligations under Section 7.4 in accordance with the terms thereof.
(i) Interim Interest Payment. The Owner Participant hereby
------------------------
unconditionally agrees with the Lessee, and only with the Lessee (and not
with any other party to this Agreement), that it will pay or cause to be
paid to the Indenture Trustee $322,902 on or before the Basic Lease Term
Commencement Date (such payment being referred to as the "Interim Interest
----------------
Payment" and such date being referred to as the "Interim Interest Payment
------- ------------------------
Date"). The Owner Participant and the Owner Trustee hereby direct the
----
Indenture Trustee and the Indenture Trustee hereby agrees, to apply the
Interim Interest Payment to the payment of principal and interest on the
Secured Notes, as appropriate, which may be due and payable pursuant to the
provisions of the Indenture on
55
<PAGE>
the Interim Interest Payment Date. The Owner Participant agrees to make the
Interim Interest Payment in immediately available funds on or before 11:00
a.m., New York City time, on the Interim Interest Payment Date to the
Indenture Trustee in the manner provided in Section 3.3 of the Lease. The
Owner Participant agrees to give the Lessee notice by 11:00 a.m., New York
City time, on the Interim Interest Payment Date if it has failed to make
the Interim Interest Payment due on such date. In the event the Owner
Participant fails to make such payment and Lessee makes a payment of
Advance Amount pursuant to Section 3.2(b) of the Lease, the Lessee may
obtain reimbursement in the manner provided in Section 3.7 of the Lease
and, without duplication of the foregoing, shall have such remedies as may
be available to it against the Owner Participant at law or in equity in
respect of any such Advance Amount.
(j) Notice of Indenture Event of Default. Promptly after the Owner
------------------------------------
Participant has Actual Knowledge that any Indenture Event of Default
attributable to the Owner Participant has occurred and is continuing, the
Owner Participant shall deliver to the Indenture Trustee and the Lessee a
notice of such Indenture Event of Default describing the same in reasonable
detail and, together with such notice or as soon thereafter as possible, a
description of the action that the Owner Participant has taken, is taking
and proposes to take with respect thereto; provided that the Owner
--------
Participant shall not have any liability nor shall any Person have any
rights as a result of any failure to provide such notice.
(k) ERISA. The Owner Participant will use commercially reasonable
-----
efforts to provide that no Employer Plan purchases the Certificates.
(l) Ownership for Tax Purposes. The Owner Participant will take the
--------------------------
position that the Lessor is the owner of the Undivided Interest for
federal, state, and local income tax purposes unless the Owner Participant
shall have received an opinion of Dewey Ballantine or other independent tax
counsel of recognized national standing selected by the Owner Participant
and reasonably acceptable to the Lessee concluding that, because of
56
<PAGE>
changes in applicable law since the Closing Date, there is no reasonable
possibility that such position would be sustained if it were litigated or
there is a Final Determination inconsistent with such position.
11.2 Agreements of Michael M. Hopkins, Trust Company and Owner
---------------------------------------------------------
Trustee. The Trust Company and Michael M. Hopkins, each in its or his
- -------
individual capacity, covenant and agree, jointly and severally, with respect to
Sections 11.2(a)(i) and 11.2(b) and the Owner Trustee covenant and agree with
respect to Sections 11.2(a)(ii), 11.2(c), 11.2(d), 11.2(e), 11.2(f), 11.2(g),
11.2(h) and 11.2(i) that:
(a) Discharge of Liens. (i) The Trust Company and Michael M. Hopkins
------------------
will not create or permit to exist at any time, and will, at its or his own
cost and expense, promptly take such action as may be necessary duly to
discharge all Lessor's Liens on all or any part of the Undivided Interest,
the Trust Estate, the Indenture Estate, or title thereto or any interest
therein attributable to itself or Michael M. Hopkins. Except for the Owner
Participant's obligation pursuant to Section 11.1(a)(ii), the Trust Company
and Michael M. Hopkins shall indemnify, protect, defend, save and keep
harmless the Lessee, the Owner Participant, the Loan Participant and the
Indenture Trustee from and against any and all Claims that may be imposed
on, incurred by or asserted against such Person or the Undivided Interest
arising out of or secured by any such Lien.
(ii) The Owner Trustee will not create or permit to exist at any
time, and will, at its own cost and expense, promptly take such action as
may be necessary duly to discharge all Lessor's Liens on all or any part of
the Undivided Interest, the Trust Estate, the Indenture Estate, or title
thereto or any interest therein attributable to the Owner Trustee;
provided, however, that the Owner Trustee shall not be required to remove
-------- -------
any such Lessor's Lien (other than any such Lien affirmatively imposed by
the Owner Trustee) for so long as the same is being diligently contested in
good faith by appropriate proceedings so long as such proceedings do not
involve any material danger of (1) the sale, forfeiture or loss of any part
of any the Production
57
<PAGE>
System, the Trust Estate or the Indenture Estate, or title thereto or any
interest therein, (2) interference with the use or disposition of any of
the foregoing or any part thereof, or title thereto or any interest
therein, or (3) interference with the payment of Rent.
(b) Change of Chief Place of Business. The Trust Company shall give
---------------------------------
notice to the Lessee, the Owner Participant and the Indenture Trustee
promptly after any change in its chief place of business or chief executive
office, or the office where the records concerning the accounts, contract
rights or general intangibles relating to the transactions contemplated
hereby are kept or any change in the State of residency of Michael M.
Hopkins.
(c) Cooperation with the Lessee. The Owner Trustee shall, to the
---------------------------
extent reasonably so requested by the Lessee, cooperate with the Lessee, at
the Lessee's expense, to enable the Lessee to make the filings and
recordings listed in Schedule 3, including, without limitation, at any time
and from time to time, upon the request of the Lessee promptly and duly
executing and delivering any and all such further instruments, documents
and financing statements (and continuation statements related thereto) as
the Lessee may request in order to perform such covenants and to make such
filings and recordings.
(d) Notice of Transfer of Assets. The Owner Trustee shall not
----------------------------
transfer any of the estates, properties, rights, powers, duties or trusts
of the Owner Trustee to any successor trustee or to any additional or
separate trustee under the Trust Agreement without giving prior written
notice of such transfer to the Owner Participant, the Lessee, the Loan
Participant and the Indenture Trustee in accordance with Section 11 of the
Trust Agreement.
(e) Certain Transfers; Termination. Except as expressly permitted
------------------------------
hereby or by the terms of any other Operative Document, unless the Lease
shall have been declared in default in accordance with Section 16.1
thereof, the Owner Trustee will not transfer the Undivided Interest to any
Person prior to the expiration
58
<PAGE>
or earlier termination of the Lease pursuant to its terms, other than a
successor Owner Trustee appointed in accordance with the provisions of
Section 11 of the Trust Agreement, or terminate the Trust Agreement or
distribute all or any part of the Trust Estate to any Person.
(f) Owner Trustee's Activities. The Owner Trustee will not incur any
--------------------------
indebtedness for money borrowed, or enter into any other activity, except
as contemplated by the Operative Documents or as may be necessary or
advisable to carry out its obligations or enforce its rights thereunder.
(g) Notice of Indenture Event of Default. Promptly after the Owner
------------------------------------
Trustee has Actual Knowledge that any Indenture Event of Default
attributable to the Owner Trustee has occurred and is continuing, the Owner
Trustee shall deliver to the Lessee a notice of such Indenture Event of
Default which is not also a Lease Event of Default describing the same in
reasonable detail and, together with such notice or as soon thereafter as
possible, a description of the action that the Owner Trustee has taken, is
taking and proposes to take with respect thereto; provided that the Owner
Trustee shall not have any liability nor shall any Person have any rights
as a result of any failure to provide such notice.
(h) Ownership for Tax Purposes. The Owner Trustee will not take any
--------------------------
position inconsistent with its ownership of the Undivided Interest for
federal, state, or local income tax purposes (except that treating the
trust created by the Trust Agreement as a grantor trust or other pass-
through entity shall not be considered a position that is inconsistent with
the Owner Trustee's ownership of the Undivided Interest) unless the Owner
Participant shall have received an opinion of Dewey Ballantine or other
independent tax counsel of recognized national standing selected by the
Owner Participant and reasonably acceptable to the Lessee concluding that,
because of changes in applicable law since the Closing Date, there is no
reasonable possibility that such position would be sustained if it were
litigated or there is a Final Determination inconsistent with such
position.
59
<PAGE>
11.3 Agreements of Pass Through Trustee. Each Pass Through Trustee
----------------------------------
covenants and agrees that:
(a) Transfer of Secured Notes. Any sale, transfer or assignment
-------------------------
(including, without limitation, a transfer pursuant to the exercise of
remedies with respect to any Secured Note) by such Pass Through Trustee of
any Secured Note or of all or any part of its interest hereunder or under
the Indenture shall be on the express condition that the purchaser,
transferee or assignee, as the case may be, shall agree to be bound by the
terms and provisions applicable to such Pass Through Trustee contained in
this Agreement, the Secured Notes and the Indenture. The acceptance by any
Person of any Secured Note shall constitute such Person's agreement to be
bound by the terms and provisions of this Agreement and the Indenture. No
Pass Through Trustee will make any such sale, transfer or assignment to any
Person unless such Person delivers to the Lessee, the Owner Trustee, the
Indenture Trustee and the Owner Participant (i) a written representation
and warranty by such Person and an opinion of counsel reasonably
satisfactory to the Lessee, the Owner Trustee and the Owner Participant to
the effect that such sale, transfer or assignment to and the holding of any
such interest by, such Person (1) will not result in a "prohibited
transaction" as defined in Section 406 of ERISA or Section 4975 of the
Code, or (2) are covered by an exemption contained in ERISA or an
administrative exemption adopted thereunder and (ii) a written undertaking
by such Person that is substantially identical to the covenant made by such
Pass Through Trustee in this Section 11.3(a) (including this clause (ii)).
(b) Instructions to Indenture Trustee. No Pass Through Trustee will
---------------------------------
instruct or otherwise direct the Indenture Trustee to take, or omit to
take, any action in violation of the express covenants and agreements of
the Indenture Trustee in any Operative Document.
11.4 Agreements of Indenture Trustee. First Security Bank of Utah,
-------------------------------
National Association and Val T. Orton, each in its or his individual capacity,
to the extent set
60
<PAGE>
forth herein, and as Indenture Trustee covenant and agree, jointly and
severally, as follows:
(a) Discharge of Liens. First Security Bank of Utah, National
------------------
Association and Val T. Orton, each in its or his individual capacity,
covenant and agree, jointly and severally, that it and he will not create
or permit to exist at any time, and will, at its own cost and expense,
promptly take such action as may be necessary to discharge, all of
Indenture Trustee's Liens on all or any part of the Undivided Interest, the
Trust Estate or the Indenture Estate, or title thereto or any interest
therein. First Security Bank of Utah, National Association and Val T.
Orton, each in its or his individual capacity, covenant and agree, jointly
and severally, that it and he shall indemnify, protect, defend, save and
keep harmless the Lessee, the Owner Participant, each Loan Participant and
the Owner Trustee from and against any and all Claims imposed on, incurred
by or asserted against such Person arising out of any Indenture Trustee's
Lien.
(b) Cooperation With the Lessee. The Indenture Trustee shall, to the
---------------------------
extent reasonably requested by the Lessee, cooperate with the Lessee, at
the Lessee's expense, to enable the Lessee to perform the Indenture
Trustee's covenants contained in Section 10.6 and to make the filings and
recordings listed in Schedule 3, including, without limitation, at any time
and from time to time, upon request of the Lessee promptly and duly
executing and delivering any and all such further instruments, documents
and financing statements (and continuation statements related thereto) as
the Lessee may request in order to perform such covenants and to make such
filings and recordings.
(c) Original Lease. Except to the extent otherwise required by the
--------------
Indenture, First Security Bank of Utah, National Association agrees, in its
individual capacity, that it will maintain possession of the original
executed counterpart of the Lease in order to preserve the perfection of
the Lien of the Indenture thereon.
61
<PAGE>
(d) Performance of Obligations. The Indenture Trustee will perform
--------------------------
and comply with the provisions of the Indenture which, upon satisfaction of
any applicable conditions set forth therein, require payment or the
tendering of performance to the Lessee.
11.5 Confidentiality. Each of the parties hereto agrees that all
---------------
matters relating to this Agreement, the other Operative Documents, the Federal
Leases, the Pass Through Trust Agreements, the Placement Agreement, the
Operating Agreement and the Unit Agreement and the transactions contemplated
hereby shall be kept strictly confidential, including, without limitation, the
substance of its commercial terms, and any disclosure of such matters shall be
made only with the prior written consent of the other parties hereto. The
obligations set forth in this Section shall survive any termination or
rescission of this Agreement, the Operative Documents, the Federal Leases, the
Pass Through Trust Agreements, the Operating Agreement and the Unit Agreement,
as the case may be. Nothing in this Section shall prevent, or require the
consent of any party to, any disclosure:
(a) required by any court of competent jurisdiction;
(b) as may be required by any Governmental Rule or Governmental
Authority;
(c) by either party to its legal and other professional advisers, or
in the course of or for the purpose of any arbitration or court
proceedings; or
(d) of information which has otherwise become public information
through no breach of this Section 11.5 by the disclosing party.
11.6 Assumption of Secured Notes. Each of the Owner Participant, the
---------------------------
Owner Trustee, each Loan Participant and the Indenture Trustee agrees that if,
pursuant to Section 6.1(c), (d), (e) or (f) of the Lease, the Lessee elects to
purchase the Undivided Interest, the Lessee may elect to assume the obligations
of the Owner Trustee under the Secured Notes and under the Indenture by giving
notice of such election at least 30 days prior to the applicable purchase
62
<PAGE>
date in accordance with and with the effect provided in Section 3.04 of the
Indenture. In the event any purchase of the Undivided Interest pursuant to
Section 6.1(d), (e) or (f) of the Lease shall occur prior to the fifth
anniversary of the Closing Date, the Lessee shall assume such obligations of the
Owner Trustee in accordance with the preceding sentence. In the event that the
Relevant Amendment becomes effective, this Agreement, the other Operative
Documents and the Pass Through Trust Agreements shall be deemed amended as
provided in the Relevant Amendment.
SECTION 12. INDEMNIFICATION.
---------------
12.1 General Indemnification.
-----------------------
(a) Indemnification. The Lessee agrees, whether or not any of the
---------------
transactions contemplated hereby shall be consummated, to assume liability for,
and to indemnify, protect, save and keep harmless each Indemnitee, on an After-
Tax Basis, from and against any and all Claims that may be imposed on, incurred
by or asserted against any Indemnitee (whether because of an action or omission
by such Indemnitee or otherwise and whether or not such Indemnitee shall also be
indemnified as to any such Claim by any other Person), in any way relating to or
arising out of (i) the Production System or the Undivided Interest or any part
thereof, (ii) the Operative Documents, the Pass Through Trust Agreements, the
Operating Agreement, the Federal Leases, the Unit Agreement, or the transactions
contemplated thereby or the issuance or refinancing of the Secured Notes or the
Pass Through Certificates (including Claims arising under the Securities Act
with respect to any offering of any Secured Notes or Pass Through Certificates
or any other securities issued in connection therewith) or the making of any
investment (including the Investment) in the Production System, payments made
pursuant to any thereof or the enforcement by any Indemnitee of any of its
rights under the Operative Documents, or any other transaction contemplated by
the Operative Documents, including the negotiation, execution and delivery of
amendments thereto, (iii) the manufacture, financing, refinancing, design,
construction, inspection, purchase, ownership, acquisition, acceptance,
rejection, delivery, nondelivery, possession, transportation, lease, sublease,
sub-
63
<PAGE>
sublease, sub-sub-sublease, mortgaging, granting of a security interest in,
preparation, installation, condition, transfer of title, rental, use, operation,
storage, maintenance, modification, alteration, repair, assembly, sale, return,
registration, abandonment or other application or disposition of all or any part
of the Production System or the Undivided Interest or any interest therein,
including, without limitation, (A) Claims or penalties arising from any
violation of law or liability in tort (strict or otherwise), (B) loss of or
damage to any property or the environment (including, without limitation, all
Claims associated with remediation, response, removal, corrective action, clean-
up, Remedial Action, treatment, compliance, restoration, abatement,
encapsulation, containment, revegetation, monitoring, sampling, investigation,
assessment, financial assurance, natural resource damages, the protection of
wildlife and aquatic and vegetation, the interference with or contamination of
any wetland or body of water (whether surface or subsurface) or aquifer, and any
relevant mitigative action under any Environmental Law and any Claims resulting
from or relating to the existence or presence of any Hazardous Material at, in,
or under the Production System, any parts thereof, or the undivided interests
therein, or the Release, emission or discharge of any Hazardous Material into
the environment (including air, water vapor, surface water, ground water, and
land (whether surface or subsurface)) or death or injury to any Person, (C)
latent or other defects, whether or not discoverable, and (D) any claim for
patent, trademark or copyright infringement, (iv) any breach of or failure to
perform or observe, or any other breach of or failure to perform or observe, or
any other non-compliance with, any covenant, condition or agreement or other
obligation to be performed by the Lessee or the Guarantor under any Operative
Document, the Federal Leases, the Operating Agreement or the Unit Agreement, or
the falsity of any representation or warranty of the Lessee, or the Guarantor in
any of the Operative Documents, any Pass Through Trust Agreement or in any
certificate delivered by the Lessee or the Guarantor, (v) the imposition of any
Lien on the Production System or the Undivided Interest, or (vi) any violation
of any Governmental Rule with respect to the Lessee, the Guarantor, the
Production System or the Undivided Interest; provided, however, that the Lessee
-------- -------
shall not be required to indemnify any Indemnitee under this Section 12.1 for
(1) any Claim in respect of the
64
<PAGE>
Production System to the extent attributable to acts, events, circumstances or
conditions which arise, occur or exist after the earlier of: (I) the return of
possession of the Undivided Interest to the Owner Trustee or its designee
pursuant to the terms of the Lease, (II) the purchase by the Lessee of the
right, title and interest in and to the Undivided Interest and the payment of
the applicable purchase price and all amounts due under the Operative Documents
and (III) the payment by the Lessee of all amounts required to be paid under the
Lease following an Event of Loss with respect to the Production System, and
which did not exist prior to or concurrently with such return, purchase of
payment, (2) any Claim to the extent resulting from the willful misconduct or
gross negligence of such Indemnitee (other than willful misconduct or gross
negligence imputed to such Indemnitee solely by reason of its interest in the
Undivided Interest), (3) any Transaction Expense, (4) any other expense or Claim
to the extent expressly provided under any of the Operative Documents to be paid
or borne by such Indemnitee at its own expense or for which such Indemnitee is
expressly not entitled to indemnity or reimbursement, (5) any Claim to the
extent resulting from the offer, sale, disposition or transfer by such
Indemnitee of all or part of its interest in the Undivided Interest, the Secured
Notes, the Pass Through Certificates or the Trust Estate, other than any such
transfer or disposition (i) resulting from a continuing Lease Event of Default,
(ii) in connection with an Event of Loss, (iii) pursuant to Section 6 or 7 of
the Lease or Section 16 of this Agreement, or (iv) to a successor Owner Trustee,
(6) any Claim to the extent resulting from a breach by such Indemnitee of any of
its representations, warranties or covenants in any Pass Through Trust Agreement
or in any of the Operative Documents or in any Officer's Certificate delivered
pursuant thereto or to the extent resulting from a violation of law by such
Indemnitee (other than any violation imputed to an Indemnitee solely by reason
of its interest in the Undivided Interest), unless such violation of law or
breach is the result of the failure of any other party to comply with its
obligations under any Operative Document to which it is a party (other than, in
the case of the Owner Participant, such a failure by the Owner Trustee as a
result of the direction or instruction of the Owner Participant and, in the case
of any Loan Participant, such a failure by the Indenture Trustee as a result of
the direction or instruction of (or a vote or consent in favor of such
65
<PAGE>
direction or instruction by) such Loan Participant), (7) any Claim to the extent
relating to Taxes (other than Taxes required to be paid to indemnify such
Indemnitee under this Section 12.1 on an After-Tax Basis) whether or not the
Lessee is obligated to indemnify for such Taxes under Section 12.2 or the Tax
Indemnity Agreement, (8) any Claim to the extent resulting from any business,
transaction or other activity in which such Indemnitee is engaged, other than
the transactions contemplated hereby, by the Pass Through Trust Agreements or by
any of the other Operative Documents, except to the extent resulting from a
Lease Event of Default, (9) any Claim to the extent attributable to the
authorization or giving or withholding by such Indemnitee of any future
amendments, supplements, waivers or consents with respect to any Operative
Document or the Pass Through Trust Agreement, other than such as have been
requested by the Lessee, or such that occur as a result of a Lease Event of
Default, or such as are expressly required by any Operative Document or any Pass
Through Trust Agreement or such as are required to comply with any Governmental
Rule, (10) any Claim resulting from any Indenture Event of Default which is not
also a Lease Event of Default, (11) with respect to the Owner Trustee, the Trust
Company, Michael M. Hopkins and the Owner Participant, any Claim resulting from
the indemnity given by the Owner Participant pursuant to Section 6.3 of the
Trust Agreement or any indemnification pursuant thereto, except to the extent
that the indemnitee under such Section 6.3 would be otherwise entitled to
indemnification from the Lessee under this Section 12.1, (12) any Claim of any
Pass Through Trustee to the extent that it is indemnified by the Lessee pursuant
to the applicable Pass Through Trust Agreement, (13) Claims against such
Indemnitee resulting from a violation of ERISA or Section 4975 of the Code to
the extent resulting from actions by such Indemnitee, other than, in the case of
the Owner Participant, the making and holding of its investment pursuant to this
Agreement or the taking of any action at the request or direction of the Lessee,
(14) any Claim which is an ordinary and usual operating or overhead expense of
such Indemnitee except expenses incurred relating to an Event of Default, (15)
in the case of any Indemnitee other than the Owner Participant, the failure on
the part of the Indenture Trustee, the Owner Trustee or any Pass Through
Trustee, as the case may be, to distribute in accordance with the Indenture, or
the Trust Agreement, or any Pass Through Trust Agreement, as the
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case may be, any amounts received and distributable by it thereunder, (16) in
the case of the Owner Participant, failure on the part of the Owner Trustee to
distribute in accordance with the Trust Agreement any amounts received and
distributable by it thereunder, (17) any Claim to the extent resulting from the
imposition of any Lien which such Indemnitee is required to lift and discharge
pursuant to any Operative Document (including for purposes of this clause (17)
any Lien which such Indemnitee would be required to lift and discharge but for
the proviso set forth in Section 11.1(a) or 11.2(a)(ii)), and (18) any Claim of
such Indemnitee relating to or arising from the inaccuracy, incompleteness or
misleading nature of any statement or representation included in any
registration statement issued in connection with any of an offer, sale or
disposition of any Secured Notes, Pass Through Certificates or similar interest,
which statement or representation is based on written information supplied or
made available by such Indemnitee specifically for inclusion in such
registration statement (it being agreed that no such information has been
supplied or made available by the Owner Participant). The obligation to provide
indemnities in accordance with the terms of this Section 12.1 shall survive the
termination of the Lease.
(b) Notices. If the Lessee shall obtain knowledge of any action,
-------
suit, proceeding or written notice of any Claim indemnified against under this
Section 12.1, the Lessee shall give prompt notice thereof to the appropriate
Indemnitee or Indemnitees, as the case may be, and if any Indemnitee shall
obtain any such knowledge, such Indemnitee shall give prompt notice thereof to
the Lessee provided that the failure of such Indemnitee to so notify the Lessee
--------
shall not affect the Lessee's indemnification obligations under this Section
12.1 to such Indemnitee except to the extent of any increase in the amount of
such Claim resulting from such failure or to the extent the Lessee is
effectively precluded from contesting such Claim as a result of such failure.
(c) Contests. Subject to the rights of insurers under policies of
--------
insurance maintained pursuant to Section 13 of the Lease, the Lessee shall have
the right, at its sole cost and expense, to investigate, and the right in its
sole discretion to defend or contest by appropriate proceedings or
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compromise, any Claim for which indemnification is sought under this Section
12.1, and the Indemnitee shall cooperate, at the Lessee's expense, with all
reasonable requests of the Lessee in connection therewith, provided that the
--------
Lessee shall not have the right without the consent of the Indemnitee to defend,
contest or compromise any claim with respect to such Indemnitee (i) if a
Specified Lease Event of Default shall have occurred and be continuing, (ii) if
such proceeding involves any material danger of the sale, forfeiture or loss of
the Undivided Interest, or (iii) if such Claim involves a realistic possibility
of criminal sanctions or criminal liability to such Indemnitee, in which event
the Indemnitee shall be entitled to control and assume responsibility for the
defense of such Claim at the expense of the Lessee. The Lessee shall keep the
Indemnitee which is the subject of such proceeding fully apprised of the status
of such proceeding and shall provide such Indemnitee with all information with
respect to such proceeding as such Indemnitee shall reasonably request. In the
event an Indemnitee has assumed control of any such proceeding, it shall keep
the Lessee fully apprised of the status of such proceeding and shall provide the
Lessee with all information, including the receipt of all settlement offers,
with respect to such proceeding as such Indemnitee shall reasonably request.
Where the Lessee or the insurers under a policy of insurance maintained by the
Lessee undertake the defense of an Indemnitee with respect to a Claim, no
additional legal fees or expenses of such Indemnitee in connection with the
defense of such claim shall be indemnified hereunder unless such fees or
expenses were incurred at the request of the Lessee or such insurers; provided
--------
that, if (i) in the written opinion of counsel to such Indemnitee an actual or
potential material conflict of interest exists where it is advisable for such
Indemnitee to be represented by separate counsel or (ii) such Indemnitee has
been indicted or otherwise charged in a criminal complaint in connection with a
Claim not excluded by Section 12.1(a) and such Indemnitee informs the Lessee
that such Indemnitee desires to be represented by separate counsel, the
reasonable fees and expenses of such separate counsel shall be borne by the
Lessee. Subject to the requirements of any policy of insurance, an Indemnitee
may participate at its own expense in any judicial proceeding controlled by the
Lessee pursuant to the preceding provisions and such participation shall not
constitute a waiver of the right to receive the indemnification provided in this
Section
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12.1. Notwithstanding anything to the contrary contained herein, during
the continuance of a Lease Event of Default, the Lessee shall not compromise any
Claim without the consent of the applicable Indemnitee unless such Claim is
simultaneously discharged, such consent not to be unreasonably withheld.
Notwithstanding anything to the contrary contained in this Section
12.1, to the extent the defense or settlement of any Claim in respect of which
an Indemnitee is entitled to indemnification hereunder is governed by the terms
of the Operating Agreement, such defense or settlement shall be governed by the
Operating Agreement; provided, that the defense or settlement of such Claim in
--------
accordance with the Operating Agreement shall not limit the Lessee's obligations
to indemnify such Claim pursuant to this Section 12.1.
(c) Subrogation. Upon payment in full of any Claim by the Lessee
-----------
pursuant to this Section 12.1 to or on behalf of an Indemnitee, the Lessee,
without any further action, shall be subrogated to any and all claims that such
Indemnitee may have in respect of the matters against which such indemnity was
given (other than claims under any insurance policies maintained by such
Indemnitee). Such Indemnitee agrees to cooperate with the Lessee and to execute
such further instruments to permit the Lessee, at the Lessee's expense, to
pursue such claims, to the extent reasonably requested by the Lessee.
(d) Refunds. Upon receipt by any Indemnitee of a repayment or
-------
reimbursement of all or any part of any Claim for which the Lessee shall have
paid for any Indemnitee or for which the Lessee shall have reimbursed any
Indemnitee pursuant to this Section 12.1, such Indemnitee shall pay to the
Lessee, as promptly as practicable after the receipt thereof, the amount of such
repayment or reimbursement plus any interest received by such Indemnitee on such
amount plus the amount of any tax savings realized by such Indemnitee as a
result of such payment made to the Lessee, but not in excess of the amount of
all prior payments made by the Lessee pursuant to this Section 12.1 with respect
to such Claim less the amount of all prior refunds paid by such Indemnitee with
respect to such Claim pursuant to this subsection (e).
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(e) Payments; Verification. Any amount payable to any Indemnitee
----------------------
pursuant to this Section 12.1 shall be paid to such Indemnitee promptly upon
receipt of a written demand therefor from such Indemnitee, accompanied by a
written statement describing the basis for such indemnity and the computation of
the amount so payable and, if requested by the Lessee, such determination shall
be verified by a nationally recognized independent accounting firm mutually
acceptable to the Lessee and the Indemnitee at the Lessee's expense, unless such
accounting firm determines that the amount payable by the Lessee is less than 95
percent (95%) of the amount shown on such written statement, in which case such
verification shall be at such Indemnitee's expense.
(f) Trustees Fees. The Lessee shall pay the reasonable ongoing fees
-------------
and expenses of the Owner Trustee and the Indenture Trustee for acting as such
to the extent not included in the Transaction Expenses. The Lessee shall have
the right to receive and review any substantiation relating to any such ongoing
expenses as it may reasonably request.
12.2 General Tax Indemnification. (a) Payment of Taxes. The Lessee
--------------------------- ----------------
agrees that each payment of Rent pursuant to the Lease shall be free of all
withholding with respect to Taxes of any nature whatsoever, and in the event
that the Lessee shall be required by applicable law to make any such withholding
for any such payment, (x) Basic Rent payable shall be increased so that after
making all required withholdings the Tax Indemnitee receives an amount equal to
the Rent it would have received had such withholdings not been made, (y) the
Lessee shall make such withholdings and (z) the Lessee shall pay the full amount
withheld to the relevant taxing authority in accordance with applicable law. If
for any reason, the Lessee is required to make any payment to a taxing authority
or to any Tax Indemnitee as a result of the application of the preceding
sentence or otherwise that relates to or is a result of any Tax imposed on or
with respect to any Tax Indemnitee which Tax (in whole or in part) is not the
responsibility of the Lessee under the terms of this Section 12.2, then the Tax
Indemnitee in respect of whom such Tax is an excluded Tax hereunder shall,
within 30 days after receipt of notice of payment of the Tax and appropriate
payment documentation with respect thereto, pay to the Lessee an amount which
equals the amount paid by the Lessee with
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respect to or as a result of such Tax that is not the responsibility of the
Lessee (including any expenses or other charges borne by the Lessee) increased
by (but subject to the proviso in Section 12.2(f)) the amount of tax savings to
such Tax Indemnitee attributable to the making of such payment to the Lessee.
Each Tax Indemnitee also agrees (subject to the proviso in Section 12.2(f)) to
reimburse the Lessee for any amounts withheld for which such Tax Indemnitee
obtains a credit or refund, within 30 days after receipt of such credit or
refund.
Except as provided in Section 12.2(b), the Lessee agrees to pay, and
to indemnify, protect, defend, save and keep harmless each Tax Indemnitee, on an
After-Tax Basis, whether or not any or all of the transactions contemplated
hereby are consummated in whole or in part, from and against any and all taxes,
impositions, fees, levies, assessments, duties, withholdings, governmental
claims or other charges of any nature whatsoever (together with any related
interest, fines, penalties or additions to tax), including, without limitation,
rental, income, withholding, sales, use, transfer, leasing, personal property,
excise, receipts, franchise, value-added, stamp, filing, recording,
documentation or license taxes, however imposed or asserted, by any United
States federal, state or local government or taxing authority (including any
possession or territory thereof) or any foreign government or taxing authority
or subdivision thereof, or any international taxing authority or any subdivision
or taxing authority of any thereof (all the foregoing being herein collectively
called "Taxes" or, separately, a "Tax"), upon or with respect to (i) the
----- ---
Undivided Interest or any portion thereof or interest therein, (ii) the
acquisition, purchase, sale, financing, leasing, subleasing, sub-subleasing and
sub-sub-subleasing, ownership, maintenance, repair, redelivery, alteration,
insuring, control, use, operation, manufacture, assembly, delivery, possession,
repossession, location, storage, importation, exportation, refinancing,
refunding, transfer of title, registration, reregistration, transfer of
registration, return or other disposition thereof of all or any part of the
Undivided Interest or any portion thereof or interest therein, (iii) the rental
payments (including, without limitation, all Basic Rent and Supplemental Rent),
receipts or earnings arising from the Undivided Interest or any portion thereof
or interest therein, or payable pursuant
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to the Lease, or any other payment or right to receive payment pursuant to the
Operative Documents or the Pass Through Trust Agreements or Pass Through
Certificates (including, without limitation, any payment of principal, interest,
discount or premium on or with respect to the Secured Notes), (iv) any
Modification or replacement, removal, substitution or repair of a Component or
Replacement Component, (v) the Operative Documents and any other documents
contemplated hereby or thereby and amendments and supplements thereto, or the
issuance, refunding, refinancing or resetting of the Secured Notes or the Pass
Through Certificates or any other document executed and delivered in connection
with the consummation of the transactions contemplated by the Operative
Documents or the Pass Through Trust Agreements or the interest of any Tax
Indemnitee in any of the foregoing, or the execution, amendment, issuance or
delivery of any of the foregoing, (vi) the Indenture Estate or Trust Estate or
Pass Through Trusts or the property, or the income or other proceeds received
with respect to the property, held by the Indenture Trustee under the Indenture
or the Owner Trustee under the Trust Agreement, or (vii) otherwise arising out
of, with respect to, or in connection with the transactions contemplated by the
Operative Documents, the Pass Through Certificates, or the Pass Through Trust
Agreements.
(b) Exclusions from General Tax Indemnity. The provisions of Section
-------------------------------------
12.2(a) shall not apply to, and the Lessee shall have no liability to a Tax
Indemnitee under Section 12.2(a) with respect to:
(1) Taxes (other than such Taxes that are sales, use, rental,
property or ad valorem Taxes) imposed on, based on or measured by, net
-- -------
income, receipts, capital, net worth, excess profits or conduct of business
which are imposed by any state or local government, or any foreign or
international taxing authority, including any franchise or privilege Taxes,
minimum Taxes, value added Taxes imposed in lieu of net income Taxes,
withholding Taxes, and any Taxes on or measured by any items of tax
preference;
(2) Taxes, including, without limitation, sales and transfer
Taxes, that result from
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any voluntary or involuntary transfer by such Tax Indemnitee of any
interest in the Undivided Interest, the Trust Estate or any portion of any
of the foregoing, or any interest arising out of the Operative Documents or
any Pass Through Trust Agreement or the Secured Notes or Pass Through
Certificates; provided, however, that this Section 12.2(b)(2) shall not
-------- -------
apply to any transfer that (A) relates to the exercise of remedies in
connection with a Lease Event of Default; (B) results from an Event of
Default or from an Event of Loss; or (C) results from the replacement,
removal or substitution of all or any part of the Undivided Interest;
(3) Taxes imposed by any jurisdiction that would not have been
imposed on a Tax Indemnitee but for its activities in such jurisdiction
unrelated to the transactions contemplated by the Operative Documents or
the Pass Through Trust Agreements;
(4) Taxes that result from (A) the willful misconduct or gross
negligence of such Tax Indemnitee, (B) the breach or inaccuracy by such Tax
Indemnitee of any of its representations, covenants and obligations under
the Operative Documents, (C) the failure of a Tax Indemnitee to file tax
returns properly and on a timely basis or to claim a deduction or credit to
which it is entitled (provided that such Tax Indemnitee shall not be
obligated to claim a deduction or credit if it requests but fails to
receive an opinion of Dewey Ballantine or other independent counsel
selected by such Tax Indemnitee and reasonably acceptable to the Lessee
that it is entitled to claim such deduction or credit, or (D) the failure
of a Tax Indemnitee to comply with certification, reporting or other
similar requirements of the jurisdiction imposing such Tax; provided,
--------
however, that the exclusions set forth in subclauses (C) and (D) shall not
-------
apply if any such failure is the result of the failure of the Lessee to (I)
perform its obligations under Section 12.2(c), or to
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perform its duties and responsibilities pursuant to any of the Operative
Documents, (II) timely and properly notify such Tax Indemnitee of the
applicable filing, certification, reporting or other similar requirements,
or (III) provide reasonable assistance in complying with any such
requirement;
(5) Taxes which are attributable to any period or circumstance
occurring after the expiration or earlier termination of the Lease, except
to the extent attributable to (A) a failure of the Lessee to fully
discharge its obligations under the Lease, (B) Taxes imposed on or with
respect to any payments that are due after the expiration or earlier
termination of the Lease and which are attributable to a period or
circumstance occurring prior to such expiration or earlier termination or
(C) Taxes that relate to events, matters or circumstances occurring prior
to such expiration or earlier termination;
(6) Taxes which are based on or measured by fees or compensation
received by the Owner Trustee for acting as Owner Trustee under the Trust
Agreement, the Indenture Trustee for acting as Indenture Trustee under the
Indenture or any Pass Through Trustee for acting as Pass Through Trustee
under the applicable Pass Through Trust Agreement;
(7) Taxes to the extent such Taxes would not have been imposed on
a Tax Indemnitee if such Tax Indemnitee were a United States person for
United States federal income tax purposes;
(8) any Tax that is being contested in accordance with the
provisions of Section 12.2(e) during the pendency of such contest, but only
for so long as such contest is continuing in accordance with such Section
and payment is not otherwise required pursuant to such Section;
(9) Taxes as to which any Tax Indemnitee fails to comply with its
contest obligations under
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Section 12.2(e) in any material respect, but only to the extent such
failure materially impairs the Lessee's contest rights with respect to the
Taxes that are the subject of the contest and is not due to any act or
failure to act by the Lessee; provided, however, that this Section
-------- -------
12.2(b)(9) shall not constitute a waiver by the Lessee of its rights, if
any, to assert and sue upon any claims it may have against the Tax
Indemnitee by reason of its failure to comply with its obligations under
Section 12.2(e) of this Agreement;
(10) Taxes imposed as a result of the trust described in the Trust
Agreement or the Pass Through Trusts not being treated as a grantor trust
or other conduit entity for federal, state or local tax purposes;
(11) any Taxes with respect to a transferee or subsequent
transferee to the extent of the excess of such Taxes over the amount of the
Taxes that would have been imposed had there not been a transfer by the
initial Tax Indemnitee after the Closing Date of (i) an interest in the
Undivided Interest, or of a beneficial interest in the Trust Estate or any
portion of any of the foregoing, or (ii) any interest arising under any
Operative Document or any Pass Through Trust Agreement or any Secured Note
or Pass Through Certificate;
(12) Taxes which have been included in Lessor's Cost;
(13) any United States federal Taxes including any Taxes which are
the subject of the Tax Indemnity Agreement;
(14) any Taxes imposed as a result of, or in connection with, any
"prohibited transaction," within the meaning of Section 4975 of the Code,
Section 406 or ERISA or any comparable laws of any governmental authority,
engaged in by any Tax Indemnitee to the extent resulting from action by
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such Tax Indemnitee other than, in the case of the Owner Participant, the
making and holding of its investment in the Interest or the taking of any
action at the request or direction of the Lessee;
(15) Taxes imposed on the Owner Trustee or the Owner Participant
resulting from a Lessor's Lien or an Owner Participant's Lien,
respectively;
(16) Taxes resulting from an amendment to an Operative Document
which is not consented to by the Lessee in writing; or
(17) any Tax in the nature of an intangible tax or similar tax upon
or with respect to the value of the interest of the Indenture Estate or a
Certificateholder, as the case may be, in any of the Secured Notes or
Certificates imposed by any government or taxing authority.
Notwithstanding anything contained herein or any other Operative
Document to the contrary, the Lessee acknowledges and agrees to indemnify and
hold harmless the Owner Participant and Owner Trustee against any and all
withholding Taxes (inclusive of any interest and penalties imposed for any
failure to timely withhold such Taxes) imposed on or with respect to any amounts
paid to a Loan Participant or any successor, assignee or Affiliate thereof, as
an indemnified Tax for purposes of this Section 12.2, unless such withholding is
due to (i) the Owner Participant or the Owner Trustee not being a United States
person for United States federal income tax purposes, (ii) a failure of the
Owner Participant or the Owner Trustee to comply with any provision of the
Operative Documents (including Section 12.2(b)(4)) except if such failure is the
result of the failure of the Lessee to perform its obligations under Section
12.2(c) or (iii) the breach or inaccuracy of any representations, covenants or
obligations by the Owner Participant or Owner Trustee under the Operative
Documents. If a Tax (including any related interest, fines, penalties or
addition to Tax) results from a failure of any Tax Indemnitee to comply with its
obligations under the Operative Documents or any Pass Through Trust Agreement
and the Lessee is required to indemnify another Tax Indemnitee against the
imposition of
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such Tax, then the Tax Indemnitee whose failure resulted in the imposition of
such Tax shall, within 30 days after receipt of notice of payment of the Tax and
appropriate payment documentation with respect thereto, pay to the Lessee an
amount which equals the amount paid by the Lessee with respect to or as a result
of such Tax (including any expenses or other charges borne by the Lessee)
increased by (but subject to the proviso in Section 12.2(f)) the amount of tax
savings to such Tax Indemnitee attributable to the making of such payment to the
Lessee.
The provisions of this Section 12.2(b) shall not apply to any Taxes
imposed in respect of the receipt or accrual of any indemnity payment made by
the Lessee pursuant to this Section 12.2 hereof or pursuant to the Tax Indemnity
Agreement.
(c) Reports. If any report, return, certification or statement is
-------
required to be filed with respect to any Tax that is subject to indemnification
under this Section 12.2, the Lessee shall timely prepare and file the same
(except for (i) any report, return or statement relating to any Taxes described
in Section 12.2(b)(1) or any Taxes in lieu of or enacted in substitution for any
of the foregoing or (ii) any other report, return, certification or statement
which the Tax Indemnitee has notified the Lessee that the Tax Indemnitee intends
to prepare and file); provided that such Tax Indemnitee shall have furnished the
--------
Lessee, at the Lessee's expense, with such information reasonably necessary to
prepare and file such returns as is within such Tax Indemnitee's control. The
Lessee shall either file such report, return, certification or statement (so as
to show the ownership of the Undivided Interest in the Owner Trustee) and send a
copy of such report, return, certification or statement to the Owner Participant
and the Owner Trustee, or, where not so permitted to file, shall notify the
Owner Participant and the Owner Trustee of such requirement within a reasonable
period of time prior to the due date for filing (without regard to any
applicable extensions) and prepare and deliver such report, return,
certification or statement to the Owner Participant and the Owner Trustee. In
addition, within a reasonable time prior to the time such report, return,
certification or statement is to be filed the Lessee shall, to the extent
permitted by law, cause all billings of such Taxes to be made
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to each Tax Indemnitee in care of the Lessee, make payment thereof and furnish
written evidence of such payment. The Lessee shall furnish promptly upon written
request such data, records and documents as any Tax Indemnitee may reasonably
require of the Lessee to enable such Tax Indemnitee to comply with requirements
of any taxing jurisdiction arising out of such Tax Indemnitee's participation in
the transactions contemplated by this Agreement, including, without limitation,
requirements relating to Taxes described in Section 12.2(b)(1).
(d) Payments. Any Tax indemnified hereunder shall be paid directly
--------
when due to the applicable taxing authority if direct payment is permitted, or
shall be reimbursed to a Tax Indemnitee on demand if paid by such Tax Indemnitee
in accordance herewith. Except as otherwise provided in this Section 12.2, all
amounts payable to a Tax Indemnitee hereunder shall be paid promptly in
immediately available funds, but in no event later than the later of (i) 10 days
after the date of such demand or (ii) 10 days before the date the Tax to which
such amount payable hereunder relates is due or is to be paid (ignoring
extension of time) and shall be accompanied by a written statement (which
written statement shall, at the Lessee's request, be verified by a nationally
recognized independent accounting firm mutually acceptable to the Lessee and the
Tax Indemnitee, such verification to be at the Lessee's expense unless such
accountants determine that the amount payable by the Lessee is less than ninety-
five percent (95%) of the amount shown on such written statement, in which event
it will be paid by the Tax Indemnitee) describing in reasonable detail the Tax
and the computation of the amount payable. In the case of a Tax subject to
indemnification under this Section 12.2 which is properly subject to a contest
in accordance with Section 12.2(e), the Lessee (i) shall be obligated to make
any advances with respect to such Tax whenever required under Section 12.2(e)
and (ii) shall pay such Tax (in the amount finally determined to be owing in
such contest) prior to the latest time permitted by the relevant taxing
authority for timely payment after a Final Determination.
(e) Contests; Refunds. (i) In the event a taxing jurisdiction makes
-----------------
a claim with respect to any Tax for which the Lessee may be liable under this
Section 12.2 (a "Tax
---
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Claim"), the Lessee may cause the applicable Tax Indemnit to contest such Tax
- -----
Claim as set forth herein. In the event any Tax Indemnitee receives notice of a
Tax Claim or potential Tax Claim which may be indemnified under this Section
12.2, such Tax Indemnitee shall promptly notify the Lessee thereof. If requested
by the Lessee in writing within 30 days of receipt of such notice (or, if
sooner, on or before the last date upon which the contest of such Tax can be
initiated, provided that the Tax Indemnitee's notice to the Lessee discloses
such date), such Tax Indemnitee shall, upon receipt of an indemnity satisfactory
to it whereby the Lessee shall have agreed to pay and shall pay to such Tax
Indemnitee all reasonable costs, expenses, losses, legal and accountants' fees
and disbursements, and for all penalties, fines, additions to tax and interest
in connection with contesting such Tax Claim, and at the expense of the Lessee,
contest the imposition of any Tax Claim by (1) resisting payment thereof, if
such Tax Indemnitee in its reasonable discretion shall determine such course of
action to be appropriate, (2) not paying the same except under protest, if
protest is necessary and proper, or (3) if payment shall be made, using
reasonable efforts to obtain a refund thereof in appropriate administrative and
judicial proceedings, or both; provided, however, that in no event will such Tax
-------- -------
Indemnitee be required to contest or continue to contest any Tax Claim unless
such Tax Indemnitee and the Owner Participant shall have reasonably determined
that the action to be taken will not result in any material risk of sale,
forfeiture or loss of, or the creation of any lien (except if the Lessee shall
have adequately bonded such lien, or otherwise made provision to protect the
interests of such Tax Indemnitee and the Owner Participant in a manner
reasonably satisfactory to such Tax Indemnitee and the Owner Participant) on,
the Undivided Interest, any part thereof or interest therein. If such contest
shall involve payment of the Tax Claim, the Lessee shall have advanced to such
Tax Indemnitee the amount of such payment plus interest, penalties and additions
to tax with respect thereto on an interest-free basis, and shall have agreed to
indemnify the Tax Indemnitee, on an After-Tax Basis, for any adverse tax
consequences resulting from such advance. If permitted by applicable law, the
Lessee may contest, at its own expense, the imposition of any Tax Claim if the
proviso in the second preceding sentence is satisfied. In any contest controlled
by the Tax Indemnitee, such Tax Indemnitee will consult with the Lessee
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and permit the Lessee to participate in a reasonable manner in the conduct of
the contest. Notwithstanding anything contained in this Section 12.2 to the
contrary, no Tax Indemnitee shall be required to contest any Tax Claim (in a
proceeding that involves taxes unrelated to the transactions contemplated by the
Operative Documents) unless such Tax Indemnitee shall have received an opinion
of Dewey Ballantine or such independent tax counsel as may be selected by the
Tax Indemnitee and approved by such the Lessee, furnished at the Lessee's sole
expense, to the effect that there is a reasonable basis to contest such Tax
Claim.
A Tax Indemnitee shall not make, accept or enter into a settlement or
other compromise with respect to any Taxes indemnified pursuant to this Section
12.2 (which proceeding the Tax Indemnitee is required to continue), or forego or
terminate any such proceeding with respect to Taxes indemnified pursuant to this
Section 12.2, without the prior written consent of the Lessee. Notwithstanding
the foregoing, if a Tax Indemnitee refuses to contest any Tax Claim or effects a
settlement or compromise of any such Tax that the Tax Indemnitee is required to
contest or otherwise terminates any such contest without such prior written
consent of the Lessee, such Tax Indemnitee shall be deemed to have waived its
right to any indemnity payment by the Lessee that would otherwise be payable by
the Lessee pursuant to this Section 12.2 in respect of such Tax Claim.
(ii) Upon receipt by any Tax Indemnitee of a repayment or refund of
all or any part of any Tax which the Lessee shall have paid for, or advanced to,
such Tax Indemnitee or for which the Lessee shall have reimbursed such Tax
Indemnitee pursuant to this Section 12.2, such Tax Indemnitee shall pay to the
Lessee, as promptly as practicable after the receipt thereof, the amount of such
repayment or refund plus any interest received by, or credited to, such Tax
Indemnitee on such amounts net of Taxes thereon plus the amount of any net tax
savings actually realized by such Tax Indemnitee as a result of the payment made
to the Lessee; provided, however, that: (A) such Tax Indemnitee shall not be
-------- -------
obligated to make such payment with respect to any net tax savings to the extent
that the amount of such payment would exceed (x) all prior indemnity payments
(excluding costs and expenses incurred with respect to contests) made by the
Lessee
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with respect to such Tax pursuant to this Section 12.2 and less (y) the amount
of all prior payments by such Tax Indemnitee to the Lessee hereunder with
respect to such Tax (but any such excess shall be applied against, and reduce
pro tanto, any future payment due such Tax indemnitee pursuant to this Section
- --- -----
12.2); and (B) if there is (1) a subsequent loss of any such tax savings or
refund realized by the Tax Indemnitee or (2) a reduction of an amount otherwise
payable to a Tax Indemnitee hereunder as a result of any such tax savings or
refund, such loss or reduction shall be treated as a Tax for which the Lessee
must indemnify such Tax Indemnitee pursuant to this Section 12.2.
(f) Tax Savings. If, by reason of any payment made to or for the
-----------
account of a Tax Indemnitee by the Lessee pursuant to this Section 12.2, such
Tax Indemnitee at any time realizes a reduction in any Taxes for which the
Lessee is not required to indemnify such Tax Indemnitee pursuant to this Section
12.2 and which was not taken into account previously in computing such payment
by the Lessee to or for the account of such Tax Indemnitee, then such Tax
Indemnitee shall promptly pay to the Lessee an amount equal to such actual
reduction in Taxes, plus the amount of any additional reduction in Taxes of such
Tax Indemnitee attributable to the payment made by such Tax Indemnitee to the
Lessee pursuant to this sentence; provided, however, that: (A) such Tax
-------- -------
Indemnitee shall not be obligated to make such payment with respect to any net
tax savings to the extent that the amount of such payment would exceed (x) all
prior indemnity payments (excluding costs and expenses incurred with respect to
contests) made by the Lessee with respect to such Tax pursuant to this Section
12.2 and less (y) the amount of all prior payments by such Tax Indemnitee to the
Lessee hereunder with respect to such Tax (but any such excess shall be applied
against, and reduce pro tanto, any future payment due such Tax indemnitee
--- -----
pursuant to this Section 12.2); and (B) if there is a (i) subsequent loss of any
such tax savings or refund realized by the Tax Indemnitee or (ii) a reduction of
an amount otherwise payable to a Tax Indemnitee hereunder as a result of any
such tax savings or refund, such loss or reduction shall be treated as a Tax for
which the Lessee must indemnify such Tax Indemnitee pursuant to this Section
12.2.
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(g) Definition of Owner Participant. For purposes of this Section
-------------------------------
12.2, the term "Owner Participant" and the term Tax Indemnitee as applied to the
Owner Participant shall include any member of an affiliated group, within the
meaning of Section 1504 of the Code (or any successor provision thereof), of
which the Owner Participant is, or may become, a member, if consolidated, joint
or combined returns are filed for such affiliated group for federal, state or
local income tax purposes. The Owner Participant undertakes on behalf of such
other members of its affiliated group to perform or cause to be performed all
obligations of such affiliated group hereunder.
12.3 No Guarantee. Nothing in Section 12.1 or 12.2 shall be
------------
construed as a guaranty by the Lessee of any residual value in the Undivided
Interest or as a guaranty of the Secured Notes.
SECTION 13. TRANSFER OF OWNER PARTICIPANT'S INTEREST.
----------------------------------------
13.1 Restrictions on Transfer. Without the prior written consent of,
------------------------
so long as the Lease shall be in effect, the Lessee, and, so long as the Lien of
the Indenture shall be in effect, the Indenture Trustee, the Owner Participant
shall not, directly or indirectly, assign, convey or otherwise transfer (whether
by consolidation, merger, sale of assets or otherwise) any of its right, title
or interest in and to the Trust Estate, this Agreement, the Trust Agreement or
any other Operative Document except in accordance with the terms and conditions
of this Section 13; provided that, in the case of a transfer resulting from a
continuing Lease Event of Default, the transfer restrictions set forth in
Section 13.2(i) shall not apply and the minimum net worth requirement of Section
13.2(a) shall be reduced to $10 million.
13.2 Permitted Transfers. The Owner Participant may transfer all or
-------------------
part of its right, title and interest in and to the Trust Estate (whether or not
the same shall then have been pledged or mortgaged under the Indenture, but
subject to the Lien of the Indenture if then in effect) and in and to this
Agreement and the other Operative Documents to any
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Person (a "Transferee") only in compliance with and upon satisfaction of the
----------
following conditions:
(a) the Transferee shall be (i) a financial institution, leasing
company or other institutional investor whose net worth at the time is at
least $75,000,000 (or the obligations of which are guaranteed by an entity
whose net worth at the time is at least $75,000,000 pursuant to a guarantee
in form and substance reasonably satisfactory to the Lessee and the
Indenture Trustee), or (ii) an Affiliate of the Owner Participant; provided
--------
that either (x) the Owner Participant shall guarantee the obligations of
such Affiliate as Owner Participant under the Operative Documents pursuant
to a guarantee in form and substance reasonably satisfactory to the Lessee
and the Indenture Trustee, or (y) such Affiliate shall have a net worth at
the time of such transfer of at least $75,000,000;
(b) no such transfer shall violate any provision of, or create a
relationship which would be in violation of, any applicable Governmental
Rules, including, without limitation, applicable securities laws, any
agreement to which the Owner Participant or the Transferee is a party or by
which it or any of its property is bound or any Governmental Actions;
(c) the Transferee shall enter into an agreement substantially in the
form of Exhibit C whereby the Transferee shall confirm that it has the
requisite power and authority to enter into and to carry out the
transactions contemplated hereby and in each Operative Document to which
the Owner Participant is or is to be a party, and that it shall be deemed a
party to each of such Operative Documents and shall agree to be bound by
all the terms of, and to undertake all the obligations of the transferor to
be performed on or after the date of such transfer contained in, each of
such Operative Documents, and whereby such Transferee shall make
representations and warranties reasonably requested by the Lessee, the
Owner Trustee and the Indenture Trustee not exceeding the scope of the
representations and warranties contained in Section 6; provided that with
--------
respect to the first sentence of Section 6.7 such
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Transferee delivers to the Lessee, the Owner Trustee and the Indenture
Trustee a written representation and warranty (or an opinion of counsel
reasonably satisfactory to the Lessee, the Owner Trustee and the Indenture
Trustee) that (1) such Transferee is not acquiring any part of such
interests with ERISA Plan Assets or (2) the transfer to and ownership of
such interest by such Transferee is and will continue to be covered by
Prohibited Transaction Class Exemption 95-60, 91-38 or 90-1;
(d) the transferring Owner Participant shall have provided 10
Business Days prior written notice of such transfer to the Owner Trustee,
the Indenture Trustee and the Lessee, which notice shall specify (i) such
information and be accompanied by evidence as shall be reasonably necessary
to establish compliance with this Section 13 and Section 12.7 of the Trust
Agreement and (ii) the name and address (for the purpose of giving notice
as contemplated by the Operative Documents) of the Transferee;
(e) the transferring Owner Participant shall pay or cause to be paid
all reasonable fees, out-of-pocket expenses, disbursements and costs
(including, without limitation, legal and other professional fees and
expenses) incurred by the Owner Trustee, the Loan Participants, the
Indenture Trustee or the Lessee in connection with any transfer pursuant to
this Section 13 (other than fees and expenses incurred in unsuccessfully
challenging, through any action, suit or proceeding, the Owner
Participant's right to make such transfer);
(f) the transferring Owner Participant or the Transferee shall have
delivered to the Owner Trustee and the Lessee and, if the Lien of the
Indenture shall then be in effect, the Indenture Trustee, an opinion of
counsel in form and substance reasonably satisfactory to each of them, as
to the due authorization, execution, delivery and enforceability of the
agreement or agreements referred to in clauses (c) and (h) of this Section
13.2, and as to the matters referred to in clause (b) of this Section 13.2;
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(g) the Transferee will be a "United States Person" as defined in the
Code;
(h) the transferring Owner Participant or the Transferee shall agree
by an instrument in writing in form and substance reasonably satisfactory
to the Lessee to indemnify the Lessee against any increased tax indemnity
obligations the Lessee may have to the Owner Participant or such Transferee
as a result of such conveyance; and
(i) after giving effect to such transfer there shall be no more than
two Owner Participants.
13.3 Effect of Transfer. From and after any transfer effected in
------------------
accordance with this Section 13, the Owner Participant making such transfer
shall be released, to the extent of the obligations assumed by the Transferee,
from its liability hereunder and under the other Operative Documents to which it
is or is to be a party and under the Agency and Support Agreement in respect of
obligations to be performed on or after the date of such transfer. Upon any
transfer by the Owner Participant in accordance with this Section 13, the
Transferee shall be deemed an "Owner Participant" for all purposes of the
Operative Documents and each reference herein to the Owner Participant making
such transfer shall thereafter be deemed a reference to such Transferee for all
purposes, except as provided in the preceding sentence.
SECTION 14. FINANCING FOR MODIFICATIONS.
---------------------------
14.1 Financing for Modifications. The Lessee shall give the Owner
---------------------------
Trustee, the Owner Participant and the Indenture Trustee any required notice of
a Modification to the Production System pursuant to Section 11.6(b) of the
Lease. Upon receipt of such notice, and so long as no Lease Event of Default
shall have occurred and be continuing, the Owner Participant shall negotiate
with the Lessee in good faith to participate in the financing by the Lessor of
the cost of the Lessor's Share of such Modification through an additional equity
investment by the Owner Participant and the issuance of Additional Notes under
the Indenture, on terms and conditions
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mutually acceptable to the Owner Participant and the Lessee; provided that the
--------
Owner Participant shall have no obligation to make such an equity investment. If
mutually acceptable terms and conditions for any such financing shall not have
been agreed to by the Owner Participant and the Lessee within forty-five (45)
days following receipt by the Owner Participant of the notice from the Lessee
referred to in the first sentence of this Section 14.1, the Owner Participant
agrees upon request of the Lessee to effect the financing of such cost through
the issuance and sale by the Owner Trustee of Additional Notes, in accordance
with and subject to the conditions set forth in Section 2.09 of the Indenture
(including, without limitation, the condition that such Additional Notes may not
rank senior (but may rank junior) in any respect to other Secured Notes issued
under the Indenture), and subject to the following conditions:
(a) after giving effect to the issuance of the Additional Notes the
aggregate principal amount outstanding of all Secured Notes shall not
exceed 85% of the total Fair Market Sales Value of the Undivided Interest
after giving effect to such Modifications;
(b) such Additional Notes shall have a final maturity date not later
than the expiration of the Basic Lease Term;
(c) the Owner Participant will not suffer any adverse consequences
resulting from the issuance of such Additional Notes, or the terms and
conditions of the documents relating thereto, or the Owner Participant
shall have received an indemnity reasonably acceptable to the Owner
Participant from the Lessee with respect to any such adverse consequences;
(d) no Lease Event of Default or Indenture Event of Default shall
have occurred and be continuing as of the date of the issuance of the
applicable Additional Notes; and
(e) the Owner Participant shall receive an opinion from its tax
counsel that no unindemnified adverse tax consequences (taking into account
any increased tax indemnity the Lessee may offer to provide) shall result
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from such financing (for this purpose, in the absence of a change in
applicable tax law after the Closing Date the issuance of Additional Notes
shall not be treated (i) as creating any adverse tax consequences pursuant
to Section 861 of the Code or the Treasury Regulations thereunder or (ii)
any other adverse tax consequences if, in the case of this clause (ii),
after giving effect to the issuance of the Additional Notes, the
Outstanding principal amount of all Secured Notes issued under the
Indenture does not exceed 85% of the sum of Lessor's Cost plus the cost of
all Modifications theretofore made, including those being financed by the
issuance of Additional Notes).
In connection with any Supplemental Financing, the Basic Rent Percentages,
Stipulated Loss Value Percentages, Termination Value Percentages and the Early
Buy-Out Percentage shall be adjusted in accordance with Section 4 of the Lease.
No Additional Notes may be issued without the prior written consent of the
Lessee.
SECTION 15. REFUNDING OF SECURED NOTES.
--------------------------
15.1 Refunding of Secured Notes. Upon compliance with the terms and
--------------------------
conditions of this Section 15, including, without limitation, the satisfaction
of the conditions set forth in Section 15.2 and in Section 3.05 of the
Indenture, the Lessee shall have the right on not more than two occasions to
request the Owner Trustee to, and upon negotiation in good faith of such terms
as may be agreed by the Owner Participant, the Owner Trustee and the Lessee, the
Owner Trustee shall, take such steps as may be necessary to refund or refinance
all (but not less than all) Secured Notes then Outstanding (the "Refunded
--------
Secured Notes") through the issuance and sale in the public or private market of
- -------------
one or more additional series of Secured Notes (the "Refunding Secured Notes"),
-----------------------
in an aggregate principal amount which shall be equal to the unpaid principal
amount of the Refunded Secured Notes plus any accrued and unpaid interest on the
Refunded Secured Notes not paid by Lessee as contemplated in clause (d) of this
Section 15.1, the proceeds of such issuance and sale to be applied to prepay or
redeem the principal amount of such Refunded Secured Notes and subject to the
following conditions:
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(a) the expenses of any such refunding or refinancing (including,
without limitation, any premium payable with respect to the Secured Notes)
shall be borne by the Lessee;
(b) the Owner Participant will not suffer any unindemnified adverse
tax consequences (taking into account any increased tax indemnity the
Lessee may offer to provide) and Owner Participant will receive an opinion
of its counsel to such effect; provided however, that, in the absence of a
-------- -------
change in applicable tax law after the Closing Date, any refinancing that
does not result (i) in an increase in principal amount greater than 5.0% of
the remaining principal amount of the Secured Notes and any Additional
Notes or (ii) an increase in term or average life that exceeds the
remaining term or average life, as applicable, of the original Secured
Notes by more than six months, shall be treated as not causing a material
adverse tax effect;
(c) the appropriate parties will enter into a note purchase
agreement providing for the issuance and sale by the Owner Trustee or such
other party as may be appropriate on the date specified in such agreement
(for the purposes of this Section 15.1, the "Refunding Date") of Refunding
Secured Notes the proceeds of which shall be used to repay all of the
Outstanding Refunded Secured Notes on the Refunding Date;
(d) if the Refunding Date is during the Basic Lease Term, the
Lessee and the Owner Trustee will amend the Lease such that if the
Refunding Date is not a Basic Rent Payment Date, the Lessee shall on the
Refunding Date prepay that portion of the next succeeding installment of
Basic Rent to the extent necessary to pay the aggregate interest accrued on
the Refunded Secured Notes not payable with the proceeds of the Refunding
Secured Notes;
(e) the Owner Trustee will enter into an agreement to provide for
the securing thereunder of the Refunding Secured Notes in like manner as
the Refunded Secured Notes and/or will enter into such amendments and
supplements to the Indenture as may be necessary to effect a refunding or
refinancing under this Section
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15.1, which agreements, amendments and/or supplements shall be satisfactory
in form and substance to the Owner Participant;
(f) the identity of the Owner Participant shall not be disclosed in
offering materials used in connection with such refunding or refinancing
pursuant to a public offering;
(g) unless otherwise agreed by the Owner Participant, the Lessee
shall pay to the Owner Trustee as Supplemental Rent an amount equal to the
Premium, if any, payable in respect of the Refunded Secured Notes and all
reasonable fees, costs, expenses of such refunding or refinancing,
including, without limitation, the Owner Participant's out-of-pocket
expenses and reasonable counsel fees and expenses;
(h) the Lessee shall cause a legal opinion in form and substance
reasonably satisfactory to the Owner Participant, the Owner Trustee, the
Indenture Trustee and each Pass Through Trustee to be addressed to the
Owner Participant, the Owner Trustee, the Indenture Trustee and the Pass
Through Trustee with respect to federal or state securities laws and
insofar as such laws relate to the refunding or refinancing;
(i) such additional documents, certificates, opinions as shall be
reasonably requested by, and acceptable to, the Owner Trustee and the
Indenture Trustee, including, but not limited to, such documents, financing
statements and opinions as are reasonably necessary to confirm that the
refinancing of all Secured Notes of the series as to which the refinancing
is occurring is being carried out; and
(j) no such refinancing or refunding shall occur prior to the fifth
anniversary of the Closing Date.
In connection with any such refunding or refinancing, the Basic Rent
Percentages, Stipulated Loss Value Percentages, Termination Value Percentages
and the Early Buy-Out Percentage shall be adjusted in accordance with Section 4
of the Lease.
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The Secured Notes may not be refunded or refinanced without the prior written
consent of the Lessee.
15.2 Notice. The Lessee shall give the other parties to this
------
Agreement at least 30 days' prior written notice of any desired refunding or
refinancing pursuant to Section 15.1, which notice shall set forth to the extent
practicable the proposed terms and conditions of such refunding or refinancing,
including the desired date therefor. The Lessee, the Owner Trustee, the Owner
Participant and, as necessary, the Indenture Trustee and the Loan Participants,
shall consult thereafter on the good faith negotiation of such terms and
conditions to the end that, subject to the provisions of this Section 15, the
final terms and conditions of such refunding shall be agreed among the parties
thereto in due course thereafter. The Lessee will provide notice promptly to
such Persons in the event that it determines not to proceed with such proposed
refunding or refinancing pursuant to Section 15.1.
15.3 Rights of Parties. Notwithstanding anything to the contrary
-----------------
contained in this Section 15, in no event shall the Owner Participant have any
obligation to initiate or structure any refunding or refinancing of Secured
Notes or to take, or to cause the Owner Trustee to take, any action in
connection therewith other than such as may be requested by the Lessee, the
Owner Participant or the Indenture Trustee as provided in this Section 15.
SECTION 16. BENEFICIAL INTEREST PURCHASE OPTION.
-----------------------------------
16.1 Option to Purchase. In the event and at the time that the
------------------
Lessee has the right to purchase the Undivided Interest pursuant to Section 6.1
of the Lease, the Lessee in lieu of exercising such right may elect to purchase
the right, title and interest of the Owner Participant in and to the Trust
Estate (the "Beneficial Interest") at a purchase price equal to the excess of
-------------------
(i) the applicable purchase price payable under Section 6.1 over (ii) the
outstanding principal and accrued interest on the Secured Notes as of the
applicable purchase date (after giving effect to the payment of all amounts
required to be paid by the Lessee pursuant to Section 16.2(b)) (the "Beneficial
----------
Interest Purchase Price"). It is
- -----------------------
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intended among the parties hereto that the purchase of the Beneficial Interest
by the Lessee shall not effect a merger of the Lessee's interest, as lessee, in
the Lease and the beneficial interest in the Trust Estate to be purchased by the
Lessee.
16.2 Notice of Election; Manner of Purchase; Transfer After
------------------------------------------------------
Purchase. (a) In order to exercise its right to purchase the Beneficial Interest
- --------
pursuant to Section 16.1, the Lessee shall notify the Owner Participant
irrevocably in writing no later than 30 days prior to the applicable purchase
date under Section 6.1 of the Lease that it desires to purchase the Beneficial
Interest.
(b) On the date of purchase, upon receipt by the Owner Participant
of the Beneficial Interest Purchase Price, and all Basic Rent due by the Lessee
to or distributable to the Owner Participant on or prior to such date of
purchase (but excluding any Basic Rent payable in advance on such date of
purchase) and all Supplemental Rent due by the Lessee to or distributable to the
Owner Participant to and including such date of purchase (without giving effect
to any applicable grace periods), the Owner Participant shall transfer the
Beneficial Interest free and clear of all Liens to the Lessee pursuant to an
instrument of conveyance in form and substance reasonably satisfactory to the
Lessee.
(c) Each of the Participants, the Owner Trustee and the Indenture
Trustee, at the cost and expense of the Lessee, will cause to be promptly and
duly taken, executed, acknowledged and delivered all such further acts,
documents and assurances as the Lessee reasonably may request in order to carry
out the intent and purposes of this Section 16 and the transactions contemplated
hereby.
(d) As a condition to the Lessee's right to purchase the Beneficial
Interest pursuant to Section 16.1 (unless the Lessee shall assume the
obligations of the Owner Trustee pursuant to the next sentence), on the date of
purchase the Lessee shall have provided to the Indenture Trustee an opinion of
counsel for the Lessee, dated the date of purchase, which, subject to usual or
customary exceptions, shall be to the effect that upon consummation of such
purchase, this Agreement, the Trust Agreement and the Lease
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constitutes the legal, valid and binding obligation of the Lessee, enforceable
against the Lessee in accordance with its terms except as the same may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by general
principles of equity, and except as limited by applicable laws that may affect
the remedies provided for in the Lease, which laws, however, do not in the
opinion of such counsel make the remedies provided for in the Lease inadequate
for the practical realization of the rights and benefits provided for in the
Lease. In the event the Lessee is unable to provide such opinion, concurrently
with the purchase of the Beneficial Interest the Lessee shall assume the
obligations of the Owner Trustee under the Secured Notes and under the Indenture
in accordance with and with the effect provided in Section 3.04 of the Indenture
and Section 11.6 hereof, and upon such assumption the Lessee shall have the
right to terminate the Trust Agreement.
SECTION 17. MISCELLANEOUS.
-------------
17.1 Survival. All agreements, representations, warranties and
--------
indemnities contained in this Agreement and the other Operative Documents and in
any agreement, document or certificate delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive and continue in effect
following the execution and delivery of this Agreement and the other Operative
Documents and the participation by the Owner Participant and the Loan
Participants in the payment of Lessor's Cost as contemplated hereby and by the
other Operative Documents.
17.2 Binding Effect. All agreements, representations, warranties
--------------
and indemnities in this Agreement and the other Operative Documents and in any
agreement, document or certificate delivered pursuant hereto or thereto or in
connection herewith or therewith shall bind the Person making the same and its
successors and assigns, and shall inure to the benefit of, the Guarantor, each
Person for whom made and their respective successors and permitted assigns.
17.3 Notices. All communications, notices and consents provided for
-------
in this Agreement shall be in writing
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and shall be given in person or by courier or by means of telecopy or other wire
transmission (with request for assurance of receipt in a manner typical with
respect to communications of that type), or mailed by registered or certified
first class mail, return receipt requested, or overnight courier, addressed as
set forth in Schedule 1 or at such other address as any such Person may from
time to time designate by notice duly given in accordance with the provisions of
this Section 17.3 to the other parties hereto. All such communications, notices
and consents given in such manner shall be deemed given when received in
accordance with this Section 17.3 (or when proffered to a Person if receipt is
refused).
17.4 Counterpart Execution. This Agreement may be executed in any
---------------------
number of counterparts and by the different parties hereto on separate
counterparts, each of which, when so executed and delivered, shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
17.5 GOVERNING LAW. THIS AGREEMENT SHALL IN ALL RESPECTS BE
-------------
GOVERNED BY, AND BE CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE
OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE,
BUT WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PROVISIONS THEREOF BUT
APPLYING WHERE MANDATORILY APPLICABLE THE FEDERAL LAWS OF THE UNITED STATES OF
AMERICA.
17.6 Amendments, Supplements, Etc. (a) Neither this Agreement nor
----------------------------
any of the terms hereof may be amended, supplemented, waived or modified orally,
but only by an instrument in writing signed by the party against which
enforcement of such change is sought.
(b) Prior to the Lease Termination Date, neither the Trust
Agreement nor the Indenture may be amended, waived, supplemented or modified to
permit any action contrary to, or disturb the Lessee's rights under, the Lease,
or otherwise adversely affect the Lessee's rights, or increase the Lessee's
obligations or liabilities, under any Operative Document without the consent of
the Lessee.
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17.7 Headings; Table of Contents. The division of this Agreement
---------------------------
into Sections, subsections and paragraphs, the provision of a table of contents
and the insertion of headings are for convenience of reference only and shall
not affect the construction or interpretation hereof.
17.8 Severability of Provisions. Any provision of this Agreement
--------------------------
which may be determined by competent authority to be invalid or unenforceable in
such jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without invalidating or rendering
unenforceable any remaining terms and provisions hereof, and any such invalidity
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. The parties shall
negotiate in good faith to replace such provision with an appropriate, legal
provision. To the extent permitted by applicable law, the parties hereto hereby
waive any provision thereof that renders any term or provision hereof invalid or
unenforceable in any respect.
17.9 Entire Agreement. This Agreement (including the schedules and
----------------
exhibits hereto), the Pass Through Trust Agreements and the other Operative
Documents, and all certificates, instruments and other documents relating
thereto delivered and to be delivered from time to time pursuant to the
Operative Documents and the Pass Through Trust Agreements, supersede all
agreements (other than any Operative Document) prior to the date of this
Agreement, written or oral, between or among any of the parties hereto relating
to the transactions contemplated hereby and thereby.
17.10 Limitation of Liability of Owner Trustee, Indenture Trustee and
---------------------------------------------------------------
each Pass Through Trustee. (a) It is expressly understood and agreed by and
- -------------------------
among all of the parties hereto that, except as otherwise expressly provided
herein or in any other Operative Document (other than the Trust Agreement), (i)
this Agreement is executed and delivered by the Owner Trustee not in its or his
individual capacity but solely as trustee under the Trust Agreement in the
exercise of the power and authority conferred and vested in it or him as such
Owner Trustee, (ii) certain of the representations, undertakings and agreements
made herein by the Owner Trustee are not personal representations, undertakings
and agreements,
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but are binding only on the Trust Estate and the Owner Trustee, as trustee,
(iii) except as set forth in the proviso to this sentence, nothing herein
contained shall be construed as creating any liability of the Trust Company or
Michael M. Hopkins or any incorporator or any past, present or future subscriber
to the capital stock of, or stockholder, officer or director of the Trust
Company to perform any covenant, whether express or implied, contained herein,
all such liability, if any, being expressly waived by each of the other parties
hereto and by any Person claiming by, through or under any such party, and (iv)
so far as the Owner Trustee is concerned, each of the other parties hereto and
any Person claiming by, through or under any such party shall (other than with
respect to Claims arising from the willful misconduct or gross negligence of the
Owner Trustee or the failure of the Corporate Owner Trustee to distribute funds
in accordance with the terms of the Operative Documents) look solely to the
Trust Estate and the Indenture Estate for the performance of any obligation
under any of the instruments referred to herein; provided, however, that
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notwithstanding anything in this Section 17.10 to the contrary, the Trust
Company and Michael M. Hopkins, shall be liable (A) each in its or his
individual capacity and as Owner Trustee to the Owner Participant as expressly
set forth in the Trust Agreement, (B) each in its or his individual capacity, in
respect of its or his representations, warranties and agreements made in its or
his individual capacity as expressly set forth herein (including, without
limitation, Sections 8 and 11) or in any other Operative Document to which it or
he is a party or in any Officer's Certificate of the Trust Company, delivered
pursuant hereto, and (C) each in its or his individual capacity for the
consequences of its or his gross negligence or willful misconduct or its or his
failure to distribute funds in accordance with the terms of the Operative
Documents (including, without limitation, willful breach of contract) with
respect to any Owner Trustee Document or Operative Document to which it or he is
a party.
(b) It is expressly understood and agreed by and among all of the
parties hereto that, except as otherwise expressly provided herein or in any
other Operative Document (including, without limitation, subsection (c) of this
Section 17.10), (i) this Agreement is executed and delivered by First Security
Bank of Utah, National Association and Val T. Orton
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not in its or his individual capacity but solely as trustee under the Indenture
in the exercise of the power and authority conferred and vested in it as such
Indenture Trustee, (ii) certain of the representations, undertakings and
agreements made herein by the Indenture Trustee are not personal
representations, undertakings and agreements, but are binding only on the
Indenture Trustee, as trustee, (iii) except as set forth in the proviso to this
sentence, nothing herein contained shall be construed as creating any liability
of Val T. Orton or First Security Bank of Utah, National Association or any
incorporator or any past, present or future subscriber to the capital stock of,
or stockholder, officer or director of, First Security Bank of Utah, National
Association to perform any covenant, whether express or implied, contained
herein, all such liability, if any, being expressly waived by each of the other
parties hereto and by any Person claiming by, through or under any such party,
and (iv) so far as the Indenture Trustee is concerned, each of the other parties
hereto and any Person claiming by, through or under any such party shall (other
than with respect to Claims arising from the willful misconduct or gross
negligence of the Indenture Trustee and for failure of the Corporate Indenture
Trustee to distribute funds in accordance with the terms of the Operative
Documents) look solely to the Indenture Trustee, as trustee for the performance
of any obligation under any of the instruments referred to herein; provided,
--------
however, that notwithstanding anything in this Section 17.10 to the contrary,
- -------
First Security Bank of Utah, National Association and Val T. Orton shall be
liable (A) each in its or his individual capacity, in respect of its or his
representations, warranties and agreements made in its individual capacity as
expressly set forth herein (including, without limitation, in Sections 9 and 11)
or in any other Operative Document to which it or he is a party or in any
Officer's Certificate of First Security Bank of Utah, National Association, made
in its individual capacity delivered pursuant hereto, and (B) in its or his
individual capacity for the consequences of its or his gross negligence or
willful misconduct and for its or his failure to use ordinary care to disburse
funds in accordance with any Operative Document to which it or he is a party.
(c) It is expressly understood and agreed by and among all of the
parties hereto that, except as otherwise expressly provided herein (including,
without limitation,
96
<PAGE>
subsection (b) of this Section 17.10), or in the Pass Through Trust Agreements,
(i) this Agreement is executed and delivered by First Security Bank of Utah,
National Association, not in its individual capacity but solely as trustee under
each Pass Through Trust Agreement in the exercise of the power and authority
conferred and vested in it as such Pass Through Trustee, (ii) certain of the
representations, undertakings and agreements made herein by each Pass Through
Trustee are not personal representations, undertakings and agreements, but are
binding only on the Pass Through Trustee, as trustee, (iii) except as set forth
in the proviso to this sentence, nothing herein contained shall be construed as
creating any liability of First Security Bank of Utah, National Association, or
any incorporator or any past, present or future subscriber to the capital stock
of, or stockholder, officer or director of, First Security Bank of Utah,
National Association, to perform any covenant, whether express or implied,
contained herein, all such liability, if any, being expressly waived by each of
the other parties hereto and by any Person claiming by, through or under any
such party, and (iv) so far as the Pass Through Trustee is concerned, each of
the other parties hereto and any Person claiming by, through or under any such
party shall (other than with respect to Claims arising from the willful
misconduct or negligence of any Pass Through Trustee and for its failure to
distribute funds in accordance with the terms of the Pass Through Trust
Agreements) look solely to each Pass Through Trustee, as trustee for the
performance of any obligation under any of the instruments referred to herein;
provided, however, that notwithstanding anything in this Section 17.10 to the
- -------- -------
contrary, First Security Bank of Utah, National Association, shall be liable (A)
in its individual capacity, in respect of the representations, warranties and
agreements of the Pass Through Trustee made in its individual capacity as
expressly set forth herein (including, without limitation, in Sections 7 and 11)
or in the Pass Through Trust Agreements or in any Officer's Certificate made in
its individual capacity delivered pursuant hereto, and (B) in its individual
capacity for the consequences of its own negligence or willful misconduct and
for its failure to use ordinary care to disburse funds in accordance with the
Pass Through Trust Agreements.
97
<PAGE>
17.11 Jurisdiction; Service of Process. Any legal action or
--------------------------------
proceeding with respect to this Agreement or any other Operative Document to
which any party hereto is a signatory or against any such party or against the
Indenture Estate or Trust Estate may be brought, at the option of any such
party, in any of the courts in the State of New York or the Federal courts of
the United States of America located in the City of New York, and each party
hereto hereby unconditionally accepts the nonexclusive jurisdiction of the
aforesaid courts, expressly waiving any other jurisdiction to which any such
party may be entitled by reason of its present and future domicile. Each party
hereto irrevocably waives any objection it may now or hereafter have to the
laying of venue of any such action or proceeding in any of the aforesaid courts
and any claim it may now or hereafter have that any such action or proceeding
has been brought in an inconvenient forum. Each party hereto further
irrevocably consents to the service of process out of any of the aforesaid
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail to such party's address for notices specified
herein. Nothing herein shall affect the right to serve process in any other
manner permitted by law.
17.12 Instructions. By their respective execution and delivery of
------------
this Agreement, each of the Owner Participant and each Pass Through Trustee
hereby instructs the Owner Trustee and the Indenture Trustee to execute and
deliver this Agreement.
98
<PAGE>
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement
to be duly executed as of the date first above written.
LESSEE: MOBIL G.B. 388 FINANCE INC.
By:/s/ R. E. Sliwinski
-------------------------
Name: R. E. Sliwinski
Title: Treasurer and Vice
President
OWNER PARTICIPANT: GENERAL ELECTRIC CREDIT
CORPORATION OF GEORGIA
By: /s/ John Stewart
------------------------
Name: John Stewart
Title: Vice President
CORPORATE OWNER TRUSTEE: FLEET NATIONAL BANK OF CONNECTICUT, not in its
individual capacity, except as provided herein, but
solely as Corporate Owner Trustee
By: /s/ Michael M. Hopkins
------------------------------
Name: Michael M. Hopkins
Title: Vice President
INDIVIDUAL OWNER MICHAEL M. HOPKINS, not in his
TRUSTEE: individual capacity, except as provided herein, but
solely as Individual Owner Trustee
[SIGNATURE PAGE]
[PARTICIPATION AGREEMENT]
<PAGE>
/s/ Michael M. Hopkins
-----------------------
Michael M. Hopkins
[SIGNATURE PAGE]
[PARTICIPATION AGREEMENT]
<PAGE>
CORPORATE
INDENTURE TRUSTEE: FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION,
not in its individual capacity, except as provided
herein, but solely as Corporate Indenture Trustee
By:/s/ Val T. Orton
--------------------
Name: Val T. Orton
Title: Vice President
INDIVIDUAL
INDENTURE TRUSTEE: VAL T. ORTON, not in his individual capacity,
except as provided herein, but solely as
Individual Indenture Trustee
/s/ Val T. Orton
-----------------------
Val T. Orton
PASS THROUGH TRUSTEE: FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION,
not in its individual capacity, except as provided
herein, but solely as Pass Through Trustee
By:/s/ Val T. Orton
-----------------------
Name: Val T. Orton
Title: Vice President
[SIGNATURE PAGE]
[PARTICIPATION AGREEMENT]
<PAGE>
APPENDIX A
DEFINITIONS
-----------
The following terms shall have the following meanings for all purposes
of the Operative Documents referred to below, unless otherwise defined in an
Operative Document or the context thereof shall otherwise require and such
meanings are equally applicable both to the singular and plural forms of the
terms defined. Any term defined below by reference to any agreement or
instrument shall have such meaning whether or not such agreement or instrument
is in effect. The terms "hereof", "herein", "hereunder" and comparable terms
------ ------ ---------
refer to the entire agreement with respect to which such terms are used and not
to any particular Section, subsection, paragraph or other subdivision thereof.
Unless the context otherwise requires, references to (i) agreements
shall include sections, schedules, exhibits and appendices thereto and shall be
deemed to mean and include such agreements (and sections, schedules, exhibits
and appendices) as the same may be amended, supplemented and otherwise modified
from time to time, (ii) parties to agreements or government agencies shall be
deemed to include the successors and permitted assigns of such parties and the
successors and assigns of such agencies and (iii) laws or regulations shall be
deemed to mean such laws or regulations as the same may be amended from time to
time and any superseding laws or regulations covering the same subject matter.
Unless otherwise specified herein or in any Operative Document,
all accounting terms used in any Operative Document shall be interpreted, all
accounting determinations made pursuant to the terms of any Operative Documents
shall be made, and all financial statements delivered pursuant to the terms of
any Operative Document shall be prepared in accordance with GAAP.
"Actual Knowledge" shall mean, (i) as it applies to the Owner Trustee,
----------------
the Indenture Trustee or the Pass Through Trustee, actual knowledge of,
including any information
<PAGE>
contained in any written notices received by, an officer in its Corporate Trust
Administration department, (ii) as it applies to the Owner Participant, actual
knowledge of, including any information contained in any written notices
received by, any officer of the Owner Participant or any Affiliate thereof whose
responsibilities include administration of the ytransactions contemplated by the
Operative Documents, (iii) as it applies to the Lessee actual knowledge of,
including any information contained in any written notices received by, the
Chief Executive Officer, the President or any Vice President or any other
officer of the Lessee whose responsibilities include administration of the
transactions contemplated by the Operative Documents or, in the case of Section
5 of the Participation Agreement, the Operating Agreement and (iv) as it applies
to the Guarantor actual knowledge of, including any information contained in any
written notices received by, the Chief Executive Officer, the President or any
Vice President or any other executive of the Guarantor whose responsibilities
include administration of the transactions contemplated by the Operative
Documents.
"Additional Notes" shall mean non-recourse Secured Notes issued by the
----------------
Owner Trustee in connection with a Supplemental Financing and in accordance with
Section 2.08 of the Indenture.
"Advance Amount" shall have the meaning specified in Section 3.2(b)
--------------
of the Lease.
"Affiliate" shall mean, with respect to any Person, any other Person,
---------
directly or indirectly controlling or controlled by, or under direct or indirect
common control with, such Person. For purposes of this definition, the term
"control" (including the correlative meanings of the terms "controlling",
- -------- -----------
"controlled by" and "under common control with"), as used with respect to any
- -------------- -------------------------
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities or by contract or otherwise.
"After-Tax Basis", in the context of determining the amount of a
---------------
payment to be made on such basis, shall mean the payment of an amount which,
after reduction by the net increase
A-2
<PAGE>
in foreign, federal, state and local income tax liability of the recipient of
such payment (which net increase shall be calculated by taking into account any
reduction in such taxes resulting from any tax benefits realized or to be
realized by the recipient as a result of the event giving rise to such payment)
shall be equal to the amount required to be paid. In calculating the amount
payable by reason of this provision, all foreign, federal, state and local
income taxes payable and tax benefits realized or to be realized shall be
determined on the assumptions that (i) the recipient has a sufficient tax base
to be taxable on all income at the highest marginal tax rates then applicable to
corporate taxpayers taxed on the same basis as the recipient that are then in
effect in the applicable jurisdictions and that all tax benefits are utilized at
the highest marginal rates then applicable to corporate taxpayers taxed on the
same basis as the recipient that are then in effect in the applicable
jurisdictions, (ii) state and local income taxes are payable, and state and
local tax benefits are realized, in the jurisdiction in which the recipient has
its principal place of business, and (iii) tax benefits to be realized in any
taxable year other than the year of payment are determined on a present value
basis using the Debt Rate; provided, however, that as long as General Electric
-------- -------
Credit Corporation of Georgia, or another entity that is a direct or indirect
wholly-owned subsidiary of General Electric Company is the Owner Participant,
state and local income taxes shall be assumed to be payable by the Owner
Participant at the rate of 7.69%.
"Agency and Support Agreement" shall mean an agency and support
----------------------------
agreement (i) to be entered into between the Owner Trustee (or its transferee or
assignee) and MPTM as provided in Section 8.2 of the Lease, (ii) which shall
contain the terms and conditions set forth in Exhibit B to the Participation
Agreement, (iii) which shall otherwise be in a form reasonably acceptable to the
Owner Trustee and MPTM and (iv) the obligations of MPTM under which shall be
guaranteed by the Guarantor and the obligations of the Owner Trustee (or its
transferee or assignee) under which shall be guaranteed by the Owner
Participant.
"Amortization Schedule" for the Installment Secured Notes shall mean
---------------------
the amortization schedule for the Installment Secured Notes set forth in Exhibit
B to the Indenture.
A-3
<PAGE>
"Appraisal Procedure" shall mean a procedure for determining any
-------------------
amount, value or period. Such procedure shall be commenced by the delivery of
written notification as specified in the Operative Documents by the Lessee to
the Lessor or the Owner Participant, as the case may be, or by the Owner
Participant or the Lessor, as the case may be, to the Lessee, that it desires to
obtain an appraisal with respect to such amount, value or period. If required
by the terms of the applicable Operative Documents, such parties shall first
attempt to agree on such matter. If such parties are unable to agree on such
matter within the time period specified in the applicable Operative Document, or
if such parties are not required to attempt to agree, such parties shall
thereupon consult for the purpose of selecting a mutually acceptable Independent
appraiser. If within 10 days from the date the parties are required to so
consult, they are unable to agree upon the appointment of a mutually acceptable
Independent appraiser, then each of such parties shall appoint an Independent
appraiser, and such Independent appraisers shall jointly determine such matter.
If one party does not so appoint an Independent appraiser, then the Independent
appraiser appointed by the other shall determine such matter as the sole
appraiser. If such two Independent appraisers cannot agree on such matter
within 20 days, such matters shall be determined by such two Independent
appraisers and a third Independent appraiser chosen within 10 days after such
20-day period by such two Independent appraisers or, if such three Independent
appraisers fail to reach an agreement, the determination of the appraiser that
differs most from the second highest determination shall be excluded (unless
such difference is less than ten percent from either of the other
determinations), the remaining two determinations shall be averaged (or all
three shall be averaged, if the third determination is not discarded due to the
preceding parenthetical) and such average shall constitute the determination of
the appraisers. If such two Independent appraisers fail to agree upon the
appointment of a third Independent appraiser within the allotted time period,
such appointment shall be made by the New York City office of the American
Arbitration Association or any organization successor thereto, upon the request
of any such parties from a panel of arbitrators having familiarity with assets
similar to the assets comprised by the Production System. The determination of
the appraisers so chosen shall be given within 20 days of the appointment of
such third appraiser. Fees and expenses of the
A-4
<PAGE>
appraisers appointed in connection with an Appraisal Procedure shall be paid by
the Lessee, except that if the Appraisal Procedure is utilized in connection
with the actual purchase by the Lessee of the Undivided Interest pursuant to
Section 6.1(a) of the Lease or in connection with a Renewal Term actually
entered into pursuant to the exercise by the Lessee of a renewal option pursuant
to Section 5.1(b) or (c) of the Lease, all such fees and expenses shall be borne
equally by the Lessee and the Lessor.
"Appraiser" shall mean Noble Denton Associates Inc.
---------
"Assumed Debt Rate" shall mean, with respect to any Series 1995 A
-----------------
Secured Note, the per annum interest rate set forth with respect to such Series
1995 A Secured Note on Exhibit B to the Indenture.
"Basic Lease Term" shall mean the period commencing on the Basic Lease
----------------
Term Commencement Date and ending on January 2, 2011 or such shorter period as
may result from earlier termination as provided in the Lease.
"Basic Lease Term Commencement Date" shall mean January 3, 1996.
----------------------------------
"Basic Rent" shall mean the rent payable pursuant to Section 3.1 of
----------
the Lease.
"Basic Rent Payment Dates" during the Basic Lease Term or any Renewal
------------------------
Term shall mean and include each January 2 and July 2 during the Basic Lease
Term or such Renewal Term, commencing on July 2, 1996.
"Basic Rent Percentages" shall mean the percentages set forth in
----------------------
Schedule 1 to the Lease.
"Beneficial Interest" shall have the meaning specified in Section
-------------------
16.1 of the Participation Agreement.
"Beneficial Interest Purchase Price" shall have the meaning specified
----------------------------------
in Section 16.1 of the Participation Agreement.
A-5
<PAGE>
"Bill of Sale" shall mean the Assignment and Bill of Sale of
------------
Production System dated the Closing Date from the Lessee to the Owner Trustee
and when used with respect to the Platform, shall include the Bill of Sale from
the Lessee accepted by the Owner Trustee covering the sale of the Panamanian
Flag Platform named Enserch Garden Banks official number 8521, dated the Closing
Date and delivered pursuant to Sections 3.1 and 4.2 of the Participation
Agreement.
"Board of Directors" shall mean, with respect to any Person, either
------------------
the board of directors of such Person or a duly authorized committee of said
board having power to act for such board with respect to the matter in question.
"Business Day" shall mean any day other than a Saturday or Sunday or
------------
any other day on which banks located in New York, New York, Fairfax, Virginia,
the city in which the Corporate Indenture Trustee Office is located, the city in
which the corporate trust department of the Corporate Owner Trustee is located
or, so long as any Pass Through Certificate is Outstanding, the city in which
the corporate trust department of the Pass Through Trustee is located, are
required or authorized to remain closed.
"Capital Stock" shall mean, with respect to any Person, any and all
-------------
shares, interests, participations or other equivalents (however designated) of
such Person's capital stock, whether now outstanding or issued after the date of
the Participation Agreement, including, without limitation, all Common Stock and
Preferred Stock of such Person.
"Casualty Redemption Date" shall have the meaning specified in
------------------------
Section 3.02(a) of the Indenture.
"Certificate" shall mean any one of the certificates executed and
-----------
authenticated by any Pass Through Trustee, substantially in the form of Exhibit
A to the related Pass Through Trust Agreement.
"Certificateholder" shall have the meaning specified in the Pass
-----------------
Through Trust Agreements.
"Claims" shall mean all liabilities (including, without limitation,
------
negligence, warranty, statutory, product,
A-6
<PAGE>
strict or absolute liability, liability in tort or otherwise), obligations,
responsibilities, losses, damages, penalties, fines, sanctions, claims,
Environmental Claims, actions, causes of action, suits, investigations,
judgments, Liens (including any Lien in favor of any Governmental Authority for
environmental liabilities and costs or violations of any Environmental Laws),
costs, expenses and disbursements, of any kind or nature, including, without
limitation, reasonable legal fees and expenses and costs of investigation.
"Classification Society" shall mean the American Bureau of Shipping or
----------------------
any other classification society selected by the Lessee.
"Closing Date" shall mean December 12, 1995.
------------
"Code" shall mean the Internal Revenue Code of 1986.
----
"Common Stock" shall mean, with respect to any Person, any and all
------------
shares, interests, participations and other equivalents (however designated,
whether voting or non-voting) of such Person's common stock, whether now
outstanding or issued after the date of the Participation Agreement, and
includes, without limitation, all series and classes of such common stock.
"Components" shall mean appliances, parts, instruments, appurtenances,
----------
accessories, equipment and other property of whatever nature originally included
in the Production System on the Closing Date (other than any complete Major
Component).
"Corporate Indenture Trustee" shall have the meaning set forth in
---------------------------
the preamble to the Indenture.
"Corporate Owner Trustee" shall have the meaning set forth in the
-----------------------
preamble to the Trust Agreement.
"Corporate Trust Office", when used with respect to any Pass Through
----------------------
Trustee, shall mean the office of such Pass Through Trustee in the city at which
at any particular time its corporate trust business shall be principally
administered, and when used with respect to the Indenture Trustee, shall mean
the Indenture Trustee Office.
A-7
<PAGE>
"Cut-off Date" shall mean December 29, 1995.
------------
"Debt Percentage" shall mean the percentage set forth as the "Debt
---------------
Percentage" in Schedule 2 to the Participation Agreement.
"Debt Rate" shall mean the weighted average interest rate borne by
---------
the Secured Notes.
"Early Buy-Out Date" shall mean the date set forth as the "Early
------------------
Buy-Out Date" in Schedule 4 to the Lease.
"Early Buy-Out Percentage" shall mean the percentage set forth as the
------------------------
"Early Buy-Out Percentage" in Schedule 4 to the Lease.
"Early Buy-Out Purchase Price" shall mean the product of (x) Lessor's
----------------------------
Cost and (y) the Early Buy-Out Percentage.
"Eligible Bank" shall mean any bank or trust company which shall be a
-------------
member of the Federal Reserve System and shall have a combined capital, surplus
and undivided profits of not less than $100,000,000.
"Enserch" shall mean Enserch Exploration, Inc., a Texas corporation.
-------
"Enserch Holdings" shall mean Enserch Exploration Holdings, Inc., a
----------------
Delaware corporation.
"Environmental Claims" shall mean any Claim, action, cause of action,
--------------------
investigation or notice (written or oral) by any Person or entity alleging
potential liability (including, without limitation, potential liability for
investigatory costs, cleanup costs, Remedial Action, Releases, governmental
response costs, natural resources damages, property damages, personal injuries,
or penalties) arising out of, based on or resulting from (a) the presence,
release into the environment, of any Hazardous Material at any location, whether
or not owned or operated by the Lessee, the Operator or MPTM or (b)
circumstances forming the basis of any violation, or alleged violation, of any
Environmental Law.
A-8
<PAGE>
"Environmental Laws" shall mean all federal, state, foreign and local
------------------
laws and regulations, relating to pollution or protection of the environment
(including, without limitation, ambient air, surface, water, groundwater, land
surface or subsurface strata, wetlands, wildlife, aquatic species, vegetation
and natural resources), including, without limitation, laws and regulations
relating to emissions, discharges, Releases or threatened Releases of Hazardous
Materials or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials.
Environmental Laws include, but are not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"); the
------
Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"); the Resource
-----
Conservation Recovery Act ("RCRA"); Oil Pollution Act of 1990 ("OPA"); the
---- ---
Superfund Amendments and Reauthorization Act of 1986 ("SARA"); the Toxic
----
Substances Control Act ("TSCA"); the Hazardous Material Transportation Act; the
----
Clean Air Act; the Federal Water Pollution Control Act; the Safe Drinking Water
Act; and their state and local counterparts or equivalents.
"Environmental Permits" shall mean all permits, consents, licenses,
---------------------
certificates and other approvals or authorizations required under Environmental
Laws.
"Equity Percentage" shall mean an amount equal to 100% minus the
-----------------
Debt Percentage.
"ERISA" shall mean the Employee Retirement Income Security Act of
-----
1974.
"ERISA Affiliate" shall mean any entity treated as a single employer
---------------
with any Person pursuant to Section 414(b), (c), (m) or (o) of the Code.
"ERISA Plan Assets" shall mean the assets of (i) an employee benefit
------------------
plan subject to Part 4 of Subtitle B of Title I of ERISA or (ii) a "plan" within
the meaning of Section 4975(e)(1) of the Code or (iii) any other entity deemed
to hold "plan assets" as defined in 29 C.F.R. (S)2510.3-101 of any plan.
"Event of Loss" shall mean any of the following events: (a) the (i)
-------------
loss, theft, destruction or disappearance
A-9
<PAGE>
of, or (ii) occurrence of damage (which, in the Lessee's reasonable, good faith
opinion, renders repair or replacement uneconomic) to, the Production System (or
substantially the entirety of the Production System) or a Significant Portion
thereof; (b) the permanent condemnation, confiscation or seizure of, or
requisition of title to, the Production System or a Significant Portion thereof
by any Governmental Authority; (c) the requisition of use of the Production
System or a Significant Portion thereof by any Governmental Authority for a
period (i) which shall exceed the remaining portion of the Lease Term or (ii)
which is longer than three years and which extends beyond the date which is
twelve months prior to the scheduled expiration of the Lease Term; (d) the
receipt of insurance proceeds based upon an actual or constructive total loss of
the Production System or a Significant Portion thereof; (e) the parties to the
Operating Agreement have determined, after January 1, 2001, to abandon the
Production System or any Significant Portion thereof; or (f) the parties to the
Operating Agreement have determined, after the January 1, 1998 and prior to
January 2, 2001, and after MPTM has taken all commercially reasonable steps to
exercise its rights under the Operating Agreement to prevent such abandonment,
to abandon the Production System or a Significant Portion thereof. An Event of
Loss with respect to a Significant Portion of the Production System may
constitute an Event of Loss with respect to the Production System. Such
determination shall be made by the Lessee in its reasonable judgement.
"Excepted Payments" shall mean and include (i) any indemnity or other
-----------------
payment (whether or not Supplemental Rent) payable under any Operative Document
(including, without limitation, any amount payable by the Guarantor under the
Guaranty in respect of indemnity amounts payable by the Lessee under any
Operative Document) directly to any Person (including, without limitation, the
Trust Company, Hopkins, any Pass Through Trustee, Orton or First Security Bank
of Utah, National Association, each in its or his individual capacity) other
than the Indenture Trustee, any Holder, the Owner Trustee, the Trust Estate or
the Indenture Estate; (ii) (A) insurance proceeds, if any, payable to the Owner
Trustee or the Owner Participant under insurance separately maintained by the
Owner Trustee or the Owner Participant as permitted by Section 13.4 of the Lease
except to the extent that the payment of any such proceeds diminishes any
recovery available under an insurance policy
A-10
<PAGE>
required to be maintained under Section 13 of the Lease, or (B) proceeds of
personal injury or property damage liability insurance payable to or for the
benefit of the Trust Company, Hopkins or the Owner Participant under any
Operative Document; (iii) any amount payable to the Owner Participant pursuant
to the Tax Indemnity Agreement or for the account of the Owner Participant
pursuant to Section 12.2 of the Participation Agreement (or any amount payable
by the Guarantor under the Guaranty in respect of amounts payable to the Owner
Participant pursuant to the Tax Indemnity Agreement or for the account of the
Owner Participant pursuant to Section 12.2 of the Participation Agreement); (iv)
payments under the Tax Indemnity Agreement payable as Basic Rent (or payments by
the Guarantor under the Guaranty in respect of such Basic Rent); (v) that
portion of Stipulated Loss Value, Termination Value and Early Buy-Out Purchase
Price payments attributable to Tax Indemnity Agreement obligations of the Lessee
(or payments by the Guarantor under the Guaranty in respect of such portion of
Stipulated Loss Value, Termination Value and Early Buy-Out Purchase Price); (vi)
if the Lessee purchases the Undivided Interest pursuant to Section 6 of the
Lease and in connection therewith assumes the Secured Notes on a full recourse
basis pursuant to Section 3.04 of the Indenture, that portion of the applicable
purchase price in excess of the principal of and accrued interest on the
Outstanding Secured Notes; and (vii) interest at the Overdue Rate payable by the
Lessee (or the Guarantor) to the Trust Company, Hopkins or the Owner Participant
on any of the amounts described in clauses (i) through (v) above; together with
the right to demand, collect, sue for, exercise remedies to enforce, or
otherwise obtain amounts referred to in clauses (i) through (vii) of this
definition. For purposes of clause (iv) above, if an adjustment to Basic Rent
has been made pursuant to Section 4.1(vi) of the Lease, (1) the amount, if any,
on each Basic Rent Payment Date occurring on or after the effective date of such
adjustment, by which (x) Basic Rent minus the amount of scheduled payments of
principal and interest due on such Basic Rent Payment Date on the Secured Notes
after making such adjustment exceeds (y) the amount by which Basic Rent but for
such adjustment would have exceeded the amount of scheduled payments of
principal and interest on the Secured Notes which would have been due on such
Basic Rent Payment Date but for such adjustment and (2) the amount payable by
the Guarantor in respect of the amount
A-11
<PAGE>
described in clause (1) of this sentence, shall be an Excepted Payment.
"Exchange Act" shall mean the Securities Exchange Act of 1934.
------------
"Exchange Certificates" shall mean the Pass Through Certificates
---------------------
issued pursuant to the Exchange Offer.
"Exchange Offer" shall have the meaning set forth in the
--------------
Registration Rights Agreement.
"Exchange Registration Offer" shall have the meaning set forth in
---------------------------
the Registration Rights Agreement.
"Fair Market Renewal Term" shall mean a period commencing at the end
------------------------
of the Basic Lease Term or any Renewal Term and ending on the date chosen by the
Lessee pursuant to Section 5.3 of the Lease, during which the Undivided Interest
may be leased for Fair Market Rental Value as permitted by Section 5.1 of the
Lease, or such shorter period as may result from earlier termination of the
Lease.
"Fair Market Rental Value" or "Fair Market Sales Value" of any
------------------------ -----------------------
property or service as of any date shall mean the cash rent or cash price that
would be obtained in an arm's-length lease or sale, respectively, between an
informed and willing lessee or buyer (under no compulsion to lease or purchase)
and an informed and willing lessor or seller (under no compulsion to lease or
sell) of the property or services in question, disregarding the purchase and
renewal options set forth in the Lease or the Beneficial Interest purchase
option under Section 16.1 of the Participation Agreement and shall be determined
on the basis that (unless determined pursuant to Section 16 of the Lease) the
Production System has been maintained in accordance with the requirements of
the Lease (but otherwise on an "as-is" basis).
"Federal Leases" shall mean those certain oil and gas leases
--------------
described in Exhibit B to the Lease.
"Final Appraisal" shall mean the appraisal delivered pursuant to
---------------
Section 4.5(a) of the Participation Agreement.
A-12
<PAGE>
"Final Determination" shall mean (i) a decision, judgment, decree or
-------------------
other order by any court of competent jurisdiction that resolves the matter,
which decision, judgment, decree or other order has become final (i.e., the
----
earliest of when all allowable appeals have been exhausted by either party to
the action or the time for filing such appeal has expired or the Tax Indemnitee
has notified the Lessee in writing that it does not intend to make such an
appeal, (ii) a closing agreement entered into under Section 7121 of the Code (or
any successor provision) or any other settlement agreement entered into in
connection with the administrative or judicial proceedings, in any case with the
Lessee's consent, (iii) the expiration of the time for instituting an initial
suit with respect to a claimed deficiency or for instituting a claim for refund,
or, if a refund claim was filed, the expiration of the time for instituting suit
with respect thereto or (iv) the point in time when the Tax Indemnitee is no
longer required to contest the imposition of such Tax pursuant to Section
12.2(e) of the Participation Agreement or Section 7 of the Tax Indemnity
Agreement.
"Fixed Price Purchase Amount" shall mean the product of 33.38% and
---------------------------
Lessor's Cost.
"Fixed Rate Renewal Term" shall mean a period commencing at the end of
-----------------------
the Basic Lease Term, the Initial Fixed Rate Renewal Term, the Second Fixed Rate
Renewal Term or any other Fixed Rate Renewal Term and ending on the date chosen
by the Lessee pursuant to Section 5.3 of the Lease, during which the Undivided
Interest may be leased as permitted by Section 5.1(a) or 5.1(d) of the Lease, or
such shorter period as may result from early termination of the Lease.
"GAAP" shall mean generally accepted accounting principles in the
----
United States of America.
"Governmental Actions" shall mean all actions, authorizations,
--------------------
consents, approvals, waivers, exceptions, variances, franchises, filings,
orders, permits, licenses, exemptions, publications, notices to and declarations
of or with any Governmental Authority, including, without limitation, those
pertaining to Environmental Laws and Environmental Permits.
A-13
<PAGE>
"Governmental Authority" shall mean any nation or government, any
----------------------
state, county, municipality or other political subdivision thereof or any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Governmental Rules" shall mean applicable statutes, laws, rules,
------------------
codes, ordinances, decisions, regulations, permits, certificates and orders of
any Governmental Authority now or hereafter in effect and any interpretation
thereof by competent Governmental Authority, including any judicial or
administrative order, consent decree, settlement agreement or judgment,
including, without limitation, Environmental Laws.
"Guarantor" shall mean Mobil Corporation, a Delaware corporation.
---------
"Guaranty" shall mean the Mobil Guaranty dated as of the Closing Date
--------
by Guarantor in favor of the Owner Trustee, the Owner Participant, the Indenture
Trustee and each Pass Through Trustee.
"Hazardous Materials" shall mean all substances defined as such in the
-------------------
National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. (S)
300.5, or defined as such by, or regulated as such under, any law relating to
pollution or protection of the environment.
"Holder" shall mean a registered holder of a Secured Note and shall
------
include, so long as any Pass Through Trustee is a registered holder of a Secured
Note, such Pass Through Trustee.
"Hopkins" shall mean Michael M. Hopkins, an individual in his
-------
individual capacity.
"Hydrocarbons" shall mean oil, gas and other hydrocarbons produced
------------
from the Unit Reserves, all products processed or obtained therefrom, and all
inventory thereof upon extraction.
"Indemnitee" shall mean the Corporate Owner Trustee (both in its
----------
individual and its trust capacity), the Individual Owner Trustee (both in his
individual and his trust capacity),
A-14
<PAGE>
the Owner Participant, the Corporate Indenture Trustee (both in its individual
and its trust capacity), the Individual Indenture Trustee (both in his
individual and his trust capacity), each Pass Through Trustee (both in its
individual and trust capacities), each Loan Participant, and their respective
Affiliates, shareholders, officers, directors, agents, employees and servants.
"Indenture" shall mean the Trust Indenture, Mortgage, Assignment of
---------
Lease and Security Agreement dated as of the Closing Date between the Owner
Trustee and the Indenture Trustee.
"Indenture Default" shall mean an event which, after giving of notice
-----------------
or lapse of time, or both, would become an Indenture Event of Default.
"Indenture Estate" shall have the meaning specified in the Granting
----------------
Clause of the Indenture.
"Indenture Event of Default" shall have the meaning specified in
--------------------------
Section 5.02 of the Indenture.
"Indenture Indebtedness" shall have the meaning specified in the
----------------------
Recitals to the Indenture.
"Indenture Supplement" shall mean any indenture supplement,
--------------------
substantially in the form of Exhibit D to the Indenture, that may be executed
and delivered by the Owner Trustee and the Indenture Trustee from time to time.
"Indenture Trustee" shall mean the Corporate Indenture Trustee and the
-----------------
Individual Indenture Trustee, collectively.
"Indenture Trustee Office" shall mean the office of the Corporate
------------------------
Indenture Trustee located at 79 South Main Street, Salt Lake City, Utah,
Attention: Corporate Trust Department or such other office as may be designated
by the Corporate Indenture Trustee to the Owner Trustee and the Lessee.
"Indenture Trustee's Liens" shall mean Liens on or against all or any
-------------------------
part of the Production System, the Undivided Interest, the Lease, the Trust
Estate, the Indenture Estate or
A-15
<PAGE>
any payment of Rent (a) which result from any act of, or failure to act by, or
any Claim against, the Corporate Indenture Trustee (in its individual capacity
or as trustee) or the Individual Indenture Trustee (in his individual capacity
or as trustee) un related to the transactions contemplated by the Participation
Agreement or any other Operative Document, or which result from any violation by
the Corporate Indenture Trustee (in its individual capacity or as trustee) or
the Individual Indenture Trustee (in his individual capacity or as trustee) of
any of the terms of the Operative Documents, or (b) which result from Liens in
favor of any taxing authority by reason of any Tax owed by the Corporate
Indenture Trustee (in its individual capacity or as trustee) or the Individual
Indenture Trustee (in his individual capacity or as trustee), except that
Indenture Trustee's Liens shall not include any Lien directly resulting from any
Tax for which the Lessee is specifically obligated to indemnify the Corporate
Indenture Trustee (in its individual capacity or as trustee) or the Individual
Indenture Trustee (in his individual capacity or as trustee) until such time as
the Lessee shall have already paid to, or on behalf of, the Indenture Trustee,
the Tax or an indemnity with respect to the same.
"Independent" shall mean, when used with respect to any specified
-----------
Person, a Person who (1) is in fact independent, (2) does not have any direct
financial interest in the Trust Company, the Owner Trustee, the Owner
Participant or the Lessee or any Affiliate of any of them and (3) is not
connected with the Trust Company, the Owner Participant or the Lessee or any
such Affiliate as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions. Whenever it is provided that
any Independent Person's opinion or certificate shall be furnished to the
Indenture Trustee, such Person shall be appointed by the Lessee and approved by
the Indenture Trustee in the exercise of reasonable care and such opinion or
certificate shall state that the signer has read this definition and that the
signer is Independent within the meaning hereof.
"Independent Investment Banker" shall mean an independent investment
-----------------------------
banking institution of national standing appointed by the Lessee on behalf of
the Owner Trustee; provided that if the Indenture Trustee shall not have
--------
received written notice of such an appointment at least 10 days prior to the
A-16
<PAGE>
relevant Redemption Date or Lease Termination Date or if a Lease Event of
Default shall have occurred and be continuing, "Independent Investment Banker"
-----------------------------
shall mean such an institution appointed by the Indenture Trustee.
"Individual Indenture Trustee" shall have the meaning set forth in
----------------------------
the preamble to the Indenture.
"Individual Owner Trustee" shall have the meaning set forth in the
------------------------
preamble to the Trust Agreement.
"Initial Fixed Rate Renewal Term" shall mean the period commencing at
-------------------------------
the end of the Basic Lease Term and ending on the date chosen by the Lessee
pursuant to Section 5.3 of the Lease, during which the Undivided Interest may be
leased as permitted by Section 5.1(a) of the Lease, or such shorter period as
may result from earlier termination of the Lease.
"Initial Secured Notes" shall mean the Secured Notes issued under the
---------------------
Indenture on the Closing Date or any Secured Notes issued in exchange therefor
pursuant to Sections 2.06 and 2.07 of the Indenture.
"Initial Sublease" shall mean the Production System Sublease Agreement
----------------
dated as of the Closing Date between the Lessee and MPTM.
"Installment Payment Amount" shall mean, with respect to each
--------------------------
Installment Secured Note, the amount of the installment payment of principal due
and payable on each Installment Payment Date, which amount is equal to the
product of the remaining unpaid principal amount of such Installment Secured
Note and the Installment Payment Percentage for such Installment Payment Date.
"Installment Payment Date" shall mean each date on which an
------------------------
installment payment of principal is due and payable on any Installment Secured
Note, as set forth in Exhibit B-1 to the Indenture.
"Installment Payment Percentage" shall mean, with respect to each
------------------------------
Installment Payment Date, the percentage set forth opposite such Installment
Payment Date in Exhibit B-1 to the Indenture.
A-17
<PAGE>
"Installment Secured Note" shall mean the Series 1995 A-6 Secured
------------------------
Notes.
"Interest Payment Date" shall mean each January 2 and July 2.
---------------------
"Interim Interest Payment" shall have the meaning specified in
------------------------
Section 11.1(i) of the Participation Agreement.
"Interim Interest Payment Date" shall have the meaning specified in
-----------------------------
Section 11.1(i) of the Participation Agreement.
"Interim Lease Term" shall mean the period commencing on the
-------------------
Closing Date and ending on the day immediately preceding the Basic Lease Term
Commencement Date, or such shorter period as may result from earlier termination
of the Lease.
"Investment" shall have the meaning specified in Section 2.1 of the
----------
Participation Agreement.
"Lease" shall mean the Production System Lease Agreement dated as of
-----
the Closing Date between the Lessor and the Lessee.
"Lease Default" shall mean an event which, after giving of notice or
-------------
lapse of time, or both, would become a Lease Event of Default.
"Lease Event of Default" shall have the meaning specified in Section
----------------------
15 of the Lease.
"Lease Term" shall mean, collectively, the Interim Lease Term, the
----------
Basic Lease Term and all Renewal Terms (if any).
"Lease Termination Date" shall mean the last day of the Lease Term,
----------------------
whether occurring by reason of expiration of the Lease Term or upon earlier
termination of the Lease pursuant to the terms thereof (including, without
limitation, termination pursuant to Section 16.1 of the Lease).
"Lessee" shall mean Mobil G.B.
------
A-18
<PAGE>
"Lessor" shall mean the Corporate Owner Trustee and the Individual
------
Owner Trustee, collectively.
"Lessor's Cost" shall mean the amount set forth as "Lessor's Cost" in
-------------
Schedule 6 to the Lease; provided, however, that Lessor's Cost shall be reduced
-------- -------
by the Original Cost of any Significant Portion of the Undivided Interest in
respect of which the Lessee has paid Termination Value or Stipulated Loss Value
pursuant to Section 7.3 or 12.2 of the Lease.
"Lessor's Liens" shall mean Liens on or against all or any part of the
--------------
Production System, the Undivided Interest, the Lease, the Trust Estate, the
Indenture Estate or any payment of Rent (a) which result from any act of, or any
failure to act by, or any Claim against, the Trust Company, Hopkins or the Owner
Trustee unrelated to its interest in the Undivided Interest, the administration
of the Trust Estate or the transactions contemplated by the Participation
Agreement or any other Operative Document, or which result from any violation by
the Trust Company, Hopkins or the Owner Trustee of any of the terms of the
Operative Documents, or (b) which result from Liens in favor of any taxing
authority by reason of any Tax owed by the Trust Company, Hopkins or the Owner
Trustee, except that Lessor's Liens shall not include any Lien resulting from
any Tax for which the Lessee is obligated to indemnify the Trust Company,
Hopkins or the Owner Trustee until such time as the Lessee shall have already
paid to, or on behalf of, the Trust Company, Hopkins or the Owner Trustee, as
the case may be, the Tax or an indemnity with respect to the same.
"Lessor's Share" shall mean, (i) with respect to any Modification (or
--------------
the cost thereof) or Component (or Replacement Component) or (ii) with respect
to the sale proceeds of the Undivided Interest or a Significant Portion thereof,
a percentage interest in such Modification (or the cost thereof), Component (or
Replacement Component) or proceeds which is equal to the Lessor's percentage
interest in the Production System.
"Lien" shall mean any mortgage, pledge, security interest,
----
encumbrance, lien, right of others or charge of any kind, including, without
limitation, any Environmental Liens, any right of first refusal, any title
defect, conditional sale or other title retention agreement or any lease in the
nature thereof or any libel or complaint in admiralty or the filing of,
A-19
<PAGE>
or agreement to give, any financing statement under the Uniform Commercial Code
of any jurisdiction.
"Louisiana Trust Estate" shall have the meaning specified in Section
----------------------
10.2(a) of the Trust Agreement.
"Loan Participant" shall mean and include each Holder (including, so
----------------
long as it holds a Secured Note, any Pass Through Trustee).
"Major Components" shall mean any of the Pipeline, the Platform, the
----------------
Shallow Water Processing Facility and the Subsea Systems.
"Major Modification" shall have the meaning specified in Section
------------------
6.1(e) of the Lease.
"Majority in Interest of Holders of Notes" shall mean, as of any date
----------------------------------------
of determination, Holders holding in aggregate more than 51% of the total
principal amount of the Secured Notes Outstanding.
"Make-Whole Amount" shall mean:
-----------------
(i) with respect to the principal amount of any Secured Note to be
redeemed, in whole, or purchased on any Redemption Date, the amount which the
Independent Investment Banker determines as of the fourth Business Day prior to
such Redemption Date to equal the excess, if any, of (x) the sum of the present
values of all the remaining scheduled payments of principal and interest from
the Redemption Date to maturity of such Secured Note, discounted semi-annually
on each Interest Payment Date at a rate equal to the Treasury Rate plus .10%,
based on a 360-day year of twelve 30-day months, over (y) the aggregate unpaid
principal amount of such Secured Note plus accrued but unpaid interest on such
Secured Note (but not any accrued interest in default); and
(ii) with respect to the principal amount of any Secured Note to be
redeemed, in part, on any Redemption Date, the amount which the Independent
Investment Banker determines as of the fourth Business Day prior to such
Redemption Date to equal the excess, if any, of (x) the sum of that portion
of all of the remaining scheduled
A-20
<PAGE>
payments of principal and interest from the Redemption Date to maturity of
such Secured Note representing the principal that is to be redeemed on such
Redemption Date and the interest that would have accrued thereon,
discounted semi-annually on each Interest Payment Date at a rate equal to
the Treasury Rate plus .10%, based on a 360-day year of twelve 30-day
months, over (y) an amount equal to the principal amount of such Secured
Note to be redeemed plus accrued but unpaid interest on such principal
amount (but not any accrued interest in default).
"Maturity Date" shall mean, with respect to the Secured Note of any
-------------
series, the date specified as the "Maturity Date" for such series on Exhibit B
to the Indenture.
"Mobil G.B." shall mean Mobil G.B. 388 Finance Inc., a Delaware
----------
corporation.
"Modifications" shall mean alterations, modifi cations, additions and
-------------
improvements of or to the Production System but shall not include any Component
or Replacement Component.
"MPTM" shall mean Mobil Producing Texas & New Mexico Inc., a Delaware
----
corporation.
"MPTM Documents" shall have the meaning set forth in Section 5.14 of
--------------
the Participation Agreement.
"Multiemployer Plan" shall mean a "multiemployer plan" as defined in
------------------
Section 4001(a)(3) of ERISA which is maintained for employees of the Lessee or
any of its ERISA Affiliates.
"Net Present Value of Basic Rent" shall mean the net present value, as
-------------------------------
of the Closing Date, of Basic Rent payable during the Basic Lease Term,
discounted semi-annually at a rate per annum equal to the Debt Rate.
"Nonseverable Modification" shall mean any Modification to the
-------------------------
Production System which is not a Severable Modification.
A-21
<PAGE>
"Note Register" shall have the meaning specified in Section 2.04 of
-------------
the Indenture.
"Obsolescence Termination Election" shall have the meaning specified
---------------------------------
in Section 7.2 of the Lease.
"Officer's Certificate" and "Officers' Certificate" of any Person
--------------------- ---------------------
shall mean a certificate signed on behalf of such Person by the Chairman, the
President, any Vice President, any Assistant Vice President, Financial Services
Officer, the Controller, Assistant Treasurer or the Treasurer of such Person or
any other individual duly authorized and acting in such capacity or, in the case
of the Owner Trustee or the Indenture Trustee, a Responsible Officer of the
Owner Trustee or Indenture Trustee.
"Operating Agreement" shall mean the Offshore Unit Operating Agreement
-------------------
effective April 12, 1995 between MPTM and Enserch or any other operating
agreement with respect to the Production System that complies with Section 10.9
of the Participation Agreement.
"Operative Documents" shall mean the Bill of Sale, the Guaranty, the
-------------------
Indenture, each Indenture Supplement, the Lease, the Participation Agreement,
the Secured Notes, the Ship Mortgage, the Tax Indemnity Agreement and the Trust
Agreement.
"Operator" shall mean Enserch as operator under the Operating
--------
Agreement.
"Original Cost" shall mean (i) with respect to the Lessor's Share of
-------------
any Major Component (in its entirety), the product of Lessor's Cost (without
regard to any reduction in Lessor's Cost pursuant to the proviso contained in
the definition thereof) and the percentage set forth opposite such Major
Component on Schedule 5 to the Participation Agreement, (ii) with respect to the
Lessor's Share of any Components (or any Replacement Components which have
replaced such Components in accordance with the Lease), an amount equal to that
portion of Lessor's Cost (without regard to any reduction in Lessor's Cost
pursuant to the proviso contained in the definition thereof) attributable, as of
the Closing Date, to the Lessor's Share of such Components (or such Replacement
Components) as determined pursuant to Section 7.5 of the Lease, (iii) with
A-22
<PAGE>
respect to a Significant Portion of the Undivided Interest, the amount
determined with respect to such Significant Portion pursuant to Section 7.5 of
the Lease, and (iv) with respect to a Significant Portion of the Production
System, an amount equal to that portion of the total cost of the Production
System (which total cost equals the product of Lessor's Cost and 2.5)
attributable, as of the Closing Date, to such Significant Portion as reasonably
determined by the Lessee.
"Orton" shall mean Val T. Orton, an individual, in his individual
-----
capacity.
"Other Owner" shall mean any owner (or owners) from time to time of
-----------
the Other Undivided Interest.
"Other Undivided Interest" shall mean the 60% undivided interest in
------------------------
the Production System held in net lease by Enserch on the Closing Date.
"Outstanding" shall mean, when used with respect to the Secured Notes
-----------
as of any date of determination, all Secured Notes theretofore authenticated and
delivered under the Indenture, except:
(i) Secured Notes theretofore cancelled by the Indenture
Trustee or delivered to the Indenture Trustee for cancellation;
(ii) Secured Notes or portions thereof for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Indenture Trustee, provided that such Secured
--------
Notes are to be redeemed and notice of such redemption has been duly
given and not revoked or otherwise withdrawn pursuant to the
Indenture; and
(iii) Secured Notes paid or in exchange for which or in lieu of
which other Secured Notes have been authenticated and delivered
pursuant to the Indenture;
provided, however, that in determining whether the Holders of the requisite
-------- -------
principal amount of Secured Notes Outstanding have given any request, demand,
authorization,
A-23
<PAGE>
direction, notice, consent or waiver hereunder, Secured Notes owned by the Owner
Trustee, the Lessee, the Owner Participant, or any Affiliate of the Lessee, the
Owner Trustee or the Owner Participant, shall be disregarded and deemed not to
be Outstanding, unless such Person owns 100% of the Secured Notes owned by all
Persons, except that, in determining whether the Indenture Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Secured Notes which the Indenture Trustee knows
to be so owned shall be so disregarded. Secured Notes so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Indenture Trustee the pledgee's right so to act with
respect to such Secured Notes and that the pledgee is not the Owner Trustee, the
Lessee, the Owner Participant or any Affiliate of the Owner Trustee, the Lessee
or the Owner Participant.
"Overdue Rate" shall mean a rate per annum equal to (i) with respect
------------
to amounts owing to any Loan Participant constituting payments or prepayments of
the principal amount of the Secured Notes of any series, the rate of interest on
such series of Secured Notes, (ii) with respect to amounts owing to any Loan
Participant not constituting payments or prepayments of the principal amount of
the Secured Notes of any series, a zero percent rate of interest and (iii) with
respect to amounts owing to the Owner Participant or the Lessee, the rate of
interest publicly announced from time to time by Citibank, N.A. in New York City
as its "prime" or "base" rate plus 1% (computed on the basis of a 360-day year
of twelve 30-day months).
"Owner Participant" shall mean General Electric Credit Corporation of
-----------------
Georgia, a Georgia corporation, and each Person to whom a transfer is effected
in accordance with Section 13 of the Participation Agreement.
"Owner Participant's Liens" shall mean any Lien on or against the
-------------------------
Production System, the Undivided Interest, the Lease, the Trust Estate or the
Indenture Estate or any payment of Rent (a) which result from any act of, or any
failure to act by, or any Claim against, the Owner Participant unrelated to the
transactions contemplated by the Operative Documents, or which result from any
violation by the Owner Participant of any of the terms of the Operative
Documents, or (b) which result from any Lien in favor of any taxing authority by
reason of any Tax owed
A-24
<PAGE>
by the Owner Participant, except that Owner Participant's Liens shall not
include any Lien resulting from any Tax for which the Lessee is obligated to
indemnify the Owner Participant (or any member of its consolidated group) until
such time as the Lessee shall have already paid to, or on behalf of, the Owner
Participant (or such member of its consolidated group), the Tax or an indemnity
with respect to the same.
"Owner Participant's Net Economic Return" shall mean the Owner
---------------------------------------
Participant's anticipated (a) with respect to the period between the Closing
Date and the expiration of the Basic Lease Term, (i) after-tax yield on the sum
of the Investment (on the assumption that none of the Investment is comprised of
borrowed funds) plus the Transaction Expenses paid by the Lessor and (ii) total
(but not periodic) after-tax cash flow as a percentage of Lessor's Cost, and (b)
with respect to the period between the Closing Date and the Early Buy-Out Date,
(i) after-tax yield on the sum of the Investment (on the assumption that none of
the Investment is comprised of borrowed funds) plus the Transaction Expenses
paid by the Lessor and (ii) total (but not periodic) after-tax cash flow as a
percentage of Lessor's Cost, in each case, as computed by the original Owner
Participant in accordance with the assumptions and methods of calculation
employed in the original calculation of the Basic Rent Percentages, Stipulated
Loss Value Percentages, Termination Value Percentages and the Early Buy-Out
Percentage as of the Closing Date (as such assumptions may have been modified
pursuant to Section 4 of the Lease). The Owner Participant's Net Economic Return
with respect to any Modification to the Production System financed pursuant to a
Supplemental Financing in which the Owner Participant has made an equity
investment shall be computed in accordance with the assumptions utilized in
connection with such Supplemental Financing.
"Owner Trustee" shall mean the Corporate Owner Trustee and the
-------------
Individual Owner Trustee, collectively.
"Owner Trustee Documents" shall have the meaning specified in Section
-----------------------
2.1 of the Trust Agreement.
"Participant" shall mean any Loan Participant or the Owner Participant
-----------
and "Participants" shall mean all of them.
------------
A-25
<PAGE>
"Participation Agreement" shall mean the Participation Agreement dated
-----------------------
as of the Closing Date among the Lessee, the Owner Participant, each Pass
Through Trustee, the Indenture Trustee and the Owner Trustee.
"Pass Through Certificates" shall mean any Certifi cates from time to
-------------------------
time issued and outstanding under and pursuant to any of the Pass Through Trust
Agreements.
"Pass Through Trust" shall mean, with respect to any Pass Through
------------------
Trust Agreement, the trust created by such Pass Through Trust Agreement.
"Pass Through Trust Agreement 1995 A1" shall mean the Pass Through
------------------------------------
Trust Agreement 1995 A1 dated as of the Closing Date among the Guarantor, the
Lessee and the applicable Pass Through Trustee.
"Pass Through Trust Agreement 1995 A2" shall mean the Pass Through
------------------------------------
Trust Agreement 1995 A2 dated as of the Closing Date among the Guarantor, the
Lessee and the applicable Pass Through Trustee.
"Pass Through Trust Agreement 1995 A3" shall mean the Pass Through
------------------------------------
Trust Agreement 1995 A3 dated as of the Closing Date among the Guarantor, the
Lessee and the applicable Pass Through Trustee.
"Pass Through Trust Agreement 1995 A4" shall mean the Pass Through
------------------------------------
Trust Agreement 1995 A4 dated as of the Closing Date among the Guarantor, the
Lessee and the applicable Pass Through Trustee.
"Pass Through Trust Agreement 1995 A5" shall mean the Pass Through
------------------------------------
Trust Agreement 1995 A5 dated as of the Closing Date among the Guarantor, the
Lessee and the applicable Pass Through Trustee.
A-26
<PAGE>
"Pass Through Trust Agreement 1995 A6" shall mean the Pass Through
------------------------------------
Trust Agreement 1995 A6 dated as of the Closing Date among the Guarantor, the
Lessee and the applicable Pass Through Trustee.
"Pass Through Trust Agreements" shall mean the Pass Through Trust
-----------------------------
Agreement 1995 A1, the Pass Through Trust Agreement 1995 A2, the Pass Through
Trust Agreement 1995 A3, the Pass Through Trust Agreement 1995 A4, the Pass
Through Trust Agreement 1995 A5 and the Pass Through Trust Agreement 1995 A6,
collectively.
"Pass Through Trust Property" shall have the meaning specified in the
---------------------------
Pass Through Trust Agreements.
"Pass Through Trustee" shall mean First Security Bank of Utah,
--------------------
National Association, not in its individual capacity except as expressly
provided in any Pass Through Trust Agreement and the Operative Documents, but
solely as Pass Through Trustee under each of the Pass Through Trust Agreements,
or its successor in interest, and any successor trustee appointed as provided
therein.
"Permitted Investments" shall mean (i) obligations of the United
---------------------
States of America, or obligations fully guaranteed as to interest and principal
by the United States of America; (ii) certificates of deposit issued by an
Eligible Bank or interest-bearing insured accounts in an Eligible Bank; (iii)
commercial paper, rated at least P-1 (or comparable rating) by Moody's Investors
Service, Inc. (or any successor thereto) or at least A-1 (or comparable rating)
by Standard and Poor's Corporation (or any successor thereto); or (iv) a money
market fund registered under the Investment Company Act of 1940, the portfolio
of which is limited to U.S. government obligations and U.S. agency obligations.
"Permitted Liens" shall mean (a) the respective rights and interests
---------------
of the Lessee, the Owner Participant, the Lessor, the Indenture Trustee, and the
Holders, as provided in the Operative Documents, (b) Lessor's Liens, Owner
Participant's Liens and Indenture Trustee's Liens, (c) Liens for Taxes either
not delinquent or being contested in good faith and by appropriate proceedings,
so long as such proceedings do not involve any material danger of the sale,
forfeiture or loss of any part of, the Production System, the Trust Estate or
the Indenture Estate, or title thereto or any interest therein or any material
danger of the interference with the payment of Rent, (d) materialmen's,
mechanics', workers', repairmen's, employees' or other like Liens, arising in
the ordinary course
A-27
<PAGE>
of business, or arising in the course of constructing, repairing, equipping or
installing, modifying or expanding the Production System or any part thereof,
for amounts either not more than 60 days past due or being contested in good
faith and by appropriate proceedings so long as such proceedings do not involve
any material danger of the sale, forfeiture or loss of any part of the
Production System, the Trust Estate or the Indenture Estate, or title thereto or
any interest therein and any material danger of the interference with the
payment of Rent, (e) Liens arising out of judgments or awards against the Lessee
with respect to which at the time an appeal or proceeding for review is being
prosecuted in good faith so long as such judgment, award or appeal does not
involve any material danger of the sale, forfeiture or loss of any part of the
Production System, the Trust Estate or the Indenture Estate, or title thereto or
any interest therein or any material danger of the interference with the payment
of Rent, (f) the rights and interests of any Governmental Authority of the
United States pursuant to the Federal Leases, (g) liens for current crew's
wages, for general average or salvage (including contract salvage) or for wages
of stevedores employed directly by the Lessee, MPTM, the Operator, or the
operator, agent or master of the Platform which in each case (A) are unclaimed
or covered by insurance or (B) for amounts either not more than 60 days past due
or being contested in good faith and by appropriate proceedings so long as such
proceedings do not involve any material danger of the sale, forfeiture or loss
of any part of the Production System, the Trust Estate or the Indenture Estate,
or title thereto or any interest therein or any material danger of the
interference with the payment of Rent, and Liens which, under the laws of
Panama, take priority over a duly registered first naval mortgage and which are
for amounts either not more than 60 days past due or being contested in good
faith and by appropriate proceedings so long as such proceedings do not involve
any material danger of the sale, forfeiture or loss of any part of the
Production System, the Trust Estate or the Indenture Estate, or title thereto or
any interest therein and any material danger of the interference with the
payment of Rent, (h) Liens, assignments and subleases permitted by Section 14 of
the Lease and the rights of MPTM under the Initial Sublease and the rights of
any other sublessee or any sub-sublessor under any other sublease (or sub-
sublease) permitted by Section 14 of the Lease and (i) the Operating Agreement
and
A-28
<PAGE>
the rights of the Operator and the Other Owner thereunder and the rights of
their successors, assigns or mortgagees.
"Person" shall mean any individual, partnership, corporation, trust,
------
unincorporated association, joint venture, government or any department or
agency thereof, or any other entity.
"Pipeline" shall mean the property described in Exhibit A to the Lease
--------
under heading "Pipeline" and all other property installed or located therein
(but excluding any other Major Component and the Components thereof) and all
assets from time to time included or incorporated therein title to a 40%
undivided interest in which shall vest in the Lessor pursuant to the Lease.
"Placement Agreement" shall mean the Placement Agreement to be entered
-------------------
into among the Guarantor, Mobil G.B. and the Underwriter relating to the
purchase and sale of the Pass Through Certificates.
"Platform" shall mean the property described in Exhibit A to the Lease
--------
under the heading "Platform" and all other property installed or located therein
(but excluding any other Major Component and the Components thereof) and all
assets from time to time included or incorporated therein title to a 40%
undivided interest which shall vest in the Lessor pursuant to the Lease and when
used with respect to the Ship Mortgage, shall mean the Panamanian Flag Platform
named Enserch Garden Banks, official number 8521 as described in the granting
clause of the Ship Mortgage.
"Preferred Stock" shall mean, with respect to any Person, any and all
---------------
shares, interests, participations or other equivalents (however designated) of
such Person's preferred or preference stock, whether now outstanding or issued
after the date of the Participation Agreement, and includes, without limitation,
all classes and series of preferred or preference stock.
"Premium" shall mean the Make-Whole Amount, if any, payable pursuant
-------
to Article III of the Indenture.
A-29
<PAGE>
"Premium Termination Date" shall mean, with respect to the Series 1995
------------------------
A Secured Notes of any series, the date set forth as the "Premium Termination
Date" for such series on Exhibit B to the Indenture.
"Production Riser" shall mean the property described in Exhibit A to
----------------
the Lease under the heading "Production Riser" and all other property installed
or located therein (but excluding any other Major Component and the Components
thereof), and all assets from time to time included or incorporated therein
title to a 40% undivided interest in which shall vest in the Lessor pursuant to
the Lease.
"Production System" shall mean the Pipeline, the Platform, the
-----------------
Production Riser, the Shallow Water Processing Facility and the Template,
collectively.
"Purchase Notice" shall have the meaning specified in Section 6.2(a)
---------------
of the Lease.
"Purchase Redemption Date" shall have the meaning specified in Section
------------------------
3.02(c) of the Indenture.
"Redemption Date" shall mean the date on which the Secured Notes are
---------------
to be redeemed pursuant to Section 3.02, 3.03 or 3.06 of the Indenture.
"Redemption Price" shall have the meaning specified in Section 3.10 of
----------------
the Indenture.
"Refunded Secured Notes" shall have the meaning specified in Section
----------------------
15.1 of the Participation Agreement.
"Refunding Indenture" shall have the meaning specified in Section
-------------------
3.05(b) of the Indenture.
"Refunding Secured Notes" shall have the meaning specified in Section
-----------------------
15.1 of the Participation Agreement.
"Registration Rights Agreement" shall mean the Registration Rights
-----------------------------
Agreement dated as of the Closing Date by and among Mobil Corporation, Mobil
G.B. 388 Finance Inc. and Morgan Stanley & Co. Incorporated.
A-30
<PAGE>
"Release" shall mean the release, spill, emission, leaking, pumping,
-------
injection, deposit, disposal, discharge, dispersal, leaching or migrating into
the environment of any Hazardous Material through or in the air, soil, surface
water or groundwater, provided that the presence of Hydrocarbons within any
portion of the Production System designed to produce, pump, process, store,
treat, refine or transport Hydrocarbons shall not be considered a Release.
"Relevant Amendment" shall have the meaning specified in Section 3.04
------------------
of the Indenture.
"Relevant Date" shall have the meaning specified in Section 3.04 of
-------------
the Indenture.
"Relevant Date Supplement" shall have the meaning specified in
------------------------
Section 3.04 of the Indenture.
"Relevant Guaranty" shall have the meaning specified in Section 3.04
-----------------
of the Indenture.
"Remaining Portion" shall have the meaning specified in Section 7.1 of
-----------------
the Lease.
"Remedial Action" shall mean actions required to (i) clean up, remove,
---------------
treat or in any other way address Hazardous Materials in the environment, (ii)
prevent the Release or further Release or minimize the further Release of
Hazardous Materials, or (iii) investigate and determine if a remedial response
is needed, to design such a response and post-remedial investigation,
monitoring, operation, maintenance and care.
"Renewal Notice" shall have the meaning specified in Section 5.3 of
--------------
the Lease.
"Renewal Term" shall mean any of the Initial Fixed Rate Renewal Term,
------------
the Second Fixed Rate Renewal Term, a Fixed Rate Renewal Term or a Fair Market
Renewal Term.
"Rent" shall mean, collectively, Basic Rent and Supplemental Rent.
----
"Repayment Amount" shall have the meaning specified in Section 3.7 of
----------------
the Lease.
A-31
<PAGE>
"Replacement Component" shall mean a replacement to any Component or
---------------------
Replacement Component.
"Request" shall have the meaning specified in Section 2.08(b) of the
-------
Indenture.
"Reserve Engineer" shall mean DeGolyer & MacNaughton.
----------------
"Reserve Report" shall mean the report of the Reserve Engineer dated
--------------
August 30, 1995.
"Responsible Officer", when used with respect to the Corporate Owner
-------------------
Trustee, the Corporate Indenture Trustee or any Pass Through Trustee, shall mean
an officer in its corporate trust administration department (or any successor
group of the Corporate Owner Trustee, the Corporate Indenture Trustee or any
Pass Through Trustee, as the case may be) or any other officer customarily
performing functions similar to those performed by any of the above designated
officers and also shall mean, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"SEC" shall mean the Securities and Exchange Commission.
---
"Second Fixed Rate Renewal Term" shall mean the period commencing at
------------------------------
the end of the Initial Fixed Rate Renewal Term and ending on the date chosen by
the Lessee pursuant to Section 5.3 of the Lease, during which the Undivided
Interest may be leased as permitted by Section 5.1(d) of the Lease, or such
shorter period as may result from earlier termination of the Lease.
"Secured Notes" shall mean all notes from time to time issued and
-------------
outstanding under and pursuant to the Indenture.
"Securities Act" shall mean the Securities Act of 1933, as amended.
--------------
"Series 1995 A Secured Notes" shall mean, as the context may require,
---------------------------
the Series 1995 A-1 Secured Notes, the Series 1995 A-2 Secured Notes, the Series
1995 A-3 Secured Notes, the
A-32
<PAGE>
Series 1995 A-4 Secured Notes and/or the Series 1995 A-6 Secured Notes.
"Series 1995 A-1 Secured Notes" shall mean the Secured Notes issued
-----------------------------
under Section 2.01(b) of the Indenture and shall include any Series 1995 A-1
Secured Note issued in exchange therefor or replacement thereof pursuant to
Section 2.07 of the Indenture.
"Series 1995 A-2 Secured Notes" shall mean the Secured Notes issued
-----------------------------
under Section 2.01(c) of the Indenture and shall include any Series 1995 A-2
Secured Note issued in exchange therefor or replacement thereof pursuant to
Section 2.07 of the Indenture.
"Series 1995 A-3 Secured Notes" shall mean the Secured Notes issued
-----------------------------
under Section 2.01(d) of the Indenture and shall include any Series 1995 A-3
Secured Note issued in exchange therefor or replacement thereof pursuant to
Section 2.07 of the Indenture.
"Series 1995 A-4 Secured Notes" shall mean the Secured Notes issued
-----------------------------
under Section 2.01(e) of the Indenture and shall include any Series 1995 A-4
Secured Note issued in exchange therefor or replacement thereof pursuant to
Section 2.07 of the Indenture.
"Series 1995 A-5 Secured Notes" shall mean the Secured Notes issued
-----------------------------
under Section 2.01(f) of the Indenture and shall include any Series 1995 A-5
Secured Note issued in exchange therefor or replacement thereof pursuant to
Section 2.07 of the Indenture.
"Series 1995 A-6 Secured Notes" shall mean the Secured Notes issued
-----------------------------
under Section 2.01(g) of the Indenture and shall include any Series 1995 A-6
Secured Note issued in exchange therefor or replacement thereof pursuant to
Section 2.07 of the Indenture.
"Severable Modification" shall mean any Modification to the Production
----------------------
System permitted under the Lease which can be readily removed from the
Production System without causing material damage to the Production System.
A-33
<PAGE>
"Shallow Water Processing Facility" shall mean the property described
---------------------------------
in Exhibit A to the Lease under the heading "Shallow Water Processing Facility"
and all other property installed or located therein (but excluding any other
Major Component and the Components thereof), and all assets from time to time
included or incorporated therein title to a 40% undivided interest in which
shall vest in the Lessor pursuant to the Lease.
"Ship Mortgage" shall mean the First Priority Naval Mortgage dated as
-------------
of the Closing Date by the Owner Trustee in favor of the Indenture Trustee.
"Significant Portion" shall mean (a) with respect to the Production
-------------------
System, (i) any Major Component or (ii) any Component or Components (or any
Replacement Component or Replacement Components which have replaced such
Component or Components in accordance with the Lease) having, in the aggregate,
an Original Cost in excess of $25,000,000 and (b) with respect to the Undivided
Interest, the Lessor's Share of (i) any Major Component or (ii) any Component or
Components (or any Replacement Component or Replacement Components which have
replaced such Component or Components in accordance with the Lease) which
Lessor's Share has, in the aggregate, an Original Cost in excess of $10,000,000.
"Special Event of Loss" shall mean an Event of Loss described in
---------------------
clause (e) or (f) of the definition of Event of Loss.
"Special Termination Election" shall have the meaning specified in
----------------------------
Section 7.2 of the Lease.
"Specified Lease Event of Default" shall mean a Lease Event of Default
--------------------------------
described in paragraph (a), (g) or (h) of Section 15 of the Lease or a Lease
Default described in paragraph (g) of Section 15 of the Lease.
"Stipulated Loss Value" shall mean:
---------------------
(i) with respect to the Undivided Interest, as of any Stipulated Loss
Value Determination Date, (a) during the Interim Lease Term and the Basic
Lease Term, the amount determined by multiplying Lessor's Cost by the
A-34
<PAGE>
percentage set forth opposite such Stipulated Loss Value Determination Date
in Schedule 2 to the Lease. The Stipulated Loss Value Percentage as of any
Stipulated Loss Value Determination Date (other than any such Stipulated
Loss Value Determination Date which is a Basic Rent Payment Date on which
any Basic Rent is payable in arrears) has been computed on the assumption
that each Series 1995 A Secured Note will bear interest at the Assumed Debt
Rate for such Series 1995 A Secured Note. Accordingly, if the interest rate
on the Series 1995 A Secured Notes has been increased pursuant to the
proviso to the first sentence of the Series 1995 A Secured Notes,
Stipulated Loss Value with respect to the Undivided Interest as of any
Stipulated Loss Value Determination Date (other than any such Stipulated
Loss Value Determination Date which is a Basic Rent Payment Date on which
any Basic Rent is payable in arrears) shall be increased by an amount equal
to the excess of (i) the aggregate amount of interest actually due and
payable on the Series 1995 A Secured Notes as of such Stipulated Loss Value
Determination Date over (ii) the aggregate amount of interest on the Series
1995 A Secured Notes that would have been due and payable on such
Stipulated Loss Value Determination Date if each Series 1995 A Secured Note
had borne interest at the Assumed Debt Rate for such Series 1995 A Secured
Note for the period from and including the Basic Rent Payment Date next
preceding such Stipulated Loss Value Determination Date to but excluding
such Stipulated Loss Value Determination Date and (b) during any Renewal
Term, as determined pursuant to Section 5.4 of the Lease; and
(ii) with respect to a Significant Portion of the Undivided Interest
as of any Stipulated Loss Value Determination Date, (a) during the Interim
Lease Term and the Basic Lease Term, the amount determined by multiplying
the Original Cost of such Significant Portion by the percentage set forth
opposite such Stipulated Loss Value Determination Date. The Stipulated Loss
Value Percentage as of any Stipulated Loss Value Determination Date (other
than any such Stipulated Loss Value Determination Date which is a Basic
Rent Payment Date on which any Basic Rent is payable in arrears) has been
computed on the assumption that each Series 1995 A
A-35
<PAGE>
Secured Note will bear interest at the Assumed Debt Rate for such Series
1995 A Secured Note. Accordingly, if the interest rate on the Series 1995 A
Secured Notes has been increased pursuant to the proviso to the first
sentence of the Series 1995 A Secured Notes, Stipulated Loss Value with
respect to a Significant Portion of the Undivided Interest as of any
Stipulated Loss Value Determination Date (other than any such Stipulated
Loss Value Determination Date which is a Basic Rent Payment Date on which
any Basic Rent is payable in arrears), shall be increased by an amount
equal to the excess of (i) the aggregate amount of interest actually due
and payable as of such Stipulated Loss Value Determination Date on that
portion of the Series 1995 A Secured Notes that is redeemable pursuant to
Article III of the Indenture in connection with the payment of such
Stipulated Loss Value over (ii) the aggregate amount of interest that would
have been due and payable on such portion of the Series 1995 A Secured
Notes if each Series 1995 A Secured Note had borne interest at the Assumed
Debt Rate for such Series 1995 A Secured Note for the period from and
including the Basic Rent Payment Date next preceding such Stipulated Loss
Value Determination Date to but excluding such Stipulated Loss Value
Determination Date and (b) during any Renewal Term, the amount which bears
the same relation to the Stipulated Loss Value for the Undivided Interest,
as determined pursuant to the Section 5.4 of the Lease for such Renewal
Term, as the Original Cost of such Significant Portion bears to Lessor's
Cost (without regard to any reduction of Lessor's Cost pursuant to the
proviso contained in the definition of Lessor's Cost).
"Stipulated Loss Value Determination Date" shall mean any of the dates
----------------------------------------
set forth on Schedule 2 to the Lease.
"Stipulated Loss Value Percentages" shall mean the percentages set
---------------------------------
forth in Schedule 2 to the Lease.
"Subsea Systems" shall mean the Production Riser and the Template.
--------------
"Subsidiary" of any Person shall mean any corporation, association or
----------
other business entity of which more than fifty percent (50%) of the total voting
power of shares of
A-36
<PAGE>
Capital Stock entitled to vote in the election of directors, managers or
trustees thereof (without regard to the occurrence of any contingency) is at the
time owned or controlled, directly or indirectly, by such Person or one or more
of the other Subsidiaries (within the meaning of this definition) of that
Person, or a combination thereof.
"Supplemental Financing" shall mean any financing of the Lessor's
----------------------
Share of the cost of any Modification to the Production System pursuant to
Section 14 of the Participation Agreement.
"Supplemental Rent" shall mean (i) any and all amounts, liabilities
-----------------
and obligations (other than Basic Rent) which the Lessee assumes or agrees to
pay to or on behalf of the Owner Trustee, the Owner Participant, the Trust
Company, Hopkins, each Loan Participant or the Indenture Trustee under any
Operative Document, including, without limitation, any payments of
indemnification or Stipulated Loss Value or Termination Value or Premium and
(ii) any amounts which are expressed in the Indenture to be payable at the
Lessee's expense.
"Tax" and "Taxes" shall have the respective meanings specified in
--- -----
Section 12.2 of the Participation Agreement.
"Tax Affiliate" shall mean an Affiliate of any corporation related to
-------------
the Lessee (within the meaning of Section 318 of the Code), or any shareholder
of the Lessee.
"Tax Claim" shall have the meaning specified in Section 12.2(e) of the
---------
Participation Agreement.
"Tax Indemnity Agreement" shall mean the Tax Indemnity Agreement dated
-----------------------
as of the Closing Date between the Owner Participant and the Lessee.
"Tax Indemnitee" shall mean the Corporate Owner Trustee (both in its
--------------
individual capacity and in its trust capacity), the Individual Owner Trustee
(both in his individual capacity and in his trust capacity), the Owner
Participant, the Corporate Indenture Trustee (both in its individual capacity
and in its trust capacity), the Individual Indenture Trustee (both in his
individual capacity and in his trust capacity) and the
A-37
<PAGE>
Loan Participants, and their respective Affiliates, officers, directors, agents,
employees and servants but shall not include (i) each Pass Through Trustee, (ii)
any other Holder and (iii) any Certificateholder.
"Template" shall mean the property described in Exhibit A to the Lease
--------
under the heading "Template" and all other property installed or located therein
(but excluding any other Major Component and the Components thereof), and all
assets from time to time included or incorporated therein title to a 40%
undivided interest which shall vest in the Lessor pursuant to the Lease.
"Termination Date" shall have the meaning specified in Section 7.2 of
----------------
the Lease.
"Termination Redemption Date" shall have the meaning specified in
---------------------------
Section 3.02(b) of the Indenture.
"Termination Value" shall mean:
-----------------
(i) with respect to the Undivided Interest (a) as of the Basic Lease
Term Commencement Date or any Basic Rent Payment Date during the Interim
Lease Term and the Basic Lease Term, the amount determined by multiplying
Lessor's Cost by the percentage set forth opposite such date in Schedule 3
to the Lease. The Termination Value Percentage as of any date set forth on
Schedule 3 to the Lease (other than any such date which is a Basic Rent
Payment Date on which any Basic Rent is payable in arrears) has been
computed on the assumption that each Series 1995 A Secured Note will bear
interest at the Assumed Debt Rate for such Series 1995 A Secured Note.
Accordingly, if the interest rate on the Series 1995 A Secured Notes has
been increased pursuant to the proviso to the first sentence of the Series
1995 A Secured Notes, Termination Value with respect to the Undivided
Interest as of any date set forth in Schedule 3 to the Lease (other than
any such date which is a Basic Rent Payment Date on which any Basic Rent is
payable in arrears) shall be increased by an amount equal to the excess of
(i) the aggregate amount of interest actually due and payable on the Series
1995 A Secured Notes as of such date over (ii) the aggregate amount of
interest on the Series 1995 A Secured Notes
A-38
<PAGE>
that would have been due and payable on such date if each Series 1995 A
Secured Note had borne interest at the Assumed Debt Rate for such Series
1995 A Secured Note for the period from and including the Basic Rent
Payment Date next preceding such date to but excluding such date and (b)
during any Renewal Term, as determined pursuant to Section 5.4 of the
Lease; and
(ii) with respect to a Significant Portion of the Undivided Interest
(a) as of the Basic Commencement Date or any Basic Rent Payment Date during
the Interim Lease Term and the Basic Lease Term, the amount determined by
multiplying the Original Cost of such Significant Portion by the percentage
set forth opposite such date in Schedule 3 to the Lease. The Termination
Value Percentage as of any date set forth on Schedule 3 to the Lease (other
than any such date which is a Basic Rent Payment Date on which any Basic
Rent is payable in arrears) has been computed on the assumption that each
Series 1995 A Secured Note will bear interest at the Assumed Debt Rate for
such Series 1995 A Secured Note. Accordingly, if the interest rate on the
Series 1995 A Secured Notes has been increased pursuant to the proviso to
the first sentence to the Series 1995 A Secured Notes, Termination Value
with respect to a Significant Portion of the Undivided Interest as of any
date set forth in Schedule 3 to the Lease (other than any such date which
is a Basic Rent Payment Date on which any Basic Rent is payable in
arrears), shall be increased by an amount equal to the excess of (i) the
aggregate amount of interest actually due and payable as of such date on
that portion of the Series 1995 A Secured Notes that is redeemable pursuant
to Article III of the Indenture in connection with the payment of such
Termination Value over (ii) the aggregate amount of interest that would
have been due and payable on such portion of the Series 1995 A Secured
Notes if each Series 1995 A Secured Note had borne interest at the Assumed
Debt Rate for such Series 1995 A Secured Note for the period from and
including the Basic Rent Payment Date next preceding such date to but
excluding such date and (b) during any Renewal Term, the amount which bears
the same relation to the Termination Value for the Undivided Interest, as
determined pursuant to the Section 5.4 of the Lease for
A-39
<PAGE>
such Renewal Term, as the Original Cost of such Significant Portion bears
to Lessor's Cost (without regard to any reduction of Lessor's Cost pursuant
to the proviso contained in the definition of Lessor's Cost).
"Termination Value Percentages" shall mean the percentages set forth
-----------------------------
on Schedule 3 to the Lease.
"Transaction Expenses" shall mean the following fees, expenses,
--------------------
disbursements and costs incurred in connection with the preparation, execution
and delivery of the Operative Documents and the Pass Through Agreements and the
consummation of the transactions contemplated thereby on the Closing Date, as
applicable, provided that invoices for all such fees, expenses, disbursements
--------
and costs shall have been presented for payment on or prior to the ninetieth day
following the Closing Date: (i) the reasonable attorneys' fees and expenses of
counsel to the Owner Participant, the Owner Trustee, the Indenture Trustee and
each Pass Through Trustee, (ii) the initial (but not ongoing) fees and expenses
of the Owner Trustee, each Pass Through Trustee and the Indenture Trustee, (iii)
printing, word processing and reproduction costs, (iv) fees and expenses of the
Appraiser with respect to the Final Appraisal and the fees and expenses of the
Reserve Engineer with respect to the Final Reserve Report, (v) the fees and
commissions of Morgan Stanley & Co. Incorporated as placement agent and as
underwriter in connection with the offering and sale of the Pass Through
Certificates, (vi) other costs associated with the issuance of the Secured Notes
and the Pass Through Certificates, independent rating agencies and printer
charges, (vii) the reasonable fees, expenses and disbursements of special
counsel for the Underwriter in connection with the Operative Documents and
(viii) out of pocket costs incurred by the Owner Participant in the conduct of
due diligence with respect to the transactions contemplated by the Participation
Agreement up to a maximum of $5,000; provided that, other than as set forth in
--------
clause (vii) of this sentence, "Transaction Expenses" shall not include the
--------------------
fees, expenses or disbursements of any law firm not specifically named in
Section 4.7 of the Participation Agreement (other than Monroe & Lemann, special
Louisiana counsel to the Owner Participant).
"Transferee" shall have the meaning specified in Section 13.2 of the
----------
Participation Agreement.
A-40
<PAGE>
"Treasury Rate" shall mean, with respect to each Secured Note to be
-------------
redeemed or purchased, a per annum rate (expressed as a semiannual equivalent
and as a decimal and, in the case of United States Treasury bills, converted to
a bond equivalent yield), determined to be the per annum rate equal to the
semiannual yield to maturity of United States Treasury securities maturing on
the Average Life Date of such Secured Note, as determined by interpolation
between the most recent weekly average yields to maturity for two series of
United States Treasury securities, (A) one maturing as close as possible to, but
earlier than, the Average Life Date of such Secured Note and (B) the other
maturing as close as possible to, but later than, the Average Life Date of such
Secured Note, in each case as published in the most recent H.15(519) (or, if a
weekly average yield to maturity of United States Treasury securities maturing
on the Average Life Date of such Secured Note is reported in the most recent
H.15(519), as published in H.15(519)). H.15(519) shall mean "Statistical
Release H.15(519), Selected Interest Rates" or any successor publication,
published by the Board of Governors of the Federal Reserve System. The most
recent H.15(519) shall mean the latest H.15(519) which is published prior to the
close of business on the fourth Business Day preceding the Redemption Date. For
purposes hereof, "Average Life Date" shall mean, with respect to each Secured
-----------------
Note to be redeemed, the date which follows the Redemption Date by a period
equal to the Remaining Weighted Average Life of such Secured Note. For purposes
hereof, "Remaining Weighted Average Life" shall mean, for any Secured Note, as
-------------------------------
of any date of determination, the number of days equal to the quotient obtained
by dividing (a) the sum of the products obtained by multiplying (i) the amount
of each then remaining installment of principal, including the payment due on
the maturity of such Secured Note by (ii) the number of days from and including
the Redemption Date to but excluding the scheduled payment date of such
principal payment; by (b) the then unpaid principal amount of such Secured Note.
"Treasury Regulations" shall mean the income tax regulations issued,
--------------------
published or promulgated under the Code by the United States Department of the
Treasury.
"Trust Agreement" shall mean the Trust Agreement dated as of the
---------------
Closing Date among the Owner Participant, the Trust Company and Hopkins.
A-41
<PAGE>
"Trust Company" shall mean Fleet National Bank of Connecticut, a
-------------
national banking association, in its individual capacity.
"Trust Estate" shall have the meaning specified in Section 3.2 of the
------------
Trust Agreement.
"Trust Expenses" shall have the meaning specified in Section 8.1 of
--------------
the Trust Agreement.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939.
-------------------
"Underwriter" shall mean Morgan Stanley & Co. Incorporated, a Delaware
-----------
corporation.
"Undivided Interest" shall mean the Lessor's 40% undivided interest in
------------------
the Production System.
"Unit Agreement" shall mean the Unit Agreement for Outer Continental
--------------
Shelf Exploration, Development, and Production on the Block 388 Unit executed on
various dates between April 24 and May 1, 1991 by Exxon Corporation, EP
Operating Company, HI Production Company, Inc., OPUBCO Resources, Inc., Penrod
OCS, Inc. and Placid Oil Company.
"Unit Reserves" shall have the meaning specified in Section 9.1 of the
-------------
Lease.
"UCC" shall mean the Uniform Commercial Code as in effect in the State
---
of New York or in any other applicable jurisdiction.
"Waiver and Consent Agreement" shall mean the Waiver and Consent
----------------------------
Agreement dated December 12, 1995 among Enserch, MPTM, Corporate Indenture
Trustee, Individual Indenture Trustee, Corporate Owner Trustee and Individual
Owner Trustee.
A-42
<PAGE>
SCHEDULE 1
to
Participation Agreement
-----------------------
ADDRESSES FOR NOTICES AND PAYMENTS
----------------------------------
LESSEE:
------
Mobil G.B. 388 Finance Inc.
3225 Gallows Road
Fairfax, Virginia 22037-0001
Attention: Treasurer
Telecopier: (703) 846-1469
OWNER PARTICIPANT:
-----------------
General Electric Credit Corporation of Georgia
c/o Global Project & Structured Finance
1600 Summer Street
Stamford, CT 06905
Attention: Manager of Compliance
Re: Mobil Lease 761-1
Telecopier: 203-961-2017
Manner of Payment
-----------------
All payments to be made to General Electric Credit Corporation of Georgia
shall be made to:
Bankers Trust
New York, New York
ABA #0210-0103-3
GECC/T&I Depository Account
Account #50-205-776
Ref: Mobil Lease 761-1
SCH1-1
<PAGE>
Notices
-------
All communications with respect to payments and all other
communications to be made to the address first set forth above.
CORPORATE OWNER TRUSTEE OR THE TRUST COMPANY:
--------------------------------------------
Fleet National Bank of Connecticut
777 Main Street
Hartford, CT 06115
Attention: Corporate Trust Administration
Telecopier: 860-986-7920
INDIVIDUAL OWNER TRUSTEE OR MICHAEL M. HOPKINS
----------------------------------------------
777 Main Street
Hartford, CT 06115
Attention: Michael M. Hopkins
Telecopier: 860-986-1164
Method of Payment
-----------------
Fleet National Bank of Connecticut
Hartford, CT 06115
ABA #011900445
Account # 0067548290
Attention: Karen Felt
Re: Garden Banks Lease
INDENTURE TRUSTEE OR PASS THROUGH TRUSTEE:
-----------------------------------------
First Security Bank of Utah, National Association
79 South Main Street
Salt Lake City, Utah 84111
Attention: Corporate Trust Department
Telecopier: 801-246-5053
Method of Payment
-----------------
First Security Bank of Utah, National Association
SCH1-2
<PAGE>
ABA #124000012
Account # 0510922115
Re: Mobil
INDIVIDUAL INDENTURE TRUSTEE
----------------------------
First Security Bank of Utah, National Association
79 South Main Street
Salt Lake City, Utah 84111
Attention: Val T. Orton
Telecopier: 801-246-5053
SCH1-3
<PAGE>
SCHEDULE 2
to
Participation Agreement
-----------------------
PRICING ASSUMPTIONS
-------------------
CLOSING DATE: December 12, 1995
TRANSACTION EXPENSES: 1.00% of Lessor's Cost, Payable on the
Closing Date
MOBIL INTERIM LEASE TERM: 22 days, commencing on
December 12, 1995 and ending on January 2, 1996
BASIC LEASE TERM: 14 years, 11 months, 29 days,
commencing January 3, 1996,
and ending January 2, 2011
DEPRECIATION ALLOCATION: 100% of Equipment Cost, 7-year
MACRS (200% DB/SL H4)
COMPOSITE INCOME
TAX RATE: 40%
YEAR-END FOR
FEDERAL TAXES: December 31
BASIC RENT PAYMENTS: 30 Payments payable semi-annually in
arrears and/or in advance, commencing
July 2, 1996 according to Schedule 1 of
the Lease
EARLY BUYOUT DATE: January 2, 2006
DISCOUNT RATE FOR
PRESENT VALUE CALCULATION: 6.09% pre-tax Nominal Annual Rate
DEBT PERCENTAGE: 72.8337%
SCH2-1
<PAGE>
SCHEDULE 3
to
Participation Agreement
-----------------------
FILINGS AND RECORDINGS
----------------------
STATE FILINGS AND FILINGS WITH THE UNITED STATES DEPARTMENT OF THE
INTERIOR MINERALS MANAGEMENT SERVICE GULF OF MEXICO OCS REGION (THE "MMS")
A. Trust Agreement filed with each of the following:
1. Conveyance records of Cameron Parish, Louisiana
(One Executed Original)
2. Conveyance records of Iberia Parish, Louisiana
(One Executed Original)
3. Conveyance records of Vermilion Parish, Louisiana
(One Executed Original)
4. Conveyance records of St. Mary Parish, Louisiana
(One Executed Original)
5. MMS records for the following lease files and right of way files (Two
Executed Originals):
(a) Lease OCS-G 7486 dated October 1, 1984 affecting Block 388,
Garden Banks Area.
(b) Lease OCS-G 7485 dated October 1, 1984, affecting Block 387,
Garden Banks Area.
(c) Right of Way OCS-G 14290, Segment No. 10229, extending from Block
315, Eugene Island Area South Addition to Block 388, Garden Banks
Area.
(d) Right of Way OCS-G 14288, Segment No. 10227, extending from Block
315, Eugene Island Area South Addition to Block 388, Garden Banks
Area.
SCH3-1
<PAGE>
(e) Right of Way OCS-G 14678, Segment No. 10267, extending from Block
315, Eugene Island Area South Addition to Sea Robin Pipeline
Company's 24 inch Pipeline (OCS-G 19071).
(f) Right of Way OCS-G 14287, Segment No. 10226, extending from Block
315, Eugene Island Area South Addition to Texaco Pipeline Inc.'s
20 inch pipeline (OCS-G 3303).
B. Lease Agreement filed with each of the following:
1. Conveyance records of Cameron Parish, Louisiana
(One Executed Original)
2. Conveyance records of Iberia Parish, Louisiana
(One Executed Original)
3. Conveyance records of Vermilion Parish, Louisiana
(One Executed Original)
4. Conveyance records of St. Mary Parish, Louisiana
(One Executed Original)
5. MMS Records for the following lease files and right of way files (Two
Executed Originals):
(a) Lease OCS-G 7486 dated October 1, 1984 affecting Block 388,
Garden Banks Area.
(b) Lease OCS-G 7485 dated October 1, 1984, affecting Block 387,
Garden Banks Area.
(c) Right of Way OCS-G 14290, Segment No. 10229, extending from Block
315, Eugene Island Area South Addition to Block 388, Garden Banks
Area.
(d) Right of Way OCS-G 14288, Segment No. 10227, extending from Block
315, Eugene Island Area South Addition to Block 388, Garden Banks
Area.
SCH3-2
<PAGE>
(e) Right of Way OCS-G 14678, Segment No. 10267, extending from Block
315, Eugene Island Area South Addition to Sea Robin Pipeline
Company's 24 inch Pipeline (OCS-G 19071).
(f) Right of Way OCS-G 14287, Segment No. 10226, extending from Block
315, Eugene Island Area South Addition to Texaco Pipeline Inc.'s
20 inch pipeline (OCS-G 3303).
C. Bill of Sale filed with each of the following:
1. Conveyance records of Cameron Parish, Louisiana
(One Executed Original)
2. Conveyance records of Iberia Parish, Louisiana
(One Executed Original)
3. Conveyance records of Vermilion Parish, Louisiana
(One Executed Original)
4. Conveyance records of St. Mary Parish, Louisiana
(One Executed Original)
5. MMS records for the following lease files and right of way files (Two
Executed Originals):
(a) Lease OCS-G 7486 dated October 1, 1984 affecting Block 388,
Garden Banks Area.
(b) Lease OCS-G 7485 dated October 1, 1984, affecting Block 387,
Garden Banks Area.
(c) Right of Way OCS-G 14290, Segment No. 10229, extending from Block
315, Eugene Island Area South Addition to Block 388, Garden Banks
Area.
(d) Right of Way OCS-G 14288, Segment No. 10227, extending from Block
315, Eugene Island Area South Addition to Block 388, Garden Banks
Area.
SCH3-3
<PAGE>
(e) Right of Way OCS-G 14678, Segment No. 10267, extending from Block
315, Eugene Island Area South Addition to Sea Robin Pipeline
Company's 24 inch Pipeline (OCS-G 19071).
(f) Right of Way OCS-G 14287, Segment No. 10226, extending from Block
315, Eugene Island Area South Addition to Texaco Pipeline Inc.'s
20 inch pipeline (OCS-G 3303).
D. Sublease Agreement filed with each of the following:
1. Conveyance records of Cameron Parish, Louisiana
(One Executed Original)
2. Conveyance records of Iberia Parish, Louisiana
(One Executed Original)
3. Conveyance records of Vermilion Parish, Louisiana
(One Executed Original)
4. Conveyance records of St. Mary Parish, Louisiana
(One Executed Original)
5. MMS records for the following lease files and right of way files (Two
Executed Originals):
(a) Lease OCS-G 7486 dated October 1, 1984 affecting Block 388,
Garden Banks Area.
(b) Lease OCS-G 7485 dated October 1, 1984, affecting Block 387,
Garden Banks Area.
(c) Right of Way OCS-G 14290, Segment No. 10229, extending from Block
315, Eugene Island Area South Addition to Block 388, Garden Banks
Area.
SCH3-4
<PAGE>
(d) Right of Way OCS-G 14288, Segment No. 10227, extending from Block
315, Eugene Island Area South Addition to Block 388, Garden Banks
Area.
(e) Right of Way OCS-G 14678, Segment No. 10267, extending from Block
315, Eugene Island Area South Addition to Sea Robin Pipeline
Company's 24 inch Pipeline (OCS-G 19071).
(f) Right of Way OCS-G 14287, Segment No. 10226, extending from Block
315, Eugene Island Area South Addition to Texaco Pipeline Inc.'s
20 inch pipeline (OCS-G 3303).
E. Indenture filed with each of the following:
1. Mortgage records of Cameron Parish, Louisiana
(One Executed Original)
2. Mortgage records of Iberia Parish, Louisiana
(One Executed Original)
3. Mortgage records of Vermilion Parish, Louisiana
(One Executed Original)
4. Mortgage records of St. Mary Parish, Louisiana
(One Executed Original)
5. MMS records for the following lease files and right of way files (Two
Executed Originals):
(a) Lease OCS-G 7486 dated October 1, 1984 affecting Block 388,
Garden Banks Area.
(b) Lease OCS-G 7485 dated October 1, 1984, affecting Block 387,
Garden Banks Area.
(c) Right of Way OCS-G 14290, Segment No. 10229, extending from Block
315, Eugene Island Area South Addition to Block 388, Garden Banks
Area.
(d) Right of Way OCS-G 14288, Segment No. 10227, extending from Block
315, Eugene Island Area South Addition to Block 388, Garden Banks
Area.
SCH3-5
<PAGE>
(e) Right of Way OCS-G 14678, Segment No. 10267, extending from Block
315, Eugene Island Area South Addition to Sea Robin Pipeline
Company's 24 inch Pipeline (OCS-G 19071).
(f) Right of Way OCS-G 14287, Segment No. 10226, extending from Block
315, Eugene Island Area South Addition to Texaco Pipeline Inc.'s
20 inch pipeline (OCS-G 3303).
F. Precautionary UCC-1 Financing Statements with regard to Lease filed with
each of the following:
1. Clerk of Court of any Parish for entry into the Secretary of State's
Master UCC Index ("Louisiana Filing").
2. State Corporation Commission of Virginia.
3. County Clerk's Office of Fairfax County, Virginia.
4. Copy of the Louisiana Filing with the MMS records for the following
lease files and right of way files:
(a) Lease OCS-G 7486 dated October 1, 1984 affecting Block 388,
Garden Banks Area.
(b) Lease OCS-G 7485 dated October 1, 1984, affecting Block 387,
Garden Banks Area.
(c) Right of Way OCS-G 14290, Segment No. 10229, extending from Block
315, Eugene Island Area South Addition to Block 388, Garden
Banks Area.
(d) Right of Way OCS-G 14288, Segment No. 10227, extending from Block
315, Eugene Island Area South Addition to Block 388, Garden Banks
Area.
(e) Right of Way OCS-G 14678, Segment No. 10267, extending from Block
315, Eugene Island Area
SCH3-6
<PAGE>
South Addition to Sea Robin Pipeline Company's 24 inch Pipeline
(OCS-G 19071).
(f) Right of Way OCS-G 14287, Segment No. 10226, extending from Block
315, Eugene Island Area South Addition to Texaco Pipeline Inc.'s
20 inch pipeline (OCS-G 3303).
G. UCC-1 Financing Statement with regard to Indenture filed with each of the
following:
1. Clerk of Court of any Parish for entry into the Secretary of State's
Master UCC Index ("Indenture Filing").
2. Secretary of State of Connecticut.
3. Copy of the Indenture filing with the MMS for the following lease
files and right of way files:
(a) Lease OCS-G 7486 dated October 1, 1984 affecting Block 388,
Garden Banks Area.
(b) Lease OCS-G 7485 dated October 1, 1984, affecting Block 387,
Garden Banks Area.
(c) Right of Way OCS-G 14290, Segment No. 10229, extending from Block
315, Eugene Island Area South Addition to Block 388, Garden Banks
Area.
(d) Right of Way OCS-G 14288, Segment No. 10227, extending from Block
315, Eugene Island Area South Addition to Block 388, Garden Banks
Area.
(e) Right of Way OCS-G 14678, Segment No. 10267, extending from Block
315, Eugene Island Area South Addition to Sea Robin Pipeline
Company's 24 inch Pipeline (OCS-G 19071).
(f) Right of Way OCS-G 14287, Segment No. 10226, extending from Block
315, Eugene Island Area
SCH3-7
<PAGE>
South Addition to Texaco Pipeline Inc.'s 20 inch pipeline (OCS-G
3303).
SCH3-8
<PAGE>
SCHEDULE 4
to
Participation Agreement
-----------------------
DISCLOSURE
----------
None
SCH4-1
<PAGE>
SCHEDULE 5
to
Participation Agreement
-----------------------
ORIGINAL COST
-------------
MAJOR COMPONENTS ORIGINAL COST
---------------- -------------
PIPELINE - $23,348,471.60
--------
PLATFORM - $64,872,522.80
--------
SHALLOW WATER
PROCESSING FACILITY - $15,820,214.80
-------------------
SUBSEA SYSTEMS - $22,527,808.80
--------------
SCH5-1
<PAGE>
EXHIBIT B
to
Participation Agreement
-----------------------
AGENCY & SUPPORT AGREEMENT
The principal terms and conditions of the Agency and Support Agreement shall be
as follows:
1. Parties: Lessor, or its successor as Owner Trustee,
unconditionally guaranteed by the Owner Participant, or
a successor in interest to the Lessor that would, if
the Lease were then in effect, be qualified in
accordance with the Participation Agreement to be an
Owner Participant (the "Owner"); and MPTM
(unconditionally guaranteed by Mobil).
2. Term: Commencing on the date of termination of the Lease at
expiration or otherwise, and ending on the date
following termination of the Operating Agreement on
which no further action is to be taken under the
Operating Agreement, or such earlier date as the
parties may agree.
3. MPTM Obligations: (a) Agency. MPTM will act as agent for the Owner for
------
purposes of subjecting the Undivided Interest to the
Operating Agreement and enforcing the rights of the
Owner as owner of the Undivided Interest under the
Operating Agreement. MPTM will carry out all reasonable
instructions given by the Owner with respect to the
Undivided Interest and shall not take any action with
EXHB-1
<PAGE>
respect to the Undivided Interest without such
instructions. MPTM shall not be entitled to
compensation for acting as agent, but shall be entitled
to reimbursement in accordance with paragraph 4(b)
below.
MPTM will not exercise its right to vote in accordance
with Article 6 of the Operating Agreement in respect of
any matter that would affect the Production System or
the rights and obligations of the owner thereof in any
material respect or would reduce the revenues or
increase the costs allocable to the Owner except to a
de minimis extent, except in accordance with the
directions of the Owner.
MPTM shall comply with all of its covenants and
obligations set forth in the Operating Agreement
insofar as they relate to the Production System, and
shall promptly notify Owner of any material breach
thereof by MPTM or the Operator of which it has Actual
Knowledge which has continued for more than 30 days.
Instructions may, without limitation, be given by the
Owner as to matters under Sections 7.2, 8.2, 8.3, 13.1,
17.1, 20.5, 22.3 and 22.5 of the Operating Agreement
which affect the Production System or the rights or
obligations of the owner of an interest in the
Production System in any material respect, and MPTM
shall not take any action as to any such matter without
express instructions by the Owner.
EXHB-2
<PAGE>
MPTM agrees that any action under Sections 30.6 or 32.1
of the Operating Agreement will require the prior
consent of the Owner if such action would affect the
Production System or the rights or obligations of the
owner thereof in the Production System in any material
respect or would reduce the revenues or increase the
costs allocable to the Owner except to a de minimis
extent and if, in the case of action under Section
32.1, the Production System is being used at the time
solely for the transportation and processing of
hydrocarbons not owned by MPTM or its affiliates.
MPTM agrees that it will not take any action under
Sections 4.3, 4.5, 4.6, 8.8, 20.1, or 32.1 of the
Operating Agreement without prior consultation with the
Owner if such action would affect the Production System
or the rights or obligations of the owner thereof in
any material respect or would reduce the revenues or
increase the costs allocable to the Owner except to a
de minimis extent and if, in the case of action under
32.1, the Production System is being used at the time
for the transportation and processing of hydrocarbons
owned by MPTM or its affiliates.
(b) Payment. MPTM will pay to the Owner all sums paid
-------
to MPTM in respect of the ownership of the Undivided
Interest.
(c) Throughput. MPTM shall cause to be processed or
----------
transported by means of one or more Components of
EXHB-3
<PAGE>
the Production System all hydrocarbons owned by it or
its affiliates produced from the Garden Banks 388 Unit,
and, any other hydrocarbons owned by it or its
affiliates produced from Garden Banks Blocks 213, 342,
520, 607 or 608 or from blocks in Area III as defined
in the Reserve Report, provided such other hydrocarbons
can be processed or transported economically by such
means. The price payable to the Owner for such service
shall be the Access Fee for the Component involved plus
related operating and maintenance expenses, all as
calculated in accordance with Paragraph 4A and 4B of
Exhibit H of the Operating Agreement as in effect as of
December 1, 1995. If the production transported or
processed is Unit production, such fee shall be paid
monthly directly by MPTM to the Owner in immediately
available funds. If the production transported or
processed is non-Unit production to which Exhibit H
applies by its terms, the Owner shall be entitled to
receive a distribution under the Operating Agreement
equal to that portion of such Access Fee described in
paragraph 4A of Exhibit H; provided that if Exhibit H
has been amended since December 1, 1995 so as to change
such portion of the Access Fee, any resulting balance
shall be settled directly between the Owner and MPTM.
4. Owner Obligations: (a) Operating Agreement. The Owner will authorize
-------------------
MPTM to subject the Undivided Interest to the
provisions of the Operating Agreement.
EXHB-4
<PAGE>
(b) Payments. The Owner will reimburse MPTM for any
--------
amounts paid by MPTM under the Operating Agreement as
agent for the Owner in accordance with the Agency and
Support Agreement, including any operating and
maintenance costs allocable to the Undivided Interest
and incurred in processing or transporting hydrocarbons
pursuant to paragraph 3(a) above.
(c) Throughput. The Owner will make the capacity of
----------
the Undivided Interest available for the
transportation and processing of production owned by
MPTM or its affiliates subject to the terms of the
Operating Agreement and upon the terms set forth in
3(c) above.
5. Method of Payment;
Indemnity All amounts payable under paragraphs 3(b) and 4(b)
shall be settled monthly on a net basis. MPTM and the
Owner will indemnify each other against claims, costs
and expenses incurred for the account of the other
party, in a form and subject to exclusions to be
negotiated by the parties at the time of execution of
the Agency and Support Agreement.
6. Decommissioning
and Abandonment: The Owner shall reimburse MPTM for all costs paid by
MPTM in connection with the abandonment, closure and
disposition of any part of the Production System after
the expiration of the Lease Term unless MPTM shall have
failed to comply with its obligations set forth in the
following paragraph.
EXHB-5
<PAGE>
During the 45 day period commencing on the earlier of
(a) the date on which the Owner receives notice that
the parties have decided to terminate the Unit
Operating Agreement or (b) the first date following
twenty and one-quarter years after the Basic Lease Term
Commencement Date on which MPTM has notified the Owner
that the daily average throughput of MPTM and its
affiliates for the preceding twelve months is less than
5000 BOEPD, the Owner may, at its option, require MPTM
to use reasonable commercial efforts to obtain cash
purchase offers for the acquisition of the Undivided
Interest not later than nine months after the exercise
of such option by a party that assumes the costs
incurred in connection with the abandonment, closure
and disposition of the Production System. Such request
shall not prevent the Owner from seeking purchase
offers independently of MPTM. If no such offer is
obtained, or if the offers obtained either (i) are
rejected because they impose burdens that are
unacceptable to the Owner in its reasonable commercial
judgment, or (ii) do not lead to a sale by the end of
such nine month period otherwise than by reason of the
Owner's failure to act in a commercially reasonable
manner in entering into a agreement of sale and closing
thereunder, MPTM shall make an offer to purchase the
Undivided Interest, including the assumption by MPTM of
the costs incurred in connection with the abandonment,
closure and disposition of the Production System, at a
price
EXHB-6
<PAGE>
selected by it, but in no event less than $1.00. The
Owner may accept or reject any such offers at its sole
discretion. If MPTM fails to comply with its obligation
hereunder it shall release the Owner from its
obligations in respect of the costs incurred in
connection with the abandonment, closure and
disposition of the Production System.
7. Purchase
Option: MPTM will have the option to purchase the Undivided
Interest at any time during the term of the Agency and
Support Agreement upon 30 days written notice at its
current fair market value, provided such option is
exercised in connection with a decision by MPTM that it
wishes to terminate or withdraw from the Operating
Agreement or abandon the Production System. If the
parties are unable to agree on the fair market value,
it shall be determined by appraisal in the manner
contemplated by the Lease.
8. Amendment: MPTM will not agree to any amendment or termination of
the Operating Agreement that would be prohibited by the
provisions of Section 10.9 of the Participation
Agreement without the prior consent of the Owner. In
the event of any amendment or termination of the
Operating Agreement or its replacement with another
operating agreement, the Agency and Support Agreement
shall apply to such amended or replacement agreement,
with such changes as may be required to give effect to
the intention of the parties.
EXHB-7
<PAGE>
9. Assignment: The rights and obligations of the parties to the Agency
and Support Agreement shall bind and inure to the
benefit of the parties' successors and permitted
assigns. Neither party shall make such assignment
except to a solvent corporation that expressly assumes
the Agency and Support Agreement and that, in the case
of an assignment by the Owner, would be qualified under
the Participation Agreement to be an Owner Participant
if the Lease remained in effect, or in the case of an
Owner which is a trust, to a qualified successor Owner
Trustee. It is intended that the Agency and Support
Agreement shall run with MPTM's related hydrocarbon
interests, and MPTM shall be required to make such an
assignment to any transferee of its interest in
production which may be economically processed or
transported by the Undivided Interest.
10. Information: MPTM will furnish the Owner such reports and
information as the Owner may reasonably request from
time to time (i) regarding the operation of the
Undivided Interest, including information and notices
it receives regarding the operation of the Production
System pursuant to Sections 5.2, 5.8 and 5.9(g) and
(h), Articles 9, 22 and 26 of the Operating Agreement
and (ii) regarding its activities as agent for the
Owner. At the time of execution of the Agency and
Support Agreement, the parties will establish mutually
agreeable procedures defining the scope and
EXHB-8
<PAGE>
frequency of MPTM's reporting repsonsibilities.
11. Arbitration: Disputes under the Agency and Support Agreement shall
be resolved through arbitration.
12. Administration: The Agency and Support Agreement shall contain such
other provisions as may be appropriate to ensure the
economic operation of the Undivided Interest together
with the remainder of the Production System and the
leases subject to the Operating Agreement, and the
effective administration of the Operating Agreement,
and shall include a provision requiring the parties to
take such other actions and execute such instruments
(including amendments to the Agency and Support
Agreement) as may be appropriate for such purposes.
EXHB-9
<PAGE>
EXHIBIT C
to
Participation Agreement
-----------------------
FORM OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated as of
---------
_______________, between ____________________, a _______________ corporation
("Assignor") and ____________________, a _______________ corporation
---------
("Assignee").
--------
WITNESSETH:
----------
WHEREAS, the parties hereto desire to effect (a) the transfer by
Assignor to Assignee of all of the right, title and interest of Assignor (except
as reserved below), in, under and with respect to, among other things, (i) the
Participation Agreement dated as of December 12, 1995 among Mobil G.B. 388
Finance Inc., as Lessee, General Electric Credit Corporation of Georgia, as
Owner Participant, First Security Bank of Utah, National Association, as Pass
Through Trustee, Shawmut Bank Connecticut, National Association, as Corporate
Owner Trustee, Michael M. Hopkins, as Individual Owner Trustee, First Security
Bank of Utah, National Association, as Corporate Indenture Trustee, and Val T.
Orton, as Individual Indenture Trustee, as amended, modified or supplemented and
in effect from time to time (the "Participation Agreement") including, without
-----------------------
limitation, any indemnity payments payable by the Lessee directly or indirectly
thereunder, (ii) the Trust Agreement (as defined in the Participation Agreement,
(iii) the Trust Estate (as defined in the Trust Agreement), (iv) the Tax
Indemnity Agreement (as defined in the Participation Agreement) and (v) the
proceeds therefrom and (b) the assumption by Assignee of the obligations of
Assignor accruing thereunder; and
WHEREAS, such documents permit such transfer upon satisfaction of
certain conditions heretofore or concurrently herewith being complied with;
EXHC-1
<PAGE>
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein without definition
-----------
shall have the respective meanings ascribed thereto in the Participation
Agreement.
2. Assignment. Assignor has sold, conveyed, assigned, transferred
----------
and set over, and does hereby sell, convey, assign, transfer and set over, unto
Assignee, as of the Effective Time (as defined below), all of its present and
future right, title and interest in, under and with respect to the Participation
Agreement, the Trust Agreement, the Trust Estate, the Tax Indemnity Agreement
and all of the other Operative Documents to which Assignor is a party and any
other contract, agreement, document or instrument relating to the Trust Estate
by which Assignor is bound, and any proceeds therefrom, together with all other
documents and instruments evidencing any of such right, title and interest,
except such rights of Assignor as have arisen or accrued to Assignor prior to
the Effective Time (including specifically, but without limitation, the right to
receive any amounts due or accrued to Assignor under the Operative Documents as
of a time prior to the Effective Time and the right to receive any indemnity
payment pursuant to the Participation Agreement or the Tax Indemnity Agreement
with respect to events occurring prior to such time).
3. Assumption. Assignee hereby accepts the assignment set forth in
----------
Section 2 hereof and assumes and undertakes all of the duties and obligations of
Assignor whenever accrued (other than duties and obligations of Assignor
required to be performed by it on or prior to the Effective Time under the
Operative Documents to which the Owner Participant is a party and any of the
other Operative Documents by which Assignor is bound or any other contract,
agreement, document or other instrument relating to the Trust Estate to which
the Owner Participant is a party or by which it is bound) pursuant to the Trust
Agreement, the Participation Agreement, the Tax Indemnity Agreement and each
other Operative Document to which Assignor is a party or by which Assignor is
bound or any other contract, agreement, document or other instrument relating to
the Trust Estate to which Assignor is a party or by which it is bound,
including,
EXHC-2
<PAGE>
without limitation, any obligations it may have under any Operative
Document with regard to the Lessee, the Indenture Trustee or the Owner Trustee.
Assignee hereby confirms that from and after the Effective Time it (i) shall be
deemed a party to the Participation Agreement, the Trust Agreement, the Tax
Indemnity Agreement and each other Operative Document to which the Owner
Participant is a party, (ii) shall be deemed the party named as the "Owner
Participant" in the Trust Agreement, the Participation Agreement, the Tax
Indemnity Agreement, the Lease and the Trust Indenture and (iii) shall be bound
by all of the terms of each Operative Document to which Assignor is a party or
by which it is bound and each of such other contracts, agreements, documents or
other instruments referred to in this Section 3 (including the agreements and
obligations of the Assignor set forth therein) as if therein named the Owner
Participant, except with respect to the first sentence of Section 6.7 of the
Participation Agreement, or otherwise provided under Section 8(i) hereof.
4. Release of Assignor. Except for liabilities not expressly
-------------------
assumed under Section 3 hereof, at the Effective Time, Assignor shall be
relieved of all of its liabilities under the Participation Agreement and the
Trust Agreement; provided, however, that Assignor shall in no event be released
-------- -------
from any such liability arising or relating to any event occurring prior to the
Effective Time, or on account of any breach by Assignor of any of its
representations, warranties, covenants or obligations set forth in the
Participation Agreement or the Trust Agreement, or for any fraudulent or willful
misconduct engaged in by it prior to the Effective Time, or from any obligation
that relates to any indemnity claimed by Assignor or any Owner Participant's
Lien or Lessor's Lien arising from Assignor.
5. Payments. Assignor hereby covenants and agrees to pay over to
--------
Assignee, if and when received following the Effective Time, any amounts
(including any sums payable as interest in respect thereof) paid to or for the
benefit of Assignor that, under Section 2 hereof, belong to Assignee, and
Assignee hereby covenants and agrees to pay over to Assignor, if and when
received following the Effective Time, any amounts (including any sums payable
as interest in respect thereof) paid to or for the benefit of Assignee that,
under Section 2 hereof, belong to Assignor.
EXHC-3
<PAGE>
6. Investment Purpose. Assignee hereby represents that it is
------------------
acquiring the Trust Estate interests and other interests hereby assigned to it
for its own account for the purpose of investment and not with a view to the
distribution or resale of either thereof, subject, nevertheless, to the
disposition of such interests being at all times within Assignee's control.
7. Representations and Warranties of Assignor. Assignor represents
------------------------------------------
and warrants that:
(a) it is a corporation duly organized and validly existing in good
standing under the laws of the State of [] and has the requisite power,
authority and legal right to enter into and carry out the transactions
contemplated hereby;
(b) this Agreement has been duly authorized, executed and delivered
by it and constitutes the legal, valid and binding obligation of Assignor,
enforceable against it in accordance with its terms;
(c) No action or proceeding is pending, has been instituted or, to
the knowledge of Assignor, is threatened, before any court or governmental
agency, nor has any order, judgment or decree been issued or, to the
knowledge of Assignor, is threatened, by any court or governmental agency
which would materially adversely affect the ability of Assignor to complete
and consummate its obligations contemplated hereby;
(d) there are no Owner Participant's Liens attributable to the
Assignor and the execution, delivery and performance by the Assignor of
this Agreement will not result in the creation of any Owner Participant's
Liens;
(e) it has fully performed all of its obligations under the
Participation Agreement and under each other Operative Document to which it
is a party or by which it is bound, which obligations by their terms are
required to be satisfied or performed prior to the Effective Time or prior
to the consummation of the transactions contemplated hereby;
EXHC-4
<PAGE>
(f) neither the execution, delivery and performance by it of this
Agreement, nor compliance by it with any of the provisions thereof requires
or will require any approval of its stockholders, or approval or consent of
any trustees or holders of any indebtedness or obligations of it or
contravenes or will contravene any law or any order of any court or
governmental authority or agency applicable to or binding on it or
contravenes or will contravene the provisions of, or constitute a default
under, its [Certificate of Incorporation] or By-laws or any indenture,
mortgage, contract or any agreement or instrument to which it is a party or
by which it or any of its property may be bound or affected, provided, that
--------
no representation or warranty is made with respect to ERISA;
(g) no authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body, or the
regulations promulgated thereunder) is required for the due execution,
delivery or performance by it of this Agreement; and
(h) the transfer to Assignee of all of the Assignor's right, title
and interest as Owner Participant will not violate any provision of the
Securities Act of 1933, as amended (and no registration pursuant to such
Act or the rules and regulations thereunder shall be required in connection
with such transfer), or any other applicable law, provided, that no
--------
representation or warranty is made with respect to ERISA.
8. Representations and Warranties of Assignee. Assignee represents
------------------------------------------
and warrants that:
(a) it is a corporation duly organized and validly existing in good
standing under the laws of the State of [] and has the corporate power and
authority to carry on its present business and operations, to own or lease
its properties and to enter into and perform its obligations hereunder and
the obligations of the Owner Participant under the Operative Documents;
(b) this Agreement has been duly authorized, executed and delivered
by it and this Agreement and each
EXHC-5
<PAGE>
of the Operative Documents to which Assignee has become a party constitutes
the legal, valid and binding obligation of Assignee, enforceable against it
in accordance with its terms;
(c) no action or proceeding is pending, has been instituted or, to
the knowledge of Assignee, is threatened, before any court or governmental
agency, nor has any order, judgment or decree been issued, or, to the
knowledge of Assignee, is threatened, by any court or governmental agency
which would materially adversely affect its ability to complete and
consummate its obligations contemplated hereby and the Operative Documents
to which Assignee has become a party;
(d) it is a financial institution, leasing company or other
institutional investor whose net worth is at least $75,000,000;
(e) there are no Owner Participant's Liens attributable to it;
(f) neither the execution, delivery and performance by it of this
Agreement, nor compliance by it with any of the provisions hereof or of the
Operative Documents, requires or will require any approval of its
stockholders, or approval or consent of any trustees or holders of any
indebtedness or obligations of it or contravenes or will contravene any
law, judgment, governmental rule, regulation or any order of any court or
governmental authority or agency applicable to or binding on it or
contravenes or will contravene the provisions of, or result in any breach
of, or constitute a default under, or result in the creation of any Lien
(other than Permitted Liens) upon the Trust Estate under, its Certificate
of Incorporation or By-laws or any indenture, mortgage, contract or any
agreement or instrument to which it is a party or by which it or any of its
property may be bound or affected, provided, that no representation or
--------
warranty is made with respect to ERISA (except as provided in Section 8(i)
hereof and in the second sentence of Section 6.7 of the Participation
Agreement);
EXHC-6
<PAGE>
(g) no authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body (other than
as required by the Federal Aviation Act or the regulations promulgated
thereunder) is required for the due execution, delivery or performance by
it of this Agreement or the other Operative Documents;
(h) the transfer to it of all of Assignor's right, title and interest
as Owner Participant will not violate, or create a relationship which would
be in violation of, any provision of any applicable Governmental Rule
including the Securities Act of 1933, as amended (and no registration
pursuant to such Act or the rules and regulations thereunder shall be
required in connection with such transfer), or the Trust Indenture Act of
1939, provided, that no representation or warranty is made with respect to
--------
ERISA (except as provided in Section 8(i) hereof and in the second sentence
of Section 6.7 of the Participation Agreement);
(i) [(1) it is not acquiring any part of the interest in the Trust
Estate with ERISA Plan Assets or (2) the transfer to, and ownership of the
interest in the Trust Estate by, Assignee is and will continue to be
covered by Prohibited Transaction Class Exemption 95-60, 91-38 or 90-1]/1/;
(j) after giving effect to this assignment, there will be no more
than two Owner Participants; and
(k) it is a "United States Person" as defined in the Code.
9. GOVERNING LAW. THIS AGREEMENT AND ASSUMPTION AGREEMENT SHALL BE
-------------
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF [],
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
__________________________
/1/ Assignee will make either the representation set forth in (1) or (2).
EXHC-7
<PAGE>
10. Effectiveness. This Agreement shall be effective upon (a) its
-------------
execution and delivery by each of Assignor and Assignee and (b) the execution
and delivery by each of Assignor and Assignee of a letter addressed to Lessee,
the Owner Trustee and the Indenture Trustee, substantially in the form attached
hereto as Exhibit A (the "Effective Time").
--------------
11. Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which together shall constitute a single instrument. It
shall not be necessary that any counterpart be signed by both parties so long as
each party shall sign at least one counterpart.
12. Beneficiaries. Each of the Owner Trustee, the Lessee, the Pass
-------------
Through Trustee and the Indenture Trustee, together with their respective
successors and permitted assigns, is and shall be deemed a third party
beneficiary of this Agreement entitled to enforce this Agreement directly and in
its own name and enforce any rights or claims of the parties hereto.
13. Further Assurances. Each party agrees that from time to time
------------------
after the Effective Time, it shall execute and deliver or cause to be executed
and delivered such instruments, documents and papers, and take all such further
action as may be reasonably required in order to consummate fully the purposes
of this Agreement and to implement the transactions contemplated hereby.
* * *
EXHC-8
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
and Assumption Agreement as of the day and year first above written.
[ASSIGNOR]
By: __________________________
Title:
[ASSIGNEE]
By: __________________________
Title:
EXHC-9
<PAGE>
Exhibit A to Form of
Assignment and Assumption Agreement
[Date]
To each of the Addressees
Listed on Schedule I hereto
- ---------------------------
Ladies and Gentlemen:
In connection with the transfer by __________ ("Assignor") to
--------
__________ ("Assignee") of all of the right, title and interest of Assignor in,
--------
under and with respect to, among other things, the Participation Agreement B)
dated as of December 12, 1995 among Mobil G.B. 388 Finance Inc., as Lessee,
General Electric Credit Corporation of Georgia, as Owner Participant, First
Security Bank of Utah, National Association, as Pass Through Trustee, Shawmut
Bank Connecticut, National Association, as Corporate Owner Trustee, Michael M.
Hopkins, as Individual Owner Trustee, First Security Bank of Utah, National
Association, as Corporate Indenture Trustee, and Val T. Orton, as Individual
Indenture Trustee (the "Participation Agreement"; capitalized terms used herein
-----------------------
without definition shall have the meanings ascribed thereto in the Participation
Agreement) and the other Operative Documents, and the assumption by Assignee of
the obligations of Assignor accruing thereunder, such transfer and assumption
being effected pursuant to the Assignment and Assumption Agreement, dated as of
_______________ __, ____ (the "Assignment"), between Assignor and Assignee, an
----------
executed copy of which is attached hereto, each of Assignor and Assignee hereby
confirms for your benefit the accuracy of its respective representations and
warranties contained in the Assignment and agrees for your benefit to perform
all of its respective obligations under the Assignment. Assignee further agrees
for your benefit that from and after the Effective Time (as defined in the
Assignment) Assignee shall be deemed a party to the Participation Agreement, the
Trust Agreement, the Tax Indemnity Agreement and each other Operative Document
to which the Owner Participant is a party or by which the Owner Participant has
agreed to be bound and shall be deemed the
EXHC-10
<PAGE>
party named as the "Owner Participant" in the Trust Agreement, the Participation
Agreement, the Tax Indemnity Agreement, the Lease and the Indenture, and agrees
to be bound by all of the terms of, and to undertake all of the obligations of
the Owner Participant contained in, the Participation Agreement, the Trust
Agreement, the Tax Indemnity Agreement and each other Operative Document to
which the Owner Participant is a party or by which it is bound.
Assignor hereby confirms that such transfer shall not be deemed to
release Assignor from any obligation relating to the period prior to the
Effective Time.
After giving effect to such assignment, conveyance or transfer, there
will be no more than two Owner Participants.
Assignor hereby assumes the risk of any adverse tax consequences of
the assignment consummated pursuant to the Assignment (including any increase in
the Lessee's indemnity obligations under the Tax Indemnity Agreement and Section
12.2 of the Participation Agreement. Assignee hereby acknowledges and agrees
that any amounts payable to the Assignee under the Tax Indemnity Agreement and
Section 12.2 of the Participation Agreement shall not exceed the amount that
would have been payable to the original "Owner Participant" thereunder had such
original Owner Participant not transferred its interest thereunder and under the
other Operative Documents to which it is a party.
[ASSIGNOR]
By: _________________________
Title:
[ASSIGNEE]
By: _________________________
Title:
EXHC-11
<PAGE>
SCHEDULE I
----------
[Insert names and addresses of Lessee, Pass Through Trustee, Indenture Trustee
and Owner Trustee]
EXHC-12
<PAGE>
EXHIBIT 4.6
[CONFORMED COPY]
================================================================================
TRUST AGREEMENT
among
GENERAL ELECTRIC CREDIT CORPORATION OF GEORGIA,
Owner Participant
and
FLEET NATIONAL BANK OF CONNECTICUT,
Corporate Owner Trustee
and
MICHAEL M. HOPKINS,
Individual Owner Trustee, as
appointed under Section 10.2.
______________
Dated as of December 12, 1995
______________
================================================================================
Sale Leaseback of an Undivided Interest in an Oil and Gas
Production System
<PAGE>
================================================================================
2
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
<S> <C> <C>
SECTION 1. DEFINITIONS................................................ 1
SECTION 2. AUTHORITY TO EXECUTE AND PERFORM
VARIOUS DOCUMENTS.......................................... 1
2.1 Authority to Execute and Perform Various
Documents.................................................. 1
SECTION 3. DECLARATION OF TRUST....................................... 2
3.1 Appointment of the Owner Trustee........................... 2
3.2 Declaration of Trust by Corporate Owner
Trustee.................................................... 2
3.3 Declaration of Trust by the Individual
Owner Trustee.............................................. 2
SECTION 4. PAYMENTS................................................... 2
4.1 Payments from Trust Estate Only............................ 2
4.2 Method of Payment.......................................... 3
SECTION 5. DISTRIBUTIONS.............................................. 3
5.1 Payments to the Indenture Trustee.......................... 3
5.2 Payments to the Owner Trustees............................. 4
5.3 Excepted Payments.......................................... 4
SECTION 6. CERTAIN DUTIES OF THE OWNER TRUSTEES....................... 4
6.1 Notice of Certain Events................................... 4
6.2 Action Upon Instructions................................... 5
6.3 Indemnification............................................ 5
6.4 No Duties Except as Specified.............................. 6
6.5 No Action Except Under Specified Documents
or Instructions............................................ 7
6.6 Tax Returns; Records....................................... 7
6.7 Absence of Certain Duties.................................. 7
6.8 Fixed Investment Trust..................................... 8
6.9 Place of Administration.................................... 8
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 7. THE OWNER TRUSTEES......................................... 8
7.1 Acceptance of Trusts and Duties............................ 8
7.2 Furnishing of Documents.................................... 9
7.3 No Representations or Warranties as to the
Undivided Interest or Documents............................ 9
7.4 No Segregation of Moneys; No Interest...................... 9
7.5 Reliance; Advice of Counsel................................ 10
7.6 Not Acting in Individual Capacity.......................... 10
SECTION 8. INDEMNIFICATION; COMPENSATION.............................. 11
8.1 Indemnification of the Trust Company
and Hopkins................................................ 11
8.2 Compensation and Expenses.................................. 12
SECTION 9. TERMINATION OF TRUST AGREEMENT............................. 12
9.1 Termination of Trust Agreement............................. 12
9.2 Termination at Option of the Owner
Participant................................................ 13
9.3 Distribution of Trust Estate Upon
Termination................................................ 14
SECTION 10. SUCCESSOR OWNER TRUSTEES, CO-OWNER
TRUSTEES AND SEPARATE OWNER TRUSTEES....................... 14
10.1 Resignation and Successors................................. 14
10.2 Additional and Separate Trustees........................... 16
SECTION 11. SUPPLEMENTS AND AMENDMENTS................................. 19
11.1 Supplements and Amendments................................. 19
11.2 Limitation on Amendments................................... 20
SECTION 12. MISCELLANEOUS.............................................. 20
12.1 No Legal Title to Trust Estate in the
Owner Participant.......................................... 20
12.2 Sale of the Undivided Interest by the
Owner Trustee is Binding................................... 20
12.3 Notices.................................................... 20
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
12.4 Severability of Provisions................................. 21
12.5 Separate Counterparts...................................... 21
12.6 Successors and Assigns..................................... 21
12.7 Transfer of Owner Participant's Interest................... 21
12.8 Headings; Table of Contents................................ 22
12.9 GOVERNING LAW.............................................. 22
12.10 Performance by the Owner Participant....................... 22
12.11 The Owner Trustee Documents................................ 22
12.12 Performance of Obligations to Indenture
Trustee.................................................... 22
12.13 Trust Agreement for Benefit of
Parties Only............................................... 22
12.14 Limitation on Owner
Participant's Liability.................................... 23
12.15 Individual Owner Trustee................................... 23
</TABLE>
iii
<PAGE>
TRUST AGREEMENT
---------------
THIS TRUST AGREEMENT, dated as of December 12, 1995, is among General
Electric Credit Corporation of Georgia, a Georgia corporation, and Fleet
National Bank of Connecticut, a national banking association, as Corporate Owner
Trustee ("Corporate Owner Trustee"), with the appointment of Michael M. Hopkins,
-----------------------
an individual resident of the State of Connecticut ("Hopkins"), as co-trustee
-------
pursuant to Section 10.2 hereof (the "Individual Owner Trustee"; the Corporate
------------------------
Owner Trustee and the Individual Owner Trustee are sometimes collectively
referred to as the "Owner Trustees" and individually as an "Owner Trustee"). In
-------------- -------------
consideration of the mutual agreements herein contained, the agreements
contained in the other Operative Documents and the acceptance by the Trust
Company and Hopkins of the trusts hereby created, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. DEFINITIONS
-----------
For the purposes hereof, terms used herein and not otherwise defined
shall have the respective meanings assigned to them in Appendix A (as the same
may from time to time be amended, restated, supplemented or otherwise modified).
Unless otherwise indicated, references in this Trust Agreement to Sections,
subsections, paragraphs and Appendices are to Sections, subsections, paragraphs
and Appendices of this Trust Agreement.
SECTION 2. AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS
--------------------------------------------------
2.1 Authority to Execute and Perform Various Documents. The Owner
--------------------------------------------------
Participant hereby authorizes and directs the Owner Trustees and the Owner
Trustees agree for the benefit of the Owner Participant (i) on the Closing Date,
to execute and deliver the Participation Agreement and, upon receipt of the
authorization and direction by the Owner Participant pursuant to Section 2.11 of
the Participation Agreement, to execute and deliver the Operative Documents
<PAGE>
contemplated to be executed and delivered by the Owner Trustees on the Closing
Date and take the other actions contemplated to be taken by the Owner Trustees
on the Closing Date in the Operative Documents, (ii) to execute and deliver any
other agreement, instrument or certificate contemplated by the Operative
Documents as the Owner Participant from time to time may direct in written
instructions to the Owner Trustees (collectively, with the Operative Documents,
the "Owner Trustee Documents"), (iii) subject to the terms of this Trust
-----------------------
Agreement and of the other Operative Documents to which each Owner Trustee is a
party, to take whatever action shall be required to be taken by such Owner
Trustee by the terms of, and exercise its or his rights (upon instructions
received from the Owner Participant) and perform its or his duties under, each
of the documents, agreements, instruments and certificates referred to in
clauses (i) and (ii) of this Section 2.1 as set forth in such documents,
agreements, instruments and certificates, and (iv) subject to the terms of this
Trust Agreement and the other Operative Documents to which it or he is a party,
to take such other action in connection with the foregoing as the Owner
Participant may from time to time direct in written instructions to the Owner
Trustees.
SECTION 3. DECLARATION OF TRUST.
--------------------
3.1 Appointment of the Owner Trustee. The Owner Participant hereby
--------------------------------
appoints and constitutes the Trust Company as the Corporate Owner Trustee
hereunder to act as trustee of the Trust Estate for the purposes and in
accordance with the terms set forth herein.
3.2 Declaration of Trust by Corporate Owner Trustee. The Trust
-----------------------------------------------
Company hereby declares that it will hold as Corporate Owner Trustee all estate,
right, title and interest of the Corporate Owner Trustee in and to the Undivided
Interest and the Owner Trustee Documents, and all money held by the Corporate
Owner Trustee from time to time hereunder, including, without limitation, all
amounts of Rent, insurance proceeds, sales proceeds, rental proceeds, and
requisition, indemnity or other payments of any kind, but specifically excluding
Excepted Payments (collectively, the "Trust Estate") (except the Louisiana Trust
------------
Estate), upon the
2
<PAGE>
trusts set forth herein and for the use and benefit of the Owner Participant as
sole beneficiary, subject, however, to the provisions of and the Lien created by
the Indenture.
3.3 Declaration of Trust by the Individual Owner Trustee. Subject to
----------------------------------------------------
the terms of Section 10.2 hereof, Hopkins hereby declares that he will hold as
the Individual Owner Trustee all estate, right, title and interest of the
Individual Owner Trustee in and to the Louisiana Trust Estate.
SECTION 4. PAYMENTS
--------
4.1 Payments from Trust Estate Only. All payments to be made by the
-------------------------------
Owner Trustees under this Trust Agreement shall be made only from the assets of
or income and proceeds from the Trust Estate and only to the extent that the
Owner Trustees shall have received income or proceeds from the Trust Estate to
make such payments in accordance with the terms hereof, except as specifically
provided herein. The Owner Participant agrees that it will look solely to the
assets of or the income and proceeds from the Trust Estate to the extent
available for payment as herein provided and that, except as expressly provided
herein, neither the Trust Company nor Hopkins shall be liable for any amounts
payable under this Trust Agreement and shall not be subject to any liability
under this Trust Agreement.
4.2 Method of Payment. (a) All amounts payable to the Owner
-----------------
Participant or to the Indenture Trustee pursuant to this Trust Agreement shall
be paid by the Owner Trustees, if to the Owner Participant, by transferring such
amount in immediately available funds to such account at such financial
institution as the Owner Participant from time to time may direct or, if to the
Indenture Trustee, in the manner specified in the Indenture.
(b) Notwithstanding the foregoing, the Owner Trustees will pay, if so
requested by the Owner Participant in writing, any or all amounts payable by the
Owner Trustees hereunder to the Owner Participant either (i) by crediting such
amount or amounts to an account or accounts maintained by the Owner Participant
with the Trust Company in immediately
3
<PAGE>
available funds, (ii) by payment at the address for payment specified in
Schedule 1 to the Participation Agreement in immediately available funds or
(iii) by mailing an official bank check or checks in such amount or amounts
payable to the Owner Participant at such address as the Owner Participant shall
have designated in writing to the Owner Trustees.
(c) The Owner Trustees will pay all amounts payable to the Owner
Participant by the Owner Trustees hereunder on the day received (or on the next
succeeding Business Day if the funds to be so distributed shall not have been
received by such Owner Trustee prior to 11:00 a.m., New York City time, and such
Owner Trustee shall not have been reasonably able to distribute such funds to
the Owner Participant on the day received).
SECTION 5. DISTRIBUTIONS
-------------
5.1 Payments to the Indenture Trustee. Until the Lien of the
---------------------------------
Indenture shall have been discharged pursuant to the terms thereof, all Basic
Rent, Supplemental Rent, insurance proceeds and requisition or other payments of
any kind (other than Excepted Payments) payable to the Owner Trustees (other
than from the Indenture Trustee) shall be payable directly to the Indenture
Trustee for distribution in accordance with the provisions of the Indenture, and
if any such amount or payment is received by the Owner Trustees, such amount or
payment upon receipt thereof shall be paid over to the Indenture Trustee without
deduction, set-off or adjustment of any kind for distribution in accordance with
the provisions of the Indenture.
5.2 Payments to the Owner Trustees. Any payment of the type referred
------------------------------
to in Section 5.1 received by any Owner Trustee after the Indenture shall have
been discharged pursuant to the terms thereof, any payment received from the
Indenture Trustee other than as specified in Section 5.3 and any other amount
received as part of the Trust Estate and for the application or distribution of
which no provision is made herein shall be distributed forthwith upon receipt by
such Owner Trustee in the following order of priority: first, so much of such
-----
payment as shall be required to reimburse the Owner Trustees for any expenses
not otherwise reimbursed as to
4
<PAGE>
which the Owner Trustees are entitled to be so reimbursed pursuant to the
provisions hereof shall be retained by the Owner Trustees; second, so much of
------
the remainder for which provision as to the application thereof is contained in
any of the Operative Documents or any of the other Owner Trustee Documents shall
be applied and distributed in accordance with the terms of such Operative
Document or such other Owner Trustee Document, as the case may be; and third,
-----
the balance, if any, shall be paid to the Owner Participant.
5.3 Excepted Payments. Any Excepted Payment received by any Owner
-----------------
Trustee shall be paid by such Owner Trustee to the Person to whom such Excepted
Payment is payable pursuant to the terms of the Operative Documents.
5.4 Certain Distributions to the Owner Participant. All amounts from
----------------------------------------------
time to time distributable by the Indenture Trustee to the Owner Participant
pursuant to the terms of the Indenture shall, if paid to any Owner Trustee, be
distributed by such Owner Trustee to or at the direction of the Owner
Participant.
SECTION 6. CERTAIN DUTIES OF THE OWNER TRUSTEES
------------------------------------
6.1 Notice of Certain Events. In the event that any Owner Trustee
------------------------
shall have Actual Knowledge of any Lease Event of Default, any Indenture Event
of Default or any Event of Loss, such Owner Trustee shall give prompt telephonic
notice thereof (promptly confirmed in writing) to the Owner Participant, the
Lessee and the Indenture Trustee, unless (in the case of notice to the Indenture
Trustee or the Lessee) such Lease Event of Default, Indenture Event of Default
or Event of Loss, as the case may be, has been remedied before the giving of
such notice and such Owner Trustee has Actual Knowledge that such Lease Event of
Default, Indenture Event of Default or Event of Loss has been so remedied.
Subject to the terms of Section 6.3, the Owner Trustees shall, after the
occurrence of any such event, take or refrain from taking such action with
respect thereto, not inconsistent with the provisions of the Operative
Documents, with respect thereto as the Owner Trustees shall be instructed in
writing by the Owner Participant. If an Owner Trustee shall not have received
instructions as above provided within 20 days after such notice of such event to
the Owner Participant, such Owner
5
<PAGE>
Trustee may, until it shall have received such instructions and subject to the
provisions of the Operative Documents, take such action or refrain from taking
such action (but shall be under no duty to take or refrain from taking any
action) with respect to such Lease Event of Default, Indenture Event of Default
or Event of Loss, as it shall deem advisable in the best interests of the Owner
Participant.
6.2 Action Upon Instructions. (a) Subject to the terms of Sections
------------------------
6.1 and 6.3, upon the written instructions at any time and from time to time of
the Owner Participant, the Owner Trustees shall take or refrain from taking such
action or actions, not inconsistent with the provisions of any of the Operative
Documents or the Owner Trustee Documents, as may be specified in such
instructions. In the event that an Owner Trustee is unsure of the application of
any provision of this Trust Agreement or any other Owner Trustee Document, such
Owner Trustee may request and rely upon instructions of the Owner Participant.
(b) Notwithstanding anything to the contrary set forth in Section 2.1
hereof, the Owner Trustees shall not, without instructions from the Owner
Participant, (x) exercise any right to retain the Undivided Interest under
Section 7 of the Lease, (y) terminate the Lease except pursuant to the last
sentence of Section 6.1 hereof or (z) consent to or approve any action or
document as being satisfactory to the Owner Trustees, or waive any condition or
the performance of any obligation in favor of the Owner Trustees or the Trust
Estate, or release the Lessee from any obligation under the Operative Documents.
6.3 Indemnification. Neither Owner Trustee shall be required to take
---------------
or refrain from taking any action under Section 6.1 or 6.2 (other than the
actions specified in the first sentence of Section 6.1) unless such Owner
Trustee shall have been indemnified by the Owner Participant, in manner and form
reasonably satisfactory to such Owner Trustee, against any liability, fee, cost
or expense (including without limitation reasonable attorneys' fees) which may
be incurred or charged in connection therewith, other than any such liability,
fee, cost or expense which results from the willful misconduct (including
without limitation willful breach of contract) or gross negligence of such Owner
Trustee, or the
6
<PAGE>
failure of such Owner Trustee to use ordinary care in the receipt and
disbursement of funds, and, if the Owner Participant shall have directed such
Owner Trustee to take or refrain from taking any action under any Operative
Document, the Owner Participant agrees to furnish such indemnity (subject to the
foregoing limitation) as shall be reasonably satisfactory to such Owner Trustee,
and in addition, to the extent not otherwise paid pursuant to the terms of any
other Operative Document or Owner Trustee Document, to pay the reasonable
compensation of such Owner Trustee for the services performed or to be performed
by it pursuant to such direction as set forth in Section 8.2. Neither Owner
Trustee shall be required to take any action under any Operative Document or any
Owner Trustee Document if such Owner Trustee reasonably shall determine, or
shall have been advised by counsel, that such action is likely to result in
unindemnified personal liability to such Owner Trustee or is contrary to the
terms hereof or of any documents contemplated hereby to which such Owner Trustee
is a party, or otherwise contrary to law, and such Owner Trustee in such case
shall deliver promptly to the Owner Participant written notice of the basis of
its refusal to act.
6.4 No Duties Except as Specified. Neither Owner Trustee shall have
-----------------------------
any power, right, authority, duty or obligation to manage, control, use, make
any payment in respect of, register, record, insure, inspect, sell, dispose of
or otherwise deal with the Undivided Interest or any other part of the Trust
Estate (including the Louisiana Trust Estate), or to otherwise take or refrain
from taking any action under, or in connection with, any Owner Trustee Document
or any of the other Operative Documents, except as expressly provided by the
terms of this Trust Agreement, the Indenture or the Owner Trustee Documents or
in written instructions from the Owner Participant received pursuant to Section
6.1 or 6.2; and no implied duties or obligations shall be read into this Trust
Agreement against either Owner Trustee. Notwithstanding and without limiting the
foregoing, the Trust Company agrees that it will, in its individual capacity and
at its own expense, without any right to indemnification hereunder, promptly
take all action necessary to discharge and satisfy in full any Lessor's Lien
attributable to it or Hopkins on any part of the Trust Estate (including the
Louisiana Trust Estate) and will claim no
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indemnity therefor hereunder or under the Participation Agreement or under any
other Operative Document. Notwithstanding and without limiting the foregoing,
Hopkins agrees that he will, in his individual capacity and at his own expense,
without any right to indemnification hereunder, promptly take all action
necessary to discharge and satisfy in full any Lessor's Lien attributable to him
on any part of the Trust Estate (including the Louisiana Trust Estate) and will
claim no indemnity therefor hereunder or under the Participation Agreement or
under any other Operative Document.
6.5 No Action Except Under Specified Documents or Instructions.
----------------------------------------------------------
Neither Owner Trustee shall have any right, power or authority to, and each
Owner Trustee agrees that it will not manage, control, use, sell, dispose of or
otherwise deal with the Undivided Interest or any other part of the Trust Estate
(including the Louisiana Trust Estate) except as (i) expressly provided by the
terms of this Trust Agreement, (ii) expressly required by the terms of any Owner
Trustee Document or (iii) expressly directed or authorized in written
instructions from the Owner Participant pursuant to Section 6.1 or 6.2.
6.6 Tax Returns; Records. The Corporate Owner Trustee shall be
--------------------
responsible for the maintaining of all appropriate books and records relating to
the receipt and disbursement of all money which it may receive or be entitled to
hereunder or under any agreement contemplated hereby. The Corporate Owner
Trustee agrees, at the request and expense of the Owner Participant, to file an
application with the Internal Revenue Service for a taxpayer identification
number with respect to the trust created hereby and to prepare or cause to be
prepared and to sign and/or file all tax returns with respect to the
transactions contemplated hereby or any agreement referred to herein; provided,
--------
however, that the Corporate Owner Trustee shall send a copy of the contemplated
- -------
return to the Owner Participant not more than sixty (60) nor less than thirty
(30) days prior to the due date of the return. The Owner Participant, upon
request, will furnish the Corporate Owner Trustee with all such information as
may be reasonably required from the Owner Participant in connection with the
preparation of such tax returns. The Corporate Owner
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Trustee shall keep copies of all returns delivered to or filed by it.
6.7 Absence of Certain Duties. Except in accordance with written
-------------------------
instructions furnished pursuant to Sections 6.1 and 6.2, and without limiting
the generality of Section 6.4, neither Owner Trustee shall have any duty (i) to
file, record or deposit any Operative Document or Owner Trustee Document,
including without limitation this Trust Agreement, or any other document, or to
maintain any such filing, recording or deposit, or to refile, rerecord or
redeposit any such document, (ii) to obtain insurance with respect to the
Undivided Interest or to effect or maintain any such insurance, other than to
receive and forward to the Owner Participant any notices, policies, certificates
or binders furnished to such Owner Trustee by the Lessee or its insurance
brokers, (iii) to maintain or mark the Undivided Interest, (iv) to pay or
discharge any tax, assessment or other governmental charge, or any Lien or
encumbrance of any kind, owing with respect to or assessed or levied against any
part of the Trust Estate, (including the Louisiana Trust Estate) except as
provided in Section 6.4, (v) to confirm, verify, investigate or inquire into the
failure to receive any reports or financial statements of the Lessee or the
Guarantor, (vi) to inspect the Undivided Interest at any time, or to ascertain
or inquire as to the performance or observance of any of the covenants of the
Lessee or any other Person under any Operative Document or Owner Trustee
Document with respect to the Undivided Interest or any other part of the Trust
Estate (including the Louisiana Trust Estate) or (vii) to manage, control, use,
sell, dispose of or otherwise deal with the Undivided Interest or any other part
of the Trust Estate (including the Louisiana Trust Estate), or any part thereof,
except as provided in clauses (i), (ii) and (iii) of Section 6.5.
6.8 Fixed Investment Trust. Notwithstanding anything herein to the
----------------------
contrary, neither Owner Trustee shall be authorized nor have any power to
reinvest the proceeds of the Trust Estate (including the Louisiana Trust Estate)
or to otherwise "vary the investment" of the Owner Participant within the
meaning of Treasury Regulations (S) 301.7701-4(c)(1).
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6.9 Place of Administration. The principal place of administration
-----------------------
of the trusts created hereby shall be in Hartford, Connecticut.
SECTION 7. THE OWNER TRUSTEES
------------------
7.1 Acceptance of Trusts and Duties. Each Owner Trustee accepts the
-------------------------------
trusts hereby created and agrees to perform the same on the terms of this Trust
Agreement. Each Owner Trustee also agrees to disburse all moneys actually
received by it or him constituting part of the Trust Estate pursuant to the
terms of this Trust Agreement. Neither the Trust Company nor Hopkins shall be
answerable or accountable under any circumstances except, and in the case of
such exceptions shall not be entitled to indemnity hereunder, (i) for such
Person's own willful misconduct (including without limitation willful breach of
contract) or gross negligence, (ii) in the case of the inaccuracy of any of such
Person's representations or warranties contained in Section 7.3 hereof or in
Section 8 of the Participation Agreement or in any written certificate delivered
pursuant to any Operative Document given expressly in such Person's individual
capacity and not in its capacity as a trustee hereunder, (iii) as arising from
such Person's failure to perform obligations expressly undertaken by such Person
in the last sentence of Section 6.4 hereof or expressly undertaken by such
Person in Section [11.2] of the Participation Agreement, (iv) for any Tax based
on or measured by any fees, commissions or compensation received by such Person
for acting as Owner Trustee in connection with any of the transactions
contemplated by the Operative Documents, or (v) for such Person's failure to use
ordinary care in the receipt and disbursement of funds.
7.2 Furnishing of Documents. Each Owner Trustee will furnish to the
-----------------------
Owner Participant, promptly upon receipt thereof, duplicates or copies of all
reports, notices, requests, demands, opinions, certificates, financial
statements and any other instruments furnished to such Owner Trustee under any
Operative Document or any Owner Trustee Document, unless such Owner Trustee
shall have determined that the same already has been actually received by the
Owner Participant.
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7.3 No Representations or Warranties as to the Undivided Interest
-------------------------------------------------------------
or Documents. (a) NEITHER THE TRUST COMPANY, HOPKINS, THE CORPORATE OWNER
- ------------
TRUSTEE NOR THE INDIVIDUAL OWNER TRUSTEE MAKES ANY REPRESENTATION OR WARRANTY,
EITHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF THE PRODUCTION
SYSTEM OR ANY PART THEREOF, THE MERCHANTABILITY THEREOF OR THE FITNESS THEREOF
FOR ANY PARTICULAR PURPOSE, TITLE TO THE PRODUCTION SYSTEM OR ANY PART THEREOF,
THE QUALITY OF THE MATERIALS OR WORKMANSHIP THEREOF OR CONFORMITY THEREOF TO
SPECIFICATIONS, OR THE PRESENCE OR ABSENCE OF ANY LATENT OR OTHER DEFECTS,
WHETHER OR NOT DISCOVERABLE, except that each of the Trust Company and Hopkins
hereby represents and warrants that (i) on the Closing Date, the applicable
Owner Trustee shall have received whatever right, title and/or interest in or to
the Undivided Interest as was conveyed to such Owner Trustee by the Lessee and
(ii) the Undivided Interest shall be free and clear of Lessor's Liens
attributable to Trust Company and Hopkins, respectively, and (b) neither the
Trust Company, Hopkins, the Corporate Owner Trustee nor the Individual Owner
Trustee makes any representation or warranty as to the validity or
enforceability of any Operative Document, or as to the correctness of any
statement therein, except to the extent that any such representation, warranty
or statement is expressly made in an Operative Document or in any written
certificate delivered pursuant thereto by any Owner Trustee, the Trust Company
or Hopkins and except that each of the Trust Company and Hopkins hereby
represents and warrants that this Trust Agreement has been duly executed and
delivered by the Trust Company and Hopkins and each of the Owner Trustee
Documents has been or will be executed and delivered by officers of the Trust
Company or by each Owner Trustee who are or will be duly authorized to execute
and deliver documents on its behalf and by Hopkins on his own behalf.
7.4 No Segregation of Moneys; No Interest. Except as otherwise
-------------------------------------
provided herein, in any other Operative Document or in written instructions from
the Owner Participant, moneys received by any Owner Trustee hereunder need not
be segregated in any manner except to the extent required by law, and may be
deposited under such general conditions as may be prescribed by law, and such
Owner Trustee shall not be liable for any interest thereon.
11
<PAGE>
7.5 Reliance; Advice of Counsel. Neither Owner Trustee shall incur
---------------------------
any liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper reasonably believed by such Owner Trustee in good faith to be
genuine and reasonably believed by such Owner Trustee in good faith to be signed
by the proper party or parties. Any request, direction, order or demand of the
Owner Participant or the Lessee mentioned herein or in any other Operative
Document to which either Owner Trustee is a party shall be sufficiently
evidenced by an Officer's Certificate of the Owner Participant or the Lessee, as
the case may be. Each Owner Trustee may accept in good faith a certified copy of
a resolution of the Board of Directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by such
body and that the same is in full force and effect. As to any fact or matter the
manner of ascertainment of which is not specifically prescribed herein, each
Owner Trustee may for all purposes hereof rely on an Officer's Certificate of
the relevant party as to such fact or matter, and such Officer's Certificate
shall constitute full protection to such Owner Trustee for any action taken or
omitted to be taken by it in good faith in reliance thereon. In the
administration of the trusts hereunder, such Owner Trustee may execute any of
the trusts or powers hereof and perform its powers and duties hereunder directly
or through agents or attorneys, and may consult with counsel, accountants and
other skilled persons to be selected and employed by it, and such Owner Trustee
shall not be liable for anything done, suffered or omitted in good faith by such
Owner Trustee in accordance with the written advice or opinion within the scope
of the competence of any such counsel, accountants or other skilled persons and
not contrary to this Trust Agreement, except for the use of due care in the
appointment of counsel, accountants or other skilled persons.
7.6 Not Acting in Individual Capacity. Except as provided in this
---------------------------------
Trust Agreement, in accepting the trusts hereby created each Owner Trustee
agrees to act solely as trustee hereunder and not in its individual capacity;
and all Persons having any claim against such Owner Trustee by reason of the
transactions contemplated by the Operative Documents or the Owner Trustee
Documents shall look only to the Trust Estate (including the Louisiana Trust
Estate) (or a part
12
<PAGE>
thereof, as the case may be) for payment or satisfaction thereof, except as
specifically provided in this Trust Agreement and except to the extent such
Owner Trustee otherwise shall agree in any Owner Trustee Document.
SECTION 8. INDEMNIFICATION; COMPENSATION
-----------------------------
8.1 Indemnification of the Trust Company and Hopkins. The Owner
------------------------------------------------
Participant agrees to assume liability for, and to indemnify and hold harmless
the Trust Company and Hopkins against and from any and all liabilities,
obligations, damages, taxes (excluding any taxes, fees or other charges payable
by the Trust Company and Hopkins or measured by any compensation received by
each Owner Trustee for its services hereunder), claims, actions, suits, out-of-
pocket costs, expenses and disbursements of any kind and nature whatsoever,
including without limitation the reasonable fees and expenses of counsel but
excluding internal costs and expenses such as salaries and overhead
(collectively, "Trust Expenses") which may be imposed on, incurred by or
--------------
asserted at any time against the Trust Company or Hopkins (whether or not also
indemnified by any other Person; provided, however, that to the extent the Trust
-------- -------
Company or Hopkins shall have actually received any payment in the nature of an
indemnity payment from any such other Person relating to a claim hereunder, the
Trust Company and Hopkins shall not be entitled to the amount of any such
payment pursuant to this Section 8.1 (notwithstanding that the Trust Company or
Hopkins may have returned any such amount to the paying party)) in any way
relating to or arising out of (i) the administration of the Trust Estate
(including the Louisiana Trust Estate) or the action or inaction of the Trust
Company or Hopkins hereunder or under the other Operative Documents, (ii) the
Production System or any part thereof, (iii) the Operative Documents or any of
them, the issuance of the Secured Notes or the making of any investment in the
Undivided Interest, payments made pursuant to any thereof or the enforcement by
the Trust Company or Hopkins of any of such Person's rights under the Operative
Documents, or any other transaction contemplated by the Operative Documents, or
(iv) the manufacture, financing, construction, purchase, ownership, acquisition,
acceptance, rejection, delivery, nondelivery, possession, transportation, lease,
sublease, mortgaging, granting of a security interest in, preparation,
installation,
13
<PAGE>
condition, transfer of title, rental, use, operation, storage, maintenance,
modification, alteration, repair, assembly, sale, return, abandonment or other
application or disposition of all or any part of the Undivided Interest or any
interest therein, including without limitation (A) claims or penalties arising
from any violation of law or liability in tort (strict or otherwise), (B) loss
of or damage to any property or the environment or death or injury to any
Person, (C) latent or other defects, whether or not discoverable and (D) any
claim for patent, trademark or copyright infringement; except only that the
Owner Participant shall not be required to indemnify the Trust Company or
Hopkins for Trust Expenses arising or resulting from any of the matters (1)
described in clauses (i) through (v) of the last sentence of Section 7.1 or (2)
for which the Lessee would not have been required to indemnify the Trust Company
or Hopkins pursuant to Section 12.1 or 12.2 of the Participation Agreement
(disregarding for this purpose (i) clause (1) of the proviso to Section 12.1(a)
of the Participation Agreement and (ii) Sections 12.2(b)(5) and 12.2(b)(10) of
the Participation Agreement). The indemnities contained in this Section 8.1
shall survive the termination of this Trust Agreement. To secure the foregoing
indemnities, each Owner Trustee shall be entitled to apply any amount otherwise
distributable to the Owner Participant pursuant to Section 5.2 against any such
indemnity which has not been paid when due. The indemnities contained in this
Section 8.1 extend to the Trust Company and Hopkins only and shall not be
construed as indemnities of the Trust Estate (including the Louisiana Trust
Estate). The Trust Company and Hopkins agree that, before asserting any right to
indemnification under this Trust Agreement, in its or his individual capacity,
or in such Person's capacity as Owner Trustee, it shall first demand and pursue
by appropriate means, for a reasonable period of time, its corresponding right
to indemnification, if any, pursuant to Section 12 of the Participation
Agreement.
8.2 Compensation and Expenses. Each Owner Trustee agrees that it or
-------------------------
he shall have no right against the Owner Participant or the Trust Estate
(including the Louisiana Trust Estate) for any fee as compensation for its or
his services or for its or his expenses, to the extent the Lessee or the Lessor
has paid such amounts pursuant to Section 2.9 or 12.1(g) of the Participation
Agreement. Subject to the preceding sentence, the Owner Participant shall pay,
or
14
<PAGE>
reimburse each Owner Trustee for, all reasonable expenses of such Owner Trustee,
together with reasonable compensation for its services hereunder as provided
herein, including without limitation the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as such Owner
Trustee may employ in connection with the exercise and performance of its or his
rights and duties under the Operative Documents, unless and to the extent that
such Owner Trustee otherwise receives payment or reimbursement pursuant to any
Operative Document, whether or not the transactions contemplated hereby are
consummated.
SECTION 9. TERMINATION OF TRUST AGREEMENT
------------------------------
9.1 Termination of Trust Agreement. Subject to the terms of the
------------------------------
Participation Agreement, the Indenture and Sections 5 and 8.1, this Trust
Agreement and the trusts created hereby shall terminate and the Trust Estate
shall be distributed to the Owner Participant, and this Trust Agreement shall be
of no further force or effect, upon the earlier of (i) the sale or other final
disposition by the Owner Trustees of all property constituting part of the Trust
Estate (including the Louisiana Trust Estate) and the final distribution by the
Owner Trustees of all moneys or other property or proceeds constituting part of
the Trust Estate in accordance with the terms of Section 5 and (ii) twenty-one
(21) years less one day after the death of the last survivor of all of the
descendants living on the date of this Trust Agreement of the present members of
the respective Boards of Directors of the Trust Company and the Owner
Participant, but if any rights, privileges or options hereunder shall be or
become valid under applicable law for a period subsequent to the twenty-first
anniversary of the death of such last survivor (or, without limiting the
generality of the foregoing, if legislation shall become effective providing for
the validity or permitting the effective grant of such rights, privileges and
options for a period in gross exceeding the period for which such rights,
privileges and options are hereinabove stated to extend and be valid), then such
rights, privileges or options shall not terminate as aforesaid but shall extend
to and continue in effect, but only if such nontermination and extension shall
then be valid under applicable law, until such time as the same shall cease to
be valid under applicable law.
15
<PAGE>
9.2 Termination at Option of the Owner Participant. The provisions
----------------------------------------------
of Section 9.1 notwithstanding, but subject to Section 11.2, this Trust
Agreement and the trusts created hereby shall terminate and the Trust Estate
(including the Louisiana Trust Estate) shall be distributed to the Owner
Participant, and this Trust Agreement shall be of no further force and effect,
upon the election of the Owner Participant by notice to the Owner Trustees to
revoke the trusts created hereby; provided that, in addition to the giving of
--------
such notice, the Owner Participant, with the cooperation of the Owner Trustees,
shall execute and deliver such written agreements and instruments and take such
actions as shall be necessary in order to cause the succession of the Owner
Participant to all the rights, title, interests, duties and liabilities of each
Owner Trustee under the Operative Documents (other than obligations
attributable to any gross negligence or willful misconduct of the Trust Company
or Hopkins or any breach by either Owner Trustee of its or his obligations under
the Operative Documents); provided, however, that prior to any such termination,
-------- -------
the Lien of the Indenture on the Indenture Estate shall have been released, and
full payment of the principal of or, premium (if any) and interest on the
Secured Notes shall have been made or the Indenture Trustee shall have consented
to such termination. The written agreements and instruments referred to in the
preceding sentence shall be reasonably satisfactory in form and substance to the
Owner Trustees and shall release the Owner Trustees from all further obligations
of the Owner Trustees hereunder and under the agreements and other instruments
mentioned in the preceding sentence.
9.3 Distribution of Trust Estate Upon Termination. Upon any
---------------------------------------------
termination of the trusts created hereby pursuant to Section 9.1 or 9.2, the
Owner Trustees shall transfer title to the Trust Estate (including the Louisiana
Trust Estate) (and assign all its or his right, title and interest in, to and
under each Operative Document) to the Owner Participant or its designee. No
later than the effective date of termination of the trust created hereby each
Owner Trustee or its or his designee shall execute and deliver to the Owner
Participant a bill of sale and other written instrument or instruments prepared
by the Owner Participant in form and substance reasonably satisfactory to each
Owner Trustee evidencing the transfer of title to the Trust Estate (including
the Louisiana
16
<PAGE>
Trust Estate) to the Owner Participant and, no later than the effective date of
such termination, the Owner Participant shall execute and deliver to each Owner
Trustee a written instrument in form and substance reasonably satisfactory to
each Owner Trustee evidencing discharge of such Owner Trustee from its or his
obligations hereunder and under the other Operative Documents to which such
Owner Trustee is a party except those theretofore accrued and its obligations to
release Lessor Liens.
SECTION 10. SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES AND SEPARATE
--------------------------------------------------------
OWNER TRUSTEES
--------------
10.1 Resignation and Successors. (a) Each Owner Trustee may resign
--------------------------
at any time without cause by giving at least thirty (30) days' prior written
notice to the Owner Participant, with a copy to the Indenture Trustee and the
Lessee, such resignation to be effective on the acceptance of appointment by a
successor to such Owner Trustee under paragraph (b) of this Section 10.1. In
addition, the Owner Participant at any time may remove any Owner Trustee without
cause by an instrument in writing delivered to such Owner Trustee, the Indenture
Trustee and the Lessee, such removal to be effective upon the acceptance of
appointment by a successor to such Owner Trustee under paragraph (b) of this
Section 10.1. In case of the resignation or removal of any Owner Trustee, the
Owner Participant may appoint a successor to such Owner Trustee by an instrument
in writing, signed by the Owner Participant. If a successor to such Owner
Trustee shall not have been appointed within thirty (30) days after the giving
of written notice of such resignation or the delivery of the written instrument
with respect to such removal, such Owner Trustee, the Owner Participant, the
Indenture Trustee or the Lessee may apply to any court of competent jurisdiction
to appoint a successor to such Owner Trustee reasonably acceptable to the Owner
Participant to act until such time, if any, as a successor shall have been
appointed as above provided in this Section 10.1. Any successor so appointed by
such court shall immediately and without further act be superseded by any
successor to the Owner Trustee appointed as above provided in this Section 10.1.
17
<PAGE>
(b) Any successor Owner Trustee, however appointed, shall execute and
deliver to the predecessor Owner Trustee an instrument accepting such
appointment and shall give the Owner Participant, the Indenture Trustee and
Lessee written notice of such acceptance. Upon the execution and delivery of
such instrument, such successor Owner Trustee, without further act provided that
any required Governmental Actions have been obtained, shall become vested with
all the estates, properties, rights, powers, duties and trusts of the
predecessor Owner Trustee in the trusts hereunder with like effect as if
originally named an Owner Trustee herein; provided, however, that upon the
-------- -------
written request of such successor Owner Trustee, such predecessor Owner Trustee
shall execute and deliver an instrument transferring to such successor Owner
Trustee, upon the trusts herein expressed, all the estates, properties, rights,
powers, duties and trusts of such predecessor trustee as the Owner Trustee
hereunder, and such predecessor trustee shall duly assign, transfer, deliver and
pay over to such successor Owner Trustee all moneys or other property then held
by such predecessor trustee as the Owner Trustee upon the trusts herein
expressed. Upon the appointment of any successor Owner Trustee hereunder, the
predecessor trustee, pursuant to written instructions of the Owner Participant,
will execute all documents and take all reasonable action within its control in
order to cause such title held in the Trust Estate (including the Louisiana
Trust Estate) by such predecessor trustee to be transferred to the successor
Owner Trustee.
(c) Any successor to the Corporate Owner Trustee, however appointed,
shall be a bank or trust company incorporated and doing business within the
United States of America and having a combined capital and surplus of at least
$50,000,000 reasonably acceptable to the Owner Participant and regularly engaged
in or having expertise in leveraged leasing, if there be such an institution
willing, able and legally qualified to perform the duties of the Corporate Owner
Trustee hereunder upon reasonable or customary terms.
(d) Any corporation into which the Corporate Owner Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Corporate
Owner Trustee shall be a party, or any corporation to which sub-
18
<PAGE>
stantially all the corporate trust business of the Corporate Owner Trustee may
be transferred, shall be, subject to compliance with the terms of paragraph (c)
of this Section 10.1, the Corporate Owner Trustee under this Trust Agreement
without further act.
(e) Any successor to the Individual Owner Trustee, however
appointed, shall be a natural person who is a citizen of the United States or a
bank or trust company incorporated and doing business within the United States
of America, domiciled in Louisiana and having a combined capital and surplus of
at least $50,000,000 reasonably acceptable to the Owner Participant and
regularly engaged in or having expertise in leveraged leasing, if there be such
an institution willing, able and legally qualified to perform the duties of the
Individual Owner Trustee hereunder upon reasonable or customary terms, and in
any event shall comply with the provisions of La. R.S. 9:1783.
10.2 Additional and Separate Trustees. (a) In order to comply with
--------------------------------
the provisions of La. R.S. 9:1783 and other provisions of Louisiana law (to the
extent the same may be applicable), the Owner Participant and the Corporate
Owner Trustee hereby appoint Michael M. Hopkins, a resident of the State of
Connecticut, as the Individual Owner Trustee to hold title solely to that
portion of the Trust Estate that is subject to the laws of the State of
Louisiana and as to which the Corporate Owner Trustee is not qualified to take
or hold title to under such laws (the "Louisiana Trust Estate"). Further, if an
----------------------
Owner Trustee or the Owner Participant shall conclude that it is necessary or
prudent in order to conform to the law of any other jurisdiction in which all or
any part of the Trust Estate shall be situated, or to make or defend any claim
or bring or defend any suit with respect to the Trust Estate, the Secured Notes
or any Operative Document, or pursuant to advice of counsel satisfactory to it
or him, or if an Owner Trustee shall have been directed to do so by the Owner
Participant, such Owner Trustee shall appoint another Person to act as
additional or separate trustee for all or any part of the Trust Estate with such
property, title, right, power or duty as such Owner Trustee and the Owner
Participant may determine. In case any such additional trustee or separate
trustee shall resign or be removed, all the assets, property, rights, powers or
duties of such additional trustee
19
<PAGE>
or separate trustee, as the case may be, so far as permitted by any applicable
law, shall vest in and be exercised by a new successor to such additional
trustee, appointed in the manner otherwise provided in this Trust Agreement.
(b) The Individual Owner Trustee shall hold title to the Louisiana
Trust Estate and, in such capacity, shall execute the Indenture and any other of
the Operative Documents as may be required in order to acquire, mortgage and
otherwise affect the Louisiana Trust Estate. The Individual Owner Trustee shall
have full power and authority to hold, mortgage, pledge and dispose of the
Louisiana Trust Estate subject to the terms and provisions hereof; provided,
further, that to the extent permitted from time to time by Louisiana law, the
Individual Owner Trustee shall confer with and obtain the concurrence of the
Corporate Owner Trustee prior to taking any such action. Further, in the event
that either the Owner Participant or any Owner Trustee shall determine to
appoint another Person as additional or separate trustee, such Owner Trustee and
the Owner Participant shall execute and deliver an agreement supplemental
hereto, and all other instruments and agreements necessary or proper to
constitute another bank or trust company, or one or more Persons approved by
such Owner Trustee and the Owner Participant, either to act as an additional
trustee or trustees of all or any part of the Trust Estate, jointly with such
Owner Trustee, or to act as separate trustee or trustees of all or any part of
the Trust Estate, in any such case with such powers as may be provided in such
agreement supplemental hereto, and to vest in such bank, trust company or Person
as such additional trustee or separate trustee, as the case may be, any
property, title, right, or power deemed necessary or proper by such Owner
Trustee or the Owner Participant, subject to the remaining provisions of this
Section 10.2. In the event the Owner Participant shall not have joined in the
execution of such agreement supplemental hereto within fifteen (15) days after
the receipt of a written request from such Owner Trustee so to do without
providing a reasonable basis for such failure to join, such Owner Trustee may
act under the foregoing provisions of this Section 10.2 without the concurrence
of the Owner Participant; and the Owner Participant hereby appoints such Owner
Trustee its agent and attorney-in-fact to act for the Owner Participant under
the foregoing provisions of this Section 10.2 in the event of the occurrence of
either of such contingencies. No additional
20
<PAGE>
trustee hereunder shall be an Affiliate or agent of the Lessee. Such Owner
Trustee may execute, deliver and perform any deed, conveyance, assignment or
other instrument in writing as may be required by an additional trustee or
separate trustee for more fully and certainly vesting in and confirming to such
Person any property, title, right or power which, by the terms of such agreement
supplemental hereto, are expressed to be conveyed or conferred to or upon such
additional trustee or separate trustee, and the Owner Participant shall, upon
such Owner Trustee's request, join therein and execute, acknowledge and deliver
the same; and the Owner Participant hereby appoints such Owner Trustee its agent
and attorney-in-fact to execute, acknowledge and deliver any such deed,
conveyance, assignment or other instrument in the event that such Owner
Participant shall not itself execute and deliver the same within fifteen (15)
days after receipt by it of such request so to do.
(c) Every additional trustee and separate trustee hereunder shall,
to the extent permitted by law, be appointed to act and such Owner Trustee shall
act, subject to the following provisions and conditions:
(i) to the extent permitted by applicable law, all
powers, duties, obligations and rights conferred or imposed
upon such Owner Trustee in respect of the receipt, custody,
management, investment and payment of moneys, shall be
exercised solely by such Owner Trustee;
(ii) all other rights, powers, duties, and obligations
conferred or imposed upon such Owner Trustee shall be
conferred or imposed upon and exercised or performed by
such Owner Trustee and such additional trustee or trustees
and separate trustee or trustees jointly, except to the
extent set forth in 10.2(b) above with respect to the
Individual Owner Trustee, or to the extent that under any
law of the jurisdiction in which any particular act or acts
are to be performed by such Owner
21
<PAGE>
Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties,
and obligations (including the holding of title to the
Trust Estate in any such jurisdiction) shall be exercised
and performed by such additional trustee or trustees or
separate trustee or trustees;
(iii) no power hereby given to, or with respect to which
it is hereby provided may be exercised by, any such
additional trustee or separate trustee shall be exercised
hereunder by such additional trustee or separate trustee
except as set forth in 10.2(b) above with respect to the
individual Owner Trustee or except jointly with, or with
the consent of, such Owner Trustee; and
(iv) no trustee hereunder shall be personally liable for
reason of any act or omission of any other trustee
hereunder.
(d) If at any time the Owner Trustees and the Owner Participant shall
deem it no longer necessary or prudent in order to conform to any applicable law
or shall be advised by its counsel that it is no longer necessary or prudent in
the interest of the Owner Trustees and the Owner Participant to maintain the
appointment of such additional or separate trustee as provided herein, the Owner
Trustees and the Owner Participant shall execute and deliver any agreement
supplemental hereto and all other instruments and agreements necessary or proper
to remove any such additional or separate trustee. In the event that the Owner
Participant shall not have joined in the execution of such agreement
supplemental hereto, instruments and agreements, the Owner Trustees may act on
behalf of the Owner Participant to the same extent provided above in this
Section 10.2.
(e) Any additional trustee or separate trustee may at any time by an
instrument in writing constitute either
22
<PAGE>
Owner Trustee its agent or attorney-in-fact with full power and authority, to
the extent which may be authorized by applicable law, to do all acts and things
and exercise all discretion which it is authorized or permitted to do or
exercise, for and in its behalf and in its name. In case any such additional
trustee or separate trustee shall die, become incapable of acting, resign or be
removed, all the assets, property, rights, powers, trusts, duties and
obligations of such additional trustee or separate trustee, as the case may be,
so far as permitted by law, shall vest in and be exercised by the Owner Trustees
without necessity of any act by any party and without the appointment of a new
successor to such additional or separate trustee, unless and until a successor
is appointed in the manner provided in this Section 10.2.
(f) Each additional or separate trustee appointed pursuant to this
Section 10.2 shall be subject to, and shall have the benefit of, Sections 6.1
through 6.7 and Sections 8.1 and 11.2 insofar as they apply to the Owner
Trustees. No appointing of, or action by, any additional trustee will relieve
the Owner Trustees of any of its or his obligations hereunder or under any other
Operative Document.
SECTION 11. SUPPLEMENTS AND AMENDMENTS
--------------------------
11.1 Supplements and Amendments. Subject to the terms of the
--------------------------
Operative Documents, at the written request of the Owner Participant, this Trust
Agreement shall be amended by a written instrument signed by the Trust Company,
Hopkins and the Owner Participant, but if in the reasonable opinion of the Trust
Company or Hopkins any instrument required to be so executed adversely affects
any right, duty or liability of, or immunity or indemnity in favor of, the Trust
Company or Hopkins under this Trust Agreement or any of the documents
contemplated hereby to which it is a party, or would cause or result in any
conflict with or breach of any term, condition or provision of, or default
under, its charter documents or by-laws or any document contemplated hereby to
which it is a party, the Trust Company or Hopkins in its or his sole discretion
may decline to execute such instrument.
11.2 Limitation on Amendments. The provisions of Section 11.1
------------------------
notwithstanding, but subject to Sections 11.1(g)
23
<PAGE>
and 17.6(b) of the Participation Agreement, (i) this Trust Agreement may not be
revoked or terminated by the Owner Participant and (ii) the Owner Participant
shall not request the Trust Company or Hopkins to execute any amendment which
would result in the trusts created hereunder being terminated or which would
materially adversely affect the Indenture Estate, in either case prior to the
release of the Lien of the Indenture on the Indenture Estate or prior to the
payment in full of the principal of, premium (if any) and interest on the
Secured Notes unless the Indenture Trustee shall have consented to any such
revocation, termination or amendment.
SECTION 12. MISCELLANEOUS
-------------
12.1 No Legal Title to Trust Estate in the Owner Participant. The
-------------------------------------------------------
Owner Participant shall not have legal title to any part of the Trust Estate.
No transfer, by operation of law or otherwise, of any right, title and interest
of the Owner Participant in and to the Trust Estate or hereunder shall operate
to terminate this Trust Agreement or the trusts created hereby or entitle any
successor or transferee to an accounting or to the transfer to it of legal title
to any part of the Trust Estate.
12.2 Sale of the Undivided Interest by the Owner Trustee is Binding.
--------------------------------------------------------------
Any sale, transfer or other conveyance of the Undivided Interest or other
property included in the Trust Estate or any part thereof by the Owner Trustees
made pursuant to the terms of this Trust Agreement or any other Operative
Document shall bind the Owner Participant and shall be effective to transfer or
convey all right, title and interest of the Owner Trustees and the Owner
Participant in and to the Undivided Interest or other property included in the
Trust Estate (including the Louisiana Trust Estate) or part thereof, as the case
may be. No purchaser or other grantee shall be required to inquire as to the
authorization, necessity, expediency or regularity of such sale or conveyance or
as to the application of any sale or other proceeds with respect thereto by the
Owner Trustees.
12.3 Notices. Unless otherwise expressly specified or permitted by
-------
the terms hereof, all notices hereunder shall
24
<PAGE>
be given as provided in Section 17.3 of the Participation Agreement.
12.4 Severability of Provisions. Any provision of this Trust
--------------------------
Agreement which may be determined by competent authority to be invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without invalidating or
rendering unenforceable any remaining terms and provisions hereof, and any such
invalidity or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. The parties
shall negotiate in good faith to replace such provision with an appropriate
legal provision. To the extent permitted by applicable law, the parties hereto
hereby waive any provision thereof that renders any term or provision hereof
invalid or unenforceable in any respect.
12.5 Separate Counterparts. This Trust Agreement may be executed by
---------------------
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
12.6 Successors and Assigns. This Trust Agreement, including the
----------------------
terms and provisions hereof, shall be binding upon the Owner Participant, the
Trust Company, Hopkins or the Owner Trustees, whichever is applicable pursuant
to the terms hereof, and their respective successors and assigns, and inure to
the benefit of the Owner Participant, the Trust Company, Hopkins or the Owner
Trustees, whichever is applicable pursuant to the terms hereof, and their
respective successors and permitted assigns, all as herein provided. Any
request, notice, direction, consent, waiver or other instrument or action by the
Owner Participant shall bind the successors and assigns of the Owner
Participant.
12.7 Transfer of Owner Participant's Interest. (a) All provisions of
----------------------------------------
Section 13 of the Participation Agreement shall (with the same force and effect
as if set forth in full, mutatis mutandis, in this Section 12.7) be applicable
----------------
to any assignment, conveyance or other transfer by any Owner Participant of any
of its right, title or interest in and to
25
<PAGE>
the Trust Estate or this Trust Agreement or any other Operative Document.
(b) In the event that at any time there shall be more than one Owner
Participant pursuant to the provisions of Section 13 of the Participation
Agreement, then in each such case, as used herein, the term "Owner Participant"
shall be deemed to refer to each such Owner Participant, except that any
reference to consents, approvals or waivers of the "Owner Participant" as used
herein shall require the consent, approval or waiver of each such Owner
Participant. At any time that there shall be required to be made hereunder any
distribution, disbursement, assignment or other transfer of monies or, any other
item whatsoever, then such distribution, disbursement, assignment or other
transfer shall be made pro rata to each Owner Participant existing at such time
in accordance with their respective interests hereunder. If there shall be more
than one Owner Participant, no Owner Participant shall be liable for performance
by any other Owner Participant of such other Owner Participant's obligations
under the Operative Documents or in respect of actions taken by any other Owner
Participant except as otherwise expressly so set forth.
12.8 Headings; Table of Contents. The division of this Trust
---------------------------
Agreement into sections, the provision of a table of contents and the insertion
of headings are for convenience of reference only and shall not affect the
construction or interpretation hereof.
12.9 GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CONNECTICUT APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
12.10 Performance by the Owner Participant. Any obligation of the
------------------------------------
Trust Company, Hopkins or the Owner Trustees hereunder or under any other
Operative Document or other document contemplated hereby, may be performed by
the Owner Participant and any such performance shall not be construed as a
revocation of the trusts created hereby.
12.11 The Owner Trustee Documents. If any provision in this Trust
---------------------------
Agreement shall conflict with or
26
<PAGE>
otherwise be inconsistent with the terms of any Owner Trustee Documents, the
terms of such Owner Trustee Document shall control.
12.12 Performance of Obligations to Indenture Trustee. After the
-----------------------------------------------
Indenture shall have been discharged pursuant to the terms thereof, the
provisions of this Trust Agreement which require or permit any action by, any
consent, approval or authorization of, the furnishing of any document, paper or
information to, or the performance of any other obligation to, the Indenture
Trustee shall not be effective, and the Sections hereof containing such
provisions shall be read as though there were no such references to any such
requirements or permissions.
12.13 Trust Agreement for Benefit of Parties Only. Unless otherwise
-------------------------------------------
expressly provided herein, nothing herein shall be construed to give any Person
other than the Owner Trustees and the Owner Participant any legal or equitable
right, remedy or claim under or in respect of this Trust Agreement and this
Trust Agreement shall be held to be for the sole and exclusive benefit of the
Owner Trustees and the Owner Participant.
12.14 Limitation on Owner Participant's Liability. Except as
-------------------------------------------
expressly set forth herein, the Owner Participant shall not have any liability
for the performance of this Trust Agreement.
12.15 Individual Owner Trustee. The Individual Owner Trustee signs
------------------------
this Trust Agreement to accept the duties and responsibilities granted
hereunder.
27
<PAGE>
IN WITNESS WHEREOF, the parties hereto have each caused this Trust
Agreement to be duly executed as of the date first above written.
Signed, Sealed and delivered in FLEET NATIONAL BANK OF CONNECTICUT,
the presence of: not in its individual capacity,
except as expressly provided herein,
but solely as Corporate Owner Trustee
By: /s/ Michael M. Hopkins
___________________________ ----------------------
Witness Its: Vice President
___________________________
Witness
[CORPORATE SEAL]
MICHAEL M. HOPKINS, not in his
individual capacity, except as
expressly provided herein, but solely
as Individual Owner Trustee
/s/ Michael M. Hopkins
____________________________ ----------------------
Witness Michael M. Hopkins
____________________________
Witness
GENERAL ELECTRIC CREDIT CORPORATION
OF GEORGIA
By:/s/ John Stewart
____________________________ ----------------
Witness Its: Vice President
28
<PAGE>
____________________________
Witness
[CORPORATE SEAL]
29
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF NEW YORK
COUNTY OF NEW YORK
On this ___ day of December, 1995, before me, the undersigned Notary
Public, duly commissioned and qualified in and for the above stated
jurisdiction, personally came and appeared ______________________ ("Appearer"),
who being first duly sworn, deposed and said that the Appearer is the __________
of FLEET NATIONAL BANK OF CONNECTICUT (the "Bank"), that Appearer executed and
delivered the above and foregoing Trust Agreement as the true act and deed of
the Bank, and that Appearer was authorized to do so by the Board of Directors of
the Bank.
WITNESSES:
______________________________ ___________________________
Name: Michael M. Hopkins
Title: Vice-President
______________________________
___________________________
NOTARY PUBLIC
[Notarial Seal] My Commission expires: ________________
30
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF NEW YORK
COUNTY OF NEW YORK
On this ___ day of December, 1995, before me, the undersigned Notary
Public, duly commissioned and qualified in and for the above stated
jurisdiction, personally came and appeared John Stewart ("Appearer"), who being
first duly sworn, deposed and said that the Appearer is a Vice President of
GENERAL ELECTRIC CREDIT CORPORATION OF GEORGIA (the "Corporation"), that
Appearer executed and delivered the above and foregoing Trust Agreement as the
true act and deed of the Corporation, and that Appearer was authorized to do so
by the Board of Directors of the Corporation.
WITNESSES:
______________________________ _________________________
Name: John Stewart
Title: Vice President
______________________________
___________________________
NOTARY PUBLIC
[Notarial Seal] My Commission expires: ________________
31
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF NEW YORK
COUNTY OF NEW YORK
On this ___ day of December, 1995, before me, the undersigned Notary
Public, duly commissioned and qualified in and for the above stated
jurisdiction, personally came and appeared Michael M. Hopkins ("Appearer"), who
being first duly sworn, deposed and said that the Appearer executed the above
and foregoing Trust Agreement of Appearer's own free will, for the uses and
purposes set forth therein.
WITNESSES:
______________________________ _________________________
Michael M. Hopkins
______________________________
___________________________
NOTARY PUBLIC
[Notarial Seal] My Commission expires: ________________
32
<PAGE>
EXHIBIT 4.7
[CONFORMED COPY]
MOBIL GUARANTY
THIS GUARANTY, dated as of December 12, 1995 (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 Corporate Owner Trustee, in both
---------
its individual capacity and as Corporate Owner Trustee, the Individual Owner
Trustee, in both his individual capacity and as Individual Owner Trustee, the
Corporate Indenture Trustee, in both its individual capacity and as Corporate
Indenture Trustee, the Individual Indenture Trustee, in both his individual
capacity and as Individual Indenture Trustee, the Pass Through Trustee, in both
its individual capacity and as Pass Through Trustee and as Loan Participants,
and the Owner Participant referred to in the Participation Agreement described
below (collectively, together with each other Indemnitee and their successors
and permitted assigns, the "Beneficiaries" and, individually, a "Beneficiary").
------------- -----------
W I T N E S S E T H:
-------------------
WHEREAS, Mobil G.B. 388 Finance Inc., 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 dated as of December 12, 1995 (the "Participation Agreement"), among
-----------------------
the Lessee, the Owner Participant, Fleet National Bank of Connecticut, acting
not in its individual capacity except as expressly set forth therein, but solely
as Corporate Owner Trustee, Michael M. Hopkins, acting not in his individual
capacity but solely as Individual Owner Trustee, First Security Bank of Utah,
National Association, acting not in its individual capacity except as expressly
provided therein, but solely as Corporate Indenture Trustee, Val T. Orton,
acting not in his individual capacity but solely as Individual Indenture Trustee
and First Security Bank of Utah, National Association, acting not in its
individual capacity except as expressly provided therein, but solely as Pass
Through Trustee and Loan Participant; and
<PAGE>
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
-------------------------------------------
Guarantor hereby represents and warrants that:
(1) The Guarantor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, has the
corporate power and authority to carry on its business as presently
conducted, to own or hold under lease its properties, and to enter into and
perform its obligations under this Guaranty, and is duly qualified to do
business in each jurisdiction in which it has operations or a principal
office and where failure so to qualify could reasonably be expected to
materially adversely affect its financial condition, business, 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
2
<PAGE>
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, (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.
(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,
1994 and the consolidated financial statements of the Guarantor set forth
in its Quarterly Report on Form 10-Q for the quarter ended September 30,
1995 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, 1995, there has been no material adverse change in such
consolidated financial position of the Guarantor and its Subsidiaries,
taken as a whole.
3
<PAGE>
(7) Except as disclosed in the Guarantor's Annual Report on Form 10-K
for the year ended December 31, 1994 or the Guarantor's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1995, 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.
(8) The Guarantor owns, directly or indirectly, 100% of the equity
interest in the Lessee.
(9) The representations and warranties of the Lessee in Section 5 of
the Participation Agreement are true and correct.
4
<PAGE>
ARTICLE II.
GUARANTEE OF OBLIGATIONS
Section 2.1. Guarantee of Obligations. (a) The Guarantor hereby
------------------------
guarantees to each of the Beneficiaries, as primary obligor and not as surety,
the full and prompt payment by the Lessee and MPTM, 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 MPTM under the Agency and Support Agreement 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 MPTM 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 Lessee or MPTM (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 Basic Rent, perform or observe or cause to be performed
or observed each such Obligation and shall pay such amount at the place and to
the Person or entity entitled thereto pursuant to the relevant Operative
Documents or the Agency and 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
5
<PAGE>
rights against the Lessee or MPTM 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 Documents or the Agency and 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 guaranty of payment of the Secured Notes.
Section 2.2. Nature of Guarantee. The obligations, covenants,
-------------------
agreements and duties of the Guarantor 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 Agency and 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 MPTM 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 Agency and 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 Agency and Support
Agreement or this Guaranty, or the inability of the Beneficiaries to
enforce any provision of the Participation Agreement, the Lease, the
other Operative Documents, the Agency and Support Agreement or this
Guaranty for any reason, or any other act or omission on the part of
the Beneficiaries;
6
<PAGE>
(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 Undivided Interest or the Production System or
the invalidity, unenforceability or termination of the Participation
Agreement, the Lease, any other Operative Document or the Agency and
Support Agreement or any defect in the title of the Production System
or any part thereof or any loss of possession, use or operational
control of the Production System or any part thereof by the Lessee or
MPTM;
(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 Agency and 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 MPTM or any of its assets or any allegation or
contest of the validity of this Guaranty, the Participation Agreement,
the Lease, any other Operative Document or the Agency and 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 MPTM 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 Agency and Support Agreement or the occurrence or pendency of any
7
<PAGE>
Lease Default or Lease Event of Default or any proceedings or actions
as a result of, or attendant upon, such Lease Default or Lease Event
of Default;
(h) the inability of the Guarantor, the Beneficiaries, the Lessee
or MPTM to enforce any provision of this Guaranty, the Participation
Agreement, the Lease, any other Operative Document or the Agency and
Support Agreement for any reason;
(i) the failure to give notice to the Guarantor, the Lessee or
MPTM 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 Agency and Support Agreement;
(j) the disposition by the Guarantor of any or all of its
interest in any capital stock of the Lessee or MPTM or any change,
restructuring or termination of the corporate structure, ownership or
existence of the Lessee or MPTM;
(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 MPTM 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
--------------------
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 MPTM, (b)
8
<PAGE>
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 the
Obligations and that a separate action may be brought against the Guarantor
whether or not an action is commenced against the Lessee or MPTM under the
Operative Documents or the Agency and Support Agreement.
Section 2.4. Subrogation of Guarantor; Subordination. Notwithstanding
---------------------------------------
any payment or payments made by the Guarantor, the Guarantor shall not be
subrogated to any rights of the Beneficiaries against the Lessee or MPTM 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 MPTM 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
-------------
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 MPTM 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 MPTM, 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 MPTM 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 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 Trustee to the Indenture Trustee of the
Owner Trustee's
9
<PAGE>
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 Trustee. 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
----------------------
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 Agency and 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 the Beneficiaries herein or in the Operative Documents or in the
Agency and 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 in any payment or performance of any Obligation when and as the same
shall become due, whether at the stated maturity thereof, by acceleration or
otherwise, the Beneficiaries may proceed to enforce their respective rights
hereunder and the Beneficiaries shall have the right to proceed first and
directly against the Guarantor under this Guaranty without proceeding against
any other Person or
10
<PAGE>
exhausting any other remedies which they may have and without resorting to any
collateral security relating thereto.
Section 3.4. Guarantor to Pay Costs of Enforcement. The Guarantor
-------------------------------------
agrees to pay all costs, expenses and fees, including, without limitation, all
reasonable attorneys' fees, which may be incurred by the Beneficiaries in
enforcing or attempting to enforce this Guaranty or protecting the rights of the
Beneficiaries hereunder following any default on the part of the Guarantor
hereunder, whether the same shall be enforced by suit or otherwise.
Section 3.5. No Waiver of Rights. No delay in exercising or omission
-------------------
to exercise any right or power accruing upon any default, omission or failure of
performance hereunder shall impair any such right or power or shall be construed
to be a waiver thereof, but any such right and power may be exercised from time
to time and as often as may be deemed expedient.
ARTICLE IV.
COVENANTS OF GUARANTOR
Section 4.1. Maintenance of Corporate Existence. So long as any of
----------------------------------
the Obligations remain outstanding or any amounts due and owing by the Lessee
with respect thereto remain unpaid, the Guarantor will maintain its corporate
existence and will not merge or consolidate with any other corporation nor
dissolve or otherwise sell or dispose of all or substantially all of its assets
as an entirety, unless the successor or transferee corporation (if other than
the Guarantor) (a) 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, and (b) shall not, immediately after such merger,
consolidation, sale or disposition, be in default in the performance of any
covenant, condition or obligation of the Guarantor pursuant to this Guaranty.
Section 4.2. Financial Statements. The Guarantor shall provide to the
--------------------
Owner Participant and the Corporate
11
<PAGE>
Indenture Trustee, promptly upon its becoming available, a copy of each annual
report and any amendment to an annual report, filed by the Guarantor with the
Securities and Exchange Commission (the "SEC") or any successor agency 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 securities and
all regular and periodic reports filed by the Guarantor with the SEC except for
reports on SEC Forms 3, 4 or 5.
Section 4.3. Agency and Support Agreement. The Guarantor will cause
----------------------------
MPTM to enter into the Agency and Support Agreement as provided in Section 8.2
of the Lease.
ARTICLE V.
GENERAL
Section 5.1. Benefitted Parties. This Guaranty is entered into by the
------------------
Guarantor for the benefit of the Beneficiaries in accordance with the provisions
of this Guaranty and the Operative Documents. This Guaranty shall not be deemed
to create any right in, or to be in whole or 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 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. 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
12
<PAGE>
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 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 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 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 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 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.
13
<PAGE>
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:/s/ W. R. Arnheim
-----------------
Name: W. R. Arnheim
Title: Treasurer
ACCEPTED:
FLEET NATIONAL BANK OF CONNECTICUT,
in its individual capacity and as
Corporate Owner Trustee
By: /s/ Michael M. Hopkins
----------------------
Name: Michael M. Hopkins
Title: Vice President
FIRST SECURITY BANK OF UTAH,
NATIONAL ASSOCIATION, in its
individual capacity and as Corporate
Indenture Trustee
By: /s/ Val T. Orton
-----------------
Name: Val T. Orton
Title: Vice President
FIRST SECURITY BANK OF UTAH,
NATIONAL ASSOCIATION, in its
individual capacity and as Pass
Through Trustee under each of the
Pass Through Trust Agreements and as
the Loan Participant
[SIGNATURE PAGE]
[GUARANTY]
<PAGE>
By: /s/ Val T. Orton
----------------
Name: Val T. Orton
Title: Vice President
[SIGNATURE PAGE]
[GUARANTY]
<PAGE>
MICHAEL M. HOPKINS,
in his individual capacity and as
Individual Owner Trustee
/s/ Michael M. Hopkins
----------------------
Michael M. Hopkins
VAL T. ORTON,
in his individual capacity and as
Individual Indenture Trustee
/s/ Val T. Orton
----------------
Val T. Orton
GENERAL ELECTRIC CREDIT CORPORATION
OF GEORGIA
By:/s/ John Stewart
----------------
Name: John Stewart
Title: Vice President
<PAGE>
[LETTERHEAD OF MOBIL CORPORATION]
April 17, 1996
TO EACH PARTY ON THE
ATTACHED DISTRIBUTION LIST
- --------------------------
GUARANTEE BY MOBIL CORPORATION OF OBLIGATIONS OF
MOBIL G.B. 388 FINANCE INC. IN CONNECTION WITH THE
LEVERAGED LEASE OF AN UNDIVIDED INTEREST IN A PRODUCTION SYSTEM
---------------------------------------------------------------
Dear Ladies and Gentlemen:
Reference is made to that certain Guaranty, dated as of December 12, 1995
(the "Guaranty"), by and among Mobil Corporation, a Delaware corporation
(together with any successor permitted by Section 4.1 of the Guaranty, the
"Guarantor"), Fleet National Bank of Connecticut, in its individual capacity and
as Corporate Owner Trustee, First Security Bank of Utah, National Association,
in its individual capacity and as Corporate Indenture Trustee, First Security
Bank of Utah, National Association, in its individual capacity and as Pass
Through Trustee under each of the Pass Through Trust Agreements and as Loan
Participants, Michael M. Hopkins, in his individual capacity and as Individual
Owner Trustee, Val T. Orton, in his individual capacity and as Individual
Indenture Trustee, and General Electric Credit Corporation of Georgia, as Owner
Participant, pursuant to which the Guarantor unconditionally and irrevocably
guarantees to each of the Beneficiaries the full and prompt payment of all
payment obligations and the faithful performance of all other obligations of
Mobil G.B. 388 Finance Inc., a wholly-owned subsidiary of the Guarantor, under
the Participation Agreement, the Lease and the other Operative Documents.
Capitalized terms used herein (including those used in the foregoing sentence)
and not otherwise defined herein shall have the meanings ascribed to them in the
Guaranty.
<PAGE>
To Each Party On The
Attached Distribution List -2- April 17, 1996
The Guarantor wishes to extend, and hereby extends, the Guaranty directly
to the benefit of the Holders of Pass Through Certificates. Each Holder of Pass
Through Certificates is hereby deemed a Beneficiary under the Guaranty for all
purposes thereof, and shall be from and after the date hereof entitled to all of
the rights and subject to all of the obligations of a Beneficiary thereunder.
The Guarantor acknowledges and agrees that, except as extended hereby, the
Guaranty shall remain in full force and effect in accordance with its terms.
Very truly yours,
MOBIL CORPORATION
By: /s/ Samuel H. Gillespie III
-----------------------------
Name: S.H. Gillespie III
Title: Vice President and
General Counsel
<PAGE>
DISTRIBUTION LIST
-----------------
FLEET NATIONAL BANK OF CONNECTICUT, in its
individual capacity and as Corporate Owner Trustee
777 Main Street
Hartford, CT 06115
Attention: Corporate Trust Administration
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION,
in its individual capacity and as Corporate Indenture Trustee
79 South Main Street
Salt Lake City, UT 84111
Attention: Corporate Trust Department
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION,
in its individual capacity and as Pass Through Trustee under
each of the Pass Through Trust Agreements and
as Loan Participants
79 South Main Street
Salt Lake City, UT 84111
Attention: Corporate Trust Department
MICHAEL M. HOPKINS,
in his individual capacity and as Individual Owner Trustee
777 Main Street
Hartford, CT 06115
Attention: Michael M. Hopkins
<PAGE>
VAL T. ORTON,
in his individual capacity and as Individual Indenture Trustee
First Security Bank of Utah, National Association
79 South Main Street
Salt Lake City, UT 84111
Attention: Val T. Orton
GENERAL ELECTRIC CREDIT CORPORATION
OF GEORGIA
c/o Global Project & Structured Finance
1600 Summer Street
Stamford, CT 06905
Attention: Manager of Compliance
<PAGE>
EXHIBIT 4.8
[CONFORMED COPY]
================================================================================
PRODUCTION SYSTEM LEASE AGREEMENT
dated as of
December 12, 1995
among
FLEET NATIONAL BANK OF CONNECTICUT,
not in its individual capacity but solely
as Corporate Owner Trustee under the Trust Agreement,
and
MICHAEL M. HOPKINS,
not in his individual capacity but solely
as Individual Owner Trustee under the Trust Agreement,
Lessor
and
MOBIL G.B. 388 FINANCE INC.,
Lessee
________________________________________________________________________________
Sale and Leaseback of an Undivided
Interest in Oil and Gas Production System
================================================================================
AS SET FORTH IN SECTION 14.1 OF THIS LEASE, CERTAIN OF THE RIGHT, TITLE AND
INTEREST OF THE LESSOR IN AND TO THIS LEASE HAS BEEN ASSIGNED TO AND IS SUBJECT
TO A SECURITY INTEREST IN FAVOR OF FIRST SECURITY BANK OF UTAH, NATIONAL
ASSOCIATION, AS INDENTURE TRUSTEE, UNDER THE TRUST INDENTURE, MORTGAGE,
ASSIGNMENT OF LEASE AND SECURITY AGREEMENT DATED AS OF DECEMBER 12, 1995 BETWEEN
THE LESSOR AND THE INDENTURE TRUSTEE, AS SUCH INDENTURE MAY BE AMENDED, MODIFIED
OR SUPPLEMENTED FROM TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS THEREOF.
THIS LEASE HAS BEEN EXECUTED IN SEVERAL COUNTERPARTS. TO THE EXTENT, IF ANY,
THAT THIS LEASE CONSTITUTES CHATTEL PAPER (AS SUCH TERM IS DEFINED IN THE
UNIFORM COMMERCIAL CODE AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO
SECURITY INTEREST IN THIS LEASE MAY BE CREATED THROUGH THE TRANSFER OF
POSSESSION OF ANY EXECUTED COUNTERPART OTHER THAN THE ORIGINAL EXECUTED
COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART THAT CONTAINS THE
RECEIPT THEREFOR EXECUTED BY THE INDENTURE TRUSTEE ON OR IMMEDIATELY FOLLOWING
THE SIGNATURE PAGE THEREOF.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
SECTION 1. DEFINITIONS; INTERPRETATION.............................. 1
SECTION 2. LEASE OF UNDIVIDED INTEREST; ETC......................... 1
2.1. Undivided Interest........................................ 1
2.2. Personal Property......................................... 2
2.3. Descriptions.............................................. 2
SECTION 3. RENT..................................................... 2
3.1. Basic Rent................................................ 2
3.2. Supplemental Rent and Advance Amount...................... 3
3.3. Method of Payment......................................... 3
3.4. Late Payment.............................................. 4
3.5. Minimum Payment........................................... 4
3.6. Net Lease; No Setoff; Etc................................. 4
3.7. Repayment of Advance Amount............................... 6
3.8. Premium................................................... 6
SECTION 4. RECOMPUTATION OF BASIC RENT, STIPULATED LOSS VALUE,
TERMINATION VALUE AND THE EARLY BUY-OUT PURCHASE PRICE... 7
4.1. Adjustments to Rent Percentages........................... 7
4.2. Limitations on Adjustments................................ 8
4.3. Timing of Adjustments..................................... 9
4.4. Confirmation of Adjustments............................... 9
4.5. Further Assurances........................................ 11
SECTION 5. RENEWAL.................................................. 11
5.1. Renewal................................................... 11
5.2. Rent...................................................... 12
5.3. Notice.................................................... 12
5.4. Stipulated Loss Value Percentages and
Termination Value Percentages............................ 13
SECTION 6. PURCHASE OPTIONS......................................... 13
6.1. Purchase Options.......................................... 13
</TABLE>
i
<PAGE>
<TABLE>
<S> <C> <C>
6.2. Notice of Election; Manner of Purchase;
Transfer After Purchase.................................... 15
6.3. Assumption of Secured Notes................................. 20
SECTION 7. EARLY TERMINATION.......................................... 20
7.1. Decision.................................................... 20
7.2. Notice of Termination....................................... 21
7.3. Sale of Undivided Interest or Significant
Portion; Termination Payment.
7.4. Retention of Undivided Interest by Lessor................... 25
7.5. Calculation of Original Cost................................ 25
SECTION 8. RELINQUISHMENT OF POSSESSION AND USE OF UNDIVIDED
INTEREST................................................... 26
8.1. Return of Undivided Interest................................ 26
8.2. Agency and Support Agreement................................ 27
SECTION 9. QUIET ENJOYMENT; DISCLAIMER OF WARRANTIES.................. 27
9.1. Quiet Enjoyment............................................. 27
9.2. Disclaimer of Warranties.................................... 28
9.3. Enforcement of Warranties................................... 29
SECTION 10. LIENS...................................................... 30
SECTION 11. OPERATION AND MAINTENANCE; INSPECTION; REPLACEMENTS AND
MODIFICATIONS; PERSONNEL; SALVAGE AND FUEL; IDENTIFICATION. 30
11.1. Operation and Maintenance.................................. 30
11.2. Inspection and Reports..................................... 31
11.3. Required Modifications..................................... 31
11.4. Optional Modifications..................................... 32
11.5. Title to Modifications and Components;
Purchase Option for Severable
Modifications.............................................. 32
11.6. Payment for Modifications and Replacement
Components................................................. 33
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C> <C>
11.7. Replacement of Components; Removal of Property............. 34
11.8. Employment of Personnel.................................... 35
11.9. Salvage.................................................... 35
11.10. Identification of Platform................................ 35
11.11. Reports of Modifications.................................. 36
11.12. Repair of Production System............................... 36
SECTION 12. EVENT OF LOSS.............................................. 36
12.1. Notice of Event of Loss.................................... 36
12.2. Payment of Stipulated Loss Value, Etc...................... 37
12.3. Application of Other Payments upon the
Occurrence of an Event of Loss............................. 40
12.4. Application of Payments Not Relating to
an Event of Loss........................................... 41
12.5. Other Dispositions......................................... 41
SECTION 13. INSURANCE.................................................. 41
13.1. Coverage................................................... 41
13.2. Adjustment of Losses....................................... 43
13.3. Application of Insurance Proceeds.......................... 43
13.4. Additional Insurance....................................... 43
13.5. Annual Insurance Report.................................... 43
SECTION 14. RIGHTS TO ASSIGN OR LEASE; LEASEHOLD MORTGAGEE PROVISIONS.. 43
14.1. Assignment by Lessor; Security for
Lessor's Obligations to Indenture Trustee.................. 43
14.2. Assignment and Sublease by Lessee.......................... 44
SECTION 15. LEASE EVENTS OF DEFAULT.................................... 45
SECTION 16. REMEDIES................................................... 48
16.1. In General................................................. 48
16.2. Continuing Obligations..................................... 51
16.3. Remedies Cumulative........................................ 52
SECTION 17. NOTICES.................................................... 52
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C> <C>
SECTION 18. RIGHT TO PERFORM FOR LESSEE................................ 53
18.1. Lessor's Right to Perform.................................. 53
18.2. Performance by Guarantors.................................. 53
SECTION 19. MISCELLANEOUS.............................................. 53
19.1. Amendments in Writing...................................... 53
19.2. Severability of Provisions................................. 53
19.3. Governing Law.............................................. 53
19.4. Headings................................................... 54
19.5. Counterpart Execution...................................... 54
19.6. Successors and Assigns..................................... 54
19.7. Investment of Security Funds............................... 54
19.8. Immunities; Satisfaction of Undertakings; Successor Owner
Trustee.................................................... 55
19.9. Performance of Obligations to Indenture Trustee and
Holders.................................................... 55
19.10. True Lease................................................ 56
19.11. Survival of Agreements.................................... 56
</TABLE>
APPENDIX A Definitions
SCHEDULE 1 Basic Rent Percentages
SCHEDULE 2 Stipulated Loss Value Percentages
SCHEDULE 3 Termination Value Percentages
SCHEDULE 4 Early Buy-Out Date and Early Buy-Out Percentage
SCHEDULE 5 Special Purchase Option Dates
SCHEDULE 6 Lessor's Cost
EXHIBIT A Description of Production System
EXHIBIT B Description of Federal Leases
iv
<PAGE>
PRODUCTION SYSTEM LEASE AGREEMENT
THIS PRODUCTION SYSTEM LEASE AGREEMENT, dated as of December 12, 1995,
is among FLEET NATIONAL BANK OF CONNECTICUT, a national banking association, not
in its individual capacity, except as expressly provided in Section 19.8, but
solely as Corporate Owner Trustee under the Trust Agreement, and MICHAEL M.
HOPKINS, not in his individual capacity, except as expressly provided in Section
19.8, but solely as Individual Owner Trustee under the Trust Agreement,
collectively as Lessor, and MOBIL G.B. 388 FINANCE INC., a Delaware corporation,
as Lessee.
RECITALS:
A. Pursuant to the Bill of Sale, the Lessee is selling all of its right,
title and interest in and to the Undivided Interest to the Lessor.
B. Pursuant to this Lease, the Lessor desires to lease the Undivided
Interest to the Lessee and the Lessee desires to lease the Undivided Interest
from the Lessor.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS; INTERPRETATION.
---------------------------
For the purposes hereof, capitalized terms used herein (including
those used in the preamble and in the foregoing recitals) and not otherwise
defined herein shall have the meanings assigned to them in Appendix A, which
Appendix A shall for all purposes constitute part of this Agreement and shall be
subject to amendment in accordance with the terms hereof. References in this
Lease to Sections, subsections, Schedules, Appendices and Exhibits are to
Sections and subsections of, and Schedules, Appendices and Exhibits to, this
Lease unless otherwise indicated.
SECTION 2. LEASE OF UNDIVIDED INTEREST; ETC.
--------------------------------
<PAGE>
2.1. Undivided Interest. Upon the terms and subject to the
------------------
conditions of this Lease, the Lessor agrees to lease and hereby leases the
Undivided Interest to the Lessee, and the Lessee agrees to lease and hereby
leases the Undivided Interest from the Lessor, for the Interim Lease Term, the
Basic Lease Term and, subject to the exercise by the Lessee of its renewal
option or options as provided in Section 5, the Renewal Term or Renewal Terms.
2.2. Personal Property. The parties hereto stipulate and agree that
-----------------
the Production System, the Undivided Interest and the Lessor's Share of all
Modifications to the Production System and every portion thereof is severed, and
shall be and remain severed, to the maximum extent permitted by law, from any
real estate underneath the Production System, even if physically attached
thereto. To the maximum extent permitted by law, the parties agree that the
Production System, the Undivided Interest and all such Modifications shall
constitute personal property and shall not be or become fixtures or otherwise
part of the real estate underneath the Production System or of any other real
property. The Lessee will not enter into or be a party to any lease or mortgage
of any real property on which any portion of the Production System is or is to
be located or enter into any other agreement which grants to any other Person
any right to any portion of the Production System by reason of such portion
being an accession to any real property owned by such Person to the extent such
lease or mortgage would constitute a Lien that is not a Permitted Lien.
2.3. Descriptions. The Production System is described in Exhibit A.
------------
SECTION 3. RENT.
----
3.1. Basic Rent. (a) The Lessee shall pay to the Lessor, as Basic
----------
Rent for the Undivided Interest, semiannual installments of rent on the Basic
Rent Payment Dates during the Basic Lease Term. Basic Rent with respect to any
Renewal Term shall be payable as provided in Section 5.2. Subject to adjustment
as provided herein, each such installment of Basic Rent during the Basic Lease
Term shall be in an amount equal to the percentage set forth in Schedule 1
opposite the applicable Basic Rent Payment Date multiplied by Lessor's Cost.
Each
3
<PAGE>
installment of Basic Rent shall be in advance or in arrears and shall apply
to a specific semiannual period as specified in Schedule 1A.
(b) Although the Basic Rent Percentages set forth in Schedule 1
hereto have been computed on the assumption that each Series 1995 A Secured Note
will bear interest at the Assumed Debt Rate for such Series 1995 A Secured Note
throughout the Basic Lease Term, the Lessor and the Lessee recognize that the
actual rate of interest on the Series 1995 A Secured Notes may be increased as
provided in the proviso to the first sentence of the Series 1995 A Secured
Notes. Accordingly, the Lessee and the Lessor agree that, if the actual rate of
interest on the Series 1995 A Secured Notes is so increased, each installment of
Basic Rent due on a Basic Rent Payment Date following such increase shall be
increased by the Rent Differential Amount (as defined herein). For purposes
hereof, "Rent Differential Amount" shall mean, as of any Basic Rent Payment Date
------------------------
on which Basic Rent is payable during the Basic Lease Term following such an
increase of the interest rate on the Series 1995 A Secured Notes, the excess of
(i) the aggregate amount of interest actually due and payable on such Basic Rent
Payment Date on the Series 1995 A Secured Notes over (ii) the aggregate amount
of interest on the Series 1995 A Secured Notes that would have been due and
payable on such Basic Rent Payment Date if each Series 1995 A Secured Note had
borne interest at the Assumed Debt Rate for such Series 1995 A Secured Note for
the period from and including the Basic Rent Payment Date next preceding such
Basic Rent Payment Date to but excluding such Basic Rent Payment Date.
3.2. Supplemental Rent and Advance Amount. (a) The Lessee shall pay
------------------------------------
to the Lessor, for its own account, or to the Person entitled thereto, as
provided herein or in any other Operative Document, any and all Supplemental
Rent promptly as the same shall become due and payable, and, except as otherwise
provided herein, in the event of any failure on the part of the Lessee to pay
any Supplemental Rent, the Lessor shall have all rights, powers and remedies
provided for herein in the case of nonpayment of Basic Rent.
(b) If, and to the extent that, on or prior to the Basic Lease Term
Commencement Date, the Lessor shall not have remitted to the Corporate Indenture
Trustee funds in an amount equal to the amount of interest due and payable on
the Basic
4
<PAGE>
Lease Term Commencement Date in respect of the Secured Notes then Outstanding at
the actual rate of interest borne by such Secured Notes, the Lessee shall
advance to the Lessor on the Basic Lease Term Commencement Date, as Supplemental
Rent, an amount ("Advance Amount") equal to the unpaid portion of such amount.
--------------
The Lessor shall give notice to the Lessee and the Indenture Trustee at least
five Business Days prior to the Basic Lease Term Commencement Date as to whether
funds equal to such amount will be paid by the Lessor on such date; provided,
--------
however, that the Lessor's failure to deliver such notice shall not affect the
- -------
Lessee's obligations under this Section 3.2(b) or the Owner Participant's
obligations under Section 11.1(i) of the Participation Agreement.
3.3. Method of Payment. Subject to Section 14.1, all Basic Rent and
-----------------
Supplemental Rent payable to the Lessor shall be paid to the Owner Trustee's
account specified in Schedule 1 to the Participation Agreement or to such other
account at such other place as the Lessor shall specify in writing to the Lessee
at least five Business Days prior to the due date thereof. All Supplemental Rent
payable to any Person other than the Lessor pursuant to any Operative Document
shall be paid directly to such Person as provided in such Operative Document.
Each payment of Rent shall be made by the Lessee in immediately available funds,
on or before 12:00 noon, local time at the place of receipt, on the scheduled
date on which such payment shall be due, unless such scheduled date shall not be
a Business Day in which case such payment shall be due and payable on the next
succeeding Business Day with the same force and effect as if made on such
scheduled date and (provided such payment is made on such next succeeding
Business Day) no interest shall accrue on the amount of such payment from and
after such scheduled date.
3.4. Late Payment. If any Rent shall not be paid when due, the
------------
Lessee shall pay to the Lessor (or, in the case of Supplemental Rent, to the
Lessor for its own account or to the Person entitled thereto as provided herein
or in any other Operative Document), as Supplemental Rent, interest (to the
extent permitted by law) on such overdue amount from and including the due date
thereof to but excluding the date of payment thereof (unless payment is made
after 12:00 noon, local
5
<PAGE>
time at the place of receipt, in which event such date of payment shall be
included) at the Overdue Rate.
3.5. Minimum Payment. Notwithstanding any other provision of this
---------------
Lease (including, without limitation, Section 4) or any other Operative
Document, (a) the amount of Basic Rent and Advance Amount payable on each Basic
Rent Payment Date and on the Basic Lease Term Commencement Date, as the same may
be adjusted pursuant to Section 4 (excluding, in each case, any portion thereof
constituting an Excepted Payment), shall be at least equal to the aggregate
amount of scheduled principal and accrued interest due and payable on the
Secured Notes Outstanding on such Basic Rent Payment Date and on the Basic Lease
Term Commencement Date and (b) the amount of Stipulated Loss Value and
Termination Value as of any date and the amount of the initial installment of
the Early Buy-Out Purchase Price as of the Early Buy-Out Date, as each such
amount may be adjusted pursuant to Section 4, together with the Rent payable
under this Lease on such date (excluding, in each case, any portion thereof
constituting an Excepted Payment), shall be at least equal to the aggregate
amount of principal and accrued interest which would be due and payable on the
Secured Notes Outstanding on such date assuming such date or the Early Buy-Out
Date, as the case may be, was the date such payment was due on the Secured Notes
in respect of any payment by the Lessee of Stipulated Loss Value, Termination
Value or Early Buy-Out Purchase Price.
3.6. Net Lease; No Setoff; Etc. This Lease is a net lease and,
--------------------------
notwithstanding any other provision of this Lease (except as expressly provided
in Section 3.7), the obligation of the Lessee to pay Rent hereunder shall be
absolute and unconditional and shall not be affected by any circumstance of any
character, including, without limitation: (a) counterclaim, setoff, deduction,
defense, abatement, suspension, deferment, diminution or reduction; (b) any
defect in the condition, design, quality or fitness for use of the Production
System, or any part thereof or interest therein; (c) any damage to, removal,
abandonment, salvage, loss, scrapping or destruction of or any requisition or
taking of, the Undivided Interest, the Production System or any part thereof or
interest therein; (d) any restriction, prevention, interruption or curtailment
of or interference with any use, operation or possession of the Undivided
Interest, the Production System or any part thereof or
6
<PAGE>
interest therein; (e) any defect in, or any Lien on, title to the Undivided
Interest, the Production System or any part thereof or interest therein; (f) any
change, waiver, extension, indulgence or other action or omission in respect of
any obligation or liability of the Lessee or the Lessor; (g) any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution, liquidation or
other like proceeding relating to the Lessee, the Indenture Trustee, the Lessor,
the Owner Participant, any Loan Participant, any Holder or any other Person, or
any action taken with respect to this Lease by any trustee or receiver of any
Person mentioned above, or by any court; (h) any claim that the Lessee has or
might have against any Person, including, without limitation, the Indenture
Trustee, any Loan Participant, the Lessor, the Owner Participant or any Holder
(but this Section 3.6 shall not constitute a waiver of any such claim); (i) any
failure on the part of the Lessor, the Indenture Trustee, the Owner Participant
or any Loan Participant to perform or comply with any of the terms hereof or of
any other agreement; (j) any invalidity or unenforceability or disaffirmance of
this Lease or any provision hereof or any of the other Operative Documents or
any provision of any thereof, whether against or by the Lessee or otherwise; or
(k) any other occurrence whatsoever, whether similar or dissimilar to the
foregoing, whether or not the Lessee shall have notice or knowledge of any of
the foregoing. Except as expressly provided herein, the Lessee, to the extent
permitted by law, waives all rights now or hereafter conferred by statute or
otherwise to quit, terminate or surrender this Lease, or to any diminution or
reduction of Rent payable by the Lessee hereunder. All payments by the Lessee of
Basic Rent or Stipulated Loss Value, Termination Value, Early Buy-Out Purchase
Price or Fixed Price Purchase Amount (or amounts payable by reference thereto)
made hereunder as required hereby shall be final absent manifest error, and the
Lessee shall not seek to recover any such payment or any part thereof for any
reason whatsoever absent manifest error. If this Lease shall be terminated in
whole or in part for any reason whatsoever the Lessee shall, except as expressly
provided herein, nonetheless pay to the Lessor (or, in the case of Supplemental
Rent, to the Person entitled to such Supplemental Rent as specified herein or in
the appropriate Operative Document) an amount equal to each Rent payment at the
time and in the manner that such payment would have become due and payable under
the terms of this Lease if it had not been terminated in whole or in part.
Nothing contained in this
7
<PAGE>
Section 3.6 shall be construed as (a) a guaranty of (i) the value of the
Undivided Interest or the Production System upon the expiration or termination
of the Basic Lease Term or any Renewal Term or (ii) the useful life of the
Production System or (iii) payment of any of the Secured Notes or (b) a
prohibition of assertion of any claim against any manufacturer, supplier,
dealer, vendor, contractor, subcontractor or installer with respect to the
Production System or (c) a waiver by the Lessee of its right to assert and sue
upon any claims it may have against any other Person in one or more separate
actions.
3.7. Repayment of Advance Amount. The Lessor shall repay to the
---------------------------
Lessee, in the manner provided in the next sentence, any Advance Amount paid by
the Lessee and pay interest, in the manner provided in the next sentence, on the
unreimbursed portion thereof at an interest rate of 12% per annum from the date
such amount is advanced by the Lessee to but not including the date it is repaid
by the Lessor (unless payment is made after 1:00 p.m., local time at the place
of receipt in which event such date of payment shall be included) (such amounts
to be repaid and the related interest being herein called the "Repayment
---------
Amount"). The Lessee shall be entitled to offsets (without duplication) against
- ------
any payments of Rent (other than as limited by the two provisos to this
sentence) due from the Lessee to the Lessor or the Owner Participant (including,
without limitation, Basic Rent, Stipulated Loss Value, Termination Value and any
purchase price and all other amounts payable to the Lessor in connection with
any termination of this Lease) until the Lessee has received the Repayment
Amount, whether by cash payment, offsets as herein provided, or any combination
thereof; provided, however, that in case of any payment due from the Lessee
-------- -------
which is distributable under the terms of the Indenture, the Lessee's right of
offset shall be limited to amounts (if any) distributable to the Lessor or the
Owner Participant thereunder; provided, further, however, that no such offset or
-------- ------- -------
aggregate combined effect of separate offsets shall reduce the amount of any
installment of Basic Rent or Stipulated Loss Value or Termination Value or
purchase price as of any date payable under this Lease to an amount that would
be in contravention of Section 3.5.
3.8. Premium. The Lessee shall also pay on behalf of the Lessor as
-------
Supplemental Rent an amount on an After-Tax Basis equal to any amount payable by
the Lessor as Premium as and when
8
<PAGE>
any such Premium shall be due and payable; provided, however, that the Lessee
-------- -------
shall have no obligation to pay on behalf of the Lessor or the Owner Participant
any Premium payable by the Lessor or the Owner Participant (or to otherwise
reimburse the Lessor or the Owner Participant for any Premium paid by the Lessor
or the Owner Participant) pursuant to Section 3.06 of the Indenture.
SECTION 4. RECOMPUTATION OF BASIC RENT, STIPULATED LOSS VALUE,
TERMINATION VALUE AND THE EARLY BUY-OUT PURCHASE PRICE.
-------------------------------------------------------
4.1. Adjustments to Rent Percentages. Subject to the following
-------------------------------
provisions of this Section 4 and to the provisions of Section 3.5, the Basic
Rent Percentages shall be appropriately adjusted by such amounts as shall
preserve the Owner Participant's Net Economic Return in the event that for any
reason:
(i) the actual Closing Date is a date other than as set forth in
Schedule 2 to the Participation Agreement;
(ii) the actual amount of Transaction Expenses paid by the Lessor
as a percentage of Lessor's Cost is other than as set forth
in Schedule 2 to the Participation Agreement;
(iii) the Secured Notes are refinanced or refunded at any time
pursuant to Section 15 of the Participation Agreement;
(iv) Additional Notes are issued by the Lessor (without the
investment of additional equity by the Owner Participant) in
connection with a Supplemental Financing of a Modification
to the Production System pursuant to Section 14 of the
Participation Agreement;
9
<PAGE>
(v) Additional Notes are issued by the Lessor and the Owner
Participant makes an additional equity investment in
connection with a Supplemental Financing of a Modification
to the Production System pursuant to Section 14 of the
Participation Agreement (in which case adjustment of the
Basic Rent Percentages pursuant to this Section 4 shall
preserve the Owner Participant's Net Economic Return except
as necessary to reflect the terms and conditions agreed by
the Owner Participant and the Lessee pursuant to Section 14
of the Participation Agreement); or
(vi) the Lessee elects to make such an adjustment pursuant to
Section 5(b)(ii) of the Tax Indemnity Agreement.
In connection with any such adjustment to the Basic Rent Percentages made
pursuant to this Section 4.1, appropriate corresponding adjustments shall be
made to the Stipulated Loss Value Percentages and Termination Value Percentages
and to the Early Buy-Out Percentage. Any adjustment pursuant hereto shall be
made in such manner as to comply in all respects with Section 3.5 and, to the
extent consistent with the foregoing provisions of this Section 4.1 (including
preserving the Owner Participant's Net Economic Return), minimize (to the
greatest extent possible) the Net Present Value of Basic Rent. If required
pursuant to Section 8 of the Tax Indemnity Agreement, the Stipulated Loss Value
Percentages and Termination Value Percentages and the Early Buy-Out Percentage
shall be appropriately adjusted in accordance with the applicable provisions of
this Section 4.
4.2. Limitations on Adjustments. (a) Any adjustment of the Basic
--------------------------
Rent Percentages pursuant to this Section 4 shall be computed in a manner so as
to satisfy the requirements of Section 3.5 and Sections 4.02(5), 4.07(1) and (2)
and 4.08 of Revenue Procedure 75-28, 1975-1 C.B. 752; provided that the
--------
requirements of such Section 4.08 shall be applied, in the case of any
adjustment pursuant to Section 4.1, on a prospective basis taking into
consideration only Basic Rent payable by the
10
<PAGE>
Lessee from and including the first Basic Rent Payment Date as of which the
adjustment takes effect; provided that an adjustment of the Basic Rent
--------
Percentages shall be governed by the foregoing requirements of Sections 4.07
and/or 4.08 of Revenue Procedure 75-28 only to the extent that Basic Rent as of
the Closing Date satisfied such requirements.
(b) In making any adjustment pursuant to this Section 4, each of the
pricing assumptions set forth in Schedule 2 to the Participation Agreement and
the other assumptions and methods of calculation employed in the calculation of
the Basic Rent Percentages, Stipulated Loss Value Percentages and Termination
Value Percentages and the Early Buy-Out Percentage as reflected in Schedule 2 to
the Participation Agreement (as such pricing assumptions shall have been
modified by previous adjustments under this Section 4) shall be used
consistently in such adjustment subject to the constraints specifically provided
herein.
(c) In the case of any adjustment made pursuant to clause (iv) or (v)
of Section 4.1, Basic Rent shall be increased by an amount at least sufficient
to repay the principal of, and interest on, such Additional Notes over the term
of such Additional Notes.
(d) In making any adjustment required pursuant to Section 4.1 (other
than any adjustment pursuant to Section 4.1(iv) or (v)), no adjustment shall be
made to reflect the application of Section 168(d)(3) of the Code. In addition,
(A) no adjustment shall be made to reflect the application of Section 168(d)(3)
of the Code in the case of any adjustment required pursuant to Section 4.1(iv)
or (v) if the notice required by Section 11.6(b) with respect to the
Modification giving rise to such adjustment (the "Applicable Modification") was
-----------------------
delivered to the Owner Participant prior to September 1 of the year in which the
Applicable Modification was placed in service and the actual cost of the
Applicable Modification does not exceed the estimated cost as set forth in such
notice by more than 20%, (B) no adjustment shall be made to reflect the
application of Section 168(d)(3) of the Code in the case of any adjustment
required pursuant to Section 4.1(iv) or (v) if the notice required by Section
11.6(b) with respect to the Applicable Modification was delivered to the Owner
Participant after August 31 of such year unless the Owner Participant
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<PAGE>
certified to the Lessee within 30 days of the receipt of such notice that the
placement in service of the Applicable Modification during the last three months
of such calendar year is likely to cause the aggregate bases of all property
placed in service during the last three months of such calendar year by the
consolidated group of which the Owner Participant is a member to exceed 40
percent of the bases of all property placed in service by such consolidated
group during such calendar year and (C) no adjustment shall be made to reflect
the application of Section 168(d)(3) of the Code in the case of any adjustment
required pursuant to Section 4.1(iv) or (v) unless the Applicable Modification
was placed in service during the last three months of the year.
4.3. Timing of Adjustments. All adjustments to be made pursuant to
---------------------
this Section 4 shall be made as soon as practicable after the event giving rise
to the adjustment and shall in each case be made in respect of installments of
Basic Rent becoming due on and after the date such adjustment is made; provided
--------
that all adjustments to the Stipulated Loss Value Percentages and Termination
Value Percentages and to the Early Buy-Out Percentage shall be effective
immediately.
4.4. Confirmation of Adjustments. (a) The amount of any adjustment
---------------------------
pursuant to this Section 4 shall be determined by the Owner Participant, which
shall provide to the Lessee, the Lessor and the Indenture Trustee notice of such
adjustment accompanied by an Officer's Certificate of the Owner Participant,
which Officer's Certificate shall set forth the amount of and the reason for any
such adjustment and which shall confirm that such adjustment was made in
accordance with the provisions of this Section 4. Such adjustment shall become
effective as of the date therein set forth (determined in accordance with
Section 4.3 (subject to later revision, if any, pursuant to Section 4.4(b)))
upon delivery by the Owner Participant to the Lessee of such notice and
Officer's Certificate.
(b) Within 10 Business Days after receipt of such certificate, the
Lessee may request that such adjustment and confirmation be verified at the
Lessee's expense by Morgan Stanley & Co. Incorporated; provided, however, that
-------- -------
Morgan Stanley & Co. Incorporated shall not be given access by the Owner
Participant to the assumptions, methods, computations, programs and files
utilized by the Owner Participant in calcu-
12
<PAGE>
lating such proposed adjustment or any other calculation of the Basic Rent
Percentages, Stipulated Loss Value Percentages and Termination Value Percentages
and the Early Buy-out Percentage. Within 20 Business Days after receipt of such
certificate, if the Lessee believes that such adjustment is inaccurate, the
Lessee may request that such adjustment be verified by KPMG Peat Marwick LLP, or
another nationally recognized, independent public accounting firm that regularly
audits the financial statements of, or is selected by, the Owner Participant and
reasonably acceptable to the Lessee. In such verification process pursuant to
the preceding sentence, such accounting firm shall be given access by the Owner
Participant to the assumptions, methods, computations, programs and files
utilized by the Owner Participant in calculating such proposed adjustment and
employed in the calculation of the Basic Rent Percentages, Stipulated Loss Value
Percentages and Termination Value Percentages and the Early Buy-out Percentage,
subject to the execution of such confidentiality agreements as the Owner
Participant shall reasonably request (which agreements shall prohibit disclosure
of the Owner Participant's assumptions, methodology, programs or files to any
third party, including the Lessee). Under no circumstances shall such
independent public accounting firm or any other Person be entitled to review the
tax returns of the Owner Participant. Any revised adjustment resulting from such
verification shall become effective on the next Basic Rent Payment Date after
such verification has been concluded, and shall take into account any
underpayment or overpayment resulting from an earlier effectiveness of the
original adjustment.
(c) Such verification by such accounting firm shall be at the expense
of the Lessee unless such verified adjustment results in (i) a readjustment in
favor of the Lessee that exceeds 10 basis points in the Net Present Value of
Basic Rent (as a percentage of Lessor's Cost) or (ii) a readjustment due to the
use by the Owner Participant of methodology or assumptions other than as
required pursuant to the terms of Section 4.2(b), in which case such
verification shall be at the expense of the Owner Participant. Such
determination by the Owner Participant, or, if so requested in accordance with
Section 4.4(b), such verified adjustment, as the case may be, shall be
conclusive and binding.
13
<PAGE>
4.5. Further Assurances. At the time any adjustment is made pursuant
------------------
to this Section 4, the parties hereto shall, at the Lessee's expense, enter into
a supplement to this Lease to reflect such adjustment and shall enter into such
amendments and supplements to the other Operative Documents and do such further
acts as may be reasonably required in order to effectuate such adjustment;
provided that such adjustment shall become effective as provided in Section 4.4
- --------
without regard to the date on which such supplement to this Lease is executed
and delivered.
SECTION 5. RENEWAL.
-------
5.1. Renewal. The Lessee shall have the right to renew this Lease:
-------
(a) at the end of the Basic Lease Term for the Initial Fixed Rate
Renewal Term;
(b) at the end of the Basic Lease Term for a Fair Market Renewal
Term;
(c) at the end of any Fair Market Renewal Term for an additional Fair
Market Renewal Term; and
(d) at the end of the Initial Fixed Rate Renewal Term or any other
Fixed Rate Renewal Term for an additional Fixed Rate Renewal Term or a Fair
Market Renewal Term;
provided that (i) the aggregate (without duplication) of the Interim Lease Term,
- --------
the Basic Lease Term and all Fixed Rate Renewal Terms exercised shall not exceed
80% of the total estimated useful life of the Production System as determined in
accordance with Section 5.3 prior to the Initial Fixed Rate Renewal Term or
prior to the Second Fixed Rate Renewal Term, (ii) the estimated residual value
of the Undivided Interest, as determined in accordance with Section 5.3 prior to
the Initial Fixed Rate Renewal Term or prior to the Second Fixed Rate Renewal
Term, at the end of the Basic Lease Term and all Fixed Rate Renewal Terms
exercised (determined without regard to inflation or deflation from the Closing
Date) shall not be less than 20% of Lessor's Cost, (iii) the aggregate of all
Fixed
14
<PAGE>
Rate Renewal Terms shall not exceed 50% of the Basic Lease Term, (iv) the term
of any Fixed Rate Renewal Term shall be for a period of two years, except (1)
when a shorter term is required to comply with clause (i) or (ii) of this
proviso, and (2) in the case of the Initial Fixed Rate Renewal Term which may,
at the Lessee's option, subject to clauses (i) and (ii) of this proviso, be for
a period of four years, (v) the term of any Fair Market Renewal Term shall be
two years, except that at the Lessee's option the initial Fair Market Renewal
Term may, subject to clause (vi) of this proviso, be four years and, except when
a shorter term is required to comply with clause (vi) of this proviso, and (vi)
the term of any Fair Market Renewal Term may not extend beyond the total
estimated useful life of the Production System as determined by the Final
Appraisal with respect to the Production System or, at the Lessee's option, as
determined in accordance with Section 5.3 prior to the applicable Renewal Term.
It shall be a condition to the renewal of this Lease for any Renewal Term that
no Lease Event of Default shall have occurred and be continuing at the
commencement of such Renewal Term.
5.2. Rent. All of the terms and provisions of this Lease shall be
----
applicable during any Renewal Term, except that (1) the Lessee shall pay to the
Lessor as Basic Rent (a) in arrears on each Basic Rent Payment Date during the
Initial Fixed Rate Renewal Term or any additional Fixed Rate Renewal Term, an
amount equal to 50% of the average of the installments of Basic Rent (excluding
any Basic Rent payable during the Basic Lease Term as a result of an adjustment
to Basic Rent pursuant to Section 5(b)(ii) of the Tax Indemnity Agreement)
payable during the Basic Lease Term (pro rated in the case of a partial rent
period of a Fixed Rate Renewal Term) and (b) in arrears on each Basic Rent
Payment Date during any Fair Market Renewal Term, an amount equal to the
semiannual installment of the Fair Market Rental Value of the Undivided Interest
(pro rated in the case of a partial rent period of a Fair Market Renewal Term),
as determined in accordance with Section 5.3, (2) Stipulated Loss Values and
Termination Values during any such Renewal Term shall be calculated as set forth
in Section 5.4 and (3) the Lessee shall not have any right to make an
Obsolescence Termination Election during any such Renewal Term other than during
the last two years of the first such Renewal Term if the scheduled term of such
Renewal Term (as specified
15
<PAGE>
in the Lessee's notice with respect to such Renewal Term) is four years.
5.3. Notice. At any time at least 545 days but not more than 590
------
days prior to the expiration of the Basic Lease Term or any Renewal Term, the
Lessee may notify the Lessor that it desires to obtain an appraisal with respect
to the Fair Market Sales Value of the Undivided Interest as of such expiration
and the estimated useful life of the Production System and, if applicable or if
requested by the Lessee, the Fair Market Rental Value of the Undivided Interest
and the latest date, if any, on which the estimated residual value of the
Undivided Interest (determined without regard to inflation or deflation from the
Closing Date) shall be equal to 20% of Lessor's Cost. Promptly after the Lessee
shall have delivered such notice, the Lessee and the Lessor shall attempt to
agree upon such amounts. If the Lessee and the Lessor shall fail to agree within
30 days after the giving of such notice, such amounts shall be determined
pursuant to the Appraisal Procedure. If the Lessee elects to renew this Lease
for a Renewal Term, the Lessee shall notify the Lessor in writing at least 365
days prior to the expiration of the Basic Lease Term or Renewal Term then in
effect of its irrevocable election to renew this Lease for (a) a Fair Market
Renewal Term, (b) if available, the Initial Fixed Rate Renewal Term, or (c) if
available, an additional Fixed Rate Renewal Term, and shall, in each case,
specify the term of such Renewal Term (any such notice, a "Renewal Notice");
---------------
provided that the Lessee may, by irrevocable written notice delivered to the
- --------
Lessor at any time prior to the 60th day preceding the expiration of the Basic
Lease Term or the Renewal Term then in effect, deem the Lessee's election
(pursuant to the applicable Renewal Notice) to renew this Lease pursuant to
Section 5.1(a), (b), (c) or (d), as the case may be, at the end of the Basic
Lease Term or such Renewal Term (1) an election to renew this Lease pursuant to
any other one of such Sections or (2) an election to purchase the Undivided
Interest pursuant to Section 6.1(a) or Section 6.1(b) so long as, in each case,
the Lessee would have been entitled hereunder to elect to exercise such other
option on the date of the delivery by the Lessee of the applicable Renewal
Notice and so long as the Lessee shall have otherwise complied with the
requirements of Section 5.3 or 6.2(a), as the case may be (including, if
necessary, the requirement to have obtained the appropriate appraisals but not
including the
16
<PAGE>
requirement to have given 365 days' prior written notice of the Lessee's
election to exercise such other option), to the extent applicable to the option
specified in any notice delivered by the Lessee pursuant to this proviso. Any
notice to renew this Lease delivered by the Lessee pursuant to the proviso to
the preceding sentence shall specify the term of the applicable Renewal Term.
5.4. Stipulated Loss Value Percentages and Termination Value
-------------------------------------------------------
Percentages. Concurrently with the Lessee's exercise of an option to renew this
- -----------
Lease pursuant to Section 5.1, Schedules 2 and 3 shall be modified by the Owner
Participant in order to provide for Stipulated Loss Values and Termination
Values for the Undivided Interest applicable during the applicable Renewal Term.
Such Stipulated Loss Values and Termination Values shall be reduced on a
straight line basis for the remaining useful life of the Production System from
the Fair Market Sales Value of the Undivided Interest as of beginning of the
Renewal Term to the net salvage value of the Undivided Interest at the end of
the estimated useful life of the Production System (each as determined in
accordance with Section 5.3 and, if applicable, the Appraisal Procedure).
SECTION 6. PURCHASE OPTIONS.
----------------
6.1. Purchase Options. So long as no Specified Lease Event of
----------------
Default shall have occurred and be continuing, and subject to Sections 6.2 and
6.3, the Lessee shall have the right to purchase all, but not less than all, of
the Undivided Interest:
(a) on the date of expiration of the Basic Lease Term or any Renewal
Term, at a purchase price equal to the Fair Market Sales Value of the
Undivided Interest as of such date;
(b) on the date of expiration of the Basic Lease Term, at a purchase
price equal to the Fixed Price Purchase Amount;
(c) on the Early Buy-Out Date, at a purchase price equal to the Early
Buy-Out Purchase Price;
17
<PAGE>
(d) on any Special Purchase Option Date, at a purchase price equal to
the greater of (i) the Termination Value for the Undivided Interest as of
such Special Purchase Option Date and (ii) the Fair Market Sales Value of
the Undivided Interest as of such Special Purchase Option Date;
(e) if:
(i) the Lessee shall have notified the Lessor, pursuant to
Section 11.6(b), that it or the Operator intends to make (or
cause or allowed to be made) any Modification or series of
related Modifications to the Production System with an estimated
cost applicable to the Undivided Interest in excess of 12.2% of
Lessor's Cost (such Modification or series of related
Modifications a "Major Modification") and (x) such Major
------------------
Modification is not to be financed pursuant to a Supplemental
Financing or (y)(1) such Major Modification is to be financed
pursuant to a Supplemental Financing, (2) the application of
Section 168(d)(3) of the Code is required to be taken into
account in the adjustment of the Basic Rent Percentages pursuant
Section 4.1(iv) or 4.1(v) as a result of such Major Modification
and (3) the Net Present Value of Basic Rent would, after giving
effect to such adjustment, exceed what the Net Present Value of
Basic Rent would have been if the application of Section
168(d)(3) of the Code had not been taken into account in making
such adjustment, or
(ii) the Lessee notifies the Lessor that the Operator
intends to make (or cause or allowed to be made) any Modification
or series of related Modifications and such Modification or
Modifications (x) are prohibited by the terms of this Lease or
(y) are not permitted by Revenue Procedure 79-48, 1979-2 C.B.
529, or
(iii) the Lessee notifies the Lessor that the Production
System or any portion thereof
18
<PAGE>
has suffered damage equal to or in excess of $5,000,000 which
damage does not constitute an Event of Loss and the Operator has
elected not to repair, restore or rebuild the Production System
as required by Section 11.12,
on any one of the 12 Stipulated Loss Value Determination Dates next
following the expiration of the 45-day period following the giving of such
notice pursuant to Section 11.6(b) or following the giving of such notice
pursuant to subparagraph (ii) or (iii) of this Section 6.1(e)(which notice
shall specify the event giving rise to the Lessee's right to purchase the
Undivided Interest), at a purchase price equal to the greater of (I) the
Stipulated Loss Value for the Undivided Interest as of such date and (II)
the Fair Market Sales Value of the Undivided Interest as of such date
(without regard to any such proposed Modification or Modifications); and
(f) if (i) an Event of Loss shall have occurred with respect to a
Significant Portion of the Production System and (ii) the Lessee shall be
deemed to have elected (pursuant to clause (w) to the proviso to Section
12.2(b)) the option set forth in Section 12.2(b)(ii), on any one of the two
Basic Rent Payment Dates next following the occurrence of such Event of
Loss, at a purchase price equal to the greater of (A) the Termination Value
for the Undivided Interest as of such Basic Rent Payment Date and (B) the
Fair Market Sales Value of the Undivided Interest (assuming that no such
Event of Loss had occurred) as of such Basic Rent Payment Date.
6.2. Notice of Election; Manner of Purchase; Transfer After Purchase.
---------------------------------------------------------------
(a) In order to exercise its right to purchase the Undivided Interest pursuant
to Section 6.1(a), the Lessee shall notify the Lessor in writing at least 545
days but not more than 590 days prior to the expiration of the Basic Lease Term
or any Renewal Term, as the case may be, that it desires to obtain an appraisal
of the Fair Market Sales Value of the Undivided Interest as of such expiration.
Promptly after the Lessee shall have delivered such notice, the Lessee and the
Lessor shall attempt to agree upon such Fair
19
<PAGE>
Market Sales Value. If the Lessee and the Lessor shall fail to agree within 30
days after the giving of such notice, such Fair Market Sales Value shall be
determined pursuant to the Appraisal Procedure. At least 365 days prior to the
expiration of the Basic Lease Term or Renewal Term then in effect, the Lessee
shall, if it desires to exercise an option pursuant to Section 6.1(a), give
irrevocable notice to the Lessor in writing stating that the Lessee will
purchase the Undivided Interest pursuant to Section 6.1(a) (any such notice, a
"Purchase Notice"); provided, that the Lessee may, by irrevocable written notice
--------------- --------
delivered to the Lessor at any time prior to the 60th day preceding the
expiration of the Basic Lease Term or the Renewal Term then in effect, deem the
Lessee's election (pursuant to the applicable Purchase Notice) to purchase the
Undivided Interest pursuant to Section 6.1(a) at the end of the Basic Lease Term
or such Renewal Term (1) an election to purchase the Undivided Interest pursuant
to Section 6.1(b) or (2) an election to renew this Lease pursuant to Section
5.1(a), (b), (c) or (d) so long as, in each case, the Lessee would have been
entitled hereunder to elect to exercise such other option on the date of the
delivery by the Lessee of the applicable Purchase Notice and so long as the
Lessee shall have otherwise complied with the requirements of Section 5.3
(including the requirement to have obtained any necessary appraisals but not
including the requirement to have given 365 days' prior written notice of the
Lessee's election to exercise such other option) to the extent applicable to the
renewal option specified in any notice delivered by the Lessee pursuant to this
proviso. Any notice to renew this Lease delivered by the Lessee pursuant to
clause (2) of the proviso to the preceding sentence shall specify the term of
the applicable Renewal Term.
(b) In order to exercise its right to purchase the Undivided Interest
pursuant to Section 6.1(b), the Lessee shall, at least 365 days but not more
than 590 days prior to the expiration of the Basic Lease Term, give irrevocable
notice to the Lessor in writing stating that the Lessee will purchase the
Undivided Interest pursuant to Section 6.1(b); provided that the Lessee may, by
--------
irrevocable written notice delivered to the Lessor at any time prior to the 60th
day preceding the expiration of the Basic Lease Term deem the Lessee's election
to purchase the Undivided Interest pursuant to Section 6.1(b) (1) an election to
purchase the Undivided Interest pursuant to Section 6.1(a) or (2) an election to
renew this Lease pursuant to Section 5.1(a), (b), (c) or (d) so long as, in each
case,
20
<PAGE>
the Lessee would have been entitled hereunder to elect to exercise such other
option on the date of the delivery by the Lessee of the notice of the Lessee's
election to purchase the Undivided Interest pursuant to Section 6.1(b) and so
long as the Lessee shall have otherwise complied with the requirements of
Section 5.3 or 6.2(a), as the case may be (including the requirement to have
obtained any necessary appraisals but not including the requirement to have
given 365 days' prior written notice of the Lessee's election to exercise such
other option), to the extent applicable to the Lessee's election to exercise the
option specified in any notice delivered by the Lessee pursuant to this proviso.
Any notice to renew this Lease delivered by the Lessee pursuant to the proviso
to the preceding sentence shall specify the term of the applicable Renewal Term.
(c) In order to exercise its right to purchase the Undivided Interest
pursuant to Section 6.1(c), the Lessee shall, at least 90 days but not more than
545 days prior to the Early Buy-Out Date, give irrevocable notice to the Lessor
in writing stating that the Lessee will purchase the Undivided Interest pursuant
to Section 6.1(c).
(d) In order to exercise its right to purchase the Undivided Interest
pursuant to Section 6.1(d), the Lessee shall notify the Lessor in writing at
least 180 days but not more than 545 days prior to the applicable Special
Purchase Option Date that it desires to obtain an appraisal of the Fair Market
Sales Value of the Undivided Interest as of such Special Purchase Option Date.
Promptly after the Lessee shall have delivered such notice, the Lessee and the
Lessor shall attempt to agree upon such Fair Market Sales Value. If the Lessee
and the Lessor shall fail to agree within 30 days after the giving of such
notice, such Fair Market Sales Value shall be determined pursuant to the
Appraisal Procedure (provided that the timetable for such Appraisal Procedure
--------
shall be appropriately accelerated to meet the deadlines set forth in the next
sentence). At least 90 days prior to the applicable Special Purchase Option
Date, the Lessee shall, if it desires to exercise an option pursuant to Section
6.1(d), give irrevocable notice to the Lessor in writing stating that the Lessee
will purchase the Undivided Interest pursuant to Section 6.1(d); provided that
--------
(i) if such Appraisal Procedure is not completed on or prior to the date the
Lessee is required to
21
<PAGE>
give irrevocable notice pursuant to this Section 6.2(d), the Lessee may on such
date give the Lessor written revocable notice of its election to exercise an
option pursuant to Section 6.1(d), which notice may thereafter be revoked on or
before the earlier of (A) the 20th Business Day after completion of such
Appraisal Procedure upon certification by the Lessee that the results of such
Appraisal Procedure are not satisfactory to the Lessee and (B) the 10th Business
Day preceding the applicable Special Purchase Option Date and (ii) in the
absence of revocation in accordance with the foregoing clause (i), such
revocable notice of election to purchase the Undivided Interest shall become
irrevocable as of the earlier of such two dates.
(e) In order to exercise its right to purchase the Undivided Interest
pursuant to Section 6.1(e), the Lessee shall notify the Lessor in writing no
earlier than (i) in the case of Section 6.1(e)(i), the expiration of the 45-day
period following the giving of the notice referred to in Section 6.1(e)(i) and,
(ii) in the case of Section 6.1(e)(ii) or (iii), the 10th day following the
giving of the notice referred to in Section 6.1(e)(ii) or (iii) that the Lessee
desires to obtain an appraisal of the Fair Market Sales Value of the Undivided
Interest as of the applicable Stipulated Loss Value Determination Date (without
regard to the proposed Modification or Modifications). Promptly after the Lessee
shall have given such notice, the Lessee and the Lessor shall attempt to agree
upon such Fair Market Sales Value. If the Lessee and the Lessor shall fail to
agree within 30 days after the giving of such notice, such Fair Market Sales
Value shall be determined pursuant to an Appraisal Procedure (provided that the
--------
timetable for such Appraisal Procedure shall be appropriately accelerated to
meet the deadlines set forth in the next sentence). At least 90 days prior to
the applicable Stipulated Loss Value Determination Date, the Lessee shall, if it
desires to exercise an option pursuant to Section 6.1(e), give irrevocable
notice to the Lessor in writing stating that the Lessee intends to purchase the
Undivided Interest pursuant to Section 6.1(e); provided that any notice given
--------
pursuant to this Section 6.2(e) (i) may be revoked at any time on or prior to
the 10th Business Day preceding the applicable Stipulated Loss Value
Determination Date if, in the reasonable judgment of the Lessee, the
circumstances giving rise to the Lessee's right to exercise a purchase option
under Section 6.1(e) have changed
22
<PAGE>
and (ii) shall be deemed to have been revoked if in the case of such a notice
relating to (1) the purchase option set forth i n Section 6.1(e)(i)(y), the
Owner Participant shall have waived, by the 15th day following the giving of
such notice, its right to have the application of Section 168(d)(3) of the Code
taken into account in any adjustment required pursuant to Section 4.1(iv) or (v)
with respect to the proposed Major Modification, (2) in the case of the purchase
option set forth in Section 6.1(e)(ii)(x), the Lessor shall have waived, by the
15th day following the giving of such notice, any default, Lease Default or
Lease Event of Default that arises or results from or that may arise or result
from the proposed Modification or Modifications being prohibited by the terms of
this Lease, (3) the purchase option set forth in Section 6.1(e)(ii)(y), the
Owner Participant shall have waived, by the 15th day following the giving of
such notice, any right to any indemnification that it may be entitled to under
the Tax Indemnity Agreement arising or resulting from the proposed Modification
or Modifications not being permitted by Revenue Procedure 79-48, 1979-2 C.B.
529, and (4) the purchase option set forth in Section 6.1(e)(iii), the Lessor
shall have waived, by the 15th day following the giving of such notice, any
default, Lease Default or Lease Event of Default that arises or results from or
that may arise or result from the failure of the Lessee to comply with Section
11.12 with respect to the damage to the Production System giving rise to the
election by the Lessee to exercise such purchase option.
(f) In order to exercise its right to purchase the Undivided Interest
pursuant to Section 6.1(f), the Lessee shall notify the Lessor in writing, no
earlier than the date the Lessee shall be deemed to have elected the option set
forth in Section 12.2(b)(ii), that the Lessee desires to obtain an appraisal of
the Fair Market Sales Value of the Undivided Interest as of such Basic Rent
Payment Date. Promptly after the Lessee shall have given such notice, the Lessee
and the Lessor shall attempt to agree upon such Fair Market Sales Value. If the
Lessee and the Lessor shall fail to agree within 30 days after the giving of
such notice, such Fair Market Sales Value shall be determined pursuant to an
Appraisal Procedure (provided that the timetable for such Appraisal Procedure
--------
shall be appropriately accelerated to meet the deadlines set forth in the next
sentence). At least 30 days prior to such Basic Rent Payment Date, the Lessee
shall, if it desires to exercise an
23
<PAGE>
option pursuant to Section 6.1(f), give irrevocable notice to the Lessor in
writing stating that the Lessee intends to purchase the Undivided Interest
pursuant to Section 6.1(f); provided that any notice given pursuant to this
--------
Section 6.2(f) (i) may be revoked at any time on or prior to 10th Business Day
preceding such Basic Rent Payment Date if, in the reasonable judgment of the
Lessee, the circumstances giving rise to the Lessee's right to exercise a
purchase option under Section 6.1(f) have changed and (ii) shall be deemed to
have been revoked if the Lessor shall have waived, by the 10th day following the
giving of such notice, the constraints set forth in the proviso to Section
12.2(b) with respect to the Event of Loss giving rise to such notice. If the
Lessee revokes (or shall be deemed to have revoked) such election, the Lessee's
obligations under Section 12 shall be deemed to have been immediately reinstated
with respect to the Event of Loss giving rise to the Lessee's election under
Section 6.1(f).
(g) On the date of purchase of the Undivided Interest pursuant to
this Section 6, the Lessor shall transfer all right, title and interest of the
Lessor in and to the Undivided Interest, as is and where is, to the Lessee, free
and clear of Lessor's Liens and Owner Participant's Liens but otherwise without
any representation or warranty, upon payment to the Lessor of the purchase price
therefor (or, if the Lessee shall have elected to pay the Early Buy-Out Purchase
Price, in accordance with the last sentence of this Section 6.2(g), upon payment
of the first installment of the Early Buy-Out Purchase Price), together with (i)
all Basic Rent due and owing on or prior to such date of purchase (but excluding
any Basic Rent payable in advance on such date of purchase) and (ii) all
Supplemental Rent due and owing on or prior to such date of purchase and any
other Supplemental Rent as to which there is no dispute and which is agreed to
become due and owing within 30 days of such date, and the Lessor shall, at the
Lessee's expense, execute and deliver to the Lessee a bill of sale or assignment
and such other instruments, documents and opinions as the Lessee may reasonably
request to evidence the valid consummation of such transfer and shall, at the
Lessee's expense, take such actions under Section 6.03 of the Indenture as the
Lessee may reasonably request. Notwithstanding anything to the contrary
contained herein, the Lessee may, in connection with the exercise by the Lessee
of its purchase option under Section 6.1(c) elect to pay the Early Buy-Out
Purchase Price in
24
<PAGE>
installments. Each installment shall be in an amount and payable on the date set
forth in Schedule 4.
(h) Notwithstanding anything to the contrary contained in clause (ii)
of the proviso to the last sentence of subsection (e) of this Section 6.2 and
the next to last sentence of subsection (f) of this Section 6.2, neither the
Lessor nor the Owner Participant shall have the right to give the waiver
referred to in such clauses (and any waiver given thereunder shall be deemed to
have been rescinded) if the Lessee notifies the Lessor, not later than 10
Business Days after the receipt of a notice of such waiver, that independent tax
counsel of selected by the Lessee has advised the Lessee that the continuation
of this Lease following such waiver will result in a material risk that this
Lease will not continue to qualify as a true lease for federal income tax
purposes.
6.3. Assumption of Secured Notes. Notwithstanding the provisions of
---------------------------
Sections 6.1 and 6.2 and subject to compliance with Section 3.04 of the
Indenture, if in connection with a purchase by the Lessee of the Undivided
Interest pursuant to Section 6.1(c), 6.1(d), 6.1(e) or 6.1(f), as the case may
be, the Lessee shall assume the Secured Notes pursuant to Section 11.6 of the
Participation Agreement, the obligation of the Lessee to pay the purchase price
pursuant to Section 6.1(c), 6.1(d), 6.1(e) or 6.1(f), as the case may be, shall
be satisfied by such assumption of the Secured Notes to the extent of the
principal amount of and accrued but unpaid interest, if any, on the Secured
Notes so assumed and payment of the remaining portion of the purchase price in
cash.
SECTION 7. EARLY TERMINATION.
-----------------
7.1. Decision. If (i) the Board of Directors of the Lessee shall
--------
have determined in good faith that the Undivided Interest or any Significant
Portion thereof is obsolete, uneconomic or surplus to the needs of the Lessee
for any reason (including, without limitation, by reason of burdensome
Governmental Rules) or (ii) MPTM shall have determined to withdraw from or
terminate the Operating Agreement, then the Lessee may elect to terminate this
Lease with respect to the Undivided Interest or such Significant Portion of the
Undivided Interest, as the case may be, in accordance with this Section 7
25
<PAGE>
on any Basic Rent Payment Date; provided that (x) no such termination shall
--------
occur prior to January 2, 2001 ; provided, further, that the Lessee shall have
-------- -------
no right to terminate this Lease with respect to a Significant Portion of the
Undivided Interest if (1) that portion of the Production System in which the
Lessor will continue to own an interest after giving effect to such termination
(such portion, together with the interest of the Other Owner corresponding to
such portion, the "Remaining Portion") is not capable of functioning for its
-----------------
intended purpose or (2) the Remaining Portion constitutes "limited use property"
within the meaning of Revenue Procedure 76-30 or (3) the Fair Market Sales Value
of the Remaining Portion as of the Termination Date is less than the product of
(A) a fraction the numerator of which is the excess of Lessor's Cost over the
Original Cost of such Significant Portion and the denominator of which is
Lessor's Cost and (B) the Fair Market Sales Value of the Production System
(without giving effect to such termination) as of the Termination Date or (4)
the Original Cost of such Significant Portion together with the Original Cost of
any other Significant Portion of the Undivided Interest in respect of which the
Lessee has previously paid Termination Value pursuant to Section 7.3 or
Stipulated Loss Value pursuant to Section 12 shall not exceed 50% of Lessor's
Cost or (5) the estimated Fair Market Sales Value of the Remaining Portion as of
the scheduled expiration of the Basic Lease Term is less than the product of (A)
a fraction, the numerator of which is the excess of Lessor's Cost over the
Original Cost of such Significant Portion and the denominator of which is
Lessor's Cost and (B) the estimated Fair Market Sales Value of the Production
System (without giving effect to such termination) as of the scheduled
expiration of the Basic Lease Term or (6) the Lessee shall have failed to
provide the Owner Participant, by the 10th day preceding the Termination Date,
with an opinion reasonably acceptable to the Owner Participant of Dewey
Ballantine or other tax counsel of recognized national standing selected by the
Lessee and acceptable to the Owner Participant to the effect that the
termination of this Lease with respect to such Significant Portion will not
result in a greater risk of an unindemnified tax liability on the part of the
Owner Participant than it would have had if such termination had not occurred
(other than any tax liability of the Owner Participant with respect to the
inclusion in the taxable income of the Owner Participant of the Termination
Value payable with respect to such Significant
26
<PAGE>
Portion). If the Lessee shall, at any time after the delivery of a notice of
termination pursuant to Section 7.2 and prior to the Termination Date, be
precluded from terminating this Lease by reason of the second proviso to the
preceding sentence, the Lessee shall be deemed to have revoked its notice of
termination pursuant to Section 7.2.
7.2. Notice of Termination. In order to exercise its right to
---------------------
terminate this Lease as provided in this Section 7, the Lessee shall provide the
Lessor with (i) notice in writing at least 90 days but not more than 545 days
prior to the Basic Rent Payment Date as of which the Lessee is electing to
terminate this Lease with respect to the Undivided Interest or a Significant
Portion thereof (the "Termination Date"), such notice to specify (a) whether the
----------------
Lessee is electing to terminate this Lease pursuant to clause (i) (an election
pursuant to such clause (i) being referred to herein as an "Obsolescence
------------
Termination Election") or clause (ii) (an election pursuant to such clause (ii)
- --------------------
being referred to herein as a "Special Termination Election") of Section 7.1,
----------------------------
(b) if the Lessee is electing a termination under clause (i) of Section 7.1,
whether the Lessee is electing to terminate this Lease with respect to the
Undivided Interest or a Significant Portion thereof, (c) if the termination
election is with respect to a Significant Portion of the Undivided Interest, a
description of such Significant Portion, (d) the Termination Date and (e) the
Termination Value for the Undivided Interest or such Significant Portion, as the
case may be, as of the Termination Date and (ii) an Officer's Certificate of the
Lessee as to the determinations referred to in Section 7.1. Unless the Lessor
shall have elected to retain the Undivided Interest pursuant to Section 7.4, the
Lessee may, at its option by written notice to the Lessor at any time prior to
the 30th day prior to the Termination Date, revoke any such notice of
termination, in which event this Lease shall not terminate and the reasonable
out-of-pocket expenses incurred by the Lessor, the Owner Participant and the
Indenture Trustee in connection therewith shall be borne by the Lessee;
provided, however, that the Lessee shall have no obligation to so reimburse the
- -------- -------
Lessor or the Owner Participant if such notice of revocation is given (or deemed
to have been given pursuant to the penultimate sentence of Section 7.4) as a
result of the Lessor's failure to make the payments required to be made by it
under Section 7.4).
27
<PAGE>
7.3. Sale of Undivided Interest or Significant Portion; Termination
--------------------------------------------------------------
Payment. (a) (i) If the Lessee shall have made an Obsolescence Termination
- -------
Election, the Lessee shall, as agent for the Lessor, use reasonable efforts to
solicit bids for the cash purchase of the Undivided Interest or the Significant
Portion thereof, as the case may be, on the Termination Date. The Lessor may
also solicit bids for the cash purchase of the Undivided Interest or the
Significant Portion thereof, as the case may be, on the Termination Date
independent of the Lessee. The Lessee and the Lessor, as the case may be, shall
certify to the other in writing the amount and terms of each bid received by it
and the name and address of the Person submitting such bid. Subject to Section
7.4, in the event that the Lessee or the Lessor shall have obtained any such
bids from any Person other than the Lessee or an Affiliate of the Lessee, the
Lessor shall sell the Undivided Interest or such Significant Portion, as the
case may be, on the Termination Date to such Person which shall have submitted
the highest bona fide cash bid. Upon payment to the Lessor of the purchase
---- ----
price in immediately available funds (and all other amounts due pursuant to the
next sentence) on the Termination Date, the Lessor shall sell to the highest
bona fide bidder all right, title and interest of the Lessor in and to the
- ---- ----
Undivided Interest or such Significant Portion, as the case may be, as is and
where is, free and clear of Lessor's Liens and Owner Participant's Liens but
otherwise without representation or warranty. This Lease and the obligations of
the Lessee hereunder shall, in the case of an Obsolescence Termination Election
with respect to the Undivided Interest, terminate and, in the case of an
Obsolescence Termination Election with respect to a Significant Portion of the
Undivided Interest, terminate with respect to such Significant Portion, in each
case, concurrently with such sale and such payment. As a condition to the sale
of the Undivided Interest or a Significant Portion thereof, as the case may be,
pursuant to the second preceding sentence, the Lessee shall pay on the
Termination Date to the Lessor, in immediately available funds, (i) an amount
equal to the excess, if any, of (A) the Termina tion Value for the Undivided
Interest or such Significant Portion, as the case may be, as of the Termination
Date over (B) the proceeds of such sale net of the reasonable out-of-pocket
expenses incurred by the Lessor and the Owner Participant in connection with
such sale, (ii) all Basic Rent due and owing on or prior to the Termination Date
(but
28
<PAGE>
excluding, in the case of an Obsolescence Termination Election with respect
to the Undivided Interest, any Basic Rent payable in advance on the Termination
Date and, in the case of an Obsolescence Termination Election with respect to a
Significant Portion of the Undivided Interest, that portion of Basic Rent due on
the Termination Date equal to the product of the Original Cost of such
Significant Portion and the percentage set forth in Column B of Schedule 1A
opposite such Termination Date) and (iii) all Supplemental Rent due and owing on
or prior to the Termination Date and any other Supplemental Rent as to which
there is no dispute and which is agreed to become due and owing within 30 days
of the Termination Date. On the Termination Date, the Lessor shall, at the
Lessee's expense, execute and deliver to such Person a bill of sale or
assignment and such other instruments, documents and opinions as such Person or
the Lessee may reasonably request to evidence the valid consummation of such
transfer and shall, at the Lessee's expense, take such actions under Section
6.03 of the Indenture as the Lessee may reasonably request. The Lessee shall not
enter into any transaction with the purchaser of the Undivided Interest or a
Significant Portion thereof whereby the Lessee or any Affiliate of the Lessee
obtains the use of the Undivided Interest or such Significant Portion
thereafter; provided, however, that nothing in this Section 7 shall be construed
-------- -------
as prohibiting MPTM (or any Affiliate thereof) from exercising its rights under
the Operating Agreement.
(ii) If the Lessee shall have made a Special Termination Election,
the Lessee shall on the Termination Date pay to the Lessor, in immediately
available funds, (A) an amount equal to the Termination Value for the Undivided
Interest as of the Termination Date, (B) all Basic Rent due and owing on or
prior to the Termination Date (but excluding any Basic Rent payable in advance
on the Termination Date) and (C) all Supplemental Rent due and owing on or prior
to the Termination Date and any other Supplemental Rent as to which there is no
dispute and which is agreed to become due and owing within 30 days of the
Termination Date. Upon such payment, the Lessor shall sell to the Lessee or its
designee (which may be MPTM), for disposition in accordance with the applicable
provisions of the Operating Agreement, all right, title and interest of the
Lessor in and to the Undivided Interest, as is and where is, free and clear of
Lessor's Liens and Owner Participant's Liens but otherwise without
representation or
29
<PAGE>
warranty. This Lease and the obligations of the Lessee hereunder (other than the
obligations of the Lessee set forth in the immediately following sentence) shall
terminate concurrently with such sale and such payment. The Lessee hereby agrees
that (1) promptly following the conveyance of the Undivided Interest pursuant to
the first sentence of this subparagraph (ii), the Lessee shall cause MPTM to use
its reasonable efforts to enforce the obligations of the Operator under the
Operating Agreement to cause the disposition of the Production System in
accordance with the terms of the Operating Agreement, (2) any such disposition
shall not result in the Lessee or any Affiliate of the Lessee obtaining the use
of the Undivided Interest unless such Person shall have acquired the Undivided
Interest pursuant to Article 17 of the Operating Agreement and (3) the Lessee
shall, promptly following the disposition of the Production System pay to the
Lessor an amount equal to the excess, if any, of (x) the proceeds of the sale of
the Production System allocated to MPTM under Exhibit C to the Operating
Agreement net of expenses incurred in respect of such sale (including, without
limitation, any commissions or other fees payable to any brokers) allocated to
MPTM under Exhibit C to the Operating Agreement over (y) the Termination Value
paid to the Lessor pursuant to this Section 7.3(a)(ii). On the Termination Date,
the Lessor shall, at the Lessee's expense, execute and deliver to the Lessee (or
its designee) a bill of sale or assignment and such other instruments, documents
and opinions as the Lessee may reasonably request to evidence the valid
consummation of the transfers effected pursuant to this Section 7.3(a)(ii) and
shall, at the Lessee's expense, take such actions under Section 6.03 of the
Indenture as the Lessee may reasonably request.
(b) In the event that (i) the Lessee shall have exercised (or shall
be deemed to have exercised pursuant to the last sentence of Section 7.1 or the
penultimate sentence of Section 7.4) its right to revoke its notice of
termination pursuant to Section 7.2 or (ii) the highest bona fide bidder under
---- ----
Section 7.3(a) shall have failed to purchase the Undivided Interest pursuant to
Section 7.3(a), then, unless the Lessor shall have retained the Undivided
Interest pursuant to Section 7.4, this Lease shall remain in full force and
effect.
30
<PAGE>
7.4. Retention of Undivided Interest by Lessor. If the Lessee shall
-----------------------------------------
have made an Obsolescence Termination Election with respect to the Undivided
Interest, the Lessor may elect to retain rather than sell the Undivided Interest
pursuant to Section 7.3(a)(i) by giving irrevocable notice to the Lessee and the
Indenture Trustee no earlier than 45 nor later than 30 days prior to the
Termination Date. If the Lessor so elects to retain the Undivided Interest, on
the Termination Date (a) the Lessor shall pay to the Indenture Trustee an amount
equal to the unpaid principal amount of, and accrued and unpaid interest on, the
Secured Notes then Outstanding to the date of payment, and (b) the Lessee shall
pay to the Lessor or the Person entitled thereto as provided in the Operative
Documents (i) all Basic Rent due and owing on or prior to the Termination Date
(but excluding all Basic Rent payable in advance on the Termination Date) and
(ii) all Supplemental Rent due and owing on or prior to the Termination Date and
any other Supplemental Rent as to which there is no dispute and which is agreed
to become due and owing within 30 days of the Termination Date, but the Lessee
shall not be required to pay any amounts pursuant to Section 7.3. Upon payment
of the amounts due pursuant to clause (b) of the preceding sentence, this Lease
and the obligations of the Lessee hereunder shall terminate, and the Lessor
shall, at the Lessee's expense, execute and deliver to the Lessee on the
Termination Date such instruments as the Lessee shall reasonably request to
evidence the termination of this Lease. In the event the Lessor fails to pay
the amounts specified in clause (a) of the second sentence of this Section 7.4
or the Lessee fails to pay the amounts specified in clause (b) of such sentence,
the Lessee shall be deemed to have revoked its notice of termination pursuant to
Section 7.2. If the Lessor shall fail to perform any of its obligations
pursuant to this Section 7.4 and as a result thereof this Lease shall not be
terminated on a proposed Termination Date, the Lessor shall thereafter no longer
be entitled to exercise its election to retain the Undivided Interest upon any
subsequent Obsolescence Termination Election pursuant to this Section 7 and
Lessee may at its option at any time thereafter submit a new termination notice
pursuant to Section 7.2.
7.5. Calculation of Original Cost. If (x) the Lessee has elected to
----------------------------
terminate this Lease with respect to a Significant Portion of the Undivided
Interest pursuant to this
31
<PAGE>
Section 7 or (y) (i) an Event of Loss has occurred with respect to a Significant
Portion of the Undivided Interest and (ii) the Lessee has elected to pay
Stipulated Loss Value in respect of such Significant Portion, the Original Cost
of such Significant Portion shall be determined as follows:
(a) The Original Cost of that portion of such Significant Portion
consisting solely of the Lessor's Share of any Major Component in its
entirety shall be an amount equal to the sum of the Original Cost (as
defined in clause (i) of the definition of Original Cost) of the Lessor's
Share of each such Major Component; and
(b) The Original Cost of that portion of such Significant Portion
consisting of the Lessor's Share of (i) any Component or (ii) any
Replacement Component which has replaced such Component in accordance with
this Lease (other than, in the case of (i) and (ii), respectively, any
Component that is part of a Major Component to which paragraph (a) above
applies and any Replacement Component which has replaced such Component in
accordance with this Lease) shall be in an amount agreed to by the Lessor
and the Lessee; provided, however, that if the Lessor and the Lessee cannot
-------- -------
agree as to the Original Cost of the Lessor's Share of any such Component
(or Replacement Component) by the 30th day following (x) the issuance of a
notice of such termination pursuant to Section 7.2 or (y) the receipt by
the Lessor of notice from the Lessee of the occurrence of such Event of
Loss, as the case may be, such Original Cost shall be determined by the
Appraisal Procedure.
The Original Cost of the Significant Portion of the Undivided Interest with
respect to which this Lease is being terminated or which has suffered an Event
of Loss shall be an amount equal to the sum of the amounts obtained in
paragraphs (a) and (b) above.
SECTION 8. RELINQUISHMENT OF POSSESSION AND USE OF UNDIVIDED
-------------------------------------------------
INTEREST.
--------
8.1. Return of Undivided Interest. Unless the Undivided Interest
----------------------------
shall have been transferred to the Lessee
32
<PAGE>
pursuant to this Lease, the Lessee, at its own expense, shall, subject to the
rights of the Operator under the Operating Agreement and subject to the terms
and conditions of the Agency and Support Agreement, relinquish possession and
use of the Undivided Interest to the Lessor or to any transferee or assignee of
the Lessor upon the expiration or termination of the Lease Term by surrendering
the same to the Lessor or such transferee or assignee at the respective
locations of the Major Components thereof. Upon the return of the Undivided
Interest pursuant to this Section 8.1, (x) the Production System shall be (i) if
MPTM or any of its Affiliates is then the Operator or the operator of the
Production System, in at least as good condition as required by Section 11.1 or
(ii) if neither MPTM nor any of its Affiliates is then the Operator or the
operator of the Production System, in at least as good condition as the
Production System would be if it were maintained by a prudent operator which is
in the business of maintaining and operating facilities similar to the
Production System (which operator does not discriminate in such maintenance
based on the leased status of the Production System or otherwise (including,
without limitation, any discrimination with respect to the installation of
Modifications required by Governmental Rules that may be phased in over a period
of time that commences prior to and extends beyond the end of the Lease Term)),
in compliance in all material respects with all then applicable Governmental
Rules (including, without limitation, all Environmental Laws) and in such
condition as will entitle the Platform to the same classification and rating
from the Classification Society which the Platform had from American Bureau of
Shipping on the Closing Date (subject to any reduction in classification and
rating resulting from the age of the Platform). In addition, upon the return of
the Undivided Interest, the Undivided Interest shall be free and clear of all
Liens other than the Liens described in clauses (a), (b), (f), (g) and (i) of
the definition of Permitted Liens, and other than such other Permitted Liens as
to which the Lessee has provided security or indemnities satisfactory to the
Owner Participant. The obligations of the Lessee under this Section 8.1 shall
survive the termination of this Lease. Notwithstanding anything to the contrary
contained herein, if the Undivided Interest is not in compliance with the second
sentence of this Section 8.1 upon the return thereof, the Lessee's sole
obligation with respect to such non-compliance shall be to pay to the Lessor an
amount equal to the Lessor's
33
<PAGE>
Share of the cost that would be required to put the Production System into the
condition required hereby and the Lessee shall have no obligation to actually
put the Undivided Interest into such condition or otherwise to specifically
perform the Lessee's obligations with respect to such condition pursuant to this
Section 8.1.
8.2. Agency and Support Agreement. Unless the Undivided Interest
----------------------------
shall have been transferred to the Lessee pursuant to this Lease, the Lessee
shall cause MPTM to enter into with the Lessor (or its transferee or assignee),
and the Lessor shall (and shall cause its transferee or assignee to) enter into
with MPTM, the Agency and Support Agreement concurrently with any return of the
Undivided Interest to the Lessor (or its transferee or assignee) upon the
expiration or termination of this Lease (other than any termination pursuant to
Section 7 unless such termination results in the retention of the Undivided
Interest by the Lessor pursuant to Section 7.4). The obligations of the Lessee
under this Section 8.2 shall survive the termination of this Lease.
SECTION 9. QUIET ENJOYMENT; DISCLAIMER OF WARRANTIES.
-----------------------------------------
9.1. Quiet Enjoyment. The Lessor warrants that, unless a Lease Event
---------------
of Default shall have occurred and be continuing and this Lease shall have been
declared to be in default pursuant to Section 16.1, the Lessee shall be entitled
to the quiet use and enjoyment of the benefits of the Undivided Interest
including the right to uninterrupted possession and use of the Undivided
Interest and the Lessor shall not take or permit any Person lawfully claiming
by, through or under it to take any action which interferes with such quiet use
or enjoyment or such possession or use or the rights of any sublessee or
assignee to such quiet use or enjoyment or such possession or use under any
sublease or assignment permitted hereunder (including, without limitation, the
rights of MPTM under the Initial Sublease) (it being agreed that, without
limiting the liability of any Loan Participant or the Indenture Trustee for any
action taken by it in violation of the covenant contained in this sentence, the
Owner Trustee shall have no liability for any such action taken by any Loan
Participant or the Indenture Trustee unless such action was taken with the
consent or at the direction of the Owner Trustee). Without
34
<PAGE>
limiting the foregoing, the Lessor (for itself and its successors and assigns,
it being agreed that the following provisions of this sentence run with the
Undivided Interest and shall be binding on any transferee or assignee of the
whole or any part of the Undivided Interest) hereby waives the right to bring
any action for partition of the Production System or the Lessor's ownership
interest therein and hereby covenants that, for so long as there are
economically producible Hydrocarbon reserves in the Federal Leases ("Unit
----
Reserves"), (i) the Lessor shall not commence, prosecute or join in any legal,
- --------
equitable or administrative action or proceeding to partition the Production
System or its ownership interest therein, (ii) the Lessor shall not commence,
prosecute or join in any legal, equitable or administrative action or
proceeding, or take or permit any other action that would remove the Production
System from the location thereof or require that the Production System be sold,
abandoned or moved such that it is made unavailable to produce the Unit
Reserves, and (iii) the Lessor shall not interfere in any manner with the quiet
use and enjoyment of the Other Undivided Interest by the Other Owner or any
other Person which becomes entitled to possession of the Other Undivided
Interest. The Other Owner and its successors and assigns shall be third-party
beneficiaries of the Lessor's waiver and covenants contained in the immediately
preceding sentence. The Lessor agrees that any transferee of the Lessor's
interest in the Undivided Interest shall agree in writing to be bound by the
provisions of the second preceding sentence.
9.2. Disclaimer of Warranties. Neither the Lessor in its individual
------------------------
capacity or as Owner Trustee nor the Owner Participant makes any representations
or warranties whether written, oral or implied, with respect to the Undivided
Interest, the Production System, or any part thereof, except as expressly set
forth in Section 6 or 8 of the Participation Agreement or in any Officer's
Certificate of the Trust Company, the Owner Trustee or the Owner Participant, in
each case delivered pursuant to the Participation Agreement. As between the
Lessor and the Lessee, execution by the Lessee of this Lease shall be conclusive
proof of the Lessee's acceptance of the Undivided Interest for all purposes
hereof and of the commencement of this Lease with respect thereto and that the
Undivided Interest is satisfactory to the Lessee in all respects. THE LESSEE
ACKNOWLEDGES THAT THE LESSOR IS NOT A MANUFACTURER OR DEALER IN PROPERTY OF THE
KIND OF THE
35
<PAGE>
PRODUCTION SYSTEM OR THE COMPONENTS THEREOF AND THE LESSOR LEASES AND THE LESSEE
TAKES THE UNDIVIDED INTEREST AND EACH PART THEREOF AS IS AND WHERE IS, AND
NEITHER THE LESSOR IN ITS INDIVIDUAL CAPACITY OR AS OWNER TRUSTEE NOR THE OWNER
PARTICIPANT SHALL BE DEEMED TO HAVE MADE, AND THE LESSOR IN ITS INDIVIDUAL
CAPACITY AND AS OWNER TRUSTEE HEREBY DISCLAIMS, ANY REPRESENTATION OR WARRANTY
OTHER THAN THOSE REFERRED TO IN THE SECOND PRECEDING SENTENCE, EITHER EXPRESS OR
IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE DESIGN
OR CONDITION OF THE PRODUCTION SYSTEM OR ANY PART THEREOF, THE MERCHANTABILITY
THEREOF OR THE FITNESS THEREOF FOR ANY PARTICULAR PURPOSE, THE ABILITY OF THE
PRODUCTION SYSTEM TO PERFORM ANY FUNCTION, TITLE TO THE PRODUCTION SYSTEM OR ANY
PART THEREOF, THE QUALITY OF THE MATERIALS OR WORKMANSHIP THEREOF OR CONFORMITY
THEREOF TO SPECIFICATIONS, OR THE PRESENCE OR ABSENCE OF ANY LATENT OR OTHER
DEFECTS, WHETHER OR NOT DISCOVERABLE. THE LESSEE CONFIRMS THAT IT HAS SELECTED
THE PRODUCTION SYSTEM AND EACH PART THEREOF ON THE BASIS OF ITS OWN JUDGMENT AND
EXPRESSLY DISCLAIMS RELIANCE IN CONNECTION WITH SUCH SELECTION UPON ANY
STATEMENTS, REPRESENTATIONS OR WARRANTIES MADE BY THE LESSOR OR THE OWNER
PARTICIPANT. The provisions of this Section 9.2 have been negotiated and,
except as expressly set forth in Sections 6 and 8 of the Participation Agreement
or in any Officer's Certificate of the Owner Trustee, the Trust Company or the
Owner Participant, the foregoing provisions are intended to be a complete
exclusion and negation of any representation or warranty by the Lessor or the
Owner Participant, express or implied, with respect to this Lease, the
Production System, the Undivided Interest or any part thereof that may arise
pursuant to any law now or hereafter in effect or otherwise. Nothing contained
in this Section 9.2 shall be construed as a waiver of any warranty or other
claim against any manufacturer, supplier, dealer, vendor, contractor,
subcontractor or installer.
9.3. Enforcement of Warranties. The Lessor hereby appoints and
-------------------------
constitutes the Lessee its agent and attorney-in-fact during the Lease Term to
assert and enforce, from time to time, in its sole discretion, in the name and
for the account of the Lessor and the Lessee, as their interests may appear, but
in all cases at no cost or expense to the Lessor, whatever claims and rights the
Lessor may have as the owner of the Undivided Interest against any manufacturer
or vendor of any Component or Replacement Component of the Production System;
36
<PAGE>
provided, however, that if this Lease shall have been declared in default
- -------- -------
pursuant to Section 16.1, such power of attorney shall, at the option of the
Lessor, terminate and the Lessor may assert, at the Lessee's expense, such
claims and rights.
SECTION 10. LIENS.
-----
The Lessee will not, directly or indirectly, create, incur, assume or
suffer to exist any Liens on or with respect to all or any part of the Undivided
Interest, title thereto or any interest therein, other than Permitted Liens, and
the Lessee promptly, at its own expense, will take such actions as may be
necessary duly to discharge any such Lien not excepted above.
SECTION 11. OPERATION AND MAINTENANCE; INSPECTION; REPLACEMENTS AND
-------------------------------------------------------
MODIFICATIONS; PERSONNEL; SALVAGE AND FUEL;
-------------------------------------------
IDENTIFICATION.
--------------
11.1. Operation and Maintenance. So long as the Operating Agreement
-------------------------
is in effect, the Lessee will, at its own expense, cause MPTM to use reasonable
efforts to enforce the obligations of the Operator thereunder relating to the
Production System (including the obligations of the Operator to maintain and
operate the Production System in accordance with the applicable provisions of
the Operating Agreement). At all other times, the Lessee shall, at its own
expense, operate and maintain (or cause the operator thereof to operate and
maintain) the Production System in accordance with MPTM's established
maintenance, rebuild and repair programs (and without discriminating against the
Production System based on the leased status of the Undivided Interest or
otherwise (including, without limitation, any discrimination with respect to the
installation of Modifications required by Governmental Rules that may be phased
in over a period of time that commences prior to and extends beyond the end of
the Lease Term)) so as to keep the Undivided Interest (a) in good working order
and condition, ordinary wear and tear excepted and (b) in compliance in all
material respects with all applicable Governmental Rules and Governmental
Actions; provided, however, that the Lessee shall not be obligated to comply
-------- -------
with any Governmental Rule or Governmental Action (i) whose application or
validity is being contested diligently and in good faith by
37
<PAGE>
appropriate proceedings, (ii) compliance with which shall have been excused or
exempted by a nonconforming use permit, waiver, extension or forbearance
exempting it from such Governmental Rule or Governmental Action but only to the
extent that the Lessee's noncompliance is in accordance therewith, (iii) if good
faith efforts and appropriate steps are being taken to comply (in which case
such compliance shall be effected prior to the date the Undivided Interest is to
be returned to the Lessor hereunder), or (iv) if failure of compliance
(individually and in the aggregate with all other instances of continuing
noncompliance by the Lessee) would result in no material adverse consequences to
the Lessee, so long as, in the case of each of clauses (i) through (iv) of this
proviso, neither such failure of compliance nor such contest shall result in any
material risk or danger of (1) the sale, for feiture or loss of any material
part of or interest in the Production System or the Undivided Interest, the
Trust Estate or the Indenture Estate or title thereto or interest therein, (2)
any interference with the payment of Rent when due, or (3) the imposition of any
criminal liability on the part of, or any other material adverse effect on, the
Lessor, the Owner Participant, the Trust Estate, the Indenture Estate or the
Undivided Interest. The Lessor shall have no obligation to maintain, alter,
repair, rebuild or replace the Production System or any part thereof, and the
Lessee expressly waives (to the extent legally permitted to do so) the right to
perform any such action at the expense of the Lessor pursuant to any law at any
time in effect. During such time as the Operating Agreement is not in effect,
the Lessee shall keep and maintain (or cause to be kept and maintained) proper
books and records relating to all services rendered and all funds expended for
operation, maintenance, repair and replacement of the Production System and the
acquisition, construction or installation of all Components, Replacement
Components and Modifications, all in accordance with customary practices in the
oil and gas production industry.
11.2. Inspection and Reports. The Lessor, the Owner Participant and
----------------------
the Indenture Trustee shall have the right to inspect the Production System and
the books and records of the Lessee relating thereto to the extent provided in,
and subject to the restrictions set forth in, Sections 10.6 and 11.5 of the
Participation Agreement. The Lessee shall cause to be prepared and filed in
timely fashion, or, in the event the Lessor shall
38
<PAGE>
be required to file, the Lessee shall prepare and deliver (or cause to be
prepared and delivered) to the Lessor within a reasonable time prior to the date
for filing, any reports with respect to the condition or operation of the
Production System that shall be required to be filed by any Governmental Rule or
Governmental Action.
11.3. Required Modifications. So long as the Operating Agreement is
----------------------
in effect, the Lessee shall have the right to propose, or approve all
Modifications to the Production System in accordance with the provisions of the
Operating Agreement and the Lessee shall cause MPTM to take all actions
thereunder which may be required to permit the Operator to make (or cause to be
made) all Severable and Nonseverable Modifications to the Production System as
may be required from time to time to comply in all material respects with the
requirements of all applicable Governmental Rules and Govern mental Actions. At
all other times, the Lessee shall make (or cause to be made) all Severable and
Nonseverable Modifications to the Production System as may be required from time
to time to meet the requirements of clause (b) of Section 11.1 or to maintain
any insurance coverage required by Section 13.1 (subject to the qualifications
set forth in such Section) unless the Lessee shall have elected to terminate
this Lease pursuant to Section 7.2. So long as the Operating Agreement is in
effect, the Lessee shall, at its own expense, cause MPTM to use reasonable
efforts to enforce the obligations of the Operator thereunder with respect to
such Modifications. At all other times, the Lessee shall complete (or cause to
be completed) all such Modifications in a good and workmanlike manner, with
reasonable dispatch and in a manner (but only to the extent practicable in the
case of Modifications to the Production System required pursuant to clause (b)
of Section 11.1 or to maintain any insurance coverage required by Section 13.1)
which does not decrease the Fair Market Sales Value of the Production System or
decrease the remaining useful life or utility of the Production System or cause
the Production System to become "limited use property" within the meaning of
Revenue Procedure 76-30.
39
<PAGE>
11.4. Optional Modifications. The Lessee may, at no expense to the
----------------------
Lessor, make (or cause or allow to be made) such other Severable and
Nonseverable Modifications to the Production System not required by Section 11.3
as do not decrease the Fair Market Sales Value (except to a de minimis extent)
-- -------
of the Production System or decrease the remaining useful life or cause the
Production System to become "limited use property" within the meaning of Revenue
Procedure 76-30.
11.5. Title to Modifications and Components; Purchase Option for
----------------------------------------------------------
Severable Modifications. (a) Title to the Lessor's Share of all Severable
- -----------------------
Modifications to the Production System not required by any Governmental Rule or
Governmental Action shall vest in the Lessee or any Person designated by the
Lessee. The Lessee may remove (or allow to be removed) any such Severable
Modification prior to or, subject to Section 11.5(c), upon the expiration of the
Lease Term.
(b) Title to the Lessor's Share of (i) all Replacement Components of
the Production System, (ii) Severable Modifications to the Production System
required by any Governmental Rule or Governmental Action and (iii) Nonseverable
Modifications to the Production System shall vest in the Lessor free and clear
of all Liens except Permitted Liens.
(c) Provided that the Undivided Interest has not been transferred to
the Lessee pursuant to this Lease, the Lessor shall have the option, at the
expiration of the Lease Term, to purchase a 40% undivided interest in any
Severable Modification to the Production System (i) which was not required by
any Governmental Rule or Governmental Action, (ii) title to a 40% undivided
interest in which is in the Lessee or any Affiliate of the Lessee on the last
day of the Lease Term and (iii) which is necessary for the economic operation of
the Production System and which is not commercially available for purchase by
the Lessor, at a purchase price equal to the Fair Market Sales Value of such
40% undivided interest as of such date; provided that any Severable Modification
--------
to the Production System not removed by such date and as to which the Lessee has
not provided the Lessor prior to such date written notice to the effect that it
is intended that such Severable Modification shall be removed shall, to the
extent of the Lessee's (or its Affiliate's) interest therein, be deemed
transferred to the Lessor without further act or
40
<PAGE>
payment. On or prior to the 90th day prior to the expiration of the Lease Term,
the Lessee shall provide the Lessor with notice of such Severable Modifications
that it intends to remove. The Lessor may exercise its option to purchase such
Severable Modifications by written notice to such effect delivered to the Lessee
at least 30 days prior to expiration of the Lease Term. The Lessor and the
Lessee shall attempt to agree upon the Fair Market Sales Value of such undivided
interest in any such Severable Modification as of the expiration of the Lease
Term. If the Lessor and the Lessee shall fail to agree within 15 days after such
written notice, such Fair Market Sales Value of any such undivided interest
shall be determined by the Appraisal Procedure. If the Lessor shall have
exercised its option to purchase an undivided interest in any Severable
Modification to the Production System pursuant to this Section 11.5(c), the
Lessee, if requested by the Lessor, shall furnish (or cause to be furnished) to
the Lessor a bill of sale or assignment, in form and substance reasonably
satisfactory to the Lessor, conveying the right, title and interest of the
Lessee (or its Affiliate) in and to such Severable Modification, free and clear
of all Liens (other than Permitted Liens described in clauses (a), (b), (f), (g)
and (i) of the definition thereof), to the Lessor.
11.6. Payment for Modifications and Replacement Components. (a) The
----------------------------------------------------
Lessee shall be permitted at any time to finance the cost of any Severable
Modification to the Production System not required by any Governmental Rule or
Governmental Action, directly or indirectly, including, without limitation, on a
third party ownership basis.
(b) If the Lessee intends to seek financing for the cost of any
Severable Modification to the Production System that is required by any
Governmental Rule or Governmental Action to be made or any Nonseverable
Modification to the Production System, the Lessee shall first provide the Lessor
and the Owner Participant with written notice of such Modification at least 45
days prior to the date of such proposed financing. The cost of the Lessor's
Share of such Modification may be financed by the Lessor as provided in Section
14 of the Participation Agreement. If mutually acceptable terms for any such
financing shall not have been agreed to between the Owner Participant and the
Lessee within 45 days after the receipt by the Owner Participant of the
40
<PAGE>
notice from the Lessee referred to in the first sentence of this Section
11.6(b), the Lessor's Share of the cost of such Modification may, at the
Lessee's option, be financed by the Lessor as provided in the second sentence of
Section 14.1 of the Participation Agreement and subject to the conditions set
forth therein.
11.7. Replacement of Components; Removal of Property. (a) In the
----------------------------------------------
ordinary course of maintenance, service, repair or testing, any Component or
Replacement Component may be removed and replaced with a Replacement Component
and, upon such replacement, the Lessee (or its designee) shall be entitled to
retain the amount of the net proceeds of any sale or disposition of any such
removed Component or Replacement Component. Any such Replacement Components
shall be free and clear of all Liens, except Permitted Liens, and in as good
operating condition as, and with a value, utility and useful life at least equal
to, the Components or Replacement Components replaced, assuming such replaced
Components or Replacement Components were in at least the condition and repair
required to be maintained hereunder. Immediately upon any Replacement Component
becoming incorporated in the Production System, without further act, (i) title
to the Lessor's Share of such Replacement Component thereupon shall vest in the
Lessor and be subject to the Lien of the Indenture, (ii) the Lessor's Share of
such Replacement Component shall become subject to this Lease and be deemed a
part of the Undivided Interest for all purposes hereof to the same extent as the
Lessor's Share of the Component or Replacement Component it replaced and (iii)
title to the Lessor's Share of such removed Component or Replacement Component
shall vest in the Lessee or such Person as shall be designated by the Lessee,
free and clear of all rights of the Lessor and the Indenture Trustee and shall
no longer be deemed a Component or a Replacement Component hereunder.
(b) If, at any time during the Lease Term, the Lessee (or the
Operator) shall conclude that any property included in the Production System is
obsolete, redundant or unnecessary and can be removed without diminishment of
the value or utility of the Production System or reduction of the remaining
useful life of the Production System and without causing the Production System
to become "limited use property" within the meaning of Revenue Procedure 76-30,
the Lessee may
41
<PAGE>
remove (or allow to be removed) such property and upon such removal, without
further act, title to the Lessor's Share of such property shall vest in the
Lessee or in such Person as shall be designated by the Lessee, free of the Lien
of the Indenture; provided that the Lessee shall pay to the Lessor an amount
--------
equal to any net proceeds allocated to MPTM under Exhibit C to the Operating
Agreement from any sale or other disposition of any items of such property
thereafter removed to the extent such net proceeds so allocated after the
Closing Date exceed, in the aggregate, $500,000 (provided that the Lessee shall
have no obligation to sell or otherwise dispose of (or cause to be sold or
disposed) such property). In addition, notwithstanding anything contained in
this Lease to the contrary, if an event occurs with respect to any Component or
Components which would constitute an Event of Loss if such event occurred with
respect to the Production System or a Significant Portion thereof, the Lessee
shall have no obligation to pay any Stipulated Loss Value in respect of, or to
otherwise replace or repair, such Component or Components, so long as such
Component or Components are not material to the operation of the Production
System.
11.8. Employment of Personnel. Solely as between the Lessor and the
-----------------------
Lessee, the master, officers and crew of the Platform and all other persons at
any time on board the Platform shall be deemed to be engaged and employed
exclusively by the Lessee and shall be deemed to be and remain the Lessee's
servants, navigating and working the Platform solely on behalf of and at the
risk of the Lessee.
11.9. Salvage. The Lessor shall not have any interest in any salvage
-------
monies earned by the Platform or received by the Lessee, MPTM or the Operator.
The Lessee assumes and shall satisfy all costs and liabilities incurred in
connection with all salvage services rendered by the Platform. The Lessor
acknowledges that such fuel, lubricating oil and unbroached consumable stores as
may be on board the Platform at the time of its delivery to the Lessee hereunder
will be the property of the Lessee.
11.10. Identification of Platform. At all times until the expiration
--------------------------
or termination of this Lease, the Lessee shall cause to be placed and kept
prominently displayed in the chart room of the Platform a notice, in English,
framed under
42
<PAGE>
glass, printed in plain type of such size that the paragraph of reading matter
thereof shall cover a space not less than six inches wide by nine inches high,
reading as follows:
"NOTICE OF MORTGAGE AND CHARTER"
An undivided 40% interest in this vessel is owned by Fleet National
Bank of Connecticut, as the Owner Trustee under that certain Trust
Agreement, dated as of December 12, 1995, is under demise charter to
Mobil G.B. 388 Finance Inc., pursuant to a Production System Lease
Agreement, dated as of December 12, 1995, and is covered by a first
priority naval mortgage dated as of December 12, 1995 in favor of
First Security Bank of Utah, National Association, as Indenture
Trustee. Said lease and mortgage provide that no person shall create,
incur or permit to be placed or imposed upon this vessel any lien or
encumbrance whatsoever except as expressly permitted therein. A copy
of said lease and mortgage are carried on this vessel and must be
exhibited on demand to any person having business with this vessel."
Such notice shall be changed to reflect the identity of any successor Owner
Trustee or successor Indenture Trustee. Neither the Lessor nor Lessee shall
take any action or omit to take any action that would (i) cause the Platform to
cease to be documented as a vessel pursuant to the laws of the Republic of
Panama, (ii) cause the Ship Mortgage on the Platform to cease to be a first
priority naval mortgage under the laws of the Republic of Panama or (iii) cause
the Platform to cease to be entitled to the same classification that the
Platform had from the Classification Society on the Closing Date (subject to any
reduction in classification and rating resulting from the age of the Platform).
Except as otherwise directed by the Lessor, the Lessee shall prevent the name of
any Person other than that of the Lessee, MPTM, the Guarantor, the Operator or
any Affiliate of any thereof (and the other owners and secured parties with
respect to the Other Undivided Interest) from being placed on any part of the
Production System as a designation that reasonably might be interpreted as a
claim of ownership or right to possession or use thereof.
43
<PAGE>
11.11. Reports of Modifications. The Lessee shall, promptly
------------------------
following receipt thereof by MPTM, provide the Lessor with all written
information provided to MPTM pursuant to Section 8.2 of the Operating Agreement.
11.12. Repair of Production System. In the event of any damage to
---------------------------
the Production System equal to or in excess of $5,000,000 which does not
constitute an Event of Loss, the Lessee shall, at no expense to the Lessor, as
soon as commercially practicable, repair, restore or rebuild (or shall cause to
be repaired, restored or rebuilt) the damaged or destroyed property so that upon
completion of such repair, restoration or rebuilding, the value, utility and
remaining useful life of such property shall be at least equal to the value,
utility and remaining useful life of such property immediately prior to such
damage or destruction, assuming such property was maintained in accordance with
the terms hereof.
SECTION 12. EVENT OF LOSS.
-------------
12.1. Notice of Event of Loss. If there shall occur an Event of
-----------------------
Loss, the Lessee shall promptly notify the Lessor, the Owner Participant and the
Indenture Trustee of the occurrence thereof.
12.2. Payment of Stipulated Loss Value, Etc. (a) If an Event of Loss
-------------------------------------
with respect to the Production System shall occur, the Lessee shall pay to the
Lessor as compensation for such Event of Loss, on the date which is the latest
Stipulated Loss Value Determination Date occurring not later than 180 days after
the date of such Event of Loss, the Stipulated Loss Value for the Undivided
Interest as of such Stipulated Loss Value Determination Date. The Lessee shall
pay, simultaneously therewith, all Basic Rent due and owing prior to the date of
such payment, all Supplemental Rent due and owing on or prior to the date of
such payment and any other Supplemental Rent as to which there is no dispute and
which is agreed to become due and owing within 30 days of the date of such
payment, and if such Stipulated Loss Value Determination Date is a Basic Rent
Payment Date, all Basic Rent payable in arrears on such Basic Rent Payment Date,
whereupon (1) this Lease and the obligations of the Lessee hereunder (other than
the obligations set forth in the next sentence) shall terminate as of the date
of such payment and (2) the Lessor shall transfer all right, title and
44
<PAGE>
interest of the Lessor in and to the Undivided Interest, as is and where is, to
the Lessee or as the Lessee shall direct, free and clear of Lessor's Liens and
Owner Participant's Liens but otherwise without representation or warranty, and
the Lessor shall, at the Lessee's expense, execute and deliver to the Lessee or
as the Lessee shall direct a bill of sale or assignment and such other
instruments and documents as the Lessee may reasonably request to evidence the
valid consummation of such transfer and shall, at the Lessee's expense, take
such actions under Section 6.03 of the Indenture as the Lessee may reasonably
request. The Lessee hereby agrees that, if the Event of Loss with respect to the
Production System in respect of which the Lessee has paid Stipulated Loss Value
pursuant to the preceding sentence is a Special Event of Loss, (A) promptly
following the conveyance of the Undivided Interest pursuant to clause (2) of the
preceding sentence, the Lessee shall cause MPTM to use its reasonable efforts to
enforce the obligations of the Operator under the Operating Agreement to cause
the disposition of the Production System in accordance with the terms of the
Operating Agreement, (2) any such disposition shall not result in the Lessee or
any Affiliate of the Lessee obtaining the use thereafter of the Undivided
Interest unless such Person shall have acquired the Undivided Interest pursuant
to Article 17 of the Operating Agreement and (3) the Lessee shall, promptly
following the disposition of the Production System pay to the Lessor an amount
equal to the excess, if any, of (x) the proceeds of the sale of the Production
System allocated to MPTM under Exhibit C to the Operating Agreement net of
expenses incurred in respect of such sale (including, without limitation, any
commissions or other fees payable to any brokers) allocated to MPTM under
Exhibit C to the Operating Agreement over (y) the Stipulated Loss Value paid to
the Lessor pursuant to this Section 12.2(a).
(b) If an Event of Loss with respect to a Significant Portion of the
Production System shall occur, the Lessee shall within 120 days of the
occurrence of such Event of Loss give Lessor written notice of its election to
either:
(i) pay to the Lessor as compensation for such Event of Loss, on the
date which is the Stipulated Loss Value Determination Date occurring not
later than 180 days after the date of such Event of Loss, the Stipulated
Loss Value
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<PAGE>
for the Significant Portion of the Undivided Interest suffering such Event
of Loss as of such Stipulated Loss Value Determination Date; or
(ii) rebuild or cause to be rebuilt (or replace or cause to be
replaced) the Significant Portion of the Production System suffering such
Event of Loss which such rebuilt portion (or replacement portion) shall
have at least the same value, utility and remaining useful life as such
Significant Portion had prior to the Event of Loss (assuming the Production
System has been maintained in accordance with the terms of this Lease);
provided that (w) if (1) the remaining portion of the Production System not
- --------
suffering such Event of Loss is not capable of functioning for its intended
purpose or (2) such remaining portion constitutes "limited use property" within
the meaning of Revenue Procedure 76-30 or (3) the Fair Market Sales Value of
such remaining portion as of the end of such 120-day period is less than the
product of (A) a fraction the numerator of which is the excess of Lessor's Cost
over the Original Cost of the Significant Portion of the Undivided Interest
suffering such Event of Loss and the denominator of which is Lessor's Cost and
(B) the Fair Market Sales Value of the Production System as of the end of such
120-day period (assuming no such Event of Loss had occurred) or (4) the Original
Cost of such Significant Portion together with the Original Cost of any other
Significant Portion of the Undivided Interest in respect of which the Lessee has
previously paid Stipulated Loss Value pursuant to this Section 12.2 or
Termination Value pursuant to Section 7.3 shall exceed 50% of Lessor's Cost or
(5) the estimated Fair Market Sales Value of such remaining portion as of the
scheduled expiration of the Basic Term is less than the product of (A) a
fraction the numerator of which is the excess of Lessor's Cost over the Original
Cost of the Significant Portion of the Undivided Interest suffering such Event
of Loss and the denominator of which is Lessor's Cost and (B) the estimated Fair
Market Sales Value of the Production System as of the scheduled expiration of
the Basic Term (assuming no such Event of Loss had occurred) or (6) the Lessee
shall have failed to provide the Owner Participant, by the 120th day following
the occurrence of such Event of Loss, with an opinion, reasonably acceptable to
the Owner Participant, of Dewey Ballantine or other tax counsel of recognized
national standing
46
<PAGE>
selected by the Lessee and acceptable to the Owner Participant to the effect
that the termination of this Lease with respect to such Significant Portion will
not result in an a greater risk of unindemnified tax liability on the part of
the Owner Participant than it would have had if such termination had not
occurred (other than any tax liability of the Owner Participant with respect to
the inclusion in the taxable income of the Owner Participant of the Stipulated
Loss Value payable with respect to such Significant Portion), the Lessee shall,
subject to clause (y) below, be deemed to have elected the option set forth in
paragraph (ii) above, (x) if the Lessee shall fail to provide such written
notice within such 120-day period, the Lessee shall, unless clause (w) of this
proviso is applicable, be deemed to have elected the option set forth in
paragraph (i) above, (y) the Lessee may not elect the option set forth in
paragraph (ii) during such time as a Specified Lease Event of Default shall have
occurred and be continuing and (z) if the Lessee is deemed, pursuant to clause
(w) above, to have elected the option set forth in paragraph (ii) above but is
then prevented from electing such option pursuant to clause (y) above, an Event
of Loss shall be deemed to have occurred with respect to the Undivided Interest.
Unless the Lessee shall have elected (or shall be deemed to have
elected) the option set forth in paragraph (ii) above, the Lessee shall pay,
simultaneously with the payment of Stipulated Loss Value pursuant to paragraph
(i) above, all Basic Rent due and owing prior to the date of such payment, all
Supplemental Rent due and owing on or prior to the date of such payment and any
other Supplemental Rent as to which there is no dispute and which is agreed to
become due and owing within 30 days of the date of such payment, and, if such
date of payment is a Basic Rent Payment Date, all Basic Rent due on such Basic
Rent Payment Date (but excluding that portion of Basic Rent due on such Basic
Rent Payment Date equal to the product of the Original Cost of the Significant
Portion of the Undivided Interest suffering such Event of Loss and the
percentage set forth in Column B of Schedule 1A opposite such Basic Rent Payment
Date), whereupon (1) this Lease and the obligations of the Lessee hereunder
(other than the obligations set forth in the next sentence) shall terminate with
respect to the Significant Portion of the Undivided Interest suffering such
Event of Loss and (2) the Lessor shall transfer all right, title and interest of
the Lessor in and to such Significant
47
<PAGE>
Portion, as is and where is, to the Lessee or as the Lessee shall direct, free
and clear of Lessor's Liens and Owner Participant's Liens but otherwise without
representation or warranty, and the Lessor shall, at the Lessee's expense,
execute and deliver to the Lessee or as the Lessee shall direct a bill of sale
or assignment and such other instruments and documents as the Lessee may
reasonably request to evidence the valid consummation of such transfer and
shall, at the Lessee's expense, take such actions under Section 6.03 of the
Indenture as the Lessee may reasonably request. The Lessee hereby agrees that,
if the Event of Loss with respect to a Significant Portion of the Production
System in respect of which the Lessee has paid Stipulated Loss Value pursuant to
the preceding sentence is a Special Event of Loss, (A) promptly following the
conveyance of the Significant Portion of the Undivided Interest pursuant to
clause (2) of the preceding sentence, the Lessee shall cause MPTM to use its
reasonable efforts to enforce the obligations of the Operator under the
Operating Agreement to cause the disposition of the Significant Portion of the
Production System suffering such Special Event of Loss in accordance with the
terms of the Operating Agreement, (2) any such disposition shall not result in
the Lessee or any Affiliate of the Lessee obtaining the use thereafter of the
Significant Portion of the Undivided Interest suffering such Event of Loss
unless such Person shall have acquired such Significant Portion pursuant to
Article 17 of the Operating Agreement and (3) the Lessee shall, promptly
following the disposition of the Significant Portion of the Production System
suffering such Event of Loss pay to the Lessor an amount equal to the excess, if
any, of (x) the proceeds of the sale of such Significant Portion allocated to
MPTM under Exhibit C to the Operating Agreement net of expenses incurred in
respect of such sale (including, without limitation, any commissions or other
fees payable to any brokers) allocated to MPTM under Exhibit C to the Operating
Agreement over (y) the Stipulated Loss Value paid to the Lessor pursuant to this
Section 12.2(b).
Notwithstanding anything to the contrary contained herein, if the
Lessee shall have duly elected to exercise its option to purchase the Undivided
Interest pursuant to Section 6.1(f), this Section 12 shall no longer apply to
the Event of Loss giving rise to such election and the Lessee shall have no
further obligations under this Section 12 with respect to such Event of Loss
(including, without limitation, any obligations
48
<PAGE>
in respect of the payment of Stipulated Loss Value or any obligations in respect
of the repair of the Production System).
12.3. Application of Other Payments upon the Occurrence of an Event
-------------------------------------------------------------
of Loss. Any amounts of condemnation or requisition proceeds received at any
- -------
time by the Lessor, the Indenture Trustee or the Lessee as a result of the
occurrence of an Event of Loss shall be divided between the Lessee and the
Lessor as their respective interests may appear and the amount paid to the
Lessor shall reduce the amount that the Lessee is required to pay to the Lessor
(but not below zero) pursuant to Section 12.2 (or, if the amount payable
pursuant to Section 12.2 has already been paid by the Lessee, the Lessee shall
be entitled to retain out of the amounts otherwise payable to the Lessor
pursuant to this Section 12.3, the amount that would have been applied in
reduction of the amount payable by the Lessee under Section 12.2).
12.4. Application of Payments Not Relating to an Event of Loss.
--------------------------------------------------------
Payments (except for payments under insurance policies described in Section 13)
received at any time by the Lessor, the Indenture Trustee or the Lessee from any
Governmental Authority or other Person with respect to any destruction, damage,
loss, condemnation, confiscation, theft or seizure of or requisition of title to
or use of the Undivided Interest or any part thereof not constituting an Event
of Loss shall be paid over to the Lessee or as it may direct and all such
amounts paid to the Lessee shall be retained by the Lessee.
12.5. Other Dispositions. Notwithstanding the foregoing provisions
------------------
of this Section 12, so long as any Lease Event of Default shall have occurred
and be continuing, any amount (except for payments under insurance policies
described in Section 13) that otherwise would be payable to or for the account
of, or that otherwise would be retained by, the Lessee pursuant to this Section
12 shall be paid to the Corporate Owner Trustee (or to the Corporate Indenture
Trustee so long as the Undivided Interest is subject to the Lien of the
Indenture) as security for the obligations of the Lessee under this Lease and,
subject to the Indenture, applied against the Lessee's payment obligations
hereunder when and as they become due and payable and, at such time thereafter
as no Lease Event of
49
<PAGE>
Default shall be continuing, such amount shall, to the extent not theretofore
applied as provided herein or in the Indenture, be paid promptly to the Lessee
or as it may direct.
SECTION 13. INSURANCE.
---------
13.1. Coverage. (a) The Lessee, at its own cost and expense, shall
--------
carry and maintain or cause to be carried and maintained at all times during the
Lease Term (i) insurance with respect to the Undivided Interest against loss or
damage by fire, lightning and other risks from time to time included under "all-
risk" policies in such amounts and in such forms as is consistent with MPTM's
practice for other properties owned or leased by MPTM and (ii) public liability,
including personal injury and property damage and comprehensive general
liability insurance against claims, including, without limitation, environmental
claims arising out of or connected with the possession, use, leasing, operation
or condition of the Production System in such amounts and in such forms as is
consistent with MPTM's practice for other properties similar to the Production
System owned or leased by MPTM. The insurance required under clause (i) or (ii)
of this Section 13.1(a) may be subject to deductible amounts and self-insured
retentions as is consistent with MPTM's practice for other properties similar to
the Production System owned or leased by MPTM. Such insurance may be carried
under blanket policies maintained by or on behalf of the Lessee so long as such
policies otherwise comply with the provisions of this Section 13.
(b) Any insurance carried in accordance with Section 13.1(a)(i) and
(ii) shall, to the extent the following can be effected without the Lessee or
the Operator incurring any material costs in connection therewith, provide in
the policy or by special endorsement that:
(i) the Lessor, the Owner Participant, the Indenture Trustee and
each Loan Participant are included as additional insureds and shall provide
that no such Person shall have any obligation or liability for payment of
premiums;
(ii) the insurer thereunder waives all rights of subrogation against
the Lessor, the Indenture Trustee, the
50
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Owner Participant and each Loan Participant, and waives any right of set-
off and counterclaim and any other right to deduction whether by attachment
or otherwise;
(iii) such insurance shall be primary without right of contribution
of any other insurance carried by or on behalf of the Lessor, the Indenture
Trustee, the Owner Participant and each Loan Participant;
(iv) the respective interests of the Lessor, the Indenture Trustee,
each Loan Participant, and the Owner Participant under all insurance
policies required hereunder shall not be invalidated by any action or
inaction of the Lessee or any other Person (other than, with respect to any
such insured, such insured) and such insurance shall insure the Lessor, the
Indenture Trustee, each Loan Participant, and the Owner Participant as
their interests may appear, regardless of any breach or vio lation of any
warranty, declaration or condition contained in such policies by the Lessee
or any other Person (other than, with respect to any such insured, such
insured);
(v) if the insurers cancel such insurance for any reason whatsoever
or any materially adverse change is made in policy terms or conditions, or
if such insurance is allowed to lapse for nonpayment of premium, such
cancel lation, change or lapse shall not be effective as to the Lessor, the
Owner Participant, each Loan Participant or the Indenture Trustee for
thirty days after receipt by the Lessor, the Owner Participant, each Loan
Participant or the Indenture Trustee, respectively, of written notice from
such insurers of such cancellation, change or lapse; and
(vi) with respect to all liability insurance, in as much as the
policies are written to cover more than one insured, all terms, conditions,
insuring agreements and endorsements, with the exception of the limits of
liability shall operate in the same manner as if there were a separate
policy covering each insured.
13.2. Adjustment of Losses. Losses, if any, with respect to the
--------------------
Production System under any property damage policies required to be carried
under Section 13.1(a) shall be
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adjusted with the insurance companies, including the filing of appropriate
proceedings, by the Lessee.
13.3. Application of Insurance Proceeds. All proceeds of insurance
---------------------------------
maintained pursuant to Section 13.1(a)(i) on account of any damage to or
destruction of the Production System or any part thereof shall be paid over to
the Lessee or as it may direct.
13.4. Additional Insurance. Nothing in this Section 13 shall
--------------------
prohibit the Lessee, the Lessor, the Owner Participant or the Indenture Trustee
from acquiring or maintaining, at its own expense, additional insurance for its
own account with respect to loss or damage to the Undivided Interest or any part
thereof provided that any such additional insurance shall not interfere with or
in any way limit insurance maintained under Section 13.1(a) or increase the
amount of any premium payable with respect to any such insurance. The proceeds
of any such additional insurance will be for the account of the party
maintaining such additional insurance.
13.5. Annual Insurance Report. Prior to December 31 of each year
-----------------------
commencing in 1996, the Lessee will provide to the Lessor, the Owner Participant
and the Indenture Trustee an insurance report and certificate, substantially in
the form of the report and the certificate provided by the Lessee pursuant to
Section 4.6 of the Participation Agreement, with respect to the insurance then
required to be maintained by the Lessee pursuant to this Section 13.
SECTION 14. RIGHTS TO ASSIGN OR LEASE; LEASEHOLD MORTGAGEE
----------------------------------------------
PROVISIONS.
----------
14.1. Assignment by Lessor; Security for Lessor's Obligations to
----------------------------------------------------------
Indenture Trustee. (a) Except as set forth in Section 14.1(b) or in the last
- -----------------
sentence of Section 19.8, the Lessor may not assign, transfer or encumber this
Lease or all or any part of its interests and rights hereunder except in
connection with the exercise of remedies by the Lessor following a declaration
by the Lessor pursuant to Section 16.1 that this Lease is in default.
(b) In order to secure the indebtedness evidenced by the Secured
Notes and certain other obligations as provided in
52
<PAGE>
the Indenture, the Indenture provides, among other things, for the assignment by
the Lessor to the Indenture Trustee of its right, title and interest in, to and
under this Lease to the extent set forth in the Indenture, and for the creation
of a security interest in the Undivided Interest in favor of the Indenture
Trustee. The Lessee hereby consents to such assignment and to the creation of
such mortgage and security interest pursuant to the terms and provisions of the
Indenture and to any assignment or other transfer which may occur pursuant to
the exercise of any remedy set forth in the Indenture. The Lessee (i)
acknowledges that such assignment, mortgage and security interest provide for
the exercise by the Indenture Trustee of all rights of the Lessor hereunder to
give any consents, approvals, waivers, notices or the like, to make any
elections, demands or the like or to take any other discretionary action
hereunder, but only in accordance with the Indenture, (ii) acknowledges receipt
of an executed counterpart of the Indenture as in effect on the date hereof and
(iii) agrees that, to the extent provided in the Indenture, the Indenture
Trustee shall have all the rights of the Lessor hereunder and, in exercising any
right or performing any obligation of the Lessor hereunder, shall be subject to
the terms hereof. The Lessee will furnish to the Indenture Trustee counterparts
of all notices, certificates, opinions or other documents of any kind required
to be delivered hereunder by the Lessee to the Lessor. Notwithstanding any other
provision herein, so long as any Secured Notes remain Outstanding, the Lessor
hereby directs, and the Lessee agrees that, all payments of Basic Rent and all
other Rent payable hereunder to the Lessor, other than Excepted Payments, shall
be paid directly to the Corporate Indenture Trustee at its account specified in
Schedule 2 to the Participation Agreement or to such other account as may be
specified in writing by the Corporate Indenture Trustee to the Lessee at least 5
Business Days prior to the due date thereof. The right of the Indenture Trustee
to receive all payments of Basic Rent shall not be subject to any defense,
counterclaim, setoff or other right or claim of any kind which the Lessee may be
able to assert against the Lessor or the Owner Participant in an action brought
by either thereof on this Lease or otherwise.
14.2. Assignment and Sublease by Lessee. The Lessee may, without the
---------------------------------
consent of any party to the Participation Agreement, at any time and from time
to time, assign this Lease
53
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and its interests and rights hereunder to any Person so long as, (i) after
giving effect to such assignment, the Guaranty shall remain in full force and
effect and shall constitute a full and unconditional guaranty of the obligations
of the assignee hereunder to the same extent as the guaranty of the Lessee's
obligations hereunder prior to giving effect to any such assignment, (ii) no
Specified Lease Event of Default shall be continuing on the date any such
assignment to any Affiliate of the Lessee is effected and no Lease Event of
Default shall be continuing on the date such assignment to any other Person is
effected, and (iii) such assignment shall not result in any unindemnified tax on
the Lessor or the Owner Participant or subject the Lessor or the Owner
Participant to regulation by any Governmental Authority to which the Lessor or
the Owner Participant would not have been subject but for such assignment. The
Lessee may, without the consent of any party to the Participation Agreement, at
any time and from time to time, sublease the Undivided Interest to another
Person (including, without limitation, to MPTM pursuant to the Initial
sublease); provided that (i) such sublease shall be expressly subject and
--------
subordinate to this Lease (and such sublease shall contain a provision providing
that any sublease permitted thereunder shall be so subject and subordinate) and
shall in no event continue beyond the Lease Term, (ii) the Lessee shall remain
primarily liable under this Lease and all terms and conditions hereof and of the
other Operative Documents shall be complied with as though no such sublease was
in existence, (iii) the Guaranty shall remain in full force and effect, (iv)
such sublease shall not result in any unindemnified tax on the Lessor or the
Owner Participant or subject the Lessor or the Owner Participant to regulation
by any Governmental Authority to which the Lessor or the Owner Participant would
not have been subject but for such sublease and (v) no Specified Lease Event of
Default shall be continuing at the commencement of such sublease. Any sublessee
under a sublease permitted hereunder may sub-sublease the Undivided Interest to
another Person under a sub-sublease that otherwise complies with the provisions
hereunder applicable to a sublease hereunder. The Lessee shall give prompt
written notice to the Lessor of any sublease or sub-sublease of the Undivided
Interest. The Lessor acknowledges that on the Closing Date the Lessee will
sublease the Undivided Interest to MPTM pursuant to the Initial Sublease.
54
<PAGE>
SECTION 15. LEASE EVENTS OF DEFAULT.
-----------------------
The term "Lease Event of Default", wherever used herein, shall mean
----------------------
any of the following events (whatever the reason for such Lease Event of Default
and whether it shall be voluntary or involuntary, or come about or be effected
by operation of law, or be pursuant to or in compliance with any judgment,
decree or order of any court or any Governmental Rule or Governmental Action):
(a) the Lessee shall fail to pay Basic Rent, Stipulated Loss Value,
Termination Value or any purchase price payable pursuant to Section 6 in
each case within 10 Business Days after the date the same becomes due; or
(b) the Lessee shall fail to pay Supplemental Rent or make any other
payment (other than (i) Basic Rent, Stipulated Loss Value, Termination
Value and any other Supplemental Rent payment referred to in Section 15(a)
or (ii) any Excepted Payment (unless the Lessor elects to have such failure
to make such Excepted Payment constitute a Lease Event of Default))
required to be made by the Lessee under this Lease or under any other
Operative Document for more than 15 Business Days after the Lessee has
received written notice from the Lessor or the Indenture Trustee stating
that such payment is due; or
(c) the Lessee shall fail in any material respect to perform or
observe any other material covenant or agreement to be performed or
observed by it under this Lease or any other Operative Document (other than
any covenant or agreement to make an Excepted Payment (unless the Lessor
elects to have such failure constitute a Lease Event of Default)) and such
failure shall continue for a period of thirty (30) days after receipt by
the Lessee of a written notice from the Lessor or the Indenture Trustee
specifying such failure and requiring it to be remedied; provided, however,
-------- -------
that the continuation of any such failure for such period of thirty (30)
days or such longer period (not to exceed 365 days) after receipt of such
notice shall not constitute a Lease Event of Default so long as (i) such
failure is curable or correctable and
55
<PAGE>
(ii) the Lessee is diligently pursuing the cure or correction of such
failure; or
(d) the Guarantor shall fail in any material respect to perform or
observe any covenant or agreement to be performed or observed by it under
the Guaranty (other than any covenant or agreement in respect of the
Lessee's obligations under the Operative Documents) and such failure shall
continue for a period of thirty (30) days after receipt by the Guarantor of
a written notice from the Lessor or the Indenture Trustee specifying such
failure and requiring it to be remedied; provided, however, that the
-------- -------
continuation of any such failure for such period of thirty (30) days or
such longer period (not to exceed 365 days) after receipt of such notice
shall not constitute a Lease Event of Default so long as (i) such failure
is curable or correctable and (ii) the Guarantor is diligently pursuing the
cure or correction of such failure; or
(e) any material representation or warranty made by the Lessee in
Section 5 of the Participation Agreement or in any Officer's Certificate of
the Lessee delivered pursuant to the Participation Agreement shall prove to
have been inaccurate in any material respect when made, unless such
inaccuracy shall not be material to the recipient at the time when the
notice referred to below shall have been received by the Lessee or any
material adverse impact thereof shall have been cured or corrected
within thirty (30) days after receipt by the Lessee of a written notice
thereof from the Lessor or the Indenture Trustee; provided, however, that
-------- -------
the continuation of any such inaccuracy for such period of thirty (30) days
or such longer period (not to exceed 365 days) after receipt of such notice
shall not constitute a Lease Event of Default so long as (i) any material
adverse impact of such inaccuracy is curable or correctable and (ii) the
Lessee is diligently pursuing the cure or correction of such material
adverse impact; or
(f) any material representation or warranty made by the Guarantor in
the Guaranty or in any Officer's Certificate of the Guarantor delivered
pursuant to the Participation Agreement shall prove to have been
56
<PAGE>
inaccurate in any material respect when made, unless such inaccuracy shall
not be material to the recipient at the time when the notice referred to
below shall have been received by the Guarantor or any material adverse
impact thereof shall have been cured or corrected within thirty (30) days
after receipt by the Lessee of a written notice thereof from the Lessor or
the Indenture Trustee; provided, however, that the continuation of any such
-------- -------
inaccuracy for such period of thirty (30) days or such longer period (not
to exceed 365 days) after receipt of such notice shall not constitute a
Lease Event of Default so long as (i) any material adverse impact of such
inaccuracy is curable or correctable and (ii) the Guarantor is diligently
pursuing the cure or correction of such material adverse impact; or
(g) the Lessee or the Guarantor shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, or shall consent to any such relief
or to the appointment or taking possession by any such official or agency
in an involuntary case or other proceeding commenced against it, or shall
make a general assignment for the benefit of creditors, or shall take any
corporate action to authorize any of the foregoing, or an involuntary case
or other proceeding shall be commenced against the Lessee or the Guarantor
seeking liquidation, reorganization or other relief with respect to it or
its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official or agency of it or any
substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of ninety
(90) days; or
(h) the Guaranty shall cease to be in full force and effect or to be
the valid, binding and enforceable agreement of the Guarantor; or
57
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(i) the Lessee shall fail to maintain (or cause to be maintained) the
insurance required by Section 13;
provided, however, that notwithstanding anything to the contrary contained in
- -------- -------
this Section 15, any failure of the Lessee to perform or observe any covenant or
agreement specified in Section 15(c) shall not constitute a Lease Event of
Default if such failure is caused solely by reason of any event that constitutes
an Event of Loss (or any event which with lapse of time would constitute an
Event of Loss) so long as the Lessee is continuing to comply with all the
applicable terms of Section 12 or, if the Lessee has elected to exercise its
purchase option under Section 6.1(f).
SECTION 16. REMEDIES.
--------
16.1. In General. Upon the occurrence of any Lease Event of Default
----------
and so long as the same shall be continuing, the Lessor, at its option, may
declare this Lease to be in default by written notice to such effect given to
the Lessee (provided that this Lease shall be deemed to have been declared in
default without the necessity of such written notice upon the occurrence of any
Event of Default described in paragraph (g) of Section 15), and at any time
thereafter, provided such Lease Event of Default shall be continuing, the Lessor
may, to the extent permitted by applicable Governmental Rules, exercise one or
more of the following remedies, as the Lessor in its sole discretion shall
elect:
(a) the Lessor, by notice to the Lessee, may rescind or terminate
this Lease;
(b) whether or not this Lease has been terminated, the Lessor may
demand that the Lessee, and upon the written demand of the Lessor, the
Lessee shall, surrender the Undivided Interest promptly to the Lessor in
the manner and condition required by, and otherwise in accordance with the
provisions of, this Lease as if the Undivided Interest were being returned
at the end of the Lease Term and the Lessor shall not be liable for the
reimbursement of the Lessee for any costs and expenses incurred by the
Lessee in connection therewith;
58
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(c) the Lessor may (whether or not the Lessor has taken possession
thereof), subject to the rights of the Operator and the Other Owner under
the Operating Agreement, sell all or any portion of the Undivided Interest
at public or private sale, as the Lessor may determine, free and clear of
any rights of the Lessee with respect thereto (except pursuant to Section
8.2 and the Agency and Support Agreement) and without any duty to account
to the Lessee with respect to such sale or any proceeds with respect
thereto (except to the extent required by paragraph (e) or (f) of this
Section 16.1 if the Lessor shall elect to exercise its rights thereunder),
in which event the Lessee's obligation to pay Basic Rent with respect to
the interest sold accruing after the date of such sale shall be terminated
(except to the extent that Basic Rent is to be included in computations
under paragraph (e) or (f) of this Section 16.1 if the Lessor shall elect
to exercise its rights thereunder);
(d) the Lessor may, subject to the rights of the Operator and the
Other Owner under the Operating Agreement, hold or lease to others all or a
portion of the Undivided Interest, as the Lessor in its sole discretion may
determine, free and clear of any rights of the Lessee with respect thereto
(except pursuant to Section 8.2 and the Agency and Support Agreement) and
without any duty to account to the Lessee with respect to such action or
inaction or for any proceeds with respect to such action or inaction,
except that the Lessee's obligation to pay Basic Rent after the Lessee
shall have been deprived of use of all or a portion of the Undivided
Interest pursuant to this paragraph (d) shall be reduced by the net
proceeds, if any, received by the Lessor from leasing all or a portion of
the Undivided Interest to any Person other than the Lessee for the same
periods or any portion thereof;
(e) whether or not the Lessor shall have exercised or thereafter at
any time shall exercise its rights under paragraph (a), (b), (c) or (d) of
this Section 16.1, the Lessor may demand, by written notice to the Lessee
specifying a payment date which shall be a Stipulated Loss Value
Determination Date not earlier than 10 Business Days after the date of such
notice, that the Lessee pay to the
59
<PAGE>
Lessor, and the Lessee shall pay to the Lessor, on such specified payment
date, as liquidated damages for loss of a bargain and not as a penalty (in
lieu of the Basic Rent accruing on or after such specified payment date),
any unpaid Basic Rent due and owing on or prior to such specified payment
date (but excluding any Basic Rent payable in advance on such payment date)
and any unpaid Supplemental Rent (to whomsoever payable) due and owing on
or prior to the date of such payment and any other Supplemental Rent as to
which there is no dispute and which is agreed to become due and owing
within 30 days of the date of such payment, plus whichever of the following
amounts the Lessor, in its sole discretion, shall specify in such notice
(together with interest on such amount at the Overdue Rate plus 3% from
such specified payment date to the date of actual payment):
(i) an amount equal to the excess, if any, of Stipulated Loss
Value for the Undivided Interest as of such specified payment date
over the Fair Market Sales Value of the Undivided Interest as of such
specified payment date (or the last day of the Basic Lease Term, if
earlier); or
(ii) an amount equal to the excess of (1) the present value as
of such specified payment date of all installments of Basic Rent
payable on or after such specified payment date during the remaining
balance of the Basic Lease Term (or any Renewal Term then in effect),
discounted semiannually at a rate per annum equal to the Debt Rate,
over (2) the present value as of such specified payment date of the
Fair Market Rental Value of the Undivided Interest during the
remaining balance of the Basic Lease Term (or any Renewal Term then in
effect), discounted semiannually at a rate per annum equal to the Debt
Rate; or
(iii) an amount equal to the greatest of (A) Stipulated Loss
Value for the Undivided Interest determined as of such specified
payment date, (B) the discounted Fair Market Rental Value of the
Undivided Interest for the remaining useful life thereof determined
pursuant to subclause (2) of
61
<PAGE>
clause (ii) of this paragraph (e), and (C) the Fair Market Sales Value
determined pursuant to clause (i) of this paragraph (e), and, in this
event, upon full payment by the Lessee of all sums due hereunder, the
Lessor shall, without recourse, representation or warranty (other than
the absence of Owner Participant's Liens and Lessor's Liens) transfer
the Undivided Interest to the Lessee, as is and where is, whereupon
this Lease and the Lessee's obligations hereunder shall terminate. The
Lessor shall, at the Lessee's expense, execute and deliver to the
Lessee a bill of sale or assignment and such other instruments,
documents and opinions as the Lessee may reasonably request to
evidence the valid consummation of such transfer and shall, at the
Lessee's expense, take such actions under Section 6.03 of the
Indenture as the Lessee may reasonably request; or
(iv) an amount equal to the excess, if any, of Stipulated Loss
Value for the Undivided Interest, computed as of such specified
payment date, over the Fair Market Rental Value of the Undivided
Interest during the remaining Basic Lease Term (or any Renewal Term
then in effect), after discounting such Fair Market Rental Value
semiannually to present value as of such specified payment date at a
rate per annum equal to the Debt Rate;
(f) if the Lessor shall have sold all of the Undivided Interest, as a
whole or by a series of sales of portions thereof pursuant to paragraph (c)
of this Section 16.1 or other right of sale, the Lessor, in lieu of exer
cising its rights under paragraph (e) of this Section 16.1, may, if it
shall so elect, demand that the Lessee pay to the Lessor and the Lessee
shall pay to the Lessor on the date of such sale, as liquidated damages for
loss of a bargain and not as a penalty (in lieu of Basic Rent accruing on
or after the next Basic Rent Payment Date following the date of such sale),
any unpaid Basic Rent due and owing on or prior to such next Basic Rent
62
<PAGE>
Payment Date (but excluding any Basic Rent payable in advance on such Basic
Rent Payment Date) and any other Supplemental Rent due and owing on or
prior to such next Basic Rent Payment Date and any other Supplemental Rent
as to which there is no dispute and which is agreed to become due and owing
within 30 days of such Basic Rent Payment Date, plus the amount of any
deficiency between Stipulated Loss Value for the Undivided Interest,
computed as of such next Basic Rent Payment Date, and the proceeds of such
sale, together with interest at the Overdue Rate plus 3% on the amount of
such Rent, from the due date or dates thereof, and on the amount of such
deficiency from the date of such sale, until the date of actual payment; or
(g) the Lessor may exercise any other right or remedy that may be
available to it under applicable law or proceed by appropriate court action
to enforce the terms hereof or to recover damages for the breach hereof.
16.2. Continuing Obligations. No rescission or termination of this
----------------------
Lease, in whole or in part, or repossession of the Undivided Interest or
exercise of any remedy under Section 16.1 shall, except as specifically provided
herein, relieve the Lessee of any of its liabilities and obligations hereunder.
The Lessee shall be liable (i) for all reasonable legal fees and other
reasonable costs and expenses incurred by the Lessor, the Owner Participant,
each Loan Participant or the Indenture Trustee by reason of the occurrence of
any Lease Event of Default or the exercise of the Lessor's remedies with respect
thereto, including all costs and expenses reasonably incurred in placing the
Undivided Interest in the condition required by Section 8.1 and (ii) except as
otherwise provided herein, for any and all other accrued and unpaid Rent due
hereunder before, after or during the exercise of any of the foregoing remedies.
At any sale of the Undivided Interest or any part thereof pursuant to Section
16.1, the Lessor, the Owner Participant, each Loan Participant, or the Indenture
Trustee may bid for and purchase such property.
16.3. Remedies Cumulative. To the extent permitted by applicable law
-------------------
and except as provided herein, no remedy under Section 16.1 is intended to be
exclusive, but each shall be cumulative and in addition to any other remedy
provided under Section 16.1 or otherwise available to the Lessor at law or in
equity. No express or implied waiver by the Lessor of any Lease Default or
Lease Event of Default shall in any way be, or be construed to be, a waiver of
any future or subsequent
63
<PAGE>
Lease Default or Lease Event of Default. The failure or delay of the Lessor in
exercising any rights granted it hereunder upon the occurrence of any of the
contingencies set forth herein shall not constitute a waiver of any such right
upon the continuation or recurrence of any such contingencies or similar
contingencies and any single or partial exercise of any particular right by the
Lessor shall not exhaust the same or constitute a waiver of any other right
provided herein. To the extent permitted by applicable law, the Lessee hereby
waives any rights now or hereafter conferred by statute or otherwise which may
enable it to cancel, quit or surrender this Lease, except as otherwise provided
herein, or which may require the Lessor to sell, lease or otherwise use the
Undivided Interest in mitigation of the Lessor's damages as set forth in Section
16.1 or which may limit or modify any of the Lessor's rights and remedies
provided in Section 16.1.
SECTION 17. NOTICES.
-------
All communications, notices and consents provided for in this Lease
shall be in writing and given in person or by courier or by means of telecopy or
other wire transmission (with provision for assurance of receipt in a manner
typical with respect to communications of that type), or mailed by registered or
certified first class mail, return receipt requested, addressed to the
respective addresses set forth in Schedule 1 to the Participation Agreement, or
in each case at such other address as the Person entitled thereto shall from
time to time designate by notice in writing to the Lessee and the Lessor. All
such communications, notices and consents given in such manner shall be deemed
given when received by (or when proffered to, if receipt is refused) the party
to whom it is addressed.
SECTION 18. RIGHT TO PERFORM FOR LESSEE.
---------------------------
18.1. Lessor's Right to Perform. If the Lessee shall fail to make
-------------------------
any payment to be made by it hereunder or shall fail to perform or comply with
any of its other agree ments contained herein or in any other Operative Document
relating to the Undivided Interest or this Lease, following written notice to
the Lessee, the Lessor may, but shall not be
64
<PAGE>
obligated to, make such payment or perform or comply with such agreement, and
the amount of such payment and the amount of all reasonable costs and expenses
(including, without limitation, reasonable attorneys' and other professionals'
fees and expenses) incurred in connection with such payment or the performance
of or compliance with such agreement, as the case may be, together with interest
thereon at the Overdue Rate, shall be deemed Supplemental Rent for the Undivided
Interest, payable by the Lessee upon demand.
18.2. Performance by Guarantors. Any payment by the Guarantor of any
-------------------------
amount payable by the Lessee under any Operative Document shall constitute, as
between the Lessee and the Lessor, payment of such amount by the Lessee for all
purposes of this Lease (including, without limitation, Section 15) and any
performance by the Guarantor or any sublessee under any sublease permitted
hereunder of any obligation required to be performed by the Lessee under any
Operative Document shall constitute, as between the Lessee and the Lessor,
performance by the Lessee of such obligation for all purposes of this Lease.
SECTION 19. MISCELLANEOUS.
-------------
19.1. Amendments in Writing. Neither this Lease nor any of the terms
---------------------
hereof may be amended, supplemented, waived or modified orally, but only by an
instrument in writing signed by the party against which enforcement of such
change is sought.
19.2. Severability of Provisions. Any provision of this Lease which
--------------------------
may be determined by competent authority to be invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without invalidating or rendering
unenforceable any remaining provisions hereof, and any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto hereby waive any provision of law which
renders any provision hereof invalid or unenforceable in any respect.
19.3. Governing Law. THIS LEASE SHALL BE GOVERNED BY, AND CONSTRUED
-------------
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
65
<PAGE>
NEW YORK, EXCEPT TO THE EXTENT THAT THE LAWS OF ANY OTHER JURISDICTION MAY BE
MANDATORILY APPLICABLE.
19.4. Headings. The division of this Lease into sections, the
--------
provision of a table of contents and the insertion of headings are for
convenience of reference only and shall not affect the construction or
interpretation of this Lease.
19.5. Counterpart Execution. This Lease may be executed in any
---------------------
number of counterparts and by each of the parties hereto on separate
counterparts, all such counterparts together constituting but one and the same
instrument, with the counterpart containing the receipt therefor executed by the
Indenture Trustee on or immediately following the signature page thereof being
deemed the "original executed counterpart" and all other counterparts being
deemed duplicates. For purposes of recordation, Lessor and Lessee agree that
certain information set forth on Schedules 1 through 4 may be omitted from the
counterpart presented for filing.
19.6. Successors and Assigns. This Lease, including the terms and
----------------------
provisions hereof, shall be binding upon the Lessor and the Lessee and their
respective successors and assigns and inure to the benefit of the Lessor and the
Lessee and their respective successors and permitted assigns.
19.7. Investment of Security Funds. Any amounts held by the Lessor
----------------------------
as security hereunder that would be payable to the Lessee upon satisfaction of
any applicable conditions shall be invested and reinvested by the Lessor (or, so
long as the Undivided Interest shall be subject to the Lien of the Indenture,
the Indenture Trustee), from time to time in Permitted Investments at the
written direction of the Lessee. The Lessor shall have no liability for any
loss resulting from any investment required to be made other than by reason of
its willful misconduct or gross negligence. Any net income or gain realized as
a result of any such investment or reinvestment shall be applied by the Lessor
at the same time, on the same conditions and in the same manner as the amounts
in respect of which such income or gain was realized are required to be
distributed in accordance with the provisions hereof, or of any other Operative
Document pursuant to which such amounts were required to be held. The Lessee
shall be responsible for any
66
<PAGE>
net loss realized as a result of any such investment or reinvestment and shall
reimburse the Lessor (or the Indenture Trustee, as the case may be) therefor on
demand. Any Permitted Investment may be sold or otherwise reduced to cash
(without regard to maturity) by the Lessor whenever necessary to make any
application as required by the terms of this Lease or of any applicable
Operative Document.
19.8. Immunities; Satisfaction of Undertakings; Successor Owner
---------------------------------------------------------
Trustee. Except as provided in Section 9.2, all and each of the
- -------
representations, warranties, undertakings and agreements herein made on the part
of the Lessor are made and intended not as personal representations, warranties,
undertakings and agreements by or for the purpose or with the intention of
binding the Lessor personally but are made and intended for the purpose of
binding only the Trust Estate (including the Louisiana Trust Estate), and this
Lease is executed and delivered by the Lessor solely in the exercise of the
powers expressly conferred upon it as trustee under the Trust Agreement; and no
personal liability or responsibility is assumed hereunder by, or at any time
shall be enforceable against, the Lessor or any successor in trust on account of
any representation, warranty, undertaking or agreement hereunder of the Lessor,
either expressed or implied, all such personal liability, if any, being
expressly waived by the Lessee; provided, however, that (a) the Lessee or any
-------- -------
Person claiming by, through or under it, making claim hereunder, may subject to
the terms and conditions hereof, look to the Trust Estate for satisfaction of
such liability or responsibility and (b) the Lessor or its successor in trust,
as applicable, shall be personally liable for its own gross negligence and
willful misconduct and for the matters described in clauses (i) through (v) of
the last sentence of Section 7.1 of the Trust Agreement. Subject to the terms
and conditions hereof, each time a successor Owner Trustee is appointed in
accordance with the terms of the Trust Agreement, such successor Owner Trustee
shall, without further act, succeed to all the rights, duties, immunities and
obligations of its predecessor Owner Trustee hereunder and under the other
Operative Documents, and the predecessor Owner Trustee shall be released from
all further duties and obligations hereunder and under the other Operative
Documents, all without the necessity of any consent or approval by the Lessee
and without in any way altering the terms of this Lease or such other Operative
Documents or the obligations of
67
<PAGE>
the Lessee hereunder or thereunder. The Lessee, at its expense, upon receipt of
written notice of the appointment of a successor Owner Trustee in accordance
with the Operative Documents, promptly shall make such modifications and changes
to reflect such appointment as reasonably shall be requested by such successor
Owner Trustee in such insurance policies, schedules, certificates and other
instruments relating to the Undivided Interest or this Lease or the other
Operative Documents, all in form and substance reasonably satisfactory to such
successor Owner Trustee.
19.9. Performance of Obligations to Indenture Trustee and Holders.
-----------------------------------------------------------
After the Undivided Interest shall no longer be subject to the Lien of the
Indenture, the provisions of this Lease which require or permit any action by,
any consent, approval or authorization of, the furnishing of any document, paper
or information to, or the performance of any other obligation to, the Indenture
Trustee or any Holder shall not be effective, and the Sections hereof containing
such provisions shall be read as though there were no such references to any
such requirements or permissions.
19.10. True Lease. This Lease is intended as and shall constitute an
----------
agreement of lease and nothing herein shall be construed as conveying to the
Lessee any right, title or interest in or to the Undivided Interest other than
as lessee hereunder, it being expressly understood by the parties hereto that
the foregoing does not constitute a covenant, representation or warranty of the
Lessee. This Lease is intended to be a "Finance Lease" under Article 2A of the
Uniform Commercial Code as in effect in the State of New York.
19.11. Survival of Agreements. The representations, warranties,
-----------------------
covenants and indemnities of the parties provided for in the Operative
Documents, and the parties' obligations under any and all thereof, shall survive
the execution and delivery of this Lease, the Investment by the Owner
Participant and the purchase of the Secured Notes by the Loan Participant, any
disposition of any interest of the Owner Participant or the Lessor in the
Production System, and shall be and continue in effect notwithstanding any
investigation made by any of such parties and the fact that compliance with any
of the other terms, provisions or conditions of any of the Operative Documents
shall have been waived.
68
<PAGE>
IN WITNESS WHEREOF, the parties hereto have each caused this Lease to
be duly executed as of the date first above written.
FLEET NATIONAL BANK OF
CONNECTICUT, not in its
individual capacity but
solely as Corporate Owner
Trustee under the Trust
Agreement
__________________________ By: /s/ Michael M. Hopkins
----------------------
Witness Its: Vice President
__________________________
Witness
[CORPORATE SEAL]
MICHAEL M. HOPKINS,
not in his individual capacity
but solely as Individual Owner
Trustee under the Trust
Agreement
__________________________ /s/ Michael M. Hopkins
----------------------
Witness Michael M. Hopkins
__________________________
Witness
MOBIL G.B. 338 FINANCE INC.
__________________________ By: /s/ R.E. Sliwinski
------------------
Witness Its: Vice President and
Treasurer
__________________________
Witness
[LEASE AGREEMENT] [SIGNATURE PAGE]
<PAGE>
[CORPORATE SEAL]
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF ____________________
COUNTY OF ___________________
On this __ day of December, 1995, before me, the undersigned Notary
Public, duly commissioned and qualified in and for the above stated
jurisdiction, personally came and appeared ___________________________
("Appearer"), who being first duly sworn, deposed and said that the Appearer is
the _____________ of FLEET NATIONAL BANK OF CONNECTICUT (the "Bank"), that
Appearer executed and delivered the above and foregoing Lease as the true act
and deed of the Bank as Owner Trustee, and that Appearer was authorized to do so
by the Board of Directors of the Bank.
____________________________________
Signature
Name:
Title:
WITNESSES:
__________________________________
Name:
__________________________________
Name:
____________________________________
NOTARY PUBLIC
Name:
[NOTARIAL SEAL] My Commission Expires:________________
[LEASE AGREEMENT] [SIGNATURE PAGE]
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF _____________________
COUNTY OF ____________________
On this ____ day of December, 1995, before me, the undersigned Notary
Public, duly commissioned, qualified in and for the above stated jurisdiction,
personally came and appeared Michael M. Hopkins ("Appearer"), who being first
duly sworn, deposed and said that the Appearer executed the above and foregoing
Lease as Owner Trustee of Appearer's own free will, for the uses and purposes
set forth therein.
____________________________________
Signature
Michael M. Hopkins
WITNESSES:
__________________________________
Name:
__________________________________
Name:
____________________________________
NOTARY PUBLIC
Name:
[NOTARIAL SEAL] My Commission Expires:_______________
[LEASE AGREEMENT] [SIGNATURE PAGE]
<PAGE>
ACKNOWLEDGMENT
--------------
STATE OF __________________________
COUNTY OF _________________________
On this ____ day of December, 1995, before me, the undersigned Notary
Public, duly commissioned and qualified in and for the above stated
jurisdiction, personally came and appeared __________________ ("Appearer"), who
being first duly sworn, deposed and said that the Appearer is the
_________________ of MOBIL G.B. 388 FINANCE INC. (the "Company"), that Appearer
executed and delivered the above and foregoing Lease as the true act and deed of
the Company, and that Appearer was authorized to do so by the Board of Directors
of the Company.
____________________________________
Signature
Name:
Title:
WITNESSES:
__________________________________
Name:
__________________________________
Name:
____________________________________
NOTARY PUBLIC
Name:
[NOTARIAL SEAL] My Commission Expires:_______________
[LEASE AGREEMENT] [SIGNATURE PAGE]
<PAGE>
Receipt of the original executed counterpart of the foregoing Production
System Lease Agreement is hereby acknowledged on this __ day of December, 1995.
FIRST SECURITY BANK OF UTAH, NATIONAL
ASSOCIATION, as Corporate Indenture
Trustee
By:___________________________
Title:
[LEASE AGREEMENT] [SIGNATURE PAGE]
<PAGE>
SCHEDULE 1
to
Production System Lease
-----------------------
BASIC RENT PERCENTAGES
----------------------
Percentage of
Payment Date Lessor's Cost
------------ -------------
SCH-1-1
<PAGE>
SCHEDULE 1A
to
Production System Lease
-----------------------
BASIC RENT ACCRUAL
------------------
Column A Column B
Arrears Rent Advance Rent
(As a Percentage (As a Percentage
Payment Date of Lessor's Cost) of Lessor's Cost)
- ------------ ----------------- -----------------
SCH-1A-1
<PAGE>
SCHEDULE 2
to
Production System Lease
-----------------------
STIPULATED LOSS VALUE PERCENTAGES
---------------------------------
Percentage of
Date Lessor's Cost/1/
---- -------------
_____________________
/1/ Payment of Stipulated Loss Value shall be adjusted (upward or downward)
to properly reflect the actual timing of the tax consequences to the Owner
Participant.
SCH-2-1
<PAGE>
SCHEDULE 3
to
Production System Lease
-----------------------
TERMINATION VALUE PERCENTAGES
-----------------------------
Percentage of
Date Lessor's Cost
---- -------------
SCH-3-1
<PAGE>
SCHEDULE 4
to
Production System Lease
-----------------------
EARLY BUY-OUT PERCENTAGE
------------------------
Early Buy-Out Date: January 2, 2006
Early Buy-Out Percentage: 58.79686%/1/
________________________
/1/ If the Lessee elects to pay the Early-Buy-Out Purchase Price in
installments in accordance with Section 6.1(g) of the Lease, the installments
shall be in the amounts and payable on the dates set forth below:
Early Buy-Out Installment
Percentage
Early Buy-Out (expressed as a percentage
Installment Dates of Lessor's Cost)
----------------- --------------------------
January 2, 2006 35.41259%
April 16, 2006 5.84607%
June 16, 2006 5.84607%
September 16, 2006 5.84607%
September 16, 2006 5.84607%
SCH-4-1
<PAGE>
SCHEDULE 5
to
Production System Lease
-----------------------
SPECIAL PURCHASE OPTION DATES
-----------------------------
Special Purchase Option Dates: 1. January 2, 2001
2. January 2, 2008
SCH-5-1
<PAGE>
SCHEDULE 6
to
Production System Lease
-----------------------
LESSOR'S COST
-------------
Lessor's Cost: $126,569,018
SCH-6-1
<PAGE>
EXHIBIT A
to
Production System Lease
-----------------------
DESCRIPTION OF PRODUCTION SYSTEM
PIPELINE
- --------
The Pipeline is comprised of the following:
54 MILE 12 3/4" GAS PIPELINE
54 MILE 12 3/4" OIL PIPELINE
RISER CONNECTION
SUBSEA CONNECTIONS
SALES GAS METER SKID/PIG LAUNCHER
12" SALES GAS LINE - P/L
SALES OIL LACT UNIT/PIG LAUNCHER
8" SALES OIL LINE
The Pipeline is installed on the rights-of-way and in the locations
described in paragraphs 1-4 on Exhibit A-1 which is attached hereto and
made a part hereof for all purposes.
PLATFORM
- --------
The vessel ENSERCH GARDEN BANKS, including boats, tackles, mooring system,
drilling rig with associated equipment, and other appurtenances belonging
to the said vessel, of Panamanian nationality, carrying Provisional
Navigation License (Patente) Number 8521-PEXT-5, with call letters H3BT and
the following dimensions; length 107.29 mts; breadth 84.48 mts; and depth
36.58 mts; registered tonnages: gross 14,817; net 4445.
The Platform is located on the following Oil and Gas Lease, Outer
Continental Shelf, Gulf of Mexico, United States of America:
Garden Banks 388
ML OL 77
EXH-A-1
<PAGE>
MMS Serial No.: OCS-G 7486
Effective date of lease: October 1, 1984
Lessor: United States of America
Lessee: Placid Oil Company, et al.
Legal Description:
Block 388, Garden Banks Area, OCS Official Protraction Diagram, NG 15-
2, containing approximately 5,760 acres.
SHALLOW WATER PROCESSING FACILITY
- ---------------------------------
The Shallow Water Processing Facility is comprised of the following:
4 PILE JACKET
DECK
CRANE
QUARTERS BUILDING
MISCELLANEOUS PUMPS
FLASH GAS COMPRESSOR
WATER TREATMENT SYSTEM
MOTOR CONTROL CENTER BLDG/CONTROL
INSTRUMENTATION
SUMP TANKS
VENT SNUFFING UNIT
FLAME ARRESTORS
LIFE SUPPORT
FIRE FIGHTING EQUIPMENT
OIL TREATING
LOW PRESSURE OIL SEPARATOR
LACT UNIT
VAPOR RECOVERY UNIT
GLYCOL SYSTEM
HIGH/LOW PRESSURE RELIEF SCRUBBER
HEAT MEDIUM SYSTEM
PIPELINE SLUG CATCHER
PIPELINE PIG RECEIVER/LAUNCH
FIREWATER PUMP
PIPELINE PUMPS
INSTRUMENT UTILITY AIR COMPRESSOR
GAS COMPRESSOR
TURBINE GENERATOR SKID
LOW PRESSURE CRUDE OIL SURGE TANK
FUEL GAS FILTER SKID
EXH-A-2
<PAGE>
STANDBY DIESEL GENERATOR
SHOP BUILDING
HIGH PRESSURE WASHDOWN UNIT
The Shallow Water Processing Facility is installed on the right-of-way and
in the location identified in paragraph 5 of Exhibit A-1 which is attached
hereto and made a part hereof for all purposes.
TEMPLATE
- --------
The Template is comprised of the following:
24 SLOT SUBSEA DRILLING AND PRODUCTION TEMPLATE AND PIPING
RISER BASE
EXPORT PIPE CONNECTIONS
PRODUCTION CONTROLS
PIG LAUNCHER
SURFACE CONTROLS
SURFACE & SUBSEA DISTRIBUTION
ELECTRICAL POWER SUPPLY
TEST EQUIPMENT
HYDRAULIC POWER SUPPLY-3
The Template is located at the same location as the Platform.
PRODUCTION RISER
- ----------------
The Production Riser System is identified as a "Cooper-Cameron Free-standing
Production Riser". It is comprised of two (2) basic parts: (1) a free-standing
riser and (2) flexible conduits. The free-standing riser is a package of fifty
(50) hard pipelines (forty-eight (48) three and one-half inch (3 1/2") diameter
pipelines--two (2) per well slot for the twenty-four (24) well slots, one twelve
inch (12") diameter pipeline, and one eight inch (8") diameter pipeline) and two
(2) control umbilicals, surrounding a forty-two inch (42") diameter structural
center column measuring +/- two thousand feet (2000') in length; this column is
attached at its base to the Subsea Template and terminates at a water depth of
+/- one hundred eighty feet (180') below the water surface. The flexible
conduits begin at the top of the free-standing riser where the riser's fifty
(50) hard pipelines connect to an
EXH-A-3
<PAGE>
equal number of continuous flexible pipelines and the two (2) control umbilicals
continue, all of which then extend for a length of +/- three hundred (300')
until they terminate at connections on the pontoons (subsea porches) of the
PLATFORM.
The Production Riser is located at the same location as the platform.
EXH-A-4
<PAGE>
EXHIBIT A-1
to
Production System Lease
-----------------------
The Components of the Pipeline System are located as follows:
1. 12 3/4" Gas Pipeline: 12" Gas Pipeline Right-of-Way extending from
--------------------
Platform B (Shallow Water Facility), Block 315, Eugene Island Area to Block
388, Garden Banks Area. Approved by the Minerals Management Service, U.S.
Department of the Interior, May 19, 1994, and assigned Right-of-Way No.
OCS-G 14290, Segment No. 10229.
2. 12 3/4" Oil Pipeline: 12" Oil Pipeline Right-of-Way extending from
--------------------
Platform B (Shallow Water Facility) Block 315, Eugene Island Area to Block
388, Garden Banks Area. Approved by the Minerals Management Service, U.S.
Department of the Interior, May 19, 1994, and assigned Right-of-Way No.
OCS-G 14288, Segment No. 10227.
3. 12 3/4" Gas Export Pipeline: Plat and legal description of 12" Gas Export
---------------------------
Pipeline Right-of-Way extending from Platform B (Shallow Water Facility),
Block 315, Eugene Island Area to Sea Robin Pipeline Company's 24 inch
pipeline (OCS-G 19071). Approved by the Minerals Management Service, U.S.
Department of the Interior, April 29, 1994, and assigned Right-of-Way No.
OCS-G 14678, Segment No. 10267.
4. 8 5/8" Oil Export Pipeline: Plat and legal description of 8 3/4" Oil
-------------------------
Export Pipeline Right-of-Way extending from Platform B (Shallow Water
Facility), Block 315, Eugene Island Area to Texaco Pipeline Inc.'s 20 inch
pipeline (OCS-G 3303). Approved by the Minerals Management Service,
U.S.Department of the Interior, April 21, 1994, and assigned Right-of-Way
No. OCS-G 14287, Segment No. 10226.
The Components of the Shallow Water Processing Facility are located as follows:
5. Approval Letter dated April 22, 1994, from the Minerals Management Service,
U.S. Department of the Interior to EP Operating Limited Partnership
amending Right-of-Way OCS-G 14287, Segment No. 10226, to include Platform
B-(Shallow
EXH-A-1-1
<PAGE>
Water Facility) located in Block 315, Eugene Island Area, Outer
Continental Shelf, Gulf of Mexico.
EXH-A-1-2
<PAGE>
EXHIBIT B
to
Production System Lease
-----------------------
DESCRIPTION OF FEDERAL LEASES
1. Garden Banks 344
ML OL 83
MMS Serial No.: OCS-G 8232
Effective date of lease: October 1, 1985
Lessor: United States of America
Lessee: Placid Oil Company, et al.
Legal Description:
Block 344, Garden Banks Area, OCS Official Protraction Diagram, NG 15-2,
containing approximately 5,760 acres.
2. Garden Banks 345
ML OL 157
MMS Serial No.: OCS-G 11496
Effective date of lease: October 1, 1989
Lessor: United States of America
Lessee: Shell Offshore, Inc.
Legal Description:
Block 345, Garden Banks Area, OCS Official Protraction Diagram, NG 15-2,
containing approximately 5,760 acres.
3. Garden Banks 386
ML OL 109
MMS Serial No.: OCS-G 10350
Effective date of lease: October 1, 1988
Lessor: United States of America
Lessee: Exxon Corporation, et al.
Legal Description:
Block 386, Garden Banks Area, OCS Official Protraction Diagram, NG 15-2,
containing approximately 5,760 acres.
EXH-B-1
<PAGE>
4. Garden Banks 387
ML OL 76
MMS Serial No.: OCS-G 7485
Effective date of lease: October 1, 1984
Lessor: United States of America
Lessee: Placid Oil Company, et al.
Legal Description:
Block 387, Garden Banks Area, OCS Official Protraction Diagram, NG 15-2,
containing approximately 5,760 acres.
5. Garden Banks 388
ML OL 77
MMS Serial No.: OCS-G 7486
Effective date of lease: October 1, 1984
Lessor: United States of America
Lessee: Placid Oil Company, et al.
Legal Description:
Block 388, Garden Banks Area, OCS Official Protraction Diagram, NG 15-2,
containing approximately 5,760 acres.
6. Garden Banks 389
ML OL 158
MMS Serial No.: OCS-G 11506
Effective date of lease: October 1, 1989
Lessor: United States of America
Lessee: Shell Offshore, Inc.
Legal Description:
Block 389, Garden Banks Area, OCS Official Protraction Diagram, NG 15-2,
containing approximately 5,760 acres.
EXH-B-2
<PAGE>
EXHIBIT 4.9
[CONFORMED COPY]
____________________________________________________________
FIRST PRIORITY NAVAL MORTGAGE
In the outstanding amount of $92,185,000
FLEET NATIONAL BANK OF CONNECTICUT
not in its individual capacity
but solely as Owner Trustee
under a Trust Agreement
dated as of December 12, 1995,
for the benefit of the Owner Participant
named therein,
Shipowner and Mortgagor
777 Main Street,
Hartford, Connecticut 06115
to
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION
not in its individual capacity
but solely as Indenture Trustee
under a Trust Indenture
dated as of December 12, 1995,
Mortgagee
79 South Main Street
Salt Lake City, Utah 84111
Dated as of December 12, 1995
__________________________________
Covering an Undivided 40% Interest the Vessel
listed in the
GRANTING CLAUSE
__________________________________
____________________________________________________________
<PAGE>
FIRST PRIORITY NAVAL MORTGAGE
THIS FIRST PRIORITY NAVAL MORTGAGE, effective as of December 12, 1995 by
FLEET NATIONAL BANK OF CONNECTICUT, a National Banking Association formed under
the laws of the United States of America, not in its individual capacity, but
solely as Owner Trustee under a Trust Agreement dated as of December 12, 1995,
for the benefit of the Owner Participant named therein (the "Shipowner" and
"Mortgagor" and "Owner Trustee"), located at 777 Main Street, Hartford,
Connecticut 06115, to the FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION (the
"Mortgagee"), a national banking association formed under the laws of the United
States of America, not in its individual capacity but solely as Indenture
Trustee under the Indenture hereinafter referred to, located at 79 South Main
Street, Salt Lake City, Utah 84111.
WHEREAS, the Shipowner is the sole owner of an undivided 40% interest (the
"Undivided Interest") in the Panamanian-flag vessel described in the Granting
Clause of this Mortgage, registered under the laws of the Republic of Panama in
the name of the Shipowner (40%) and Enserch Exploration, Inc. (60%) (said vessel
herein referred to as the "Vessel");
WHEREAS, the Shipowner has, in connection with the issuance of its
obligations in the aggregate principal amount of $92,185,000 and pursuant to the
terms and provisions of a Trust Indenture dated December 12, 1995, between the
Shipowner and the Mortgagee, as Indenture Trustee (herein as it may be amended
or supplemented, called the "Indenture"), issued and delivered to the Indenture
Trustee its secured notes designated Series 1995 A-1 Secured Notes, Series 1995
A-2 Secured Notes, Series 1995 A-3 Secured Notes, Series 1995 A-4 Secured Notes,
Series 1995 A-5 Secured Notes, and Series 1995 A-6 Secured Notes (said secured
notes being herein collectively called the "Notes"), in the aggregate principal
amounts and bearing interest at the rates set forth in Schedule A attached
hereto, and payable, in the case of the Series 1995 A-1 Secured Notes, Series
1995 A-2 Secured Notes, Series 1995 A-3 Secured Notes, Series 1995 A-4 Secured
Notes and the Series 1995 A-5 Secured Notes, on the Maturity Dates set forth in
Schedule A attached hereto and, in the case of
2
<PAGE>
the Series 1995 A-6 Secured Notes, on the dates set forth in Schedule B attached
hereto;
WHEREAS, the Shipowner has agreed to execute and deliver this First
Priority Naval Mortgage to the Mortgagee for the purpose of securing the
Shipowner's obligations to the Mortgagee in respect of the Notes and the payment
of the principal of and interest on the Notes in accordance with their
respective terms, and the terms of the Indenture and this Mortgage (this
Mortgage, as the same may hereafter be amended or supplemented in accordance
with the terms hereof, herein called the "Mortgage").
NOW, THEREFORE, THIS MORTGAGE WITNESSETH:
That, in consideration of the premises and of the additional covenants
herein contained and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and in order to secure the payment of
the above-mentioned interest on and principal of the Notes and all other sums
that may be secured by the Mortgage and the Indenture, and to secure the due
performance and observance of all the agreements and covenants in the Notes, the
Indenture and herein contained (collectively, the "Secured Obligations"), the
Shipowner has granted, conveyed, mortgaged, pledged, confirmed, assigned,
transferred, and set over, and by these presents does grant, convey, mortgage,
pledge, confirm, assign, transfer, and set over unto the Mortgagee, a first
priority security interest in, and all of the Shipowner's rights, title and
interest in the Undivided Interest in the Vessel and other property described as
follows now owned or hereinafter acquired (the "Collateral"):
Name: ENSERCH GARDEN BANKS
Provisional Patente No: 8521-PEXT-7
Kind of vessel: Oil Drilling and Production Platform
Kind of hull: steel
Number of bridges: N/A
Number of decks: N/A
3
<PAGE>
Number of chimneys: N/A
Gross tonnage: 14,817 gross tons
Net tonnage: 4,445 net tons
Length: 107.29 meters
Breadth: 84.48 meters
Depth: 36.58 meters
Call letters: H3BT
which Vessel has been duly provisionally registered in the Republic of Panama
and is more fully described in its Provisional Patente of Navigation, together
with
(i) all of its boilers, engines, machinery, masts, spars, rigging, boats,
anchors, cables, chains, tackle, tools, pumps and pumping equipment,
apparel, furniture, fittings and equipment, spare parts, and all other
appurtenances to said Vessel appertaining or belonging, whether now
owned or hereafter acquired whether on board or not and all additions,
improvements, renewals, and replacements hereafter made in or to said
Vessel or said appurtenances,
(ii) the Lease (as defined in the Indenture) and all payments received
thereunder or under any sublease and all rights to enforce payments
thereunder, and
(iii) to the extent not otherwise included, all proceeds of all or any of
the foregoing.
It is expressly agreed that anything herein contained to the contrary
notwithstanding, the Mortgagor shall remain liable under any lease and any other
document or instrument to which it is a party all in accordance with and
pursuant to the terms and provisions thereof, and the Mortgagee shall have no
obligation or liability under any such lease or any other document or instrument
included in the Collateral by reason of or arising out of this Mortgage, nor
shall the Mortgagee be
4
<PAGE>
required or obligated in any manner to perform or fulfill any obligations of the
Mortgagor under or pursuant to any lease or any other document or instrument
included in the Collateral except as herein expressly provided, to make any
payment, or to make any inquiry as to the nature or sufficiency of any payment
received by it, or present or file any claim, or take any action to collect or
enforce the payment of any amounts which may have been assigned to it or to
which it may be entitled at any time or times.
TO HAVE AND TO HOLD, all and singular, the above mortgaged and described
property unto the Mortgagee and its successors and assigns, to its own and its
successors' and assigns' own use, benefit, and behoof forever upon the terms
herein set forth for the enforcement of the payment of Ninety Two Million One
Hundred Eighty Five Thousand Dollars ($92,185,000) and interest, expenses and
fees in accordance with the terms of the Notes and the Indenture and to secure
the performance and observance of, and compliance with all agreements,
covenants, terms and conditions in this Mortgage contained.
PROVIDED, HOWEVER, and these presents are upon the condition that, if the
above-mentioned principal of and interest on the Notes are paid or satisfied in
accordance with the terms thereof, the Indenture and this Mortgage, and all
other obligations and liabilities that may be secured by the Indenture and this
Mortgage are paid in accordance with their terms, then this Mortgage and the
estate and rights hereunder shall cease, determine, and become null and void,
otherwise the same shall be and remain in full force and effect.
The Shipowner hereby agrees with the Mortgagee that the Undivided Interest
in the Vessel now or at any time subject to the lien of this Mortgage is to be
held by the Mortgagee subject to the further agreements and conditions
hereinafter set forth.
5
<PAGE>
ARTICLE FIRST
Representations, Warranties and Covenants of the Mortgagor
----------------------------------------------------------
The provisions of the Indenture and the Notes are incorporated herein by
reference with the same force and effect as though set forth at length in this
Mortgage.
Section 1. The execution and delivery of this Mortgage and the execution
and delivery of the Notes have each been duly authorized by the Shipowner and
are not in contravention of any indenture or undertaking to which the Shipowner
is a party or by which it is bound.
Section 2. The Mortgagor shall not take any action to prevent the due
recordation of the Mortgage in accordance with the provisions of Panamanian law,
and shall not otherwise take any action to prevent compliance with and
satisfaction of all of the provisions of said law, in order to establish and
maintain this Mortgage as a first priority mortgage lien thereunder upon the
Vessel and upon all renewals, replacements and improvements made in or to the
same for the amount indicated in Article Third hereof, as the same may be
amended, modified or increased from time to time. The Mortgagor will do all
such other acts and execute all such instructions, deeds, conveyances, mortgages
and assurances as the Mortgagee shall reasonably require in order to subject and
maintain the Vessel to the lien of the Mortgage.
Section 3. In the event that this Mortgage or the Secured Obligations, or
any provision hereof or thereof, shall be deemed invalidated in whole or in part
by reason of any present or future laws, or any decision of any authoritative
court, or if the documents at any time held by the Mortgagee shall be deemed by
the Mortgagee for any reason insufficient to carry out the rights and powers
granted to the Mortgagee herein or the true intent and spirit of this Mortgage
or the Secured Obligations, then, from time to time, the Mortgagor will do,
execute, acknowledge, and deliver or cause to be done, executed, acknowledged,
and delivered such other and further assurances and documents as the Mortgagee
may reasonably request to more effectually subject the Vessel to the lien of
this Mortgage or to the terms and provisions of this Mortgage, including the
payment of all sums required to
6
<PAGE>
be paid by the Mortgagor under the Secured Obligations hereby secured or to
enable this Mortgage to enjoy continuously the status of a First Priority Naval
Mortgage.
Section 4. The Mortgagor will not take any action to transfer or change
the flag or port of documentation of the Vessel without having obtained the
prior written consent of the Mortgagee, and any such written consent to any one
transfer or change of flag or port of documentation shall not be construed to be
a waiver of this provision with respect to any subsequent proposed transfer or
change of flag or port of documentation.
Section 5. The Mortgagor hereby constitutes and appoints the Mortgagee its
true and lawful attorney, for it and in its name, place and stead, from and
after a default under the Indenture or hereunder, to collect, receipt for,
acknowledge the payment of, sue for and execute any documentation or writing
that may be necessary or required in order to obtain payment of said
compensation, purchase price, reimbursement or award, giving and granting to
said attorney full power and authority to do an perform every act and thing
whatsoever requisite or necessary to be done in or about the premises as fully
and to all intents and purposes as it, the Mortgagor, might or could do if
personally present at the doing thereof, with full power of substitution,
hereby, ratifying and confirming all that its said attorney or substitute shall
do or cause to be done by virtue hereof, and the Mortgagor shall promptly
execute and deliver to the Mortgagee such documents and shall promptly do and
perform such acts as in the opinion of the Mortgagee may be necessary or useful
to facilitate or expedite the collection by the Mortgagee of such compensation,
purchase price, reimbursement or award.
ARTICLE SECOND
Defaults and Remedies
---------------------
Section 1. A default pursuant to the provisions of the Indenture shall
constitute a default hereunder and shall give the Mortgagee the rights and
remedies provided in the Indenture and, so long as the Indenture Trustee has
complied with all of its obligations under the Indenture, including those set
forth in Section 5.04 of the Indenture, the rights
7
<PAGE>
and remedies established by the laws of the Republic of Panama. The default
provisions of the Indenture, including those set forth in Section 5.02 of the
Indenture are set forth in Schedule C attached hereto.
Section 2. The Shipowner agrees that, in the event of a default hereunder
and in the event that the Mortgagee brings legal action to enforce its rights
hereunder in a court under United States jurisdiction, the Mortgage may be
introduced as conclusive evidence of sufficient compliance with the applicable
provisions of 46 U.S.C. (S)(S) 31301(6)(B), 31325, and 31326 and the mortgage
laws of the Republic of Panama (or any amendment thereto) without further proof.
Section 3. This instrument is executed as and shall constitute an
instrument supplemental to the Indenture and shall be construed in connection
with, and as a part of, the Indenture.
Section 4. No provision of this Mortgage or of the Indenture shall be
deemed to constitute a waiver by the Mortgagee of the preferred status of the
Mortgage given by 46 U.S.C. (S) 31301(6)(B), or any other provision of U.S. or
foreign law, and any provision of this Mortgage or of the Indenture which would
otherwise constitute such a waiver shall to such extent be of no force and
effect.
Section 5. In case the Mortgagee shall have proceeded to enforce any right
under this Mortgage and such proceedings shall have been discontinued or
abandoned for any reason or shall have been determined adversely to the
Mortgagee, then and in every such case the Mortgagor and the Mortgagee shall be
restored to their former positions and rights hereunder with respect to the
property subject or intended to be subject to this Mortgage, and all rights of
the Mortgagee shall continue as if no such proceedings had been taken.
ARTICLE THIRD
Recording
---------
The total principal amount secured by this Mortgage is Ninety Two Million
One Hundred Eighty Five Thousand Dollars ($92,185,000) together with interest at
the rates set forth in
8
<PAGE>
the Notes, premium, expenses, fees, and performance of mortgage covenants. The
date of maturity is July 2, 2008. The interest rates, aggregate principal
amounts and Maturity Dates of each series of Notes (other than the Maturity
Dates of the Series 1995 A-6 Secured Notes) are set forth in Schedule A attached
hereto, and the Maturity Dates of the Series 1995 A-6 Secured Notes are set
forth in Schedule B attached hereto.
ARTICLE FOURTH
Miscellaneous Provisions
------------------------
Section 1. This Mortgage may be executed in any number of counterparts,
all in English, and all such counterparts executed and delivered each as an
original shall constitute but one and the same instrument and the English
versions shall control, notwithstanding any translation filed in connection with
the registration of the Mortgage constituted pursuant hereto.
Section 2. All the covenants, promises, stipulations, and agreements of
the Shipowner in this Mortgage shall bind the Shipowner and its successors and
assigns and shall inure to the benefit of the Mortgagee and its successors and
assigns, and all the covenants, promises, stipulations, and agreements of the
Mortgagee in this Mortgage contained herein shall bind the Mortgagee and its
successors and assigns and shall inure to the benefit of the Shipowner and its
successors and assigns, whether so expressed or not.
Section 3. Any term used herein which is defined in the Indenture and
which is not specifically defined herein shall have the meaning specified in the
Indenture unless the context otherwise requires.
Section 4. The terms "U.S. Currency" and "Dollars" or the symbol "$" as
used herein shall mean dollars in any coin or currency of the United States of
America which, at the time of payment, shall be legal tender for public and
private debts under the laws of the United States of America.
Section 5. Wherever and whenever herein any right, power or authority is
granted or given to the Mortgagee, such right,
9
<PAGE>
power or authority may be exercised in all cases by the Mortgagee or such agent
or agents as it may appoint, and the act or acts of such agent or agents when
taken shall constitute the act of the Mortgagee hereunder.
Section 6. None of the terms and provisions of this Mortgage may be
waived, altered, amended, modified or supplemented except by an instrument in
writing executed by the Mortgagor and the Mortgagee.
Section 7. THIS MORTGAGE AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEIR SUCCESSORS AND ASSIGNS SHALL BE GOVERNED BY THE LAWS OF THE
REPUBLIC OF PANAMA AND, TO THE EXTENT APPLICABLE, THE LAWS OF THE UNITED STATES
OF AMERICA, AND ANY OF THE INDIVIDUAL STATES THEREIN FOR PURPOSES OF ENFORCING
THIS MORTGAGE BEFORE COURTS IN SUCH JURISDICTIONS.
Section 8. If this Mortgage or any provisions of this Mortgage or the
application thereof to any person or circumstances or portion of the Secured
Obligations shall be invalid or unenforceable to any extent, the remainder of
this Mortgage and the application of such provision to other persons or
circumstances or portion of the Secured Obligations shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
Section 9. In the event of a conflict between the provisions hereof and of
the Indenture, the provisions of the Indenture shall govern; provided, that
--------
nothing in this Section 9 is intended to limit the scope of the Granting Clause
herein.
ARTICLE FIFTH
Defeasance
----------
This Mortgage shall terminate, and this Mortgage shall be of no further
force or effect, upon the payment in full of the principal of and interest on
and all other amounts due and payable under all Notes and all other amounts due
and payable to any holder of the Notes or the Mortgagee hereunder or under any
other Operative Document (as defined in the Indenture). The foregoing shall not
impair any rights of a holder of the
10
<PAGE>
Notes in respect of indemnification or other claims which may be available
against any party under the terms of any other Operative Document. Except as
otherwise provided in the preceding sentence, this Mortgage shall continue in
full force and effect in accordance with the terms hereof.
11
<PAGE>
IN WITNESS WHEREOF, this instrument has been executed on the date indicated
below effective as of the day and year first above written.
FLEET NATIONAL BANK OF CONNECTICUT,
not in its individual capacity but solely as
Owner Trustee under a Trust Agreement dated
as of December 12, 1995, for the benefit of
the Owner Participant named therein, as
Shipowner
By:/s/ Michael M. Hopkins
----------------------
Title: Vice President
[SIGNATURE PAGE]
[SHIP MORTGAGE]
12
<PAGE>
The undersigned, the Mortgagee described above, hereby accepts the
foregoing First Priority Naval Mortgage and the first priority naval mortgage
granted hereby.
FIRST SECURITY BANK OF UTAH, NATIONAL
ASSOCIATION,
not in its individual capacity but solely as
Indenture Trustee under a Trust Indenture
dated as of December 12, 1995, as Mortgagee
By:/s/ Val T. Orton
----------------
Title: Vice President
[SIGNATURE PAGE]
[SHIP MORTGAGE]
13
<PAGE>
NOTARIAL CERTIFICATION TO MORTGAGE
----------------------------------
I, _____________, Notary Public, duly authorized, admitted, and sworn,
practicing in the State of New York, do hereby certify that:
1. Michael M. Hopkins, who has executed the Mortgage attached hereto of
an undivided 40% interest in the ENSERCH GARDEN BANKS (the "Vessel")
on behalf of Fleet National Bank of Connecticut, not in its individual
capacity, but solely as Owner Trustee under a Trust Agreement dated as
of December 12, 1995, for the benefit of the Owner Participant named
therein (the "Mortgagor"), is personally known to me and that his
signature is authentic;
2. Sufficient evidence has been presented to me to the effect that:
a) The Mortgagor at the time of execution of the Mortgage was the
sole legal owner of an undivided 40% interest in the Vessel with
the right to transfer and mortgage the same.
b) That Michael M. Hopkins was duly authorized to execute the
Mortgage on said interest in the Vessel on behalf of the
Mortgagor.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my seal
of office this 11th day of December, 1995.
___________________
Notary Public
My commission expires: _________________
AUTHENTICATION BY THE PANAMANIAN CONSUL:
[SIGNATURE PAGE]
[SHIP MORTGAGE]
14
<PAGE>
NOTARIAL CERTIFICATION TO ACCEPTANCE OF MORTGAGE
------------------------------------------------
I, _____________, Notary Public, duly authorized, admitted, and sworn,
practicing in the State of New York, do hereby certify that:
1. Val T. Orton, who has accepted the Mortgage of an undivided 40%
interest in the ENSERCH GARDEN BANKS (the "Vessel") on behalf of First
Security Bank of Utah, National Association, not in its individual
capacity, but solely as Indenture Trustee under a Trust Indenture
dated as of December 12, 1995 (the "Mortgagee"), is personally known
to me and his signature is authentic;
2. Sufficient evidence has been presented to me to the effect that Val T.
Orton was duly authorized to execute the Acceptance of Mortgage of
said interest in the Vessel on behalf of the Mortgagee.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my seal
of office this 11th day of December, 1995.
___________________
Notary Public
My commission expires: __________________
AUTHENTICATION BY THE PANAMANIAN CONSUL:
[SIGNATURE PAGE]
[SHIP MORTGAGE]
15
<PAGE>
Schedule A
Maturity Dates, Interest Rates,
and Aggregate Principal Amounts
of Each Series of Notes
(other than the Series 1995 A-6 Notes)
<TABLE>
<CAPTION>
================================================================
Maturity Aggregate Interest Premium
Date Principal Rate Per Termination
----
Amount Annum Date
------ ----- ----
- ----------------------------------------------------------------
<S> <C> <C> <C> <C>
Series 1995 January $ 4,917,000 5.52% January 2,
A-1 Secured 2, 1997 1997
Note
- ----------------------------------------------------------------
Series 1995 January $ 5,173,000 5.57% January 2,
A-2 Secured 2, 1998 1998
Note
- ----------------------------------------------------------------
Series 1995 January $ 5,462,000 5.65% January 2,
A-3 Secured 2, 1999 1999
Note
- ----------------------------------------------------------------
Series 1995 January $ 5,770,000 5.74% January 2,
A-4 Secured 2, 2000 2000
Note
- ----------------------------------------------------------------
Series 1995 January $ 6,101,000 5.79% January 2,
A-5 Secured 2, 2001 2001
Note
- ----------------------------------------------------------------
Series 1995 July 2, $64,762,000 6.15% March 23,
A-6 Secured 2008 2005
Note
================================================================
</TABLE>
16
<PAGE>
Schedule B
Dates in Which Payments
are Due Under the Series 1995 A-6 Notes
Installment Payment Dates and
Installment Payment Percentages
-------------------------------
SERIES 1995 A-6 SECURED NOTE
<TABLE>
<CAPTION>
=========================================
Installment Installment
Payment Date Payment
------------
Percentage
of Remaining
Principal Amount
----------------
<S> <C>
-----------------------------------------
January 2, 2002 9.97876069%
-----------------------------------------
January 2, 2003 15.73086278%
-----------------------------------------
January 2, 2004 19.81545266%
-----------------------------------------
January 2, 2005 26.23211535%
-----------------------------------------
January 2, 2006 12.07543975%
-----------------------------------------
July 2, 2006 36.56760162%
-----------------------------------------
July 2, 2007 74.80050461%
-----------------------------------------
July 2, 2008 100.00000000%
=========================================
</TABLE>
17
<PAGE>
Schedule C
Indenture Defaults
"Indenture Event of Default" means any of the following events
--------------------------
(whatever the reason for such Indenture Event of Default and whether such event
shall be voluntary or involuntary or come about or be effected by operation of
law or pursuant to or in compliance with any judgment, decree or order of any
court or any Governmental Rule):
a. any Lease Event of Default (other than a Lease Event of
Default arising from the failure of the Lessee to make an Excepted
Payment) shall have occurred and be continuing; or
b. any payment of principal of, Make-Whole Amount, if any, or
interest on any Secured Note shall not have been made when due and
such default shall continue unremedied for ten (10) Business Days
after the same shall have become due and payable; or
c. the failure by either of the Owner Participant or the Owner
Trustee, as the case may be, to perform or observe in any material
respect any covenant or agreement to be performed or observed by it
under this Indenture or any other Operative Document (other than the
Tax Indemnity Agreement and other than Section 11.1(h) of the
Participation Agreement), (i) which failure shall continue for a
period of thirty (30) days after receipt by the Owner Participant or
the Owner Trustee of a notice from the Indenture Trustee or any holder
of a Secured Note specifying such failure and requiring it be remedied
or (ii) which failure, if such failure is remediable and the Owner
Participant or the Owner Trustee is diligently attempting to remedy
such failure, shall continue for a period of 180 days after receipt of
notice thereof; or
18
<PAGE>
d. any representation or warranty made by either of the Owner
Participant or the Owner Trustee pursuant to Section 6 or 8, as the
case may be, of the Participation Agreement shall prove to have been
inaccurate in any material respect when made, unless such inaccurate
representation or warranty shall not be material to the recipient at
the time when the notice referred to below shall have been received by
the Owner Participant or the Owner Trustee or any material adverse
impact thereof shall have been cured within thirty (30) days after
receipt by the Owner Participant or the Owner Trustee of a written
notice thereof from the Indenture Trustee; provided that if such
--------
material adverse impact is remediable and the Owner Participant or
Owner Trustee is diligently attempting to remedy such impact, the
Owner Participant or Owner Trustee shall have 90 days after receipt of
written notice thereof from the Indenture Trustee to remedy any such
material adverse impact; or
e. either of the Owner Participant or the Owner Trustee shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of its or any
substantial part of its property, or shall consent to any such relief
or to the appointment or taking possession by any such official or
agency in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors,
or shall take any corporate action to authorize any of the foregoing,
or an involuntary case or other proceeding shall be commenced against
either of the Owner Participant or the Owner Trustee seeking
liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official or agency of its or
any substantial part
C-2
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of its part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of
ninety (90) days, or if, under the provisions of any law providing for
reorganization or winding-up of corporations which may apply to the
Owner Trustee or the Owner Participant, any court of competent
jurisdiction shall assume jurisdiction, custody or control of the
Indenture Estate, the Owner Trustee or the Owner Participant or of any
substantial part of its property and such jurisdiction, custody or
control shall remain in force unrelinquished, unstayed or unterminated
for a period of ninety (90) days.
C-3
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EXHIBIT 4.10
[EXECUTION COPY]
MOBIL CORPORATION
MOBIL G. B. 388 FINANCE INC.
PASS THROUGH TRUST CERTIFICATES, SERIES 1995-A
PLACEMENT AGREEMENT
December 6, 1995
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
Mobil Corporation, a Delaware corporation ("Mobil") and Mobil G. B.
388 Finance Inc., a Delaware corporation ("MGB"), in connection with the
financing of the debt portion of a leveraged lease transaction in which MGB is
the lessee, propose that First Security Bank of Utah, national association, as
trustee (the "Pass Through Trustee") of the Mobil Corporation 1995-A Pass
Through Trusts (the "Pass Through Trusts") established pursuant to the Pass
Through Trust Agreements each dated as of December 12, 1995 (the "Pass Through
Trust Agreements") among the Pass Through Trustee, Mobil and MGB, issue and sell
$92,185,000 aggregate principal amount of Pass Through Certificates, Series
1995-A (the "Certificates"), consisting of the aggregate principal amount of
Certificates with the interest rates and final distribution dates set forth on
Schedule A hereto, to you (the "Manager").
All capitalized terms used in this Agreement and not otherwise defined
herein shall have the meanings specified in the Pass Through Trust Agreements,
or, if not so defined therein, the meanings specified in the Indenture referred
to in the Pass Through Trust Agreements.
The Certificates will be offered and sold to you without being
registered under the Securities Act of 1933, as amended (the "Securities Act"),
in reliance on the exemption therefrom provided by Section 4(2) of the
Securities Act. Mobil has delivered to you a preliminary offering memorandum,
dated December 1, 1995 (such preliminary offering memorandum, including the
Incorporated
<PAGE>
Documents (as hereinafter defined) being herein called the "preliminary offering
memorandum") and an offering memorandum dated December 6, 1995 (such offering
memorandum, including the Incorporated Documents, being herein called the
"Offering Memorandum") relating to the offering of Certificates which consists
of, among other things, a description of the terms of the Certificates and of
the offering. The preliminary offering memorandum and the Offering Memorandum
will incorporate by reference therein the following documents filed by Mobil
with the Securities and Exchange Commission (the "Commission") pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"): Mobil's Annual Report on Form 10-K for the year ended December
31, 1994, Mobil's Quarterly Reports on Form 10-Q dated March 31, 1995, June 30,
1995 and September 30, 1995, and Mobil's Current Reports on Form 8-K filed on
January 5, 1995, January 20, 1995, March 20, 1995, April 24, 1995, May 1, 1995,
June 1, 1995, July 6, 1995, July 24, 1995, August 10, 1995, September 1, 1995,
October 2, 1995 and October 23, 1995, and all documents filed by Mobil pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of the Offering Memorandum and prior to the completion of the distribution of
the Certificates as determined by you (each an "Incorporated Document" and
collectively the "Incorporated Documents"). Each filing of an Incorporated
Document from the date hereof until the completion of the distribution of the
Certificates as determined by you will constitute an amendment or supplement to
the Offering Memorandum. Mobil hereby confirms that it has authorized the use of
the preliminary offering memorandum and the Offering Memorandum in connection
with the offering and sale of the Certificates.
The holders of the Certificates will be entitled to the benefits of a
Registration Rights Agreement, to be entered into among Mobil, MGB and you, as
the initial purchaser of the Certificates, pursuant to which Mobil and MGB will
use commercially reasonable efforts to file a registration statement providing
for an exchange offer registered under the Securities Act or providing for
resales of the Certificates under the Securities Act.
1. Sale of the Certificates. Mobil and MGB hereby agree to cause the
------------------------
Pass Through Trustee to sell to you, and you, upon the basis of the
representations and warranties herein contained, but subject to the
conditions hereinafter stated, agree to purchase from the Pass Through
Trustee, the Certificates at 100% of their principal amount (the "purchase
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<PAGE>
price") plus accrued interest, if any, from December 12, 1995 to the date
of payment and delivery.
2. Representations and Warranties. Mobil and MGB each represents and
------------------------------
warrants to you that as of the date hereof and on the Closing Date (as
hereinafter defined) for the Certificates purchased hereunder (it being
understood that references in this Section 2 to the Offering Memorandum
means the Offering Memorandum as amended or supplemented to such date
except as otherwise expressly provided herein):
(a) (i) Each Incorporated Document complied or will comply when
filed with the Commission under the Exchange Act in all material respects
with the Exchange Act and the applicable rules and regulations thereunder,
(ii) the preliminary offering memorandum did not contain, and neither the
Offering Memorandum nor any amendment or supplement thereto contains or
will contain, any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that the
foregoing representation and warranty shall not apply to statements or
omissions in the Offering Memorandum or the preliminary offering memorandum
based on information relating to you furnished to Mobil or MGB in writing
by you expressly for use therein, (iii) the financial statements included
in the Incorporated Documents present fairly in all material respects the
consolidated financial position of Mobil and its subsidiaries as of the
dates indicated and the consolidated results of operations, cash flows and
changes in retained earnings of such entities for the periods specified;
except as otherwise stated in the Incorporated Documents, such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis; and the supporting
schedules for Mobil and its subsidiaries present fairly in all material
respects the information required to be stated therein, (iv) the summary of
financial data included in the Offering Memorandum presents fairly in all
material respects the information shown therein and has been compiled on a
basis consistent in all material respects with that of the audited
consolidated financial statements included in the Incorporated Documents
and (v) Mobil has been informed by its accountants that such accountants,
who are the accountants who certified the consolidated financial statements
and supporting schedules included in the
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<PAGE>
Incorporated Documents, are independent public accountants as required by
the Exchange Act and the rules and regulations promulgated thereunder.
(b) The statements in the Offering Memorandum describing (i) the
Certificates, (ii) the Operative Agreements and (iii) the terms of the
offering, insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly summarize in
all material respects the information referred to therein.
(c) Mobil has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, it
has the corporate power and authority to own its properties and conduct its
business as described in the Offering Memorandum and to enter into and
perform its obligations under this Agreement, the Pass Through Trust
Agreement and each of the Operative Agreements to which it is a party; and
it is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership or
leasing of its property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not have a
material adverse effect on Mobil and its subsidiaries, taken as a whole, or
on the power or ability of Mobil to perform its obligations under this
Agreement, the Pass Through Trust Agreement or the Operative Agreements to
which it is a party or to consummate the transactions contemplated by the
Offering Memorandum (any such material adverse effect, whether with respect
to Mobil or MGB, as applicable, is referred to herein as a "Material
Adverse Effect").
(d) Each subsidiary of Mobil, including MGB, 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 Offering Memorandum, and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its
business or the ownership or leasing of its property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a Material Adverse Effect.
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<PAGE>
(e) This Agreement has been duly authorized, executed and delivered
by each of Mobil and MGB.
(f) The Certificates have been duly authorized and, when duly
executed and authenticated by the Pass Through Trustee in accordance with
the Pass Through Trust Agreements and delivered to and paid for by you in
accordance with the terms of this Agreement, will be valid and binding
obligations of the Pass Through Trustee enforceable in accordance with
their terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability and the holders thereof will
be entitled to the benefits of the Pass Through Trust Agreement pursuant to
which such Certificates are to be issued.
(g) Each of the Pass Through Trust Agreements, the Registration
Rights Agreement and the Guaranty have been duly authorized by Mobil and
when duly executed and delivered by Mobil, will constitute a valid and
binding agreement of Mobil enforceable in accordance with its respective
terms, except as (w) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally, (x) the availability of equitable remedies may be limited by
equitable principles of general applicability, (y) in the case of the
Registration Rights Agreement, the enforceability of the indemnification
provisions therein may be limited by public policy considerations and (z)
in the case of the Pass Through Trust Agreements, the enforceability
thereof 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.
(h) Each of the Pass Through Trust Agreements, the Registration
Rights Agreement and each of the other Operative Agreements to which MGB is
a party has been duly authorized by MGB and when duly executed and
delivered by MGB, will constitute a valid and binding agreement of MGB,
enforceable in accordance with its respective terms, except as (w) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally, (x) the availability of
equitable remedies may be limited by equitable principles of general
applicability, (y)
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<PAGE>
in the case of the Registration Rights Agreement, the enforceability of the
indemnification provisions therein may be limited by public policy
considerations and (z) in the case of the Pass Through Trust Agreements and
the Lease, the enforceability thereof 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.
(i) The execution and delivery by Mobil of, and the performance by
Mobil of its obligations under, this Agreement, each Pass Through Trust
Agreement, the Registration Rights Agreement and the Guaranty will not
contravene any provision of applicable law, or the certificate of
incorporation or by-laws of Mobil, or any agreement or other instrument
binding upon Mobil or any of its subsidiaries that is material to Mobil and
its subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over Mobil or any
subsidiary, except for any such contravention which would not result in a
Material Adverse Effect.
(j) The execution and delivery by MGB of, and the performance by MGB
of its obligations under, this Agreement, each Pass Through Trust
Agreement, the Registration Rights Agreement and each of the other
Operative Agreements to which MGB is a party will not contravene any
provision of applicable law, or the certificate of incorporation or by-laws
of MGB, or any agreement or other instrument binding upon MGB that is
material to MGB, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over MGB, except for any such
contravention which would not result in a Material Adverse Effect.
(k) No consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the performance by
Mobil of its obligations under this Agreement, each Pass Through Trust
Agreement, the Registration Rights Agreement and the Guaranty, or the
consummation by Mobil of the transactions contemplated by this Agreement,
each Pass Through Trust Agreement, the Registration Rights Agreement or the
Guaranty, except such as may be required by the securities or Blue Sky laws
of the various states in connection with the purchase, placement and resale
-6-
<PAGE>
of such Certificates by you and such as may be required by the Securities
Act or Trust Indenture Act of 1939, as amended (the "TIA"), in connection
with its obligations under the Registration Rights Agreement and other than
those which if not obtained would not result in a Material Adverse Effect.
(l) No consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the performance by
MGB of its obligations under this Agreement, each Pass Through Trust
Agreement, the Registration Rights Agreement or any of the other Operative
Agreements to which MGB is a party, or the consummation by MGB of the
transactions contemplated by this Agreement or such other Operative
Agreements, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the purchase, placement and
resale of such Certificates by you and such as may be required by the
Securities Act or the TIA, in connection with its obligations under the
Registration Rights Agreement and other than those which if not obtained
would not result in a Material Adverse Effect.
(m) Since the respective dates as of which information is given in
the preliminary offering memorandum, 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 or operations, of Mobil and its subsidiaries, taken as a whole,
from that set forth in the preliminary offering memorandum.
(n) There are no legal or governmental proceedings pending or, to the
knowledge of Mobil, threatened to which Mobil or any of its subsidiaries is
a party or to which any of the properties of Mobil or any of its
subsidiaries is subject other than proceedings described in the Offering
Memorandum and proceedings that if adversely determined would not have a
Material Adverse Effect.
(o) There are no legal or governmental proceedings pending or, to the
knowledge of MGB, threatened to which MGB is a party or to which any of the
properties of MGB is subject.
(p) Each of Mobil and its subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and
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<PAGE>
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 Offering Memorandum, except to the extent that
the failure to obtain or file would not have a Material Adverse Effect.
(q) The offer, sale and delivery of the interests of the Owner
Participant in the Trust Estate is exempt from the registration and
prospectus delivery requirements of the Securities Act by virtue of Section
4(2) thereof, it is not necessary in connection with the offer, sale and
delivery of the Certificates to the Manager under this Agreement and the
resales by the Manager as contemplated by this Agreement and the Offering
Memorandum to register the Certificates under the Securities Act, and it is
not necessary to qualify any indenture in respect of the interests of the
Owner Participant in the Trust Estate or in respect of the Certificates
under the TIA.
(r) Mobil is not an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
(s) MGB is not an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
(t) Mobil has not taken and will not take, directly or indirectly,
any actions prohibited by Rule 10b-6 under the Exchange Act.
(u) MGB has not taken and will not take, directly or indirectly, any
actions prohibited by Rule 10b-6 under the Exchange Act.
(v) Assuming compliance by you with Section 7 hereof, neither Mobil,
nor any affiliate (as defined in Rule 501(b) of Regulation D under the
Securities Act) of Mobil or affiliate of MGB, has directly, or through any
agent, (i) sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in the Securities Act)
which is or will be integrated with the sale of such
-8-
<PAGE>
Certificates in a manner that would require the registration under the
Securities Act of the Certificates or (ii) solicited offers for, offered or
sold the Certificates by any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Securities
Act) in connection with the offering of the Certificates or otherwise in
any manner involving a public offering within the meaning of Section 4(2)
of the Securities Act.
(w) Mobil and MGB have each complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
3. Offering. You have advised Mobil and MGB that you will make an
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offering of the Certificates purchased by you hereunder on the terms and
subject to the conditions set forth in the Offering Memorandum, as soon as
practicable after this Agreement is entered into as in your judgment is
advisable, only within the United States (a) to persons who you reasonably
believe to be qualified institutional buyers as defined in Rule 144A under
the Securities Act ("qualified institutional buyers") and (b) to
institutions which you reasonably believe are "Accredited Investors" as
that term is defined in Rule 501(a)(1), (2), (3), or (7) of Regulation D
under the Securities Act ("Institutional Accredited Investors"), all as
more fully set forth in Section 7 of this Agreement. You may also offer and
sell the Certificates in offshore transactions in reliance on Regulation S
under the Securities Act.
As compensation to you for your commitments and obligations hereunder
in respect of the Certificates, including your undertaking to offer the
Certificates for sale to qualified institutional buyers and Institutional
Accredited Investors or in offshore transactions in reliance on Regulation S
under the Securities Act, Mobil will pay or cause to be paid to you by the Owner
Trustee pursuant to the Participation Agreement an aggregate amount equal to
$599,202, which constitutes .65% of the aggregate principal amount of the
Certificates. Such payment shall be made simultaneously with the payment by you
to the Pass Through Trustee of the purchase price of the Certificates as
specified in paragraph 4 hereof. Payment of such compensation shall be made by
wire transfer of immediately available funds to an account specified by Morgan
Stanley & Co. Incorporated.
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<PAGE>
4. Purchase and Delivery. Payment for the Certificates shall be made by
---------------------
federal funds check or other immediately available funds payable to or upon
the order of the Pass Through Trustee at the offices of Dewey Ballantine,
1301 Avenue of the Americas, New York, New York 10019 at 10:00 A.M., New
York City time, on December 12, 1995, or at such other time on the same or
such other date, not later than December 19, 1995, as shall be agreed in
writing between you and Mobil. Payment shall be made upon delivery to you
of the Certificates. The Certificates shall be registered in such names and
in such denominations as you shall request in writing not later than two
full business days prior to the date of delivery. The time and date of such
payment and delivery are hereinafter referred to as the "Closing Date."
5. Conditions to Closing. Your obligation hereunder to purchase the
---------------------
Certificates is subject to the accuracy of the representations and
warranties of Mobil and MGB contained herein, to the performance and
observance by Mobil and MGB of all their respective covenants and
agreements contained herein on their part to be performed and observed and
to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, (i) there shall not have occurred any
downgrading, nor shall any notice have been given either publicly or
directly to Mobil of any intended or potential downgrading or any review
with possible negative implications in the rating accorded any of Mobil's
debt securities by Standard & Poor's Corporation or Moody's Investors
Service, Inc. and (ii) 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 Mobil and its
subsidiaries, taken as a whole, from that set forth in the Offering
Memorandum, that is material and adverse and that would, in your reasonable
judgment after consultation with Mobil, prevent or materially impair the
marketing or enforcement of contracts for sale of the Certificates on the
terms and in the manner contemplated in the Offering Memorandum;
(b) You shall have received on the Closing Date (i) a certificate,
dated the Closing Date and signed on behalf of Mobil by the Treasurer of
Mobil, to the effect set forth in clause (a)(i) above and to the effect
that the representations
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<PAGE>
and warranties of Mobil contained herein are true and correct as of such
Closing Date and that Mobil has complied with all the agreements and
satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date and (ii) a certificate, dated the
Closing Date and signed on behalf of MGB by a vice president and the
Treasurer, of MGB, to the effect that the representations and warranties of
MGB contained herein are true and correct as of such Closing Date and that
MGB has complied with all the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date.
(c) You shall have received on the Closing Date an opinion of Dewey
Ballantine, counsel for Mobil and MGB, dated the Closing Date, to the
effect set forth in Exhibit A.
(d) You shall have received on the Closing Date an opinion of Ralph
N. Johanson, Jr., Assistant General Counsel for Mobil, dated the Closing
Date, to the effect set forth in Exhibit B.
(e) You shall have received on the Closing Date an opinion of Ray,
Quinney & Nebeker, counsel to the Pass Through Trustee, dated the Closing
Date, to the effect set forth in Exhibit C.
(f) You shall have received on the Closing Date an opinion of your
counsel, Kirkland & Ellis, dated the Closing Date, with respect to the
issuance and sale of the Certificates, the Offering Memorandum and other
related matters as you may reasonably require.
(g) You shall have received on the date of this Agreement a letter
dated such date and also on the Closing Date a letter dated the Closing
Date, in each case in form and substance satisfactory to you, from Ernst &
Young LLP, independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference
into the Offering Memorandum.
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<PAGE>
(h) All conditions specified in the Participation Agreement with
respect to the Pass Through Trustee's purchase of the Secured Notes on the
Closing Date thereunder shall have been satisfied on the Closing Date; the
representations and warranties of Mobil contained in the Participation
Agreement shall be true and correct in all material respects as of the
Closing Date and you shall have received a certificate of Mobil from an
executive officer of Mobil, dated as of the Closing Date, to such effect;
the representations and warranties of MGB contained in the Participation
Agreement shall be true and correct in all material respects as of the
Closing Date and you shall have received a certificate of MGB from an
executive officer of MGB, dated as of the Closing Date, to such effect; and
you shall have received each opinion referred to in Section 4.7 of the
Participation Agreement, in each case, addressed to you or accompanied by a
letter from counsel rendering such opinion authorizing you to rely on such
opinion as if it were addressed to you.
(i) All of the Operative Agreements shall have been entered into by
the respective parties thereto, each such agreement to be in form and
substance reasonably satisfactory to you.
(j) Mobil and MGB shall have entered into the Registration Rights
Agreement in form and substance reasonably satisfactory to you and
substantially as described in the Offering Memorandum.
6. Covenants of Mobil and MGB. In further consideration of your
--------------------------
agreements herein contained, Mobil and MGB each covenant as follows:
(a) To furnish you, without charge, during the period mentioned in
paragraph (c) below, as many copies of the preliminary offering memorandum,
the Offering Memorandum, any Incorporated Documents and any supplements and
amendments thereto as you may reasonably request.
(b) Before amending or supplementing the preliminary offering
memorandum or the Offering Memorandum (including the Incorporated
Documents), to furnish you a copy of each such proposed amendment or
supplement and not to use any such proposed amendment or supplement to
which you reasonably object.
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<PAGE>
(c) If at any time prior to completion of the distribution of the
Certificates any event shall occur as a result of which the Offering
Memorandum as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
when such Offering Memorandum is delivered to a purchaser, not misleading,
forthwith to prepare and furnish, at its own expense, to you, either
amendments or supplements to the Offering Memorandum which will correct any
such statement or omission.
(d) To endeavor, in cooperation with you, to qualify the Certificates
for offer and sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request in connection with the
distribution of the Certificates and to maintain such qualifications for as
long as you shall reasonably request; provided that in connection therewith
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Mobil and MGB will not be required to qualify as foreign corporations or to
file general consents to service of process in any jurisdiction.
(e) Whether or not any sale of the Certificates is consummated, to
pay or cause to be paid all their respective expenses incident to the
performance of their respective obligations under this Agreement, the Pass
Through Trust Agreements and the Registration Rights Agreement, including:
(i) the preparation, printing and distribution of this Agreement, the
preliminary offering memorandum, the Offering Memorandum and all amendments
and supplements thereto, the Pass Through Trust Agreements, the
Registration Rights Agreement and each of the other Operative Agreements,
(ii) the preparation, issuance and delivery of the Certificates, (iii) the
fees and disbursements of Mobil's and MGB's counsel and accountants, (iv)
the qualification of the Certificates under securities or Blue Sky laws in
accordance with the provisions of Section 6(d), including filing fees and
the reasonable fees and disbursements of your counsel not to exceed $10,000
in connection therewith and in connection with the preparation of any Blue
Sky or legal investment memoranda, (v) the reasonable fees and expenses of
the Pass Through Trustee and the fees and disbursements of counsel for the
Pass Through Trustee, (vi) certain reasonable fees and disbursements of
your counsel as agreed in the Participation Agreement not to exceed
$250,000
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<PAGE>
and (vii) any fees charged by rating agencies for the rating of the
Certificates.
(f) Between the date hereof and the Closing Date, to not, without
your prior consent, offer, sell, contract to sell or otherwise dispose of
any securities of Mobil or MGB which are substantially similar to the
Certificates; it being understood that unsecured indebtedness of Mobil with
a maturity date of less than one year shall not be deemed to be
"substantially similar."
(g) For a period of five years after the Closing Date, to furnish to
you copies of all annual reports, quarterly reports and current reports
filed with the Commission on Forms 1O-K, 1O-Q and 8-K, or such other
similar forms as may be designated by the Commission, and such other
documents, reports and information as shall be furnished by Mobil to its
public debt holders generally.
(h) Mobil or any affiliate (as defined in Rule 501(b) of Regulation D
under the Securities Act) will not sell, offer for sale or solicit offers
to buy or otherwise negotiate in respect of any security (as defined in the
Securities Act) which would be integrated with the sale of the Certificates
in a manner which would require the registration of the Certificates under
the Securities Act.
(i) Not to solicit any offer to buy or offer or sell such
Certificates by means of any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Securities
Act) or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act, assuming compliance by you with Section
7 hereof.
(j) Until such time as the Certificates have been registered for
resale by the Certificateholders pursuant to the Securities Act by Mobil
and MGB in accordance with the Registration Rights Agreement, if at any
time prior to December 12, 1998, Mobil and MGB are not subject to Section
13 or 15(d) of the Exchange Act and are not exempt from reporting pursuant
to Rule 12g3-2(b) under the Exchange Act, Mobil and MGB, as applicable,
will furnish to any Certificateholder upon request, copies of the
information required to be delivered to Certificateholders or prospective
purchasers of Certificates
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from Certificateholders in order to enable such Certificateholders to
comply with Rule 144A under the Securities Act.
(k) To include information substantially in the form set forth in
Exhibit D in each Offering Memorandum.
7. Offering of Certificates; Restrictions on Transfer. You represent and
--------------------------------------------------
warrant that you are a qualified institutional buyer. You agree with Mobil
that you will not solicit offers for, or offer or sell, such Certificates
by any form of general solicitation or general advertising (as those terms
are used in Regulation D under the Securities Act) or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act. You further agree that you will only solicit offers for the
Certificates, and will only offer and sell the Certificates within the
United States in minimum denominations of $250,000, (i) in compliance with
Rule 144A under the Securities Act to persons whom you reasonably believe
to be qualified institutional buyers that, in purchasing the Certificates
may be deemed to have represented and agreed as provided in paragraphs (1)
through (4) of Exhibit D or (ii) to prospective purchasers (x) which are
Institutional Accredited Investors and, in the case of a fiduciary or agent
purchasing the Certificates for one or more accounts, is purchasing for an
account which is an Institutional Accredited Investor and (y) which, prior
to its purchase of any Certificates, delivers to you a letter signed by
such investor substantially in the form of Exhibit E. You may also offer
and sell the Certificates in offshore transactions in reliance on
Regulation S under the Securities Act.
8. Indemnification and Contribution.
--------------------------------
(a) Mobil and MGB jointly and severally agree to indemnify and hold
harmless you and each person, if any, who controls you within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, or is under common control with, or is controlled by, you from and
against any and all losses, claims, damages or liabilities (including,
without limitation, any legal or other expenses reasonably incurred by you
or any such controlling or affiliated person in connection with defending
or investigating any such action or claim) caused by any untrue statement
or alleged untrue
-15-
<PAGE>
statement of a material fact contained in the preliminary offering
memorandum or the Offering Memorandum (as amended or supplemented if Mobil
or MGB shall have furnished any amendments or supplements thereto) used
during the period set forth in Section 6(c) above, or caused by any
omission or alleged omission to state therein a material fact necessary to
make the statements therein in light of the circumstances under which they
were made not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or alleged omission based upon information furnished to
Mobil or MGB in writing by you expressly for use therein.
(b) You agree to indemnify and hold harmless Mobil and MGB, their
directors, officers and each person, if any, who controls Mobil or MGB
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
Mobil and MGB to you, but only with reference to information furnished to
Mobil or MGB in writing by you expressly for use in the preliminary
offering memorandum or the Offering Memorandum or any amendment or
supplement thereto. Mobil and MGB acknowledge that the statements with
respect to stabilization on the second page of, and the statements set
forth in the second and third sentences of the third paragraph under the
heading "Plan of Distribution" in the preliminary offering memorandum and
the Offering Memorandum or any amendment or supplement thereto constitute
the only information furnished in writing by you or on your behalf
expressly for use in such documents.
(c) 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 paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the reasonable 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
-16-
<PAGE>
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. Such firm shall be designated in writing by you in the case of
parties indemnified pursuant to paragraph (a) above and by Mobil in the
case of parties indemnified pursuant to paragraph (b) above. 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.
(d) If the indemnification provided for in paragraph (a) or (b) of
this Section 8 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein
in connection with any offering of Certificates, 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 Mobil and MGB, on the one hand, and you on
the other hand, from the offering of Certificates or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
-17-
<PAGE>
benefits referred to in clause (i) above but also the relative fault of
Mobil and MGB, on the one hand, and you on the other hand, in connection
with the matters that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by Mobil and MGB, on the one hand, and you on
the other hand, in connection with the offering of Certificates shall be
deemed to be in the same respective proportions as the net proceeds from
the offering of such Certificates (before deducting expenses) received
directly or indirectly by Mobil and MGB as set forth in the Offering
Memorandum, on the one hand, and the total amounts received by you pursuant
to Section 3 hereof on the other hand, bear to the aggregate offering price
of such Certificates. In the case of an untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material
fact, the relative fault of Mobil and MGB, on the one hand, and of you on
the other hand, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement or the omission or alleged
omission relates to information supplied by Mobil or MGB, on the one hand,
or by you on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission.
(e) Mobil and MGB, on the one hand, and you on the other hand, agree
that it would not be just or equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation or by any other method of
--- ----
allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above 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 Section 8, you shall not be required to contribute any
amount in excess of the amount by which the total price at which the
Certificates resold by you in the initial placement of the Certificates
were offered to investors exceeds the amount of any damages that you have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the
-18-
<PAGE>
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8 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.
(f) The indemnity and contribution agreements contained in this
Section 8 and the representations and warranties of Mobil and MGB contained
in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation
made by or on behalf of you or any person controlling you or by or on
behalf of Mobil or MGB, their officers or directors or any other person
controlling Mobil or MGB and (iii) acceptance of and payment for any of the
Certificates.
9. Termination. This Agreement shall be subject to termination in your
-----------
absolute discretion, by notice given to Mobil, 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 Mobil 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 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 judgment after consultation with Mobil,
prevent or materially impair the marketing, or enforcement of contracts for
sale, of the Certificates on the terms and in the manner contemplated in
the Offering Memorandum.
If this Agreement shall be terminated by you because of any failure or
refusal on the part of Mobil or MGB to comply with the terms or to fulfill any
of the conditions of this Agreement, or if for any reason Mobil or MGB shall be
unable to perform its
-19-
<PAGE>
obligations under this Agreement, Mobil will reimburse you for all out-of-pocket
expenses (including the fees and disbursements of your counsel) reasonably
incurred by you in connection with this Agreement and the offering of the
Certificates.
10. Miscellaneous. This Agreement may be signed in any number of
-------------
counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to you shall be directed to you at the
address shown above; notices to Mobil and MGB shall be directed to them at 3225
Gallows Road, Fairfax, Virginia 22037 (facsimile number (703) 846-1460)
Attention: Treasurer.
This Agreement shall inure to the benefit of and be binding upon you,
Mobil and MGB and the respective successors thereof. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Section 8 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement.
The headings of the sections of this document have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
* * * * *
-20-
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between you, Mobil and MGB in
accordance with its terms.
Very truly yours,
MOBIL CORPORATION
By: /s/ P.A. STEVENSON By: /s/ W. R. ARNHEIM
---------------------- ---------------------
Name: P.A. Stevenson Name: W. R. Arnheim
Title: Senior Assistant Secretary Title: Treasurer
MOBIL G. B. 388 FINANCE INC.
By: /s/ R. E. SLIWINSKI
-----------------------
Name: R. E. Sliwinski
Title: Treasurer
The foregoing Placement Agreement
is hereby confirmed and accepted
as of the date first above written.
MORGAN STANLEY & CO. INCORPORATED
By: /s/ THOMAS F. CAHILL, JR.
-----------------------------
Name: Thomas F. Cahill, Jr.
Title:
-21-
<PAGE>
SCHEDULE A
----------
<TABLE>
<CAPTION>
Pass Through Aggregate Final
Certificate Principal Interest Distribution
Designation Amount Rate Date
----------- ------------ --------- ---------------
<S> <C> <C> <C>
Series 1995-A1 $ 4,917,000 5.52% January 2, 1997
Series 1995-A2 $ 5,173,000 5.57% January 2, 1998
Series 1995-A3 $ 5,462,000 5.65% January 2, 1999
Series 1995-A4 $ 5,770,000 5.74% January 2, 2000
Series 1995-A5 $ 6,101,000 5.79% January 2, 2001
Series 1995-A6 $64,762,000 6.15% July 2, 2008
-----------
Total $92,185,000
===========
</TABLE>
-22-
<PAGE>
EXHIBIT A
---------
OPINION OF DEWEY BALLANTINE
COUNSEL FOR MOBIL
The opinion of Dewey Ballantine, counsel for Mobil, to be delivered
pursuant to Section 5(c) of the Placement Agreement shall be to the effect that:
(A) assuming the Certificates have been duly authorized and validly
executed, authenticated, issued and delivered by the Pass Through Trustee
pursuant to each Pass Through Trust Agreement, when such Certificates have
been paid for in accordance with the terms of the Placement Agreement, such
Certificates will (x) be valid and binding obligations of the Pass Through
Trustee enforceable in accordance with their terms except as may be limited
by bankruptcy, insolvency, moratorium, reorganization or similar laws
affecting creditors' rights generally and by general principles of equity
and (y) be entitled to the benefits of the Pass Through Trust Agreement;
(B) the Certificates conform in all material respects as to legal
matters to the description thereof contained in the Offering Memorandum;
(C) assuming compliance by the Manager with Section 7 of the
Placement Agreement, (i) the offering and sale of the interests of the
Owner Participant in the Trust Estate is exempt from the registration and
prospectus delivery requirements of the Securities Act by virtue of Section
4(2) thereof, (ii) it is not necessary in connection with the offer, sale
and delivery of the Certificates to the Manager under the Placement
Agreement and the resales by the Manager as contemplated by the Placement
Agreement and the Offering Memorandum to register the Certificates under
the Securities Act, and (iii) it is not necessary to qualify any indenture
in respect of the interests of the Owner Participant in the Trust Estate or
in respect of the Certificates under the Trust Indenture Act of 1939, as
amended.
(D) each Pass Through Trust Agreement pursuant to which the
Certificates are to be issued and the Registration Rights
A-1
<PAGE>
Agreement are valid and binding agreements of each of Mobil and MGB,
enforceable in accordance with their respective terms, except as may be
limited by bankruptcy, insolvency, moratorium, reorganization or similar
laws affecting creditors' rights generally, by general principles of equity
and by applicable law which may affect the remedies provided therein, which
laws, however, do not, in the opinion of such counsel, make such remedies
inadequate for the practical realization of the rights and benefits
intended to be provided thereby and with respect to the Registration Rights
Agreement, except as enforcement of the indemnification provisions may be
limited by public policy;
(E) each of the Operative Documents to which Mobil or MGB is a party
is a valid and binding agreement of Mobil and MGB, respectively,
enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency, moratorium, reorganization or similar laws
affecting creditors' rights generally, by general principles of equity and,
in the case of the Lease, by applicable laws which may affect the remedies
provided therein, which laws, however, do not, in the opinion of such
counsel, make such remedies inadequate for the practical realization of the
rights and benefits intended to be provided thereby;
(F) the Indenture creates a security interest in the collateral which
constitutes the Indenture Estate; the security interest granted to the
Indenture Trustee in the collateral which constitutes the Indenture Estate
and which can be perfected under New York law has been perfected;
(G) the Pass Through Trust Agreement and the Operative Agreements
conform in all material respects as to legal matters to the descriptions
thereof contained in the Offering Memorandum;
(H) the opinion attributed to it in the Offering Memorandum under the
caption "Federal Income Tax Consequences" represents its opinion;
(I) there are no taxes, fees or other governmental charges payable
under the laws of the State of New York or any political subdivision
thereof in connection with the execution and delivery by the Pass Through
Trustee, in its individual capacity or as Pass Through Trustee, as the case
may be, of
A-2
<PAGE>
the Pass Through Trust Agreement or the Participation Agreement or in
connection with the issuance, execution and delivery of the Certificates by
the Pass Through Trustee pursuant to the Pass Through Trust Agreement; and
Such counsel shall also state that while such counsel has not checked
the accuracy or completeness of, or otherwise verified, and is not passing upon
and assumes no responsibility for the accuracy or completeness of the statements
contained in the Offering Memorandum (and with materiality being determined to a
large part by discussions with officers of Mobil and MGB), in the course of such
counsel's review and discussion of the contents of the Offering Memorandum with
certain officers and employees of Mobil, the Manager and its counsel and its
independent accountants, but without independent check or verification, no facts
have come to such counsel's attention which have caused such counsel to believe
that the Offering Memorandum (other than the financial statements and other
financial and statistical information included therein, as to which no belief
need be expressed), when issued, and as of the date hereof, contained or
contains 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.
Such counsel does not need to express any belief with respect to the
Incorporated Documents, and such opinion shall be limited to the laws of the
State of New York and the federal laws of the United States.
A-3
<PAGE>
EXHIBIT B
---------
OPINION OF
RALPH N. JOHANSON, JR.
ASSISTANT GENERAL COUNSEL FOR MOBIL
The opinion of Ralph N. Johanson, Jr., Assistant General Counsel for
Mobil, to be delivered pursuant to Section 5(d) of the Placement Agreement shall
be to the effect that:
(A) Each of Mobil and MGB have been duly incorporated, are validly
existing as a corporation in good standing under the laws of the State of
Delaware and each has the corporate power and authority under such laws to
own, lease and operate its properties and conduct its business as described
in the Offering Memorandum; and each is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of its
business or the ownership or leasing of its property requires such
qualification, except to the extent that, with respect to Mobil, the
failure to be so qualified or be in good standing would not have a material
adverse effect on Mobil and its subsidiaries, taken as a whole and with
respect to MGB, the failure to be so qualified or be in good standing would
not have a material adverse effect on MGB;
(B) 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 Offering Memorandum, as
amended or supplemented;
(C) each of Mobil, MGB and Mobil's Significant Subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-
regulatory organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its business in
the manner described in the Offering Memorandum, except to the extent that,
with respect
B-1
<PAGE>
to Mobil and its Significant Subsidiaries, the failure to obtain or file
would not have a material adverse effect on Mobil and its subsidiaries,
taken as a whole and with respect to MGB, the failure to obtain or file
would not have a material adverse effect on MGB;
(D) each of the Operative Agreements to which Mobil or MGB is a party,
the Placement Agreement, the Registration Rights Agreement and each Pass
Through Trust Agreement, has been duly authorized, executed and delivered
by Mobil or MGB, as the case may be, and the execution and delivery by
Mobil and MGB of, and the performance by Mobil and MGB of their respective
obligations under, the Placement Agreement, the Registration Rights
Agreement, the Pass Through Trust Agreement or any of the other Operative
Agreements to which Mobil or MGB is a party will not contravene (i) any
provision of applicable law known to such counsel, (ii) the certificate of
incorporation or by-laws of Mobil or MGB, (iii) any agreement or other
instrument binding upon Mobil, any of its subsidiaries or MGB that is
material to Mobil and its subsidiaries, taken as a whole, or material to
MGB or (iv) any judgment, order or decree of any governmental body, agency
or court having jurisdiction over Mobil, any of its subsidiaries or MGB
other than any contravention which would not result in a Material Adverse
Effect;
(E) no consent, approval, authorization or order of, or qualification
with, any Federal or state governmental body or agency is required for the
valid authorization, issuance and delivery of the Certificates, the valid
authorization, execution, delivery of and performance by Mobil or MGB of
their respective obligations under the Placement Agreement, each Pass
Through Trust Agreement, the Registration Rights Agreement or any of the
Operative Agreements to which Mobil or MGB is a party, or the consummation
by Mobil or MGB of the transactions contemplated by this Agreement or such
Operative Agreements, except such as may be required by the securities or
Blue Sky laws of the various jurisdictions in connection with the offering
of such Certificates and such as may be required under the Securities Act
and the TIA in connection with the Registration Rights Agreement and except
for any failure which would not result in a Material Adverse Effect;
provided, that such counsel is not expressing any opinion as to any
--------
consents, approvals, authorizations, orders or qualifications that may be
required to be obtained after the
B-2
<PAGE>
date hereof pursuant to the terms of the Production System Lease;
(F) such counsel does not know of any legal or governmental
proceedings pending or threatened to which Mobil or any of its subsidiaries
is a party or to which any of the properties of Mobil or any of its
subsidiaries is subject that is required to be described in the Offering
Memorandum or the Incorporated Documents and is not so described;
(G) such counsel does not know of any legal or governmental
proceedings pending or threatened to which MGB is a party or to which any
of the properties of MGB is subject;
(H) the statements in "Item 3 - Legal Proceedings" of Mobil's most
recent annual report on Form 10-K, "Item 1 -Legal Proceedings" of any
quarterly report on Form 10-Q and in "Item 5 - Other Events" of any current
report on Form 8-K incorporated by reference in the Offering Memorandum,
insofar as such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present in all
material respects the information called for with respect to such legal
matters, documents and proceedings;
(I) Mobil is not an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended;
(J) MGB is not an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended; and
(K) each document incorporated by reference in the Offering Memorandum
(except for financial statements and other financial data included therein,
as to which such counsel need not express any opinion) complied as to form
when filed with the Commission in all material respects with the Exchange
Act and the rules and regulations of the Commission thereunder.
Such counsel shall also state that while such counsel has not checked
the accuracy or completeness of, or otherwise verified, and is not passing upon
and assumes no responsibility for the accuracy or completeness of the statements
contained in the Offering Memorandum (and with materially being determined to a
B-3
<PAGE>
large part by discussions with officers of Mobil and MGB), in the course of such
counsel's review and discussion of the contents of the Offering Memorandum with
certain officers and employees of Mobil, the Manager and its counsel and its
independent accountants, but without independent check or verification, no facts
have come to such counsel's attention which have caused such counsel to believe
that the Offering Memorandum (other than the financial
B-4
<PAGE>
statements and other financial and statistical information included therein, as
to which no belief need be expressed), when issued, and as of the date hereof,
contained or contains 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.
B-5
<PAGE>
EXHIBIT C
---------
OPINION OF
COUNSEL FOR THE PASS THROUGH TRUSTEE
The opinion of a Ray, Quinney & Nebeker to be delivered pursuant to
Section 5(e) of the Placement Agreement shall be to the effect that:
(A) the Pass Through Trustee is a national banking association duly
organized and validly existing in good standing under the laws of the
United States of America and has full corporate power and authority to
execute, deliver and carry out the terms of the Pass Through Trust
Agreement and the Participation Agreement;
(B) the Pass Through Trustee has duly authorized, executed and
delivered the Pass Through Trust Agreement and the Participation Agreement
and the Pass Through Trust Agreement and the Participation Agreement
constitute valid and binding obligations of the Pass Through Trustee
enforceable against the Pass Through Trustee in accordance with their
respective terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
enforcement of creditors' rights generally, and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law);
(C) the Certificates issued today have been duly authorized and
validly executed, authenticated, issued and delivered by the Pass Through
Trustee pursuant to the Pass Through Trust Agreement; and the holders of
the Certificates are entitled to the benefits of the Pass Through Trust
Agreement;
(D) the authorization, execution, delivery and performance by the Pass
Through Trustee of the Pass Through Trust Agreement and the Participation
Agreement 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 Articles of Association or
C-1
<PAGE>
By-Laws of the Pass Through 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 Pass Through
Trustee under any indenture, mortgage or other agreement or instrument to
which the Pass Through Trustee is a party or by which it or any of its
property is bound, or any Utah 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 Pass Through Trustee of any
court, regulatory body, administrative agency, government or governmental
body having jurisdiction over the Pass Through Trustee or its properties;
(E) 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 Utah law governing the banking or trust powers of the Pass
Through Trustee is required for the authorization, execution, delivery and
performance by the Pass Through Trustee of the Pass Through Trust Agreement
or the Participation Agreement or the consummation of any of the
transactions by the Pass Through Trustee contemplated thereby or the
issuance of the Certificates under the Pass Through Trust Agreements
(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; and
(F) the opinion attributed to it in the Offering Memorandum under the
caption "Certain Utah Taxes" represents its opinion.
C-2
<PAGE>
EXHIBIT D
---------
Each Offering Memorandum shall contain language to the following
effect:
"By its purchase of Pass Through Certificates, each purchaser of Pass
Through Certificates offered hereby will be deemed to:
1. represent that it is purchasing the Pass Through Certificates in a
principal amount of $250,000 for its own account or an account with respect
to which it exercises sole investment discretion and that it and any such
account is (i) a QIB, and is aware that the sale to it is being made in
reliance on Rule 144A; (ii) an Institutional Accredited Investor; or (iii)
a foreign purchaser that is outside the United States (or a foreign
purchaser that is a dealer or other fiduciary);
2. acknowledge that the Pass Through Certificates have not been
registered under the Securities Act and may not be offered or sold within
the United States or to, or for the account or benefit of, U.S. persons
except as set forth below;
3. agree that if it is a person other than a foreign purchaser outside
the United States, should it resell or otherwise transfer the Pass Through
Certificates within three years after the later of the original issuance of
the Pass Through Certificates or the last date on which the Pass Through
Certificates are held by an affiliate of Mobil or MGB, it will do so only
(i) to Mobil, MGB or any affiliate of Mobil or MGB, (ii) inside the United
States to a QIB in compliance with Rule 144A, (iii) inside the United
States to an Institutional Accredited Investor that, prior to such
transfer, furnishes to the Pass Through Trustee a signed letter containing
certain representations and agreements relating to the restrictions on
transfer of the Pass Through Certificates (the form of which letter can be
obtained from the Pass Through Trustee), (iv) outside the United States in
compliance with Rule 903 or Rule 904 under the Securities Act, (v) pursuant
to the exemption from registration provided by Rule 144 under the
Securities Act (if available) or (vi) pursuant to an effective registration
statement under the Securities Act. Each Institutional Accredited Investor
that is not a QIB and that is an original purchaser of the Pass
D-1
<PAGE>
Through Certificates will be required to sign an agreement to the foregoing
effect in the form attached hereto as Exhibit E. Subject to the procedures
set forth under "Description of the Pass Through Certificates -- Book-
Entry; Delivery and Form," prior to any proposed transfer of the Pass
Through Certificates (otherwise than pursuant to an effective registration
statement) within three years after the later of the original issuance of
the Pass Through Certificates or the last date on which the Pass Through
Certificate is held by an affiliate of Mobil or MGB, the Holder thereof
must check the appropriate box set forth on the reverse of its Pass Through
Certificate relating to the manner of such transfer and submit the Pass
Through Certificate to the Pass Through Trustee;
4. agree that it will not at any time resell or otherwise transfer the
Pass Through Certificates to an employee benefit plan that is subject to
ERISA or section 4975 of the Code that has not represented to the Pass
Through Trustee that it is an accredited investor as defined by Rule
501(a)(1) of Regulation D under the Securities Act;
5. agree that it will deliver to each person to whom it transfers
Pass Through Certificates notice of any restrictions on transfer of such
Pass Through Certificates;
6. understands that if it is a foreign purchaser outside the United
States, the Pass Through Certificates will initially be represented by the
Regulation S Global Pass Through Certificate and that transfers thereof are
restricted as described under "Description of the Pass Through
Certificates--Book-Entry; Delivery and Form" for a period ending 40 days
after the later of the commencement of the offering and the Closing Date.
If it is a QIB, it understands that the Pass Through Certificates offered
in reliance on Rule 144A will be represented by the Restricted Global Pass
Through Certificate. Before any interest in the Restricted Global Pass
Through Certificates may be offered, sold, pledged or otherwise transferred
to a person who is not a QIB, the transferee will be required to provide
the Pass Through Trustee with a written certification (the form of which
certification can be obtained from the Pass Through Trustee) as to
compliance with the transfer restriction referred to above;
7. understand that the Pass Through Certificates (other than those
issued to foreign purchasers after the expiration of the
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<PAGE>
40-day period referred to above or in substitution or exchange therefor)
will bear a legend to the following effect unless otherwise agreed by
Mobil, MGB and the holder hereof:
THIS PASS THROUGH CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) OR (B) IT IS AN "INSTITUTIONAL ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C)
IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS PASS THROUGH CERTIFICATE IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THREE YEARS AFTER THE
LATER OF THE ORIGINAL ISSUANCE OF THIS PASS THROUGH CERTIFICATE OR THE LAST
DATE ON WHICH THIS PASS THROUGH CERTIFICATE WAS HELD BY AN AFFILIATE OF
MOBIL OR MGB, RESELL OR OTHERWISE TRANSFER THIS PASS THROUGH CERTIFICATE
EXCEPT (A) TO MOBIL, MGB OR ANY AFFILIATE OF MOBIL OR MGB, (B) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO THE PASS THROUGH TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THIS PASS THROUGH CERTIFICATE (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE PASS THROUGH TRUSTEE), (D) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 903 OR RULE 904 UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (3) AGREES THAT
IT WILL NOT AT ANY TIME RESELL OR OTHERWISE TRANSFER THIS PASS THROUGH
CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO ERISA OR SECTION
4975 OF THE CODE THAT HAS NOT REPRESENTED TO THE PASS THROUGH TRUSTEE THAT
IT IS AN ACCREDITED INVESTOR AS DEFINED BY RULE 501(A)(1) OF REGULATION D
UNDER THE
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<PAGE>
SECURITIES ACT, AND (4) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS PASS THROUGH CERTIFICATE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS PASS THROUGH
CERTIFICATE WITHIN THREE YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF
THE PASS THROUGH CERTIFICATE OR THE LAST DATE ON WHICH THIS PASS THROUGH
CERTIFICATE WAS HELD BY AN AFFILIATE OF MOBIL OR MGB, THE HOLDER MUST CHECK
THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER
OF SUCH TRANSFER AND SUBMIT THIS PASS THROUGH CERTIFICATE TO THE PASS
THROUGH TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE PASS
THROUGH TRUSTEE, MOBIL AND MGB SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT. THE PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION
REQUIRING THE PASS THROUGH TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS PASS THROUGH CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
and
8. acknowledge that Mobil, MGB, the Manager and others will rely upon the
truth and accuracy of the foregoing acknowledgements, representations and
agreements, and agrees that if any of the acknowledgements, representations
or warranties deemed to have been made by it by its purchase of Pass
Through Certificates are no longer accurate, it shall promptly notify
Mobil, MGB and the Manager. If it is acquiring any Pass Through
Certificates as a fiduciary or agent for one or more investor accounts, it
represents that it has sole investment discretion with respect to each such
account and it has full power to make the foregoing acknowledgements,
representations and agreements on behalf of each such account."
Each Offering Memorandum shall also contain language to the following
effect:
D-4
<PAGE>
"No dealer, salesperson or other individual has been authorized to
give any information or to make any representations other than those
contained or incorporated by reference in this Offering Memorandum in
connection with the offer contained in this Offering Memorandum and, if
given or made, such information or representations must not be relied upon
as having been authorized by Mobil, MGB or the Manager. Each person
receiving this Offering Memorandum acknowledges that such person has been
afforded an opportunity to request from Mobil or MGB and to review, and has
received, all additional information considered by it to be necessary to
verify the accuracy of the information herein and has not relied on the
Manager or any person affiliated with the Manager in connection with its
investigation of the accuracy of such information or its investment
decision."
D-5
<PAGE>
EXHIBIT E
---------
ACCREDITED INVESTOR LETTER
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
AS MANAGER IN CONNECTION WITH THE OFFERING MEMORANDUM REFERRED TO BELOW
Dear Sirs:
In connection with our proposed purchase of __% Mobil Corporation Series
1995-A_ Pass Through Certificates (the "Pass Through Certificates"), we confirm
that:
(1) We have received (a) the Offering Memorandum (the "Offering
Memorandum") dated December __, 1995 relating to the Pass Through Certificates
and (b) such other information as we deem necessary in order to make our
investment decision. We acknowledge that we have read and agree to the matters
stated on pages 2, 53, 54 and 55 of such Offering Memorandum, including, without
limitation, the restrictions on duplication and circulation of such Offering
Memorandum.
(2) As a purchaser of the Pass Through Certificates in a private placement
not registered under the Securities Act of 1933, as amended (the "Securities
Act"), we represent that we are purchasing such Pass Through Certificates for
our own account (or for an account as to which we exercise sole investment
discretion (a "Discretionary Account")) for investment and (subject, to the
extent necessary, to the disposition of our (or such Discretionary Account's)
property being at all times within our or its control) not with a view to any
distribution or other disposition thereof, subject to our ability to resell such
Pass Through Certificates in compliance with Rule 144A or Regulation S under the
Securities Act and the terms of the Pass Through Trust Agreement referred to
below, and we are proceeding on the assumption that we (or such Discretionary
Account) must bear the economic risk of the
E-1
<PAGE>
investment for an indefinite period since the Pass Through Certificates may not
be sold except as provided below.
(3) We have such knowledge and experience in financial and business
matters as to enable us to evaluate the merits and risks of our investment in
the Pass Through Certificates and we further represent that we are (or such
Discretionary Account is) an institution that is an "accredited investor" as
that term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act and able to bear the economic risks of our investment in the
Pass Through Certificates.
(4) We understand that any subsequent transfer of the Pass Through
Certificates is subject to certain restrictions and conditions set forth in the
Pass Through Trust Agreement dated as of December 6, 1995 relating to the Pass
Through Certificates (the "Pass Through Trust Agreement") and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer the Pass
Through Certificates except in compliance with, such restrictions and conditions
and the Securities Act.
(5) We understand that the offer and sale of the Pass Through Certificates
has not been registered under the Securities Act, and that the Pass Through
Certificates may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which
we are acting as hereinafter stated, that if we should sell any Pass Through
Certificates within three years after the later of the original issuance of the
Pass Through Certificates or the last date on which the Pass Through Certificate
is owned by an affiliate of Mobil or MGB, we will do so only (A) to Mobil, MGB,
or any affiliate of Mobil or MGB, (B) in accordance with the Rule 144A under the
Securities Act to a "Qualified institutional buyer" (as defined therein), (C) to
an institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes to the Pass Through Trustee a signed letter containing
certain representations and agreements relating to the restrictions on transfers
of the pass Through Certificates (the form of which letter can be obtained from
the Pass Through Trustee), (D) outside the United States in accordance with Rule
903 or Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act or (F)
pursuant to an effective registration statement under the Securities Act, and we
further agree to provide to any person purchasing any of the Pass Through
Certificates from us a notice advising such purchaser that
E-2
<PAGE>
resales of the Pass Through Certificates are restricted as stated herein.
(6) We understand that, on any proposed resale of any Pass Through
Certificates, we will be required to furnish to Mobil, MGB and to the Pass
Through Trustee such certification, legal opinions and other information as
Mobil, MGB and the Pass Through Trustee may reasonably require to confirm that
the proposed sale complies with the foregoing restrictions. We further
understand that the Pass Through Certificates purchased by us will bear a legend
to the foregoing effect.
We request that the Pass Through Certificates that we have purchased
be registered [in our name, at [our address]] [in the name of [nominee name],
our nominee, at [our nominee's address]]/1/ and that such Pass Through
Certificates be delivered to [the above-mentioned address] [full name and
address of custodian] by registered mail, which delivery shall be for our sole
risk and expense.
Very truly yours,
[NAME OF INVESTOR]
By:______________________________
Name:
Title:
Dated:______________________
To Be Purchased:
$________ principal amount of Pass Through Certificates
_____________________
/1/ Delete inappropriate language.
E-3
<PAGE>
EXHIBIT 4.11
[EXECUTION COPY]
REGISTRATION RIGHTS AGREEMENT
Dated as of December 12, 1995
by and among
MOBIL CORPORATION
MOBIL G. B. 388 FINANCE INC.
and
MORGAN STANLEY & CO. INCORPORATED
Pass Through Certificates, Series 1995-A1 through 1995-A6
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of December 12, 1995, by and among Mobil Corporation, a Delaware
corporation ("Mobil"), Mobil G. B. 388 Finance Inc., a Delaware corporation
("MGB") and Morgan Stanley & Co. Incorporated, a Delaware corporation (the
"Purchaser").
This Agreement is made pursuant to the Placement Agreement, dated
December 6, 1995 (the "Placement Agreement"), among Mobil, MGB and the
Purchaser, which provides for the sale by Mobil and MGB to the Purchaser of an
aggregate of $92,185,000 principal amount of Pass Through Certificates, Series
1995-A1 through 1995-A6 as set forth on Exhibit A hereto (collectively, the
"Certificates"). In order to induce the Purchaser to enter into the Placement
Agreement, Mobil and MGB have agreed to provide the registration rights set
forth in this Agree ment. The execution of this Agreement is a condition to
the Closing under the Placement Agreement.
The parties hereby agree as follows:
1. Definitions
-----------
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Placement Agreement. As used in this
Agreement, the following terms shall have the following meanings:
Advice: See Section 4(o).
Closing Date: December 12, 1995, or such other date as may be agreed
upon for the sale and purchase of the Certificates pursuant to the Placement
Agreement.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Exchange Offer: The exchange offer by Mobil and MGB of Exchange
Securities for Registrable Securities pursuant to Section 3(d) hereof.
Exchange Offer Registration: A registration under the Securities Act
effected pursuant to Section 3(d) hereof.
Exchange Offer Registration Statement: An exchange offer registration
statement on Form S-4 (or, if applicable, on another appropriate form) and all
amendments and supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
<PAGE>
Exchange Securities: Pass Through Certificates issued by the Pass
Through Trustee of each Pass Through Trust under a pass through trust agreement
containing terms identical mutatis mutandis to the Certificates (except that
interest thereon shall accrue from the last date on which interest was paid on
the Certificates or, if no such interest has been paid, from December 12, 1995),
to be offered to holders of Certificates in exchange for Certificates pursuant
to the Exchange Offer.
Indenture: The Trust Indenture, Mortgage, Assignment of Lease and
Security Agreement dated as of December 12, 1995, between the Indenture Trustee
and the Owner Trustee, as amended or supplemented from time to time in
accordance with the terms thereof.
Indenture Trustee: First Security Bank of Utah, National Association,
as Indenture Trustee under the Indenture.
MPTN: Mobil Producing Texas & New Mexico Inc.
Owner Trustee: Fleet National Bank of Connecticut.
Pass Through Trust Agreements: Each of the Pass Through Trust
Agreements, dated as of December 12, 1995, among Mobil, MGB and First Security
Bank of Utah, National Association, as Pass Through Trustee, pursuant to which
the Certificates are being issued, as amended or supplemented from time to time
in accordance with the terms thereof.
Pass Through Trustee: First Security Bank of Utah, National
Association, as Pass Through Trustee under the Pass Through Trust Agreements.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Securities covered by such Registration Statement or of the
Exchange Securities, as the case may be, and all other amendments and
supplements to the Prospectus, including post-effective amendments and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
Registrable Securities: All Certificates which are Restricted
Securities.
Registration Expenses: See Section 5 hereof.
Registration Statement: Any registration statement of Mobil and MGB
which covers any of the Exchange Securities or Registrable Securities pursuant
to the provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
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<PAGE>
Restricted Securities: Any and all Certificates upon original
issuance thereof and at all times subsequent thereto until, as to any
Certificate, (i) the sale of such Certificate has been effectively registered
under the Securities Act and such Certificate has been disposed of in accordance
with the Registration Statement relating thereto or (ii) it is distributed to
the public pursuant to Rule 144(k) (or any similar provision then in force, but
not Rule 144A) under the Securities Act or (iii) an Exchange Offer Registration
Statement has been declared effective and such Certificate has been exchanged
for an Exchange Security by a person who is not then deemed to be an Underwriter
as defined in Section 2(11) of the Securities Act.
SEC: The Securities and Exchange Commission.
Secured Notes: The Secured Notes issued pursuant to the Indenture.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the SEC thereunder.
Shelf Registration: See Section 3 hereof.
Special Counsel: Kirkland & Ellis, special counsel to the Purchaser
or such other special counsel as may be designated by the holders of a majority
in aggregate principal amount of Registrable Securities outstanding.
TIA: The Trust Indenture Act of 1939, as amended.
2. Securities Subject to this Agreement
------------------------------------
(a) The securities entitled to the benefits of this Agreement are the
Registrable Securities.
(b) A Person is deemed to be a holder of Registrable Securities
whenever such Person beneficially owns Registrable Securities; provided, that
only Registrable Securities of holders who are registered holders of Registrable
Securities shall be counted for purposes of calculating any proportion of
holders of Registrable Securities entitled to take action or give notice
pursuant to this Agreement.
3. Shelf Registrations; Exchange Offers
------------------------------------
(a) As promptly as practicable and in no event later than June 12,
1996, Mobil and MGB shall prepare and file with the SEC, and use their
commercially reasonable efforts to cause to be declared effective, a
Registration Statement under the Securities Act for an offering to be made on a
continuous basis pursuant to Rule 415 (or any similar rule that may be adopted
by the SEC) under the Securities Act covering all the Registrable Securities
(the "Shelf Registration").
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<PAGE>
(b) The Shelf Registration shall be on Form S-3 or another appropriate
form permitting registration of such Registrable Securities for resale by such
holders in the manner or manners designated by them.
(c) Mobil and MGB shall each use its commercially reasonable efforts
to cause the Shelf Registration to become effective under the Securities Act in
accordance with Section 3(a) hereof and shall keep the Shelf Registration
continuously effective for a period of three years from the Closing Date or such
shorter period which will terminate when all Registrable Securities covered by
the Shelf Registration are no longer Restricted Securities. Mobil and MGB shall
also supplement or make amendments to any Shelf Registration if required by the
rules, regulations or instructions applicable to the registration form used by
Mobil and MGB or if required by the Securities Act or if reasonably requested by
holders of a majority of the principal amount of the Registrable Securities then
outstanding covered by the Shelf Registration.
(d) Notwithstanding the provisions of Section 3(a), at the option of
Mobil and MGB, to the extent any applicable law or applicable interpretation of
the staff of the SEC would permit holders of Exchange Securities (other than the
Purchaser, any Participating Broker-Dealer (as defined below) or any other
person deemed to be an "underwriter" (as defined in Section 2(11) of the
Securities Act)) to resell Exchange Securities without restriction, Mobil and
MGB may, in lieu of complying with Section 3(a), cause to be filed an Exchange
Offer Registration Statement covering the offer by Mobil and MGB to the holders
of Certificates to exchange all of the Registrable Securities for Exchange
Securities, to use their commercially reasonable efforts to have such Exchange
Offer Registration Statement declared effective by the SEC not later than June
12, 1996 and to have such Registration Statement remain effective until the
closing of the Exchange Offer; provided, that if the Purchaser notifies Mobil
--------
and MGB that it continues to hold Registrable Securities acquired from the Pass
Through Trustee, Mobil and MGB shall, at the request of the Purchaser, comply
with the provisions of Section 3(a) with respect to the Registrable Securities
held by the Purchaser. Mobil and MGB shall commence the Exchange Offer promptly
after the Exchange Offer Registration Statement has been declared effective by
the SEC by mailing the Prospectus and accompanying documents related to the
Exchange Offer to each holder of Certificates stating, in addition to such other
disclosures required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Agreement and that all Registrable Securities validly tendered will be
accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a
period of at least 60 days from the date such notice is mailed) (the
"Exchange Dates");
(iii) that any Registrable Security not tendered will remain out
standing and continue to accrue interest but, except as set forth in the
last paragraph of this Section 3(d), will not retain any rights under this
Agreement;
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<PAGE>
(iv) that holders of Certificates electing to have a Registrable
Security exchanged pursuant to the Exchange Offer will be required to
surrender such Registrable Security, together with the enclosed letters of
transmittal, to the institution and at the address (located in the Borough
of Manhattan, The City of New York) specified in the notice prior to the
close of business on the last Exchange Date; and
(v) that holders of Certificates will be entitled to withdraw
their election not later than the close of business on the last Exchange
Date, by sending to the institution and at the address (located in the
Borough of Manhattan, The City of New York) specified in the notice of a
telegram, facsimile transmission or letter setting forth the name of such
holder, the principal amount of Registrable Securities delivered for
exchange and a statement that such holder is withdrawing its election to
have such Certificates exchanged.
As soon as practicable after the last Exchange Date, Mobil and MGB
shall:
(i) accept for exchange Registrable Securities or portions
thereof tendered and not validly withdrawn pursuant to the Exchange Offer;
and
(ii) deliver or cause to be delivered, to the Pass Through
Trustee for cancellation all Registrable Securities or portions thereof so
accepted for exchange by Mobil and MGB and issue, and cause the Pass
Through Trustee under the Pass Through Trust Agreements governing the
Exchange Securities to promptly authenticate and mail to each holder, a new
Exchange Security, as the case may be, equal in principal amount to the
principal amount of the Registrable Securities surrendered by such Holder.
Mobil and MGB shall use their commercially reasonable efforts to
complete the Exchange Offer as provided above and shall comply in all material
respects with the applicable requirements of the Securities Act, the Exchange
Act and other applicable laws in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate applicable law or any applicable interpretation
of the staff of the SEC. Mobil and MGB shall inform the Purchaser of the names
and addresses of the holders of Certificates to whom the Exchange Offer is made,
and the Purchaser shall have the right, to the extent permitted by applicable
law and with Mobil's reasonable approval, to contact such holders and otherwise
facilitate the tender of Registrable Securities in the Exchange Offer.
In connection with the Exchange Registration, Mobil and MGB will
provide an undertaking to the staff of the SEC that contains statements and
representations substantially in the form set forth in Morgan Stanley & Co.
Incorporated (no-action letter available October 11, 1991), Warnaco, Inc., (no-
action letter available June 5, 1991) Epic Properties, Inc. (no-action letter
available October 21, 1991) and no-action letters to similar effect.
-5-
<PAGE>
As provided in the Indenture, in the event that neither the Shelf
Registration nor the Exchange Offer Registration is declared effective by June
12, 1996, the interest rate on the Secured Notes shall be permanently increased,
beginning at such time, by .50% per annum.
4. Registration Procedures
-----------------------
In connection with the registration obligations of Mobil and MGB
pursuant to Section 3 hereof, Mobil and MGB shall use their commercially
reasonable efforts to effect such registrations to permit the consummation of
the Exchange Offer or the sale of such Registrable Securities in accordance with
the intended method or methods of disposition thereof, and pursuant thereto
Mobil and MGB shall as expeditiously as possible:
(a) prepare and file with the SEC, within the time period specified
in Section 3, a Registration Statement or Registration Statements on any
appropriate form under the Securities Act, which form, in the case of a Shelf
Registration, shall be available for the sale of the Registrable Securities by
the holders thereof in accordance with the intended method or methods of
distribution thereof, and use their commercially reasonable efforts to cause
each such Registration Statement to become effective and remain effective as
provided herein; provided, however, that before filing a Registration Statement
or Prospectus or any amendments or supplements thereto (including docu ments
which would be incorporated or deemed to be incorporated therein by reference
and amendments to such documents, other than documents required to be filed
pursuant to the Exchange Act) Mobil and MGB shall furnish to the Special
Counsel, copies of the Registration Statement or Prospectus and amendments or
supplements thereof and all such documents in the form proposed to be filed at
least three business days prior thereto, which documents will be subject to the
review of the Special Counsel and Mobil and MGB shall not file any such
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto (including such documents which, upon filing, would be incorporated or
deemed to be incorporated by reference therein and amendments to such documents,
other than documents required to be filed pursuant to the Exchange Act) to which
the Special Counsel shall reasonably object on a timely basis, unless Mobil and
MGB are advised by their counsel that such Registration Statement or amendment
thereto or any Prospectus or supplement thereto is required to be filed by
applicable law;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period; cause
the related Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act;
(c) notify the selling holders of Registrable Securities (except in
the cases of clauses (ii) and (iii) hereof) and their Special Counsel promptly,
and (if requested by any such Person) confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment related to
such Registrable Securities has been filed, and, with respect to a Registration
Statement or any post-effective amendment related to such Registrable
Securities, at such time as Mobil or MGB become aware that the same has become
effective, (ii) of the receipt of
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<PAGE>
any comments from the SEC, (iii) of any request by the SEC for amendments or
supplements to a Registration Statement or related Prospectus or for additional
information, (iv) at such time as Mobil or MGB become aware of the issuance by
the SEC of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (v) at such
time as Mobil or MGB become aware that the representations and warranties of
Mobil and MGB contained in any agreement contemplated by paragraph (1) below in
connection with the sale of Restricted Securities by selling holders thereof
cease to be true and correct, (vi) of the receipt by Mobil or MGB of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale or exchange in
any jurisdiction of the United States of America or the initiation of any
proceeding for such purpose, (vii) as long as the Exchange Offer Registration
Statement or Shelf Registration Statement, as applicable, remains effective, at
such time as Mobil or MGB become aware of the happening of any event which makes
any statement of a material fact made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue or which requires the making of any changes in a Registration
Statement or related Prospectus so that such documents will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and (viii) of
Mobil's and MGB's determination that a post-effective amendment to a
Registration Statement would be appropriate;
(d) use commercially reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale or exchange in any jurisdiction of
the United States of America, as promptly as practicable;
(e) if reasonably requested by any holder of Registrable Securities
covered by a Registration statement, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information as such holder
reasonably requests to be included therein as may be required by applicable law,
(ii) make all required filings of such Prospectus supplement or such post
effective amendment as soon as Mobil and MGB have received notification of the
matters to be incorporated in such Prospectus supplement or such post-effective
amendment, and (iii) supplement or make amendments to any Registration Statement
as may be required by applicable law if reasonably requested by any holder of
Registrable Securities covered by such Registration Statement;
(f) in the case of a Shelf Registration, furnish to each selling
holder of Registrable Securities upon request and the Special Counsel, without
charge, at least one conformed copy of the Registration Statement or Statements
and any post-effective amendment thereto, including financial statements and
schedules, all documents incorporated therein by reference or deemed
incorporated therein by reference and all exhibits (including those previously
furnished or incorporated by reference), at the earliest practicable time under
the circumstances after the filing of such documents with the SEC;
-7-
<PAGE>
(g) in the case of a Shelf Registration, deliver to each selling
holder of Registrable Securities and the Special Counsel, without charge, as
many copies of the Prospectus or Prospectuses (including each Preliminary
prospectus) and any amendment or supplement thereto as such Persons may
reasonably request; Mobil and MGB consent to the use of such Prospectus or any
amendment or supplement thereto in accordance with applicable law by each of the
selling holders of Registrable Securities in connection with the offering and
sale of the Registrable Securities covered by such Prospectus or any amendment
or supplement thereto in accordance with applicable law;
(h) prior to any public offering or exchange of Registrable
Securities, to use their commercially reasonable efforts to register or qualify
or cooperate with the selling holders of Registable Securities and their
Special Counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities for offer and sale or exchange, as the case may be, under the
securities or blue sky laws of such state or local jurisdictions as any seller
reasonably requests in writing; keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the applicable Registration Statement; provided, however,
that neither Mobil nor MGB will be required to (A) qualify generally to do
business in any jurisdiction where it is not then so qualified, (B) take any
action which would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) register or qualify
securities prior to the effective date of any Registration Statement under
Section 3 hereof;
(i) in the case of a Shelf Registration, cooperate with the selling
holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold, which
certificates shall not bear any restrictive legends; and enable such Registrable
Securities to be in such denominations and registered in such names, in all
cases consistent with the requirements set forth in the Pass Through Trust
Agreements, as the holders may request;
(j) subject to the exceptions contained in (A), (B) and (C) of
subsection (h) hereof, cause the Registrable Securities covered by the
applicable Registration Statement to be registered with or approved by such
other Federal, state and local governmental regulatory agencies or authorities
in the United States as may be necessary to enable the seller or sellers thereof
to consummate the disposition of such Registrable Securities and cooperate with
each seller of Registrable Securities in connection with any filings required to
be made with the National Association of Securities Dealers, Inc.;
(k) upon the occurrence of any event contemplated by paragraph
4(c)(vii) or 4(c)(viii) above, as promptly as practicable thereafter, prepare
and file with the SEC a supplement or post-effective amendment to the applicable
Registration Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable Securities being
sold thereunder, such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact
-8-
<PAGE>
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
(l) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith (including
those reasonably requested by the holders of a majority of the Registrable
Securities being sold) in order to expedite or facilitate the disposition of
such Registrable Securities including, but not limited to, an underwritten
offering and in such connection, (i) to the extent possible, make such
representations and warranties to the holders and any underwriters of such
Registrable Securities with respect to the business of Mobil, MGB and their
respective subsidiaries, the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any, in each
case, in form, substance and scope substantially similar to those made in the
Placement Agreement and confirm the same if and when requested; (ii) obtain
opinions of counsel to Mobil and MGB (which counsel and opinions, in form, scope
and substance, shall be reasonably satisfactory to Special Counsel) addressed to
each selling holder and underwriter of Registrable Securities, covering the
matters substantially similar to those covered by the opinions delivered
pursuant to the Placement Agreement, (iii) obtain "cold comfort" letters from
the independent certified public accountants of Mobil and MGB (and, if
necessary, any other certified public accountant of any subsidiary of Mobil, or
of any business acquired by Mobil for which financial statements and financial
data is or is required to be included in the Registration Statement) addressed
to each selling holder and underwriter of Registrable Securities, such letters
to be in customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings, and (iv)
deliver such documents and certificates substantially similar to those delivered
in connection with the Placement Agreement as may be reasonably requested by the
holders of a majority in principal amount of the Registrable Securities being
sold to evidence the continued validity of the representations and warranties of
Mobil and MGB made pursuant to clause (i) above and to evidence compliance with
any of the conditions contained in an underwriting agreement;
(m) in the case of a Shelf Registration, make available for
inspection by a repre sentative of the holders of Registrable Securities being
sold, Special Counsel and an accountant retained by such selling holders, in a
manner designed to permit underwriters to satisfy their due diligence
investigation under the Securities Act, all financial and other records,
pertinent corporate documents and properties of Mobil and MGB and cause the
officers and employees of Mobil, MGB and Mobil's subsidiaries to supply all
information reasonably requested by any such representative, attorney or
accountant in connection with such registration; provided however, that all such
records, information or documents shall be kept confidential by such persons,
unless (i) such records, information or documents are in the public domain or
otherwise publicly available, (ii) disclosure of such records, information or
documents is required by court or administrative order (in which case such
person shall consult with Mobil and take such reasonable actions at Mobil's
request and expense to quash such order), (iii) disclosure of such records,
information or documents, in the written opinion of counsel to such person, is
otherwise required by law (including, without limitation pursuant to the
requirements of the Securities Act) or (iv) disclosure of such records,
information or document is necessary to avoid or correct a misstatement or
omission in the Registration Statement, Prospectus, prospectus supplement or any
post-effective amendment;
-9-
<PAGE>
(n) provide a pass through trustee for the Registrable Securities or
Exchange Securities, as the case may be, and cause the Pass Through Trust
Agreements (or the pass through trust agreements governing the Exchange
Securities) to be qualified under the TIA not later than the effective date of
any registration; and in connection therewith, cooperate with the pass through
trustee to effect such changes to such pass through trust agreements as may be
required for such pass through trust agreements to be so qualified in accordance
with the terms of the TIA and execute, and use its commercially reasonable
efforts to cause the pass through trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents required to
be filed with the SEC to enable such pass through trust agreements to be so
qualified in a timely manner; and
(o) comply in all material respects with all applicable rules and
regulations of the SEC and, in the case of a Shelf Registration, make generally
available to its security holders an earning statement satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder no later than 45
days after the end of any 12-month period (or 90 days after the end of any 12-
month period if such period is a fiscal year), commencing on the first day of
the first fiscal quarter of Mobil commencing after the effective date of a
Registration Statement, which statement shall cover said 12-month period.
Mobil and MGB may require each seller of Registrable Securities under
a Shelf Registration to furnish to Mobil and MGB such information required by
applicable law to be disclosed in a Shelf Registration Statement as Mobil and
MGB may from time to time reasonably request in writing and each holder by
acquiring such Registrable Securities agrees to supply such information to
Mobil and MGB promptly upon such request. In no event will Mobil or MGB be
required to cause any other entity (including, without limitation, MPTN) to be
included as an "issuer" in any registration statement required by this Agreement
or become a reporting company under federal securities laws.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, in the event of a Shelf Registration, upon receipt
of any notice from Mobil or MGB of the happening of any event of the kind
described in Section 4(c)(iii), 4(c)(iv), 4(c)(v), 4(c)(vi), 4(c)(vii) or
4(c)(viii) hereof, such holder will forthwith discontinue disposition of such
Registrable Securities covered by such Registration Statement or Prospectus
until such holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 4(k) hereof, or until it is advised in
writing (the "Advice") by Mobil or MGB that the use of the applicable Prospectus
may be resumed, and has received copies of any additional or supplemental
filings which are incorporated or deemed to be incorporated by reference in such
Prospectus.
5. Registration Expenses
---------------------
Mobil and MGB shall pay all fees and expenses incident to the
performance of or compliance with this Agreement by Mobil and MGB including,
without limitation, (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (in cluding reasonable fees and disbursements not to exceed $10,000 of
counsel for any underwriters
-10-
<PAGE>
or holders in connection with blue sky qualification of any of the Exchange
Securities or Registrable Securities), (iii) all expenses of any persons in
preparing or assisting in preparing, word processing, printing and distributing
any Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this Agreement,
(iv) all rating agency fees and (v) the reasonable fees and disbursements of
counsel for Mobil and MGB, Special Counsel to the holders of Registrable
Securities (which shall not exceed $25,000) and of the independent public
accountants of Mobil and MGB, including the expenses of any special audits or
"cold comfort" letters required by or incident to such performance and
compliance, but excluding fees of counsel to the underwriters and underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a holder of Registrable Securities in
an underwritten offering.
6. Participation of Broker-Dealers in Exchange Offer
-------------------------------------------------
(a) Mobil, MGB, the Purchaser and each holder of Registrable
Securities acknowledge that the staff of the SEC has taken the position that any
broker-dealer that receives Exchange Securities for its own account in the
Exchange Offer in exchange for Registrable Securities that were acquired by such
broker-dealer as a result of market-making or other trading activities (a
"Participating Broker-Dealer") may be deemed to be an "underwriter" within the
meaning of the Securities Act in connection with any resale of such Exchange
Securities.
Mobil and MGB understand that it is the Staff's position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Exchange Securities owned by
them, such Prospectus may be used by Participating Broker-Dealers to satisfy
their prospectus delivery obligations under the Securities Act in connection
with resales of Exchange Securities for their own accounts, so long as the
Prospectus otherwise meets the requirements of the Securities Act.
(b) In light of the above, notwithstanding any other provision of
this Agreement, Mobil and MGB agree (x) that the provisions of this Agreement as
they relate to a Shelf Registration shall also apply to an Exchange Offer
Registration to the extent, and with such modifications thereto as may be,
reasonably requested by the Purchaser or one or more Participating Broker-
Dealers, in each case subject to the following provisos, in order to expedite or
facilitate the disposition of any Exchange Securities by Participating Broker-
Dealers consistent with the positions of the Staff recited in 6(a) above and (y)
without limiting the preceding clause (x), to maintain the effectiveness of the
Registration Statement for such purposes for one year from the date of its
original effectiveness; provided that the application of the Shelf Registration
--------
procedures set forth in Section 3 of this Agreement to an Exchange Offer
Registration, to the extent not required by the positions of the Staff of the
SEC or the Securities Act and the rules and regulations thereunder, will be in
conformity with the reasonable request to Mobil and MGB by the Purchaser or with
the reasonable request in writing to Mobil and MGB by one or more broker-dealers
who certify to the Purchaser, Mobil and MGB in writing that they anticipate that
they will be Participating Broker-Dealers; and provided further that,
----------------
-11-
<PAGE>
in connection with such application of the Shelf Registration procedures set
forth in Section 3 to an Exchange Offer Registration, Mobil and MGB shall be
obligated to deal only with one entity representing the Participating Broker-
Dealers, which shall be the Purchaser unless it elects not to act as such
representative.
7. Indemnification
---------------
Mobil and MGB jointly and severally agree to indemnify and hold
harmless the Purchaser and each holder of Registrable Securities and each
person, if any, who controls the Purchaser or any holder of Registrable
Securities 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 or liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended and
supplemented if Mobil or MGB 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 alleged
untrue statement or omission based upon information relating to the Purchaser or
any holder of Registrable Securities furnished to Mobil or MGB in writing by
such Purchaser or holder of Registrable Securities expressly for use therein.
In connection with any Shelf Registration in which a holder of
Registrable Securities is participating, in furnishing information relating to
such holder of Registrable Securities to Mobil or MGB in writing expressly for
use in such Registration Statement, any preliminary prospectus, the Prospectus
or any amendments or supplements thereto, the holders of such Registrable
Securities agree severally and not jointly, to indemnify and hold harmless the
Purchaser and each person, if any, who controls the Purchaser within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act and
Mobil, MGB, their respective directors, its officers who sign a Registration
Statement and each person, if any, who controls Mobil within the meaning of
either such Section, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if
Mobil or MGB 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, but only with reference to such information relating to such holder
of Registrable Securities furnished in writing by or an behalf of such holder of
Registrable securities expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements thereto;
provided, however, that no such holder of Registrable Securities shall be liable
- -------- -------
for any claims hereunder in excess of the amount of net proceeds received by
such holder of
-12-
<PAGE>
Registrable Securities from the sale of Registrable Securities pursuant to such
Shelf Registration Statement.
The Purchaser agrees to indemnify and hold harmless Mobil, MGB, the
directors of Mobil, the directors of MGB, the officers of Mobil and MGB who sign
the Registration Statement and each person, if any, who controls Mobil 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 (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if
Mobil or MGB 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, but only with reference to information relating to the Purchaser
furnished to Mobil or MGB in writing 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 any of the three preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable 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 the actual or
potential differing interest between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for (a) the fees and expenses of more than one
separate firm (in addition to any local counsel) for the Purchaser and all
persons, if any, who control the Purchaser within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act, (b) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
Mobil, MGB, their respective directors, their respective officers who sign the
Registration Statement and each person, if any, who controls Mobil within the
meaning of either such Section and (c) the fees and expenses of more than one
separate firm (in addition to any local counsel) for all holders of Registrable
securities and all persons, if any, who control any holders of Registrable
Securities within the meaning of either such Section, and that all such fees and
expenses shall be reimbursed as they are incurred. In such case involving the
Purchaser and such control persons of the Purchaser, such firm shall be
designated in writing by Morgan Stanley & Co. Incorporated. In such case
involving the holders of Registrable Securities and such controlling
-13-
<PAGE>
persons of holders of Registrable Securities, such firm shall be designated in
writing by holders of a majority in aggregate principal amount of Registrable
Securities. In all other cases, such firm shall be designated by Mobil. 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, second or third
paragraph of this Section 7 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 in such proportion as is appropriate to reflect the
relative benefits received by Mobil and MGB on the one hand, the Purchaser on
another hand and the holders of Registrable Securities on another hand from the
offering of the Exchange Securities or Registrable Securities included in such
offering. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then Mobil and MGB on the one hand,
the Purchaser on another hand and the holders of Registrable Securities on
another hand shall contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only the relative
benefits but also the aggregate relative fault of Mobil and MGB on the one hand,
the Purchaser on another hand and the holders of Registrable Securities on
another hand in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities as well as any other relevant
equitable considerations. The parties hereto agree that any amounts paid to the
Purchaser pursuant to Section 3 of the Placement Agreement shall not be deemed
to be a benefit received by the Purchaser in connection with the offering of the
Exchange Securities or Registrable Securities included in such offering. The
relative fault of Mobil and MGB on one hand, the holders of Registrable
Securities on another hand and the Purchaser on another hand shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by Mobil or MGB, the holders of
Registrable Securities or by the Purchaser and the parties' relative intent,
knowledge, access to infor mation and opportunity to correct or prevent such
statement or omission.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the 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.
-14-
<PAGE>
Notwithstanding the provisions of this Section 7, the Purchaser shall not be
required to contribute any amount in excess of the amount received by it
pursuant to Section 3 of the Placement Agreement exceeds the amount of any
damages that the Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for in
this Section 7 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 provisions contained in this Section 6
and the representations and warranties of Mobil and MGB contained in this
Agreement shall remain operative and in full force and affect regardless of any
investigation made by or on behalf of the Purchaser or any person controlling
the Purchaser, any holder of Registrable Securities or any person controlling
the holder of Registrable Securities, or Mobil, MGB, their respective officers
or directors or any person controlling Mobil.
8. Miscellaneous
-------------
(a) Remedies. In the event of a breach by Mobil or MGB of any of its
--------
obligations under this Agreement, each holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement; provided, that in no event shall Mobil or MGB be required
--------
to cause any other entity (including, without limitation, MPTN) to be included
in any registration statement required by this Agreement or become a reporting
company under federal securities laws.
(b) No Inconsistent Agreements. Mobil and MGB shall not, on or after
--------------------------
the date of this Agreement, enter into any agreement which would prohibit Mobil
or MGB from complying with their respective obligations under this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless Mobil has obtained the written consent of holders of a
majority of the then outstanding aggregate principal amount of Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter which relates exclusively to the
rights of holders of Registrable Securities whose securities are being sold
pursuant to a Registration Statement and which does not directly or indirectly
affect the rights of other holders of Registrable Securities may be given by
holders of at least a majority in aggregate principal amount of the Registrable
Securities being sold by such holders.
(d) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, or telecopier:
(i) if to a holder of Registrable Securities, at the most
current address given by such holder to Mobil and MGB in accordance with
the provisions
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<PAGE>
of this Section 8(d), which address initially is, with respect to the
Purchaser, the address set forth on the first page of the Placement
Agreement; and
(ii) if to Mobil or MGB, initially, c/o Mobil at: 3225 Gallows
Road, Fairfax, Virginia 22037, Attention: Treasurer; and thereafter by
such other address, notice of which is given in accordance with the
provision of this Section 8(d).
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; three business days
after being deposited in the mail, postage prepaid, if mailed; one business day
after being sent by next-day solvent air courier; when answered back if telexed;
and when receipt acknowledged, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the person giving the same to the Pass Through Trustee
under the Pass Through Trust Agreements at the address specified in the Pass
Through Trust Agreements.
(e) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent holders of Registrable Securities.
(f) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(H) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
(i) Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their commercially reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such
which may be hereafter declared invalid, void or unenforceable.
-16-
<PAGE>
(j) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement, and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by Mobil and MGB with
respect to the securities sold pursuant to the Placement Agreement. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
(k) Securities Held by Mobil, MGB or their Respective Affiliates.
------------------------------------------------------------
Whenever the consent or approval of holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by
Mobil, MGB or any of their respective affiliates (as such term is defined in
Rule 405 under the Securities Act) (other than the Purchaser or subsequent
holders of Registrable Securities if such subsequent holders are deemed to be
such affiliates solely by reason of their holding of such Registrable
Securities) shall not be counted in determining whether such consent or approval
was given by the holders of such required percentage or amount.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
MOBIL CORPORATION
By: _______________________________________
Name:
Title:
MOBIL G. B. 388 FINANCE INC.
By: _______________________________________
Name:
Title:
MORGAN STANLEY & CO. INCORPORATED, as Initial
Purchaser
By: _______________________________________
Name:
Title:
-17-
<PAGE>
EXHIBIT A
---------
<TABLE>
<CAPTION>
SERIES AMOUNT
------ ------
<S> <C>
1995-A1 Pass Through Trust Certificates $ 4,917,000
1995-A2 Pass Through Trust Certificates 5,173,000
1995-A3 Pass Through Trust Certificates 5,462,000
1995-A4 Pass Through Trust Certificates 5,770,000
1995-A5 Pass Through Trust Certificates 6,101,000
1995-A6 Pass Through Trust Certificates 64,762,000
-----------
Total $ 92,185,000
===========
</TABLE>
-18-
<PAGE>
[LETTERHEAD OF DEWEY BALLANTINE]
Exhibit 5.1
May 8, 1996
Mobil Corporation
Mobil G.B. 388 Finance Inc.
3225 Gallows Road
Fairfax, VA 22037-0001
Ladies and Gentlemen:
We have acted as counsel to Mobil Corporation, a Delaware corporation
("Mobil") and Mobil G.B. 388 Finance Inc., a Delaware corporation and wholly-
owned subsidiary of Mobil in connection with Mobil's and MGB's preparation and
filing of a Registration Statement of Form S-4 (the "Registration Statement")
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"), relating to the
exchange of the Pass Through Certificates, Series 1995-B1 through 1995-B6 (the
"New Certificates") which are being registered pursuant to the Registration
Statement, for a like principal amount of issued and outstanding Pass Through
Certificates, Series 1995-A1 through 1995-A6 (the "Old Certificates").
In connection with this opinion, we have examined the Placement
Agreement dated as of December 6, 1995 among Mobil, MGB and Morgan Stanley & Co.
Incorporated as the manager, the Trust Indenture, Mortgage, Assignment of Lease
and Security Agreement, dated as of December 12, 1995 among Fleet National Bank
of Connecticut, solely as Corporate Owner Trustee, Michael M. Hopkins, solely as
Individual Owner Trustee, First Security Bank of Utah, National Association,
solely as Corporate Indenture Trustee and Val T. Orton, solely as Individual
Indenture Trustee (the "Indenture"), counterparts of each of the Pass Through
Trust Agreements among Mobil, MGB and First Security Bank of Utah, National
Association, as Pass Through Trustee (the "Pass Through Trustee") (the "Pass
Through Trust Agreements"), the Mobil Guaranty, dated as of December 12, 1995
for the benefit of holders of the Old Certificates and New Certificates, among
other agreements deemed necessary by us for the purposes of this opinion. We
have also examined originals or copies, certified or otherwise identified to our
satisfaction, of such corporate records of Mobil and MGB, certificates of
officers of Mobil and MGB and such other instruments, documents, certificates or
other records as we have deemed necessary or appropriate for the purposes of the
opinions expressed herein.
<PAGE>
In making such examination and in rendering the opinions expressed
herein, we have assumed without independent verification the genuineness of all
signatures and the authenticity of all documents submitted to us as originals or
certified documents, and the conformity to originals and certified documents of
all copies submitted to us as conformed, photostat or other copies. As to any
matters of fact material to the opinions expressed herein which were not
independently verified or established, we have relied exclusively upon the
aforesaid documents, corporate records, agreements, instruments and
certificates.
Based upon the foregoing, it is our opinion that:
1. Assuming the due authorization, execution, authentication, issue
and delivery by the Pass Through Trustee under each Pass Through Trust Agreement
of the New Certificates to be issued under such Pass Through Trust Agreement,
the New Certificates will be validly issued obligations in accordance with the
terms of the applicable Pass Through Trust Agreement and will entitle the holder
thereof to the benefits of the applicable Pass Through Trust Agreement.
2. The Guaranty has been duly authorized, executed and delivered by
Mobil and the Guaranty constitutes the legal, valid and binding obligation of
Mobil enforceable against Mobil in accordance with its terms.
3. The discussion in the Prospectus constituting part of the
Registration Statement entitled "Federal Income Tax Consequences," insofar as it
relates to statements of law or legal conclusions, is correct in all material
respects.
We are members of the bar of the State of New York and express no
opinion as to the laws of any jurisdiction except the State of New York and the
federal law of the United States.
The opinions set forth above are subject to the qualification that
enforceability of the New Certificates and the Pass Through Trust Agreements in
accordance with their respective terms may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or similar laws affecting enforcement of
creditors' rights generally, as well as general principles of equity and the
availability of equitable remedies (regardless of whether considered in a
proceeding in equity or at law).
<PAGE>
In rendering the opinions herein contained, we have relied with your
approval (without making any independent investigation with respect thereto)
upon the opinion of Ralph N. Johanson, Jr., Assistant General Counsel to Mobil,
filed as Exhibit 5.2 to the Registration Statement.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to our name in the Prospectus
constituting a part of such Registration Statement under the headings "Legal
Matters" and "Federal Income Tax Consequences". In giving such consent, we do
not thereby admit that we come within the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and regulations of
the Commission promulgated thereunder.
Very truly yours,
/s/ Dewey Ballantine
Dewey Ballantine
<PAGE>
[LETTERHEAD OF MOBIL CORPORATION]
Exhibit 5.2
May 8, 1996
Mobil Corporation
3225 Gallows Road
Fairfax, Virginia 22037
Mobil G.B. 388 Finance Inc.
3225 Gallows Road
Fairfax, Virginia 22037
MOBIL CORPORATION
MOBIL G.B. 388 FINANCE INC.
PASS THROUGH TRUST CERTIFICATES SERIES 1995-B
---------------------------------------------
Ladies and Gentlemen:
I am Assistant General Counsel of Mobil Corporation, a Delaware
corporation (the "Guarantor") and a member of the Guarantor's Office of General
Counsel, which has acted as counsel to the Guarantor and its wholly-owned
subsidiary Mobil G.B. 388 Finance Inc., a Delaware corporation ("MGB"), in
connection with the preparation and filing with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), of a Registration Statement on Form S-4 (the "Registration
Statement") to register with the Commission (i) Pass Through Certificates,
Series 1995 B-1 through 1995 B-6 (the "New Certificates"), and a guaranty with
respect thereto, dated as of December 12, 1995 (the "Guaranty"), by and among
the Guarantor and the Corporate Owner Trustee, the Individual Owner Trustee, the
Corporate Indenture Trustee, the Individual Indenture Trustee, the Pass Through
Trustee, the Owner Participant (each as defined therein), and the holders from
time to time of Certificates (as hereinafter defined) as Beneficiaries (as
defined therein), and (ii) an offer to exchange the same for a like principal
amount of issued and outstanding Pass Through Certificates, Series 1995 A-1
through 1995 A-6 (the "Old Certificates" and together with the New Certificates,
the "Certificates") issued under six separate Pass Through Trust Agreements,
<PAGE>
each dated as of December 12, 1995 (each a "Pass Through Trust Agreement"),
among the Guarantor, MGB and First Security Bank of Utah, National Association,
as Pass Through Trustee. Capitalized terms used herein and not otherwise defined
herein are used as defined in the Pass Through Trust Agreements.
I or attorneys under my supervision have examined and are familiar
with (a) the Certificates of Incorporation and By-Laws of the Guarantor and MGB,
(b) resolutions of the Board of Directors of MGB adopted by unanimous written
consent on December 6, 1995, (c) resolutions of the Board of Directors of the
Guarantor duly adopted on January 31, 1986, June 26, 1987 and April 26, 1996,
and (d) a Power of Attorney executed by the Senior Vice President of the
Guarantor on December 6, 1995.
There have similarly been examined original or copies, certified or
otherwise satisfactorily identified, of all such agreements and other
instruments, certificates of public officials, certificates of the Guarantor and
MGB and such other documents as I or attorneys under my supervision have deemed
relevant and necessary as the basis of the opinions hereinafter set forth. In
making such examination, I or attorneys under my supervision have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
me as originals or certified documents, and the conformity with the originals or
certified documents of all documents submitted to me as conformed, photostat or
other copies.
Based upon the foregoing and subject to the matters hereinafter set
forth, I am of the opinion that:
1. The Guarantor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware.
2. MGB has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
3. The Guarantor has full corporate power and authority to execute,
deliver and perform its obligations under the Guaranty and the Pass Through
Trust Agreements and the Guaranty and the Pass Through Trust Agreements have
been duly authorized, executed and delivered by the Guarantor and are the legal,
valid and binding obligations of the Guarantor enforceable in accordance with
their respective terms.
4. MGB has full corporate power and authority to execute, deliver and
perform its obligations under the Pass Through Trust Agreements and the Pass
Through Trust Agreements have been duly authorized, executed and delivered by
MGB, and are the legal, valid and binding obligations of the Lessee enforceable
in accordance with their respective terms.
5. The Guarantor has duly authorized the taking of any and all action
necessary to carry out and give effect to the transactions contemplated to be
performed on its part by the Guaranty and the Pass Through Trust Agreements.
-2-
<PAGE>
6. MGB has duly authorized the taking of any and all action necessary
to carry out and give effect to the transactions contemplated to be performed on
its part by the Pass Through Trust Agreements.
The opinions expressed in paragraph 3 and 4 above are qualified to the
extent that the enforceability of the rights and remedies set forth in the
Guaranty and the Pass Through Trust Agreements may be limited by bankruptcy,
insolvency or other similar laws affecting creditor's rights generally or by
principles of equity.
I am a member of the bars of the State of New York and the
Commonwealth of Virginia and am not an expert in and express no opinion as to
the laws of other jurisdictions other than the federal law of the United States
and the corporate law of the State of Delaware.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to my name in the Prospectus
constituting a part of such Registration Statement under the heading "Legal
Matters." In giving such consent, I do not thereby admit that I come within the
category of persons whose consent is required under Section 7 of the Securities
Act, or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Ralph N. Johanson, Jr.
Ralph N. Johanson, Jr.
-3-
<PAGE>
[LETTERHEAD OF RAY, QUINNEY & NEBEKER]
Exhibit 5.3
May 8, 1996
Mobil Corporation
Mobil G.B. 388 Finance Inc.
3225 Gallows Road
Fairfax, VA 22037-0001
Mobil Corporation 1995-B
------------------------
Ladies and Gentlemen:
We are acting as counsel to First Security Bank of Utah, National
Association ("First Security"), a national banking association, as Pass Through
Trustee (the "Pass Through Trustee"), under each of the six separate Pass
Through Trust Agreements in connection with the transactions contemplated by the
Participation Agreement dated as of December 12, 1995 (the "Participation
Agreement"), among the Pass Through Trustee, Mobil G.B. 388 Finance Inc. as
Lessee, General Electric Credit Corporation of Georgia as Owner Participant,
Fleet National Bank of Connecticut as Corporate Owner Trustee, Michael M.
Hopkins as Individual Owner Trustee, First Security as Corporate Indenture
Trustee and Val T. Orton as Individual Indenture Trustee, including the
exchange, as described in a Registration Statement of Mobil Corporation, a
Delaware corporation ("Mobil") and Mobil G.B. 388 Finance Inc., on Form S-4 (the
"Registration Statement") with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), of the Pass Through Certificates, Series 1995-B1 through 1995-B6 (the
"New Certificates") which are being registered pursuant to the Registration
Statement, for a like principal amount of issued and outstanding Pass Through
Certificates, Series 1995-A1 through 1995-A6 (the "Old Certificates").
Capitalized terms used herein without definition shall have the meanings set
forth in the Participation Agreement or, if not defined therein, in Appendix A
to the Lease.
<PAGE>
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records or other
instruments as we have deemed necessary or advisable for the purposes of this
opinion.
Based on the foregoing and subject to the matters set forth below,
we are of the opinion that:
1. The execution, authentication, issue and delivery by the Pass
Through Trustee of the New Certificates has been duly authorized by the Pass
Through Trustee, and each of the Pass Through Trust Agreements is the valid and
binding obligation of the Pass Through Trustee in accordance with its terms.
2. When the New Certificates are issued, authorized, executed,
authenticated, and delivered by the Pass Through Trustee pursuant to the terms
and provisions of, and in accordance with the requirements of, each of the Pass
Through Trust Agreements, the New Certificates will be validly issued and will
be entitled to the benefits of the applicable Pass Through Trust Agreement.
3. We are of the opinion attributed to us in the Prospectus under
the caption "Certain Utah Taxes".
The opinion set forth above in paragraph 1 as to the enforceability of
each of the Pass Through Trust Agreements is subject to the qualifications that
(i) enforcement of such documents may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and (ii) the availability of specific performance
and other equitable remedies is subject to the discretion of the enforcing
court.
The opinions set forth herein are based on and limited to the laws of
the State of Utah and the laws of the United States relating to the banking,
trust and fiduciary powers of the Pass Through Trustee. The opinion set forth
above in paragraph 2 as to the New Certificates being entitled to the benefits
of the applicable Pass Through Trust Agreement, the governing law of which is
expressly stated to be that of the State of New York, is subject to the
assumption that the laws of the State of New York (as to which we express no
opinion) are in all material respects identical to the laws of the State of
Utah. We also assume that each of the Pass Through Trust Agreements have been
duly authorized, executed and delivered by the parties thereto other than the
Pass Through Trustee and the Indenture Trustee.
This opinion is rendered to you at the request of First Security as
Pass Through Trustee and First Security as Pass Through Trustee has consented to
the opinions expressed
2
<PAGE>
herein. We have discussed with First Security as Pass Through Trustee the
consequences of its request for and consent to the rendering of the opinions
expressed herein. This opinion is solely for your benefit in connection with
the above transactions and to that extent we agree and understand that you may
rely upon the opinions expressed herein.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to our name in the Prospectus
constituting a part of such Registration Statement under the headings "Legal
Matters" and "Certain Utah Taxes". In giving such consent, we do not thereby
admit that we come within the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the
Commission promulgated thereunder.
We are attorneys admitted to practice in the State of Utah and in
rendering the foregoing opinions we have not passed upon, or purported to pass
upon, the laws of any jurisdictions other than the State of Utah and the federal
banking law governing the banking and trust powers of First Security Bank of
Utah, National Association. The permitted successors and assigns of the
addressees hereof are entitled to rely on this opinion.
Very truly yours,
RAY, QUINNEY & NEBEKER
/s/ M. John Ashton
M. John Ashton
3
<PAGE>
Exhibit 12
MOBIL CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN MILLIONS, EXCEPT FOR RATIO AMOUNTS)
<TABLE>
<CAPTION>
Year ended December 31,
1991 1992 1993 1994 1995
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Income Before Change in Accounting Principle(s)........ $1,920 $1,308 $2,084 $1,759 $2,376
Add:
Income taxes........................................... 2,105 1,567 1,931 1,919 2,015
Portion of rents representative of interest factor..... 344 319 339 340 368
Interest and amortization of debt discount expense..... 713 612 529(a) 461 467
Earnings (greater) less than dividends from
equity affiliates..................................... (151) 36 265 (40) (51)
---- -- --- --- ---
Income as Adjusted...................................... $4,931 $3,842 $5,148 $4,439 $5,175
====== ====== ====== ====== ======
Fixed Charges:
Interest and amortization of debt discount expense..... $ 713 $ 612 $ 529(a) $ 461 $ 467
Capitalized interest................................... 20 42 42 37 47
Portion of rents representative of interest factor..... 344 319 339 340 368
--- --- --- --- ---
Total Fixed Charges..................................... $1,077 $ 973 $ 910 $ 838 $ 882
====== ====== ====== ====== ======
Ratio of Earnings to Fixed Charges...................... 4.6 3.9 5.7(a) 5.3 5.9
--- --- ------ --- ---
</TABLE>
For the years ended December 31, 1991, 1992, 1993, 1994 and 1995, Fixed Charges
exclude $42 million, $37 million, $31 million, $37 million and $28 million,
respectively, of interest expense attributable to debt issued by the Mobil Oil
Corporation Employee Stock Ownership Plan Trust and guaranteed by Mobil.
(a) Excludes the favorable effect of $205 million of interest benefits from the
resolution of prior-period tax issues.
<PAGE>
Exhibit 23.3
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "EXPERTS" in the
Registration Statement (Form S-4) and related Prospectus of Mobil Corporation
and Mobil G.B. 388 Finance Inc. for the registration of the Pass Through
Certificates, Series 1995-B1 through 1995-B6 and to the incorporation by
reference therein of our reports (a) dated February 23, 1996, with respect to
the consolidated financial statements of Mobil Corporation incorporated by
reference in its Annual Report (Form 10-K) for the year ended December 31, 1995,
and (b) dated March 6, 1996, with respect to the financial statement schedule of
Mobil Corporation included in its Annual Report (Form 10-K) for the year ended
December 31, 1995, all filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Fairfax, Virginia
May 6, 1996
<PAGE>
EXHIBIT 24.1
MOBIL CORPORATION
POWER OF ATTORNEY
* * * * * * *
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned directors
and/or officers of Mobil Corporation, a Delaware corporation, hereby constitutes
and appoints CHARLES H. DUBOIS, WALTER R. ARNHEIM and GORDON G. GARNEY his or
her true and lawful attorneys-in-fact and agents, each of such persons having
full power to act without the others, in any and all capacities, (i) to execute
and file in his or her name and capacity on behalf of Mobil Corporation and (ii)
to sign in his or her name and capacity on behalf of the individual, a
Registration Statement on Form S-4 or any appropriate form including amendments
and/or post-effective amendments and supplements, together with all exhibits and
other documents necessary or appropriate in connection therewith, for
registration with the Securities and Exchange Commission, Washington, D.C.,
under the Securities Act of 1933, as amended (the "Securities Act"), of (a)
$92,185,000 of Pass Through Certificates, Series 1995-B1 through 1995-B6, and a
Mobil Corporation Guaranty with respect thereto, and (b) the offering of the
same in exchange for a like principal amount of outstanding Pass Through
Certificates, Series 1995-A1 through 1995-A6, previously issued and sold by
Mobil Corporation and its wholly-owned subsidiary, Mobil G.B. 388 Finance Inc.,
in a manner not requiring registration under the Securities Act.
AND FURTHER, that each of the undersigned directors and/or officers of
Mobil Corporation hereby grants to said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform any and all acts and things
essential and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person in connection with
the proper exercise of the powers granted hereunder.
IN WITNESS WHEREOF, the undersigned as directors and/or officers of Mobil
Corporation or as individuals, have hereunto set their hands as of the 26th day
of April, 1996.
NAME AND TITLE /s/ Lucio A. Noto
------------------------------------------------------------
Lucio A. Noto, Director, Chairman of the Board, President
and Chief Executive Officer: Principal Executive Officer
NAME AND TITLE /s/ Thomas C. DeLoach, Jr.
------------------------------------------------------------
Thomas C. DeLoach, Jr., Senior Vice President and Chief
Financial Officer: Principal Financial Officer
NAME AND TITLE /s/ George Broadhead
------------------------------------------------------------
George Broadhead, Acting Controller: Principal Accounting
Officer
<PAGE>
NAME AND TITLE /s/ Lewis M. Branscomb
------------------------------------------------------------
Lewis M. Branscomb, Director
NAME AND TITLE /s/ Donald V. Fites
------------------------------------------------------------
Donald V. Fites, Director
NAME AND TITLE /s/ Charles A. Heimbold, Jr.
------------------------------------------------------------
Charles A. Heimbold, Jr., Director
NAME AND TITLE /s/ Paul J. Hoenmans
------------------------------------------------------------
Paul J. Hoenmans, Director
NAME AND TITLE /s/ Allen F. Jacobson
------------------------------------------------------------
Allen F. Jacobson, Director
NAME AND TITLE /s/ Samuel C. Johnson
------------------------------------------------------------
Samuel C. Johnson, Director
NAME AND TITLE /s/ Helene L. Kaplan
------------------------------------------------------------
Helene L. Kaplan, Director
NAME AND TITLE /s/ J. Richard Munro
------------------------------------------------------------
J. Richard Munro, Director
NAME AND TITLE /s/ Aulana L. Peters
------------------------------------------------------------
Aulana L. Peters, Director
NAME AND TITLE /s/ Eugene A. Renna
------------------------------------------------------------
Eugene A. Renna, Director
NAME AND TITLE /s/ Charles S. Sanford, Jr.
------------------------------------------------------------
Charles S. Sanford, Jr., Director
NAME AND TITLE /s/ Robert G. Schwartz
------------------------------------------------------------
Robert G. Schwartz, Director
NAME AND TITLE /s/ Robert O. Swanson
------------------------------------------------------------
Robert O. Swanson, Director
-2-
<PAGE>
EXHIBIT 24.2
MOBIL G.B. 388 FINANCE INC.
POWER OF ATTORNEY
* * * * * * *
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned directors
and/or officers of Mobil G.B. 388 Finance Inc., a Delaware corporation, hereby
constitutes and appoints CHARLES H. DUBOIS and GORDON G. GARNEY his true and
lawful attorneys-in-fact and agents, each of such persons having full power to
act without the others, in any and all capacities, (i) to execute and file in
his name and capacity on behalf of Mobil G.B. 388 Finance Inc. and (ii) to sign
in his name and capacity on behalf of the individual, a Registration Statement
on Form S-4 or any appropriate form including amendments and/or post-effective
amendments and supplements, together with all exhibits and other documents
necessary or appropriate in connection therewith, for registration with the
Securities and Exchange Commission, Washington, D.C., under the Securities Act
of 1933, as amended (the "Securities Act"), of (a) $92,185,000 of Pass Through
Certificates, Series 1995-B1 through 1995-B6, and a Mobil Corporation Guaranty
with respect thereto, and (b) the offering of the same in exchange for a like
principal amount of outstanding Pass Through Certificates, Series 1995-A1
through 1995-A6, previously issued and sold by Mobil G.B. 388 Finance Inc. and
Mobil Corporation, in a manner not requiring registration under the Securities
Act.
AND FURTHER, that each of the undersigned directors and/or officers of
Mobil G.B. 388 Finance Inc. hereby grants to said attorneys-in-fact and agents,
and each of them, full power and authority to do and perform any and all acts
and things essential and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person in
connection with the proper exercise of the powers granted hereunder.
IN WITNESS WHEREOF, the undersigned as directors and/or officers of Mobil
G.B. 388 Finance Inc. or as individuals, have hereunto set their hands as of the
30th day of April, 1996.
NAME AND TITLE /s/ Walter R. Arnheim
-----------------------------------------------------
Walter R. Arnheim, Director and President: Principal
Executive Officer
NAME AND TITLE /s/ Richard E. Sliwinski
-----------------------------------------------------
Richard E. Sliwinski, Director and Treasurer: Principal
Financial Officer
NAME AND TITLE /s/ George Broadhead
-----------------------------------------------------
George Broadhead, Controller: Principal Accounting
Officer
NAME AND TITLE /s/ Ralph N. Johanson, Jr.
-----------------------------------------------------
Ralph N. Johanson, Jr., Director
<PAGE>
Exhibit 25
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
----------------------------------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
----------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
[ ] A TRUSTEE PURSUANT TO SECTION 305(b)(2)
FIRST SECURITY BANK OF UTAH,
NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
NOT APPLICABLE 87-0131890
(Jurisdiction of Incorporation (I.R.S. Employer
if not a U.S. national bank) identification No.)
79 SOUTH MAIN STREET
SALT LAKE CITY, UTAH 84111
(Address of principal executive offices) (Zip Code)
NOT APPLICABLE
(Name, address and telephone number of agent for service)
MOBIL G.B. 388 FINANCE INC.
(Exact name of obligor as specified in its charter)
DELAWARE 75-2577579
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
3225 Gallows Road
Fairfax, Virginia 22037-0001
(Address or principal executive offices) (Zip Code)
PASS THROUGH CERTIFICATES
Series 1995B1 through 1995B6
(Title of the Indenture securities)
<PAGE>
Item 1. General Information. Furnish the following information as to the
--------------------
trustee:
(a) Name and address of each examining of supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C. 20230; Federal Reserve
Bank of San Francisco, San Francisco, CA 94120; Federal Deposit
Insurance Corporation, Washington, D.C. 20429.
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With The Obligor. If the obligor is an affiliate of the
------------------------------
trustee, describe each such affiliation.
Neither the obligor nor any underwriter for the obligor is an
affiliate of the Trustee.
Item 16. List of Exhibits. List below all exhibits filed as part of this
-----------------
statement of eligibility and qualification.
Exhibit 1; copy of the articles of association as now in effect
Exhibit 2: certificate of authority to commence business including a
certificate of the Comptroller of the Currency evidencing
the change of the Trustee's name
Exhibit 3: copy of the authorization of the trustee to exercise
corporate trust powers
Exhibit 4: copy of the bylaws of the trustee
Exhibit 5: Not applicable
Exhibit 6: Not applicable
Exhibit 7: A copy of the latest report published pursuant to law or
its supervising or examining authority
Exhibit 8: Not applicable
Exhibit 9: Not applicable
<PAGE>
Signature
---------
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, First Security Bank of Utah, National Association, a
national banking association organized and existing under the laws of the United
States, has duly caused this statement of eligibility and qualification to be
signed on its behalf by the undersigned thereunder duly authorized, all in the
City of Salt Lake City, and State of Utah, on the _____ day of April, 1996.
FIRST SECURITY BANK OF UTAH, NATIONAL
ASSOCIATION, Trustee
By: /s/ Brett R. King
---------------------------------
Brett R. King
Trust Officer
<PAGE>
EXHIBIT 1
ARTICLES OF ASSOCIATION
OF
FIRST SECURITY BANK OF UTAH
NATIONAL ASSOCIATION
(As Amended)
FIRST. The title of this Association, which shall carry on the
business of banking under the laws of the United States, shall be "First
Security Bank of Utah, National Association."
SECOND. The place where the main banking house or office of this
Association shall be located shall be Ogden, County of Weber, State of Utah.
Its general business and its operations of discount and deposit shall also be
carried on in said city, and the branch or branches established or maintained by
it in accordance with the provisions of Section 36 of Title 12, United States
Code.
THIRD. The Board of Directors of the consolidated association shall
consist of not less than five (5) nor more than twenty-five (25) of its
shareholders.
FOURTH. There shall be an annual meeting of the shareholders the
purpose of which shall be the election of Directors and the transaction of
whatever other business may be brought before said meeting. It shall be held at
the main office of the Bank or other convenient place as the Board of Directors
may designate, on the third Monday of March of each year, but if no election is
held on that day, it may be held on any subsequent day according to such lawful
rules as may be prescribed by the Board of Directors. Nominations for election
to the Board of Directors may be made by the Board of Directors or by any
stockholder of any outstanding class of capital stock of the Bank entitled to
vote for election of directors. Nominations, other than those made by or on
behalf of the existing management of the Bank, shall be made in writing and
shall be delivered or mailed to the President of the Bank and to the Comptroller
of the Currency, Washington, D.C., not less than 14 days nor more than 50 days
prior to any meeting of stockholders called for the election of directors,
provided, however, that if less than 21 days notice of the meeting is given to
- -------- -------
shareholders, such nomination shall be mailed or delivered to the President of
the Bank and to the Comptroller of the Currency not later than the close of
business on the seventh day following the day on which the notice of meeting was
mailed. Such notification shall contain the following information to the extent
known to the notifying shareholder: (a) the name and address of each proposed
nominee; (b) the principal occupation of each proposed nominee; (c) the total
number of shares of capital stock of the Bank that will be voted for each
proposed nominee; (d) the name and residence address of the notifying
shareholder; and (e) the number of shares of capital stock of the Bank owned by
the notifying shareholder. Nominations not made in accordance herewith may, in
his discretion, be disregarded by the Chairman of the meeting, and upon his
instructions, the voting inspectors may disregard all votes cast for each such
nominee.
FIFTH. The authorized amount of capital stock of this association
shall be twenty-seven million dollars ($27,000,000.00), divided into 1,080,000
shares of common stock of the par value of Twenty-five Dollars ($25.00) each;
but said capital stock may be increased or decreased from time to time, in
accordance with the provision of the laws of the United States. In the event of
an increase in said capital stock by the sale of additional shares thereof, each
shareholder shall be entitled to subscribe for such additional shares in
proportion to the number of shares of said capital stock owned by him before the
stock is increased. The Board of Directors without the approval of the
shareholders may authorize and issue debt obligations whether or not such
obligations are subordinated to other obligations of the Bank.
Articles of Association
<PAGE>
SIXTH. (1) The Board of Directors shall appoint one of its members
President of this Association. It may also appoint a Chairman of the Board, and
one or more Vice Chairman. The Board of Directors shall have the power to
appoint one or more Vice Presidents, at least one of whom shall also be a member
of the Board of Directors, and who shall be authorized, in the absence of the
President, to perform all acts and duties pertaining to the office of the
President; to appoint a Cashier and such other officers and employees as may be
required to transact the business of this Association; to fix the salaries to be
paid to such officers or employees and appoint others to take their place.
(2) The Board of Directors shall have the power to define the
duties of officers and employees of this Association and to require adequate
bonds from them for the faithful performance of their duties; to make all
By-Laws that may be lawful for the general regulation of the business of this
Association and the management of its affairs, and generally to do and perform
all acts that may be lawful for a Board of Directors to do and perform.
(3) Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, administrative or investigative (other than an action by or in
the right of the Association) by reason of the fact that he is or was a
director, officer, employee or agent of the Association or is or was serving at
the request of the Association as a director, officer, employee, fiduciary or
agent of another corporation, partnership, joint venture, trust, estate or other
enterprise or was acting in furtherance of the Association's business shall be
indemnified against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Association provided, however, no indemnification shall be given to a person
adjudged guilty of, or liable for, willful misconduct, gross neglect of duty, or
criminal acts. The termination of any action, suit or proceeding by judgement,
order, settlement, or its equivalent, shall not of itself, create a presumption
that the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Association.
(4) Each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the
right of the Association (such action or suit being known as a "derivative
proceeding") to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the Association or is or was
serving at the request of the Association as a director, officer, employee,
fiduciary or agent of another corporation, partnership, joint venture, trust,
estate or other enterprise shall be indemnified against expenses (including
attorney's fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Association and except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged to
be liable for negligence or misconduct in the performance of his duty to the
Association unless and only to the extent that the court in which such action or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which such court shall
deem proper.
(5) To the extent that a director, officer, employee or agent
of a corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in (3) or (4) of this Article or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorney's fees) actually and reasonably incurred by him in
connection therewith.
Articles of Association
<PAGE>
(6) Any indemnification under (3) or (4) of this Article
(unless ordered by a court) shall be made by the Association only as authorized
in the specific case upon a reasonable determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in (3) or (4) of this
Article. Such determination shall be made (a) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (b) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by independent
legal counsel in written opinion, or (c) by the stockholders.
(7) Expenses incurred in defending a civil or criminal action,
suit or proceeding may be paid by the Association in advance of the final
disposition of such action, suit or proceeding as authorized in the manner
provided in (6) of this Article upon receipt of an undertaking by or on behalf
of the director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
Association as authorized in this Article.
(8) The indemnification provided by this Article shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any By-Law, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office and shall continue as to a person who
has ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors, successors in interest, and administrators of
such a person.
(9) The Board of Directors shall have the power to change the
location of the main office of this Association to any other place within the
limits of Salt Lake City, Utah, without the approval of the shareholders of this
Association but subject to the approval of the Comptroller of the Currency; and
shall have the power to change the location of any branch or branches of this
Association to any other location, without the approval of the shareholders of
this Association but subject to the approval of the Comptroller of the Currency.
SEVENTH. This Association shall have succession from the date of its
organization certificate until such time as it be dissolved by the act of its
shareholders in accordance with the provisions of the banking laws of the United
States, or until its franchise becomes forfeited by reason of violation of law,
or until terminated by either a general or a special act of Congress, or until
its affairs be placed in the hands of a receiver and finally wound up by him.
EIGHTH. The Board of Directors of this Association, or any three or
more shareholders owning, in the aggregate, not less than ten per centum of the
stock of this Association, may call a special meeting of shareholders at any
time: Provided, however, that unless otherwise provided by law, not less than
ten days prior to the date fixed for any such meeting, a notice of the time,
place and purpose of the meeting shall be given by first-class mail, postage
prepaid, to all shareholders of record of this Association. These Articles of
Association may be amended at any regular or special meeting of the Shareholders
by the affirmative vote of the shareholders owning at least a majority of the
stock of this Association, subject to the provisions of the banking laws of the
United States. The notice of any shareholders' meeting, at which an amendment
to the Articles of Association of this Association is to be considered shall be
given as hereinabove set forth.
Articles of Association
<PAGE>
EXHIBIT 2
CERTIFICATE
TREASURY DEPARTMENT )
Office of ) ss:
Comptroller of the Currency )
I, Thomas G. DeShazo, Deputy Comptroller of the Currency, do hereby certify
that:
Pursuant to Revised Statutes 324, et seq., as amended, 12 U.S.C. 1, et seq., the
Comptroller of the Currency charters and exercises regulatory and supervisory
authority over all national banking associations;
On December 9, 1881, The First National Bank of Ogden, Ogden, Utah was chartered
as a National Banking Association under the laws of the United States and under
Charter No. 2597;
The document hereto attached is a true and complete copy of the Comptroller
Certificate issued to The First National Bank of Ogden, Ogden, Utah, the
original of which certificate was issued by this Office on December 9, 1881;
On October 2, 1922, in connection with a consolidation of The First Bank of
Ogden, Ogden, Utah, and The Utah National Bank of Ogden, Ogden, Utah, the title
was charged to "The First & Utah National Bank of Ogden"; on January 18, 1923,
The First & Utah National Bank of Ogden changed its title to "First Utah
National Bank of Ogden"; on January 19, 1926, the title was changed to "First
National Bank of Ogden"; and on February 24, 1934, the title was changed to
"First Security Bank of Utah, National Association"; and
First Security Bank of Utah, National Association, Ogden, Utah, continues to
hold a valid certificate to do business as a National Banking Association.
IN TESTIMONY WHEREOF, I have hereunto subscribed my
name and caused the seal of Office of the Comptroller
of the Currency to be affixed to these presents at the
Treasury Department, in the City of Washington and
District of Columbia, this fourth day of April, A.D.
1972.
/s/ Thomas G. DeShazo
------------------------------------------------------
Deputy Comptroller of the Currency
<PAGE>
TREASURY DEPARTMENT
Comptroller of the Currency,
Washington, December 9th, 1881
WHEREAS, by satisfactory evidence presented to the undersigned it has
been made to appear that "The First National Bank of Ogden" in Ogden
City in the County of Weber, and Territory of Utah has complied with
all the provisions of the Revised Statutes of the United States,
required to be complied with before an association shall be authorized
to commence the business of Banking.
Now, therefore, I, John Jay Knox, Comptroller of the Currency, do
hereby certify that "The First National Bank of Ogden" in Ogden City
in the County of Weber, and Territory of Utah is authorized to
commence the business of Banking, as provided in Section Fifty-one
hundred and sixty-nine of the Revised Statutes of the United States.
In testimony whereof, witness my hand and seal of
office this 9th day of December, 1881.
/s/ John Jay Knox
--------------------------------------
Comptroller of the Currency
<PAGE>
EXHIBIT 3
FEDERAL RESERVE BOARD
WASHINGTON, D.C.
I, S.R. Carpenter, Assistant Secretary of the Federal Reserve Board, do
hereby certify that it appears from the records of the Federal Reserve
Board that:
(1) Pursuant to authority vested in the Federal Reserve Board by an
Act of Congress approved December 23, 1913, known as the Federal Reserve
Act, as amended, the Federal Reserve Board has heretofore granted to the
First National Bank of Ogden, Ogden, Utah, the right to act when not in
contravention of State or local law, as trustee, executor, administrator,
registrar of stocks and bonds, guardian of estates, assignee, receiver,
committee of estates of lunatics, or in any other fiduciary capacity in
which State banks, trust companies or other corporations which come into
competition with national banks are permitted to act under the laws of the
State of Utah;
(2) On February 24, 1934, the First National Bank of Ogden, Ogden,
Utah, changed its title to First Security Bank of Utah, National
Association, under the provisions of an Act of Congress approved May 1,
1886, whereby all of the rights, liabilities and powers of such national
bank under its old name devolved upon and inured to the bank under its new
name; and
(3) Pursuant to the permission heretofore granted by the Federal
Reserve Board to the First National Bank of Ogden, Ogden, Utah, as
aforesaid, and by virtue of the change in the title of such bank, the First
Security Bank of Utah, National Association has authority to act, when not
in contravention of State or local law, as trustee, executor,
administrator, registrar of stocks and
<PAGE>
bonds, guardian of estates of lunatics, or in any other fiduciary capacity
in which State banks, trust companies or other corporations which come into
competition with national banks are permitted to act under the laws of the
State of Utah, subject to regulations prescribed by the Federal Reserve
Board.
IN WITNESS WHEREOF, I have hereunto subscribed my name and caused
the seal of the Federal Reserve Board to be affixed at the City of
Washington, in the District of Columbia, on the 1st day of March, 1934.
/s/ S.R. Carpenter
----------------------------------------------------
Assistant Secretary, Federal Reserve Board.
<PAGE>
FEDERAL RESERVE BOARD
WASHINGTON
ADDRESS OFFICIAL CORRESPONDENCE TO
THE FEDERAL RESERVE BOARD
March 1, 1934.
First Security Bank of Utah, National Association,
Ogden, Utah.
Dear Sirs:
Reference is made to the change in the name of the First National Bank of
Ogden, Ogden, Utah, pursuant to the provisions of the Act of May 1, 1886, to
First Security Bank of Utah, National Association, and there is inclosed a
certificate issued by the Federal Reserve Board showing the trust powers
heretofore granted to the bank under its former name and that it is authorized
to exercise such powers under its new name.
Very truly yours,
/s/ S.R. Carpenter
S.R. Carpenter,
Assistant Secretary.
Inclosure
<PAGE>
EXHIBIT 4
BY-LAWS OF THE
FIRST SECURITY BANK OF UTAH,
NATIONAL ASSOCIATION
Organized under the National Banking laws of the United States.
MEETINGS
--------
SECTION 1. Unless otherwise provided by the articles of association a notice
of each shareholder's meeting, setting forth clearly the time, place and
purpose of the meeting, shall be given, by mail, to each shareholder of record
of this bank at lease 10 days prior to the date of such meeting. Any failure to
mail such notice or any irregularity therein, shall not affect the validity of
such meeting or of any of the proceedings thereat.
SECTION 2. A record shall be made of the shareholders represented in person
and by proxy, after which the shareholders shall proceed to the transaction of
any business that may properly come before the meeting. A record of the
shareholder's meeting, giving the names of the shareholders present and the
number of shares of stock held by each, the names of the shareholders
represented by proxy and the number of shares held by each, and the names of the
proxies, shall be entered in the records of the meeting in the minute book of
the bank. This record shall show the names of the shareholders and the number of
shares voted for each resolution or voted for each candidate
for director.
Proxies shall be secured for the annual meeting alone, shall be dated, and shall
be filed with the records of the meeting. No officer, director, employee, or
attorney for the bank may act as proxy.
The chairman or Secretary of the meeting shall notify the directors-elect of
their election and of the time at which they are required to meet at the banking
house for the purpose of organizing the new board. At the appointed time, which
as closely as possible shall follow their election, the directors-elect shall
convene and organize.
The president or cashier shall then forward to the office of the Comptroller of
the Currency a letter stating that a meeting of the shareholders was held in
accordance with these by-laws, stating the number of shares represented in
person and the number of shares represented by proxy, together with a list of
the directors elected and the report of the appointment and signatures of
officers.
OFFICERS
--------
SECTION 3. Each officer and employee of this bank shall be responsible for
all such moneys, funds, valuables, and property of every kind as may be
entrusted to his care or otherwise come into his possession, and shall
faithfully and honestly discharge his duties and apply and account for all such
moneys, funds, valuables and other property that may come into his hands as such
officer or employee and pay over and deliver the same to the order of the Board
of Directors or to such person or persons as may be authorized to demand and
receive same.
SECTION 4. If the Board of Directors shall not require separate bonds, it
shall require a blanket bond in an amount deemed by it to be sufficient.
Association By-Laws
<PAGE>
SECTION 5. The following is an impression of the seal adopted by the Board of
Directors of this bank: (Here in the original resolution was imprinted the
Association's seal).
SECTION 6. The various branches of this bank shall be open for business
during such hours as shall be customary in the vicinity, or as shall be fixed,
as to any branch, by the clearing house association of which such branch shall
be a member.
SECTION 7. The regular meeting of the board of directors shall be held on the
first Wednesday after the first Tuesday of each month. When any regular meeting
of the board of directors falls upon a holiday, the meeting shall be held on
such other day as the board may previously designate. Special meetings may be
called by the president, any vice-president, the secretary or the cashier, or at
the request of three or more directors.
MINUTE BOOK
-----------
SECTION 8. The organization papers of this bank, the returns of the
elections, the proceedings of all regular and special meetings of the directors
and of the shareholders, the by-laws and any amendments thereto, and reports of
the committees of directors shall be recorded in the minute book; and the
minutes of each meeting shall be signed by the chairman and attest by the
secretary of the meeting.
TRANSFERS OF STOCK
------------------
SECTION 9. The stock of this bank shall be assignable and transferable only
on the books of this bank, subject to the restrictions and provisions of the
national banking laws; and a transfer book shall be provided in which all
assignments and transfers of stock shall be made.
SECTION 10. Certificates of stock, signed by the president or vice-president,
and the secretary or the cashier or any assistant cashier, may be issued to
shareholders, and when stock is transferred the certificates thereof shall be
returned to the association, cancelled, preserved, and new certificates issued.
Certificates of stock shall state upon the face thereof that the stock is
transferable only upon the books of the association, and shall meet the
requirements of section 5139, United States Revised Statutes, as amended.
EXPENSES
--------
SECTION 11. All the current expenses of the bank shall be paid by the cashier,
except that the current expenses of each branch shall be paid by the manager
thereof; and such officer shall, every six months, or more often if required,
make to the board a report thereof.
EXAMINATIONS
------------
SECTION 12. There shall be appointed by the board of directors a committee of
three members, exclusive of the active officers of the bank, whose duty it shall
be to examine, at least once in each period of eighteen months, the affairs of
each branch as well as the head office of the association, count its cash, and
compare its assets and liabilities with the accounts of the general ledgers,
ascertain whether the accounts are correctly kept and that the condition of the
bank corresponds therewith, and whether the bank is in a sound and solvent
condition, and to recommend to the board such changes in the manner of doing
business, etc., as shall seem to be desirable, the result of which examination
shall be reported in writing to the board at the next regular meeting
thereafter, provided that the appointment of such committee and the examinations
by it may be dispensed with if
Association By-Laws
<PAGE>
the board shall cause such examination to be made and reported to the board by
accountants approved by it.
CHANGES IN BY-LAWS
------------------
SECTION 13. These by-laws may be changed or amended by the vote of a majority
of the directors at any regular or special meeting of the board, provided,
however, that the directors shall have been given 10 days notice of the
intention to change or offer an amended thereto.
REPEAL
------
SECTION 14. All by-laws heretofore adopted are repealed.
Association By-Laws
<PAGE>
EXHIBIT 99.1
FORM OF
LETTER OF TRANSMITTAL
TO TENDER
PASS THROUGH CERTIFICATES,
SERIES 1995-A1 THROUGH 1995-A6 OF MOBIL CORPORATION
IN EXCHANGE FOR
PASS THROUGH CERTIFICATES, SERIES 1995-B1 THROUGH 1995-B6
PURSUANT TO THE PROSPECTUS DATED ______________, 1996
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ___________
___, 1996, UNLESS EXTENDED.
To: First Security Bank of Utah, National Asssocation, the Exchange Agent
By Registered or Certified Mail, Overnight Courier or Hand:
First Security Bank of Utah, National Asssocation
79 South Main Street
Salt Lake City, Utah 84111
or
By Facsimile: Confirm by Telephone:
801-246-5053 801-246-5630
Attention: Brett R. King
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF THIS INSTRUMENT VIA A FACSIMILE NUMBER OTHER THAN THE
ONE LISTED ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE
READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
The undersigned acknowledges receipt of the Prospectus dated
__________________, 1996 (the "Prospectus") of Mobil Corporation ("Mobil") and
Mobil G.B. 388 Finance Inc. ("MGB") and this Letter of Transmittal (the "Letter
of Transmittal"), which together describe Mobil's and MGB's offer (the "Exchange
Offer") to cause the First Security Bank of Utah, National Association (the
"Pass Through Trustee") to exchange the Pass Through Certificates, Series 1995-
B1 through 1995-B6 (the "New Certificates"), which have been registered under
the Securities Act of 1933, as amended (the "Securities Act") pursuant to a
registration statement on Form S-4 filed by Mobil and MGB (together with any
amendments thereto, the "Registration Statement"), for a like principal amount
of issued and outstanding Pass Through Certificates, Series 1995-A1 through
1995-A6 (the "Old Certificates") of which an aggregate of $92,185,000 in
principal amount is outstanding. Certificateholders may tender some or all of
their Old Certificates pursuant to the Exchange Offer. However, Old
Certificates may be tendered only in integral
<PAGE>
multiples of $1,000. The term "Expiration Date" shall mean 5:00 p.m., New York
City time, on the date that is 60 days after the date upon which notice of
effectiveness of the Registration Statement is mailed to holders of Old
Certificates, unless Mobil and MGB, in their sole discretion, extend the
Exchange Offer, in which case the term "Expiration Date" shall mean the latest
date and time to which the Exchange Offer is extended. Although Mobil and MGB
have no current intention to extend the Exchange Offer, Mobil and MGB reserve
the right to extend the Exchange Offer at any time and from time to time by
giving oral or written notice to the Exchange Agent and by timely public
announcement communicated, unless otherwise required by applicable law or
regulation, by making a release to the Dow Jones News Service. During any
extension of the Exchange Offer, all Old Certificates previously tendered
pursuant to the Exchange Offer and not withdrawn will remain subject to the
Exchange Offer. Mobil and MGB expressly reserve the right (i) to terminate the
Exchange Offer and to cause the Pass Through Trustee not to accept for exchange
any Old Certificates if any of the events set forth in the Prospectus under the
caption "The Exchange Offer -- Conditions to the Exchange Offer" shall have
occurred and shall not have been waived by Mobil and MGB and (ii) to amend the
terms of the Exchange Offer in any manner.
Unless the context requires otherwise, the term "Certificateholder"
with respect to the Exchange Offer means any person in whose name Old
Certificates are registered on the books of the Pass Through Trustee or any
other person who has obtained a properly completed bond power from the
registered certificateholder, or any person whose Old Certificates are held of
record by DTC who desires to deliver such Old Certificates by book-entry
transfer at DTC. Capitalized terms used but not defined herein have the
respective meanings set forth in the Prospectus.
This Letter of Transmittal is to be used by Certificateholders of Old
Certificates if (i) certificates representing the Old Certificates are to be
physically delivered to the Exchange Agent herewith, (ii) tender of the Old
Certificates is to be made by book-entry transfer to the Exchange Agent's
account at DTC pursuant to the procedures set forth in the Prospectus under the
caption "The Exchange Offer -- Procedures for Tendering" by any financial
institution that is a participant in DTC and whose name appears on a security
position listing as the owner of Old Certificates or (iii) tender of the Old
Certificates is to be made according to the guaranteed delivery procedures
described in the Prospectus under the caption "The Exchange Offer -- Procedures
for Tendering." See Instruction 2. Delivery of documents to DTC does not
constitute delivery to the Exchange Agent.
If Certificateholders desire to tender Old Certificates pursuant to
the Exchange Offer and (i) time will not permit this Letter of Transmittal, the
Old Certificates or other required documents to reach the Exchange Agent prior
to the Expiration Date or (ii) the procedures for book-entry transfer cannot be
completed prior to the Expiration Date, such Certificateholders may effect a
tender of such Certificates in accordance with the guaranteed delivery
procedures set forth in the Prospectus under the caption "The Exchange Offer --
Procedures for Tendering." See Instruction 2 below.
The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the Exchange Offer. Certificateholders who wish to tender their Old
Certificates must complete this Letter of Transmittal in its entirety.
2
<PAGE>
[__] CHECK HERE IF TENDERED OLD CERTIFICATES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution:______________________________________________
Account Number:_____________________________________________________________
Transaction Code Number:____________________________________________________
Principal Amount of Tendered Old Certificates_______________________________
3
<PAGE>
[__] CHECK HERE IF TENDERED OLD CERTIFICATES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY DELIVERED TO THE EXCHANGE AGENT AND COMPLETE THE
FOLLOWING (See Instruction 2):
Name of Registered Certificateholder(s):____________________________________
Window Ticket No. (if any):_________________________________________________
Date of Execution of Notice of Guaranteed Delivery:_________________________
Name of Eligible Institution
that Guaranteed Delivery:___________________________________________________
If Delivered by Book-Entry
Transfer, the Account Number:_______________________________________________
Transaction Code Number:____________________________________________________
[__] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO:
Name:_______________________________________________________________________
Address:____________________________________________________________________
____________________________________________________________________________
Attention:__________________________________________________________________
Listed below are the Old Certificates to which this Letter of
Transmittal relates. If the space provided below is inadequate, the certificate
numbers and principal amount of Old Certificates should be listed on a separate
signed schedule affixed hereto.
4
<PAGE>
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE COMPLETING THE BOXES
BOX 1
________________________________________________________________________________
DESCRIPTION OF PASS THROUGH CERTIFICATES, SERIES 1995-A1
THROUGH 1995-A6*
<TABLE>
<CAPTION>
PRINCIPAL
AGGREGATE AMOUNT
NAME(S) AND ADDRESS(ES) PRINCIPAL TENDERED (MUST
OF REGISTERED AMOUNT BE AN INTEGRAL
CERTIFICATEHOLDER(S) CERTIFICATE REPRESENTED BY MULTIPLE OF
(PLEASE FILL IN, IF BLANK) NUMBER(S) CERTIFICATE(S) $1,000)**
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<S> <C> <C> <C>
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- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TOTAL
- --------------------------------------------------------------------------------
</TABLE>
* Need not be completed by Certificateholders tendering by book-entry
transfer.
** Unless indicated in the column labeled "Principal Amount Tendered," any
tendering Certificateholder of Pass Through Certificates, Series 1995-A1
through 1995-A6 will be deemed to have tendered the entire aggregate
principal amount represented by the column labeled "Aggregate Principal
Amount Represented by Certificate(s)."
If the space provided above is inadequate, list the certificate numbers and
principal amounts on a separate signed schedule and affix the list to this
Letter of Transmittal. The minimum permitted tender is $1,000 in principal
amount of Pass Through Certificates, Series 1995-A1 through 1995-A6. All
tenders must be in integral multiples of $1,000.
5
<PAGE>
Box 2
SPECIAL REGISTRATION INSTRUCTIONS (SEE INSTRUCTIONS 4, 5 and 6)
To be completed ONLY if Old Certificates in a principal amount not tendered,
or New Certificates issued in exchange for Old Certificates accepted for
exchange, are to be issued in the name of someone other than the undersigned.
Issue certificate(s) to:
Name:___________________________________________________________________________
(Please Print)
Address:________________________________________________________________________
________________________________________________________________________________
(Include Zip Code)
________________________________________________________________________________
(Tax Indemnification or Social
Security Number)
6
<PAGE>
Box 3
SPECIAL DELIVERY INSTRUCTIONS (SEE INSTRUCTIONS 4, 5 and 6)
To be completed ONLY if Old Certificates in a principal amount not tendered,
or New Certificates issued in exchange for Old Certificates accepted for
exchange, are to be sent to someone other than the undersigned, or to the
undersigned at an address other than that shown above.
Deliver certificate(s) to:
Name:___________________________________________________________________________
(Please Print)
Address:________________________________________________________________________
________________________________________________________________________________
(Include Zip Code)
________________________________________________________________________________
(Tax Indemnification or Social
Security Number)
7
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Subject to the terms and conditions of the Exchange Offer, the
undersigned hereby tenders to the Pass Through Trustee the principal amount of
Old Certificates indicated above.
Subject to and effective upon the acceptance for exchange of the
principal amount of Old Certificates tendered in accordance with this Letter of
Transmittal, the undersigned sells, assigns and transfers to, or upon the order
of, the Pass Through Trustee all right, title and interest in and to the Old
Certificates tendered hereby. The undersigned hereby irrevocably constitutes
and appoints the Exchange Agent as its agent and attorney-in-fact (with full
knowledge that the Exchange Agent also acts as the agent of Mobil Corporation, a
Delaware corporation ("Mobil") and Mobil G.B. 388 Finance Inc., a Delaware
corporation ("MGB")) with respect to the tendered Old Certificates with the full
power of substitution to (i) present such Old Certificates and all evidences of
transfer and authenticity to, or transfer ownership of, such Old Certificates on
the account books maintained by DTC to, or upon, the order of, Mobil and MGB,
(ii) deliver certificates for such Old Certificates to Mobil and MGB and deliver
all accompanying evidences of transfer and authenticity to, or upon the order
of, Mobil and MGB and (iii) present such Old Certificates for transfer on the
books of the Pass Through Trustee and receive all benefits and otherwise
exercise all rights of beneficial ownership of such Old Certificates, all in
accordance with the terms of the Exchange Offer.
The undersigned hereby represents and warrants that the undersigned
has full power and authority to tender, sell, assign and transfer the Old
Certificates tendered hereby and that the Pass Through Trustee will acquire
good, and valid and unencumbered title thereto, free and clear of all liens,
restrictions, charges and encumbrances and not subject to any adverse claims,
when the same are acquired by the Pass Through Trustee. By tendering in the
Exchange Offer, each Certificateholder of Old Certificates represents to Mobil,
MGB and the Pass Through Trustee that (i) the New Certificates acquired pursuant
to the Exchange Offer are being obtained in the ordinary course of business of
the person receiving such New Certificates, whether or not such person is such
Certificateholder, (ii) neither the Certificateholder of Old Certificates nor
any such other person has an arrangement or understanding with any person to
participate in the distribution of such New Certificates, (iii) such
Certificateholder is not engaging in or intending to engage in the distribution
of the New Certificates and (iv) neither the Certificateholder nor any such
other person is an "affiliate" of Mobil or MGB within the meaning of Rule 405
under the Securities Act or, if such Certificateholder is an "affiliate," that
such Certificateholder will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable. If the tendering
Certificateholder is a broker-dealer (whether or not it is also an "affiliate")
that will receive New Certificates for its own account in exchange for Old
Certificates, it represents that the Old Certificates to be exchanged for the
New Certificates were acquired by it as a result of marketing-making activities
or other trading activities, and acknowledges that it will deliver a prospectus
meeting the requirements of the Securities Act in connection with any resale of
such New Certificates. By acknowledging that it will deliver and by delivering
a prospectus meeting the requirements of the Securities Act in connection with
any resale of such New Certificates, the undersigned is not deemed to admit that
it is an "underwriter" within the meaning of the Securities Act. In addition,
the undersigned and any such person acknowledge that (a) any person
participating in the Exchange Offer for the purpose of distributing the New
Certificates must, in the absence of an exemption therefrom, comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with a secondary resale of the New Certificates and cannot rely on
the position of the staff of the Commission enunciated in no-action letters and
(b) failure to comply with such requirements in such instance could result in
the undersigned or such person incurring liability under the Securities Act for
which the undersigned or such person is not indemnified by Mobil or MGB.
8
<PAGE>
The undersigned will, upon request, execute and deliver any additional documents
deemed by the Exchange Agent, Mobil or MGB to be necessary or desirable to
complete the assignment, transfer and purchase of the Old Certificates tendered
hereby. If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in and does not intend to engage in, a distribution of
New Certificates.
The undersigned hereby acknowledges receipt of the Prospectus.
For purposes of the Exchange Offer, the Pass Through Trustee shall be
deemed to have accepted validly tendered Old Certificates when, as and if Mobil
or MGB has given oral or written notice thereof to the Exchange Agent.
If any Old Certificates tendered herewith are not accepted for
exchange pursuant to the Exchange Offer for any reason, certificates for any
such unaccepted Old Certificates will be returned, without expense, to the
undersigned at the address shown below or to a different address as may be
indicated herein in Box 3 under "Special Delivery Instructions" as promptly as
practicable after the Expiration Date.
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death, incapacity or dissolution of the
undersigned, and every obligation of the undersigned under this Letter of
Transmittal shall be binding upon the undersigned's heirs, personal
representative, successors and assigns.
The undersigned understands that tenders of Old Certificates pursuant
to the procedures described under the caption "The Exchange Offer -- Procedures
for Tendering" in the Prospectus and in the instructions hereto will constitute
a binding agreement among the undersigned, Mobil, MGB and the Pass Through
Trustee upon the terms and subject to the conditions of the Exchange Offer,
subject only to withdrawal of such tenders on the terms set forth in the
Prospectus under the caption "The Exchange Offer -- Withdrawal of Tenders."
Unless indicated in Box 2 under "Special Registration Instructions" or
otherwise directed, please issue the certificates or electronic transfers
representing the New Certificates issued in exchange for the Old Certificates
accepted for exchange and any certificates and electronic transfers for Old
Certificates not tendered or not exchanged, in the name(s) of the undersigned.
Similarly, unless otherwise indicated in Box 3 under "Special Delivery
Instructions," please send the New Certificates, if any, issued in exchange for
the Old Certificates accepted for exchange and any Old Certificates not tendered
or not exchanged (and accompanying documents, as appropriate) to the undersigned
at the address shown below in the undersigned's signature(s). In the event that
both "Special Registration Instructions" and "Special Delivery Instructions" are
completed, please issue the New Certificates, if any, issued in exchange for the
Old Certificates accepted for exchange in the name(s) of, and return any Old
Certificates not tendered or not exchanged to, the person(s) so indicated. The
undersigned understands that Mobil and MGB have no obligation pursuant to the
"Special Registration Instructions" and "Special Delivery Instructions" to cause
the Pass Through Trustee to transfer any Old Certificates from the name of the
registered Certificateholder(s) thereof if Mobil and MGB do not accept for
exchange any of the Old Certificates so tendered.
Certificateholders who wish to tender the Old Certificates and (i)
whose Old Certificates are not immediately available or (ii) who cannot deliver
the Old Certificates, this Letter of Transmittal or any other documents required
hereby to the Exchange Agent prior to the Expiration Date, may tender their Old
Certificates according to the guaranteed delivery procedures set forth in the
Prospectus under the caption "The Exchange Offer -- Procedures for Tendering."
See Instruction 2 regarding the completion of this Letter of Transmittal printed
below.
9
<PAGE>
The Exchange Offer is subject to certain customary conditions as set
forth in the Prospectus under the caption "The Exchange Offer -- Conditions to
the Exchange Offer." The undersigned recognizes that as a result of these
conditions (which may be waived, in whole or in part, by Mobil and MGB), as more
particularly set forth in the Prospectus, Mobil and MGB may not be required to
cause the Pass Through Trustee to exchange any of the Old Certificates tendered
hereby and, in such event, the Old Certificates not exchanged will be returned
to the undersigned at the address shown below the signature of the undersigned.
10
<PAGE>
PLEASE SIGN HERE WHETHER OR NOT
OLD CERTIFICATES ARE BEING PHYSICALLY TENDERED HEREBY
x
- -------------------------------------------------- ________________________
Date
x
- -------------------------------------------------- ________________________
Date
Area Code and Telephone Number:___________________________________
The above lines must be signed by the registered certificateholder(s)
exactly as their name(s) appear(s) on the Old Certificates or by a participant
in DTC, exactly as such participant's name appears on a security position
listing as the owner of the Old Certificates, or by person(s) authorized to
become registered certificateholder(s) by a properly completed bond power from
the registered certificateholder(s), a copy of which must be transmitted with
this Letter of Transmittal. If Old Certificates to which this Letter of
Transmittal relate are held of record by two or more joint certificateholders,
then all such certificateholders must sign this Letter of Transmittal. If
signature is by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or representative
capacity, then such person must (i) set forth his or her full title below and
(ii) submit evidence satisfactory to Mobil and MGB of such person's authority so
to act. See Instruction 5 regarding the completion of this Letter of
Transmittal printed below.
Name(s):_________________________________
(Please Print)
Capacity:________________________________
Address:_________________________________
(Include Zip Code)
11
<PAGE>
SIGNATURE GUARANTEE
(If required by Instruction 5)
Certain Signatures must be guaranteed by an Eligible Institution
Signature(s) Guaranteed by an Eligible Institution:_____________________________
(Authorized Signature)
________________________________________________________________________________
(Title)
________________________________________________________________________________
(Name of Firm)
________________________________________________________________________________
(Address, Include Zip Code)
________________________________________________________________________________
(Area Code and Telephone Number)
________________________________________________________________________________
Dated:__________________________________________________________________________
12
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS
OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND OLD CERTIFICATES OR
BOOK-ENTRY CONFIRMATIONS. Tendered Old Certificates (or a confirmation of book-
entry transfer into the Exchange Agent's account with DTC for tendered Old
Certificates transferred electronically), as well as a properly completed and
duly executed copy of this Letter of Transmittal (or facsimile thereof), a
Substitute Form W-9 (or facsimile thereof) and any other documents required by
this Letter of Transmittal must be received by the Exchange Agent at its address
set forth herein prior to the Expiration Date. The method of delivery of Old
Certificates and all other required documents is at the election and sole risk
of the tendering Certificateholder and delivery will be deemed made only when
actually received by the Exchange Agent. If delivery is by mail, registered
mail with return receipt requested, properly insured, is recommended. No
Letters of Transmittal or Old Certificates should be delivered to Mobil or MGB.
In all cases, sufficient time should be allowed to assure timely delivery.
Neither Mobil, MGB nor the Exchange Agent is under an obligation to notify any
tendering Certificateholder of Mobil's and MGB's acceptance of tendered Old
Certificates prior to the consummation of the Exchange Offer.
2. GUARANTEED DELIVERY PROCEDURES. Certificateholders who wish to
tender their Old Certificates but whose Old Certificates are not immediately
available and who cannot deliver their Old Certificates (or comply with the
procedures for book-entry transfer prior to the Expiration Date), the Letter of
Transmittal and any other documents required by the Letter of Transmittal to the
Exchange Agent prior to the Expiration Date must tender their Old Certificates
according to the guaranteed delivery procedures set forth below. Pursuant to
such procedures:
(i) such tender must be made through an Eligible Institution,
as defined below;
(ii) on or prior to the Expiration Date, the Exchange Agent
must have received from the Certificateholder and either a commercial bank or
trust company located or having an office, branch, agency or correspondent in
the United States, or by a member firm of a national securities exchange or of
the National Association Securities Dealers, Inc. (any of the foregoing
hereinafter referred to as an "Eligible Institution") a properly completed and
duly executed Notice of Guaranteed Delivery or notice substantially equivalent
thereto (by letter, telex, telegram or facsimile transmission) setting forth the
name and address of the Certificateholder, the certificate number or numbers of
the tendered Old Certificates, and the principal amount of tendered Old
Certificates and stating that the tender is being made thereby and guaranteeing
that, within three New York Stock Exchange trading days after the Expiration
Date, the Letter of Transmittal (or facsimile thereof), together with the
tendered Old Certificates (or a confirmation of book-entry transfer into the
Exchange Agent's account with DTC for Old Certificates transferred
electronically) and any other required documents will be deposited by the
Eligible Institution with the Exchange Agent; and
(iii) such properly completed and executed Letter of Transmittal
and the tendered Old Certificates in proper form for transfer (or a confirmation
of book-entry transfer into the Exchange Agent's account with DTC for Old
Certificates transferred electronically) and all other documents required by
this Letter of Transmittal must be received by the Exchange Agent within three
New York Stock Exchange trading days after the Expiration Date.
13
<PAGE>
Any Certificateholder who wishes to tender Old Certificates pursuant
to the guaranteed delivery procedures described above must ensure that the
Exchange Agent receives the Notice of Guaranteed Delivery or notice
substantially equivalent thereto relating to such Old Certificates prior to the
Expiration Date. Failure to complete the guaranteed delivery procedures
outlined above will not, of itself, affect the validity or effect a revocation
of any Letter of Transmittal form properly completed and executed by a
Certificateholder who attempted to use the guaranteed delivery person.
3. TENDER BY CERTIFICATEHOLDER. Only a Certificateholder of Old
Certificates may tender such Old Certificates in the Exchange Offer. Any
beneficial owner of Old Certificates who is not the registered Certificateholder
and who wishes to tender should arrange with such Certificateholder to execute
and deliver this Letter of Transmittal on such owner's behalf or must, prior to
completing and executing this Letter of Transmittal and delivering such Old
Certificates, either make appropriate arrangements to register ownership of the
Old Certificates in such owner's name or obtain a properly completed bond power
from the registered Certificateholder.
4. PARTIAL TENDERS: WITHDRAWALS. Tenders of Old Certificates will
be accepted only in integral multiples of $1,000 in principal amount. If less
than the entire principal amount of Old Certificates is tendered, the tendering
certificateholder should fill in the principal amount tendered in the column
labeled "Aggregate Principal Amount Tendered" of the box entitled "Description
of Pass Through Certificates, Series 1995-A1 through 1995-A6" (Box 1) above. The
entire principal amount of Old Certificates delivered to the Exchange Agent will
be deemed to have been tendered unless otherwise indicated. If the entire
principal amount of Old Certificates is not tendered, Old Certificates for the
principal amount of Old Certificates not tendered and New Certificates exchanged
for any Old Certificates tendered will be sent to the Certificateholder at his
or her registered address (or transferred to the account of DTC designated
above), unless a different address (or account) is provided in the appropriate
box on this Letter of Transmittal, as soon as practicable following the
Expiration Date.
Tenders of Old Certificates pursuant to the Exchange Offer are
irrevocable, except that Old Certificates tendered pursuant to the Exchange
Offer may be withdrawn at any time prior to the Expiration Date, unless
previously accepted for exchange by Mobil and MGB. To be effective, a written,
telex or facsimile transmission notice of withdrawal must be timely received by
the Exchange Agent. Any such notice of withdrawal must specify the person named
in the Letter of Transmittal as having tendered Old Certificates to be
withdrawn, the numbers of the Old Certificates to be withdrawn, the principal
amount of Old Certificates delivered for exchange, a statement that such
Certificateholder is withdrawing its election to have such Old Certificates
exchanged and the name of the registered Certificateholder of such Old
Certificates and must be signed by the Certificateholder in the same manner as
the original signature on the Letter of Transmittal (including any required
signature guarantees) or be accompanied by evidence satisfactory to Mobil and
MGB that the person withdrawing the tender has succeeded to the beneficial
ownership of the Old Certificates being withdrawn. The Exchange Agent will
return the properly withdrawn Old Certificates promptly following receipt of
notice of withdrawal. If Old Certificates have been tendered pursuant to the
procedure for book-entry transfer, any notice of withdrawal must specify the
name and number of the account at DTC to be credited with the withdrawn Old
Certificates or otherwise comply with DTC's procedures.
5. SIGNATURES ON THE LETTER OF TRANSMITTAL; BOND POWERS AND
ENDORSEMENTS; GUARANTEE OF SIGNATURES. If this Letter of Transmittal is signed
by the registered Certificateholder(s) of the Old Certificates tendered
herewith, the signature(s) must correspond with the name(s) as written on the
face of the tendered Old Certificates without alteration, enlargement, or any
change whatsoever. If this Letter of Transmittal is signed by a participant in
DTC, the signature must correspond with the name as it appears on the security
position listing as the owner of the Old Certificates.
14
<PAGE>
If any of the tendered Old Certificates are owned of record by two or
more joint owners, all such owners must sign this Letter or Transmittal. If any
tendered Old Certificates are held in different names on several Old
Certificates, it will be necessary to complete, sign, and submit as many
separate copies of the Letter of Transmittal documents as there are names in
which tendered Old Certificates are held.
If this Letter of Transmittal is signed by the registered
Certificateholder, and New Certificates are to be issued and any untendered or
unaccepted principal amount of Old Certificates are to be reissued or returned
to the registered Certificateholder, then the registered Certificateholder need
not and should not endorse any tendered Old Certificates nor provide a separate
bond power. In any other case the registered Certificateholder must either
properly endorse the Old Certificates tendered or transmit a properly completed
separate bond power with this Letter of Transmittal (in either case, executed
exactly as the name(s) of the registered certificateholder(s) appear(s) on such
Old Certificates, and, with respect to a participant in DTC whose name appears
on a security position listing as the owner of Old Certificates, exactly as the
name(s) of the participant(s) appear(s) on such security position listings),
with the signature(s) on the endorsement or bond power guaranteed by an Eligible
Institution unless such certificates or bond powers are signed by an Eligible
Institution.
If this Letter of Transmittal or any Old Certificates or bond powers
are signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations, or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing and evidence satisfactory
to Mobil, MGB and the Pass Through Trustee of their authority to so act must be
submitted with this Letter of Transmittal.
No signature guarantee is required if (i) this Letter of Transmittal
is signed by the registered certificateholder(s) of the Old Certificates
tendered herewith (or by a participant in DTC who appears on a security position
listing as the owner of the Old Certificates) and the issuance of New
Certificates (and any Old Certificates not tendered or not accepted) are to be
issued directly to such registered Certificateholder(s) (or, if signed by a
participant in DTC, any New Certificates or Old Certificates not tendered or not
accepted are to be deposited to such participant's account at DTC) and neither
the "Special Delivery Instructions" (Box 3) nor the "Special Registration
Instructions" (Box 2) has been completed or (ii) such Old Certificates are
tendered for the account of an Eligible Institution.
6. SPECIAL REGISTRATION AND DELIVERY INSTRUCTIONS. Tendering
Certificateholders should indicate, in the applicable box, the name and address
or account at DTC in which the New Certificates and/or substitute Old
Certificates for principal amounts not tendered or not accepted for exchange are
to be sent or deposited, if different from the name and address or account of
the person signing this Letter of Transmittal. In the case of issuance in a
different name, the employer identification number or social security number of
the person named must also be indicated and the indicated and the tendering
certificateholders should complete the applicable box.
If no such instructions are given, the New Certificates (and any Old
Certificates not tendered or not accepted) will be issued in the name of and
sent to the Certificateholder of the Old Certificates or deposited at such
Certificateholders' account at DTC.
7. TRANSFER TAXES. The amount of any such transfer taxes (whether
imposed on the registered Certificateholder or any other person) applicable to
the transfer and exchange of Old Certificates will be the responsibility of the
tendering Certificateholder.
8. TAX IDENTIFICATION NUMBER. Federal income tax law requires that
a Certificateholder of any Old Certificates which are accepted for exchange must
provide the Pass Through Trustee (as payer) with its correct taxpayer
identification number ("TIN"), which, in the case of a Certificateholder who is
an individual is his or her social security number. If the Pass Through Trustee
is
15
<PAGE>
not provided with the correct TIN, the Certificateholder may be subject to a $50
penalty imposed by the Internal Revenue Service. (If withholding results in an
over-payment of taxes, a refund may be obtained.) Certain Certificateholders
(including, among others, all corporations and certain foreign individuals) are
not subject to these backup withholding and reporting requirements. See the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for additional instructions.
To prevent backup withholding, each tendering Certificateholder must
provide such Certificateholder's correct TIN by completing the Substitute Form
W-9 set forth herein, certifying that the TIN provided is correct (or that such
Certificateholder is awaiting a TIN) and that (i) the Certificateholder has not
been notified by the Internal Revenue Service that such Certificateholder is
subject to backup withholding as a result of failure to report all interest or
dividends or (ii) the Internal Revenue Service has notified the
Certificateholder that such Certificateholder is no longer subject to backup
withholding. If the Old Certificates are registered in more than one name or
are not in the name of the actual owner, see the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
information on which TIN to report.
The Pass Through Trustee reserves the right in its sole discretion to
take whatever steps are necessary to comply with it's obligation regarding
backup withholding.
9. VALIDITY OF TENDERS. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance of tendered Old
Certificates will be determined by Mobil and MGB, in their sole discretion,
which determination will be final and binding. Mobil and MGB reserve the right
to cause the Pass Through Trustee to reject any and all Old Certificates not
validly tendered or any Old Certificates, acceptance of which would, in the
opinion of Mobil and MGB or their counsel, be unlawful. Mobil and MGB also
reserve the right to waive any conditions of the Exchange Offer or defects or
irregularities in tenders of Old Certificates as to any ineligibility of any
Certificateholder who seeks to tender Old Certificates in the Exchange Offer.
The interpretation of the terms and conditions of the Exchange Offer (including
this Letter of Transmittal and the instructions hereto) by Mobil and MGB shall
be final and binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of Old Certificates must be cured
within such time as Mobil and MGB shall determine. Mobil and MGB will use
reasonable efforts to give notification of defects or irregularities with
respect to tenders of Old Certificates, but shall not incur any liability for
failure to give such notification.
10. WAIVER OF CONDITIONS. Mobil and MGB reserve the right to waive,
in whole or in part, any of the conditions to the Exchange Offer set forth in
the Prospectus.
11. NO CONDITIONAL TENDER. No alternative, conditional, irregular,
or contingent tender of Old Certificates on transmittal of this Letter of
Transmittal will be accepted.
12. MUTILATED, LOST, STOLEN or DESTROYED OLD CERTIFICATES. Any
tendering Certificateholder whose Old Certificates have been mutilated, lost,
stolen, or destroyed should contact the Exchange Agent at the address indicated
above for further instruction.
13. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and
requests for assistance and requests for additional copies of the Prospectus may
be directed to the Exchange Agent at the address specified in the Prospectus.
Certificateholders may also contact their broker, dealer, commercial bank, trust
company, or other nominee for assistance concerning the Exchange Offer.
14. ACCEPTANCE OF TENDERED OLD CERTIFICATES AND ISSUANCE OF NEW
CERTIFICATES; RETURN OF OLD CERTIFICATES. Subject to the terms and conditions
of the Exchange Offer, Mobil and MGB will cause the Pass Through Trustee to
accept for exchange all validly tendered Old Certificates as soon as practicable
after the Expiration Date and will issue New Certificates therefor as soon as
practicable thereafter. For purposes of the Exchange Offer, the Pass Through
Trustee
16
<PAGE>
shall be deemed to have accepted tendered Old Certificates on behalf of Mobil
and MGB when, as and if Mobil or MGB has given written and oral notice thereof
to such Exchange Agent. If any tendered Old Certificates are not exchanged
pursuant to the Exchange Offer for any reason, such unexchanged Old Certificates
will be returned, without expense, to the undersigned at the address shown above
(or credited to the undersigned's account at DTC designated above) or at a
different address as may be indicated under "Special Delivery Instructions."
15. WITHDRAWAL. Tenders may be withdrawn only pursuant to the
limited withdrawal rights set forth in the Prospectus under the caption "The
Exchange Offer -- Withdrawal of Tenders."
17
<PAGE>
PAYER'S NAME: FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
PAYER'S REQUEST FOR TAXPAYER IDENTIFICATION NUMBER AND CERTIFICATION
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
PLEASE PROVIDE YOUR TAXPAYER
IDENTIFICATION NUMBER IN THE BOX AT RIGHT
AND CERTIFY BY SIGNING AND DATING BELOW
SUBSTITUTE __________________________________________________
(Social Security Number)
(Employer Identification Number)
----------------------------------------------------------------------------------------------------
FORM W-9 PLEASE CHECK THE BOX AT RIGHT IF YOU HAVE APPLIED FOR AND ARE AWAITING RECEIPT OF YOUR TAXPAYER
DEPARTMENT OF THE TREASURY IDENTIFICATION NUMBER [_]
INTERNAL REVENUE SERVICE
----------------------------------------------------------------------------------------------------
CERTIFICATION - Under penalties of perjury, I certify that:
PAYER'S REQUEST FOR
TAXPAYER IDENTIFICATION (1) The number shown on this form is my correct Taxpayer Identification Number (or I am waiting
NUMBER AND CERTIFICATION for a Taxpayer Identification Number to be issued to me), and
FOR PAYEES EXEMPT FROM
BACKUP WITHHOLDING (SEE (2) I am not subject to backup withholding either because I have not been notified by the
GUIDELINES FOR Internal Revenue Service ("IRS") that I am subject to backup withholding as a result of a
CERTIFICATION OF TAXPAYER failure to report all interest or dividends, or the IRS has notified me that I am no longer
IDENTIFICATION NUMBER OF subject to backup withholding.
SUBSTITUTE FORM W-9)
You must cross out item (2) above if you have been notified by the IRS you are subject to backup
withholding because of underreporting interest or dividends on your tax return. However, if after
being notified by the IRS that you were subject to backup withholding you received another
notification from the IRS that you are no longer subject to backup withholding, do not cross out
item (2).
PRINT YOUR NAME:____________________________________________________________________________________
ADDRESS:____________________________________________________________________________________________
SIGNATURE:__________________________________________________________________________________________
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 31% ON ANY
PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE OFFER. FOR ADDITIONAL DETAILS, PLEASE REVIEW THE
ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9.
IF YOU CHECKED THE ABOVE BOX OF THIS SUBSTITUTE FORM W-9 INDICATING THAT YOU ARE AWAITING RECEIPT OF
YOUR TAXPAYER IDENTIFICATION NUMBER, YOU MUST SIGN AND DATE THE FOLLOWING CERTIFICATION.
CERTIFICATION OF PAYEE AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury, that a Taxpayer Identification Number has not been issued to
me, and that I mailed or delivered an application to receive a Taxpayer Identification Number to the
appropriate IRS Center or Social Security Administration Office (or I intend to mail or deliver an
application in the near future). I understand that if I do not provide a Taxpayer Identification
Number within 60 days, 31% of all reportable payments made to me thereafter will be withheld until I
provide a number.
SIGNATURE:__________________________________________________________________________________________
DATE:_______________________________________________________________________________________________
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A MANUALLY SIGNED FACSIMILE HEREOF
(TOGETHER WITH THE OLD CERTIFICATES AND ALL OTHER REQUIRED
DOCUMENTS) OR A NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED ON OR
PRIOR TO THE EXPIRATION DATE (AS DEFINED IN THE PROSPECTUS).
18
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines for Determining the Proper Identification Number to Give the Payer.
Social Security numbers have nine digits separated by two hyphens: i.e., 000-
00-0000. Employer identification numbers have nine digits separated by only one
hyphen: i.e., 00-0000000. The table below will help determine the number to
give the payer.
<TABLE>
<CAPTION>
- ----------------------------------------------------------- ----------------------------------------------------------------------
Give the Give the EMPLOYER
For this type of account: SOCIAL SECURITY For this type of account: IDENTIFICATION
number of - number of -
- ----------------------------------------------------------- ----------------------------------------------------------------------
<S> <C> <C> <C>
1. An individual's account The individual 9. A valid trust, estate, or Legal entity (do not furnish
pension trust the identifying number of the
2. Two or more individuals The actual owner of the personal representative or
(joint account) account or, if combined trustee unless the legal entity
funds, any one of the itself is not designated in the
individuals(1) account title)(5)
3. Husband and wife (joint The actual owner of the 10. Corporate account The corporation
account) account or, if joint
funds, either person(1) 11. Religious, charitable, or The organization
educational organization
account
4. Custodian account of a The minor(2)
minor (Uniform Gift to 12. Partnership account held in The partnership
Minors Act) the name of the business
5. Adult and minor (joint The adult or, if the minor
account) is the only contributor, 13. Association, club, or other The organization
the minor(1) tax-exempt organization
6. Account in the name of The ward, minor, or 14. A broker or registered The broker or nominee
guardian or committee for incompetent person(3) nominee
a designated ward, minor,
or incompetent person 15. Account with the Department The public entity
of Agriculture in the name
7. a. The usual revocable The grantor-trustee(1) of a public entity (such as
savings trust account a State or local government,
(grantor is also trustee) school district, or prison)
that receives agricultural
program payments
b. So-called trust The actual owner(1)
account that is not a
legal or valid trust
under State law
8. Sole proprietorship account The owner(4)
- ----------------------------------------------------------- ----------------------------------------------------------------------
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name, and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name, and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension
trust.
Note: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
19
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include the
===
following:
. A corporation.
. A financial institution.
. An organization exempt from tax under section 501(a), or an individual
retirement plan.
. The United States or any agency or instrumentality thereof.
. A State, the District of Columbia, a possession of the United States, or any
subdivision or instrumentality thereof.
. A foreign government, a political subdivision of a foreign government, or
agency or instrumentality thereof.
. An international organization or any agency, or instrumentality
. A registered dealer in securities or commodities registered in the U.S. or a
possession of the U.S.
. A real estate investment trust.
. A common trust fund operated by a bank under section 584(a).
. An exempt charitable remainder trust, or a non-exempt trust described in
section 4947(a)(1).
. An entity registered at all times under the Investment Company of 1940.
. A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
. Payments of nonresident aliens subject to withholding under section 1441.
. Payments to partnerships not engaged in a trade or business in the U S. and
which have at least one nonresident partner.
. Payments of patronage dividends where the amount received is not paid in
money.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
. Payments of interest on obligations issued by individuals.
NOTE: You may be subject to backup withholding if this interest is $600 or
more and is paid in the course of the payer's trade or business and you have not
provided your correct tax payer identification number to the payer.
. Payments of tax-exempt interest (including exempt interest dividends under
section 852).
. Payments described in section 6049(b)(5) to nonresident aliens.
. Payments on tax-free covenant bonds under section 1451.
. Payments made by certain foreign organizations.
20
<PAGE>
. Payments made to a nominee.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH PAYER, FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT TO
THE PAYER, IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO
SIGN AND DATE THE FORM.
Certain payments other than interest, dividends, and patronage dividends that
are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations sections 6041, 6041A(a), 6045,
and 6050A.
PRIVACY ACT NOTICE. - Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification to payers who must
report the payments to IRS. IRS uses the numbers for identification purposes.
Payers must be given the numbers whether or not recipients are required to file
tax returns. Beginning January 1, 1993, payers must generally withhold 31% of
taxable interest, dividend, and certain other payments to a payee who does not
furnish a taxpayer identification number to a payer. Certain penalties may also
apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. - If you
fail to furnish your taxpayer identification number to a payer, you are subject
to a penalty of $50 for each failure unless your failure is due to reasonable
cause and not wilful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING. - If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION. - Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX
CONSULTANT OR THE INTERNAL REVENUE SERVICE
21
<PAGE>
EXHIBIT 99.2
FORM OF
INSTRUCTIONS TO REGISTERED CERTIFICATEHOLDER AND/OR
BOOK-ENTRY TRANSFER FACILITY PARTICIPANT FROM BENEFICIAL OWNER
OF
PASS THROUGH CERTIFICATES, SERIES
1995-A1 THROUGH 1995-A6
OF MOBIL CORPORATION
To Registered Certificateholder and/or Participant of The Depository Trust
Company.
The undersigned hereby acknowledges receipt of the Prospectus dated
____________ __, 1996, (the "Prospectus") of Mobil Corporation, a Delaware
corporation ("Mobil") and Mobil G.B. 388 Finance Inc., a Delaware corporation
("MGB"), and the accompanying Letter of Transmittal (the "Letter of
Transmittal"), that together constitute Mobil's and MGB's offer (the "Exchange
Offer"). Capitalized terms used but not defined herein have the meanings
ascribed to them in the Prospectus.
This will instruct you, the registered Certificateholder and/or book-
entry transfer facility participant, as to the action to be taken by you
relating to the Exchange Offer with respect to the Pass Through Certificates,
Series 1995-A1 through 1995-A6 (the "Old Certificates") held by you for the
account of the undersigned.
The aggregate face amount of the Old Certificates held by you for the
account of the undersigned is (fill in amount):
$ of the Pass Through Certificates, Series 1995-A1
through 1995-A6.
With respect to the Exchange Offer , the undersigned hereby instructs
you (check appropriate box):
[__] TO TENDER the following Old Certificates held by you for the
account of the undersigned (insert principal amount of Old Certificates to be
tendered if any): $
[__] NOT TO TENDER any Old Certificates held by you for the account of
the undersigned.
If the undersigned instructs you to tender the Old Certificates held
by you for the account of the undersigned, it is understood that you are
authorized (a) to make, on behalf of the undersigned (and the undersigned, by
its signature below, hereby makes to you), the representation and warranties
contained in the Letter of Transmittal that are to be made with respect to the
undersigned as a beneficial owner, including, but not limited to, the
representations that (i) the Pass Through Certificates, Series 1995-B1 through
1995-B6 (the "New Certificates") acquired pursuant to the Exchange Offer are
being obtained in the ordinary course of business of the undersigned, (ii)
neither the undersigned nor any such other person has an arrangement or
understanding with any person to participate in the distribution of such New
Certificates, (iii) neither the undersigned nor any such other person is engaged
in or intends to participate in the distribution of such New Certificate and
(iv) neither the undersigned nor any such other person is an "affiliate" of
Mobil or MGB within the meaning of Rule 405 under the Securities Act or, if the
undersigned is an "affiliate," that the undersigned will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable; (b) to agree, on behalf of the undersigned, as set forth in
the Letter of Transmittal; and (c) to take such other action as necessary under
the Prospectus or the Letter of Transmittal to effect the valid tender of such
Old Certificates. If the undersigned is a broker-
<PAGE>
dealer (whether or not it is also an "affiliate") that will receive Certificates
for its own account in exchange for Old Certificates, it represents that such
Old Certificates were acquired as a result of market-making activities or other
trading activities, and it acknowledges that it will deliver a prospectus
meeting the requirements of the Securities Act in connection with any resale of
such New Certificates. By acknowledging that it will deliver and by delivering a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such New Certificates, the undersigned is not deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
SIGN HERE
Name of beneficial owner(s):_________________________________
Signature(s):________________________________________________
Name (please print):_________________________________________
Address:_____________________________________________________
_____________________________________________________
_____________________________________________________
Telephone Number:____________________________________________
Taxpayer Identification or Social Security Number:___________
Date:________________________________________________________
<PAGE>
EXHIBIT 99.3
FORM OF
NOTICE OF GUARANTEED DELIVERY
WITH RESPECT TO
PASS THROUGH CERTIFICATES, SERIES 1995-A1 THROUGH 1995-A6
OF MOBIL CORPORATION
Registered Certificateholders of outstanding Pass Through
Certificates, Series 1995-A1 through 1995-A6 (the "Old Certificates") who wish
to tender their Old Certificates in exchange for a like principal amount of Pass
Through Certificates, Series 1995-B1 through 1995-B6 (the "New Certificates"),
which have been registered under the Securities Act of 1933, as amended, and, in
each case, whose Old Certificates are not immediately available or who cannot
deliver their Old Certificates and a Letter of Transmittal (and any other
documents required by the Letter of Transmittal) to First Security Bank of Utah,
National Asssocation (the "Exchange Agent") prior to the Expiration Date, may
use this Notice of Guaranteed Delivery or one substantially equivalent hereto.
This Notice of Guaranteed Delivery may be delivered by hand or sent by facsimile
transmission (receipt confirmed by telephone and an original delivered by
guaranteed overnight delivery) or mail to the Exchange Agent. See "The Exchange
Offer -- Procedures for Tendering" in the Prospectus. Capitalized terms not
defined herein have the meanings ascribed to them in the Prospectus or the
Letter of Transmittal.
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON ____________, 1996, UNLESS EXTENDED (THE "EXPIRATION DATE").
The Exchange Agent for the Exchange Offer is:
First Security Bank of Utah, National Asssocation
By Mail, Overnight Courier or By Hand: By Facsimile
First Security Bank of Utah, National Asssocation (For Eligible
79 South Main Street Institutions Only)
Salt Lake City, Utah 84111 801-246-5053
Attention: Brett R. King Confirm by Telephone:
801-246-5630
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS, OR TRANSMISSION VIA
FACSIMILE, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE VALID DELIVERY.
This form is not to be used to guarantee signatures. If a signature on
the Letter of Transmittal is required to be guaranteed by an "Eligible
Institution" under the instructions thereto, such signature guarantee must
appear in the applicable space provided in the signature box on the Letter of
Transmittal.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders, upon the terms and subject to the
conditions set forth in the Prospectus and the related Letter of Transmittal,
receipt of which is hereby acknowledged, the principal amount of Old
Certificates set forth below pursuant to the guaranteed delivery procedures set
forth in the Prospectus and in Instruction 2 of the Letter of Transmittal.
The undersigned hereby tenders the Old Certificates listed below:
CERTIFICATE NUMBER(S) (IF AGGREGATE PRINCIPAL AGGREGATE PRINCIPAL
KNOWN) OF OLD AMOUNT REPRESENTED AMOUNT TENDERED
CERTIFICATES OR ACCOUNT
NUMBER AT DTC
________________________ ______________________ _____________________
________________________ ______________________ _____________________
________________________ ______________________ _____________________
________________________ ______________________ _____________________
PLEASE SIGN AND COMPLETE
Signatures of Registered Certificateholder(s)
or
Authorized Signature:______________________________
___________________________________________________
Address:___________________________________________
___________________________________________________
Area Code and Telephone No.________________________
Name(s) of Registered Certificateholder(s):________
___________________________________________________
___________________________________________________
___________________________________________________
Date:____________________,1996
2
<PAGE>
This Notice of Guaranteed Delivery must be signed by the
Certificateholder(s) exactly as their name(s) appear(s) on the Old Certificates
or on a security position listing as the owner of Old Certificates, or by
person(s) authorized to become certificateholder(s) by endorsements and
documents transmitted with this Notice of Guaranteed Delivery. If signature is
by a trustee, executor, administrator, guardian, attorney-in-fact, officer or
other person acting in a fiduciary or representative capacity, such person must
provide the following information.
PLEASE PRINT NAME(S) AND ADDRESS(ES)
Name(s):________________________________________________________________________
Capacity:_______________________________________________________________________
Address(es):____________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
3
<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm which is a member of a registered national
securities exchange or of the National Association of Securities Dealers, Inc.,
or is a commercial bank or trust company having an office, branch, agency or
correspondent in the United States guarantees deposit with the Exchange Agent of
the Letter of Transmittal (or facsimile thereof), together with the Old
Certificates tendered hereby in proper form for transfer (or confirmation of the
book-entry transfer of such Old Certificates into the Exchange Agents account at
DTC) and any other required documents, all by 5:00 p.m., New York City time, on
the third New York Stock Exchange trading day following the Expiration Date.
Name of Firm:_______________________ _______________________________
Authorized Signature
Address:____________________________ Name:__________________________
____________________________________ Title:_________________________
Area Code and
Telephone No.:______________________ Date:____________________, 1996
DO NOT SEND OLD CERTIFICATES WITH THIS FORM, ACTUAL SURRENDER OF OLD
CERTIFICATES MUST BE MADE PURSUANT TO, AND BE ACCOMPANIED BY, AN EXECUTED LETTER
OF TRANSMITTAL.
4
<PAGE>
INSTRUCTIONS FOR NOTICE OF GUARANTEED DELIVERY
1. Delivery of this Notice of Guaranteed Delivery. A properly
----------------------------------------------
completed and duly executed copy of this Notice of Guaranteed Delivery and any
other documents required by this Notice of Guaranteed Delivery must be received
by the Exchange Agent at its address set forth herein prior to the Expiration
Date. The method of delivery of this Notice of Guaranteed Delivery and any
other required documents to the Exchange Agent is at the election and sole risk
of the Certificateholder, and the delivery will be deemed made only when
actually received by the Exchange Agent. If delivery is by mail, registered
mail with return receipt requested, properly issued, is recommended. This
Notice of Guaranteed Delivery should not be delivered to Mobil or MGB. In all
cases, sufficient time should be allowed to assure timely delivery. For a
description of the guaranteed delivery procedures, see Instruction 2 of the
Letter of Transmittal.
2. Signatures on this Notice of Guaranteed Delivery. If this Notice
------------------------------------------------
of Guaranteed Delivery is signed by the registered Certificateholder(s) of the
Old Certificates referred to herein, the signatures must correspond with the
name(s) written on the face of the Old Certificates without alteration,
enlargement, or any change whatsoever. If this Notice of Guaranteed Delivery is
signed by a participant of DTC whose name appears on a security position listing
as the owner of Old Certificates the signature must correspond with the name
shown on the security position listing as the owner of the Old Certificates.
If this Notice of Guaranteed Delivery is signed by a person other than
the registered Certificateholder(s) of any Old Certificates or a participant of
DTC, this Notice of Guaranteed Delivery must be accompanied by appropriate bond
powers, signed as the name of the registered certificateholder(s) appear(s) on
the Old Certificates or signed as the name of the participant shown on DTC's
security position listing.
If this Notice of Guaranteed Delivery is signed by a trustee,
executor, administrator, guardian, attorney-in-fact, officer of a corporation or
other person acting in a fiduciary or representative capacity, such person
should so indicate when signing and submit with the Letter of Transmittal
evidence satisfactory to Mobil and MGB of such person's authority to so act.
3. Requests for Assistance or Additional Copies. Questions and
--------------------------------------------
requests for assistance and requests for additional copies of the Prospectus may
be directed to the Exchange Agent at the address specified in the Prospectus.
Certificateholders may also contact their broker, dealer, commercial bank, trust
company, or other nominee for assistance concerning the Exchange Offer.
5
<PAGE>
EXHIBIT 99.4
EXCHANGE AGENT AGREEMENT
AGREEMENT dated as of May 1, 1996, among Mobil Corporation, a Delaware
corporation ("Mobil"), Mobil G.B. 388 Finance Inc., a Delaware corporation
("MGB"), and First Security Bank of Utah, National Association ("FSBU").
WHEREAS, Mobil and MGB are parties to that certain Registration Rights
Agreement dated December 12, 1995 (the "Registration Rights Agreement") pursuant
to which Mobil and MGB will commence an offer (the "Exchange Offer") to cause
FSBU to exchange $1,000 principal amount of Pass Through Certificates, Series
1995-B1 through 1995-B6 (the "New Certificates"), which have been registered
under the Securities Act of 1933, as amended (the "Securities Act") pursuant to
a registration statement on Form S-4 filed by Mobil and MGB (together with any
amendments thereto, the "Registration Statement"), for each $1,000 principal
amount of issued and outstanding Pass Through Certificates, Series 1995-A1
through 1995-A6 of Mobil and MGB (the "Old Certificates"), of which an aggregate
of $92,185,000 in principal amount is outstanding. Holders of the Old
Certificates may tender some or all of the Old Certificates pursuant to the
Exchange Offer. However, the Old Certificates may be tendered only in integral
multiples of $1,000. The Exchange Offer is not conditioned upon any minimum
aggregate principal amount of Old Certificates being tendered for exchange.
WHEREAS, FSBU currently serves as the trustee (the "Pass Through Trustee")
for the Mobil Corporation 1995-A Pass Through Trusts formed pursuant to six
separate pass through trust agreements dated December 12, 1995 among Mobil, MGB
and FSBU.
WHEREAS, Mobil and MGB desire to retain FSBU to serve as the Exchange Agent
with respect to the surrender of the Old Certificates in exchange for the New
Certificates pursuant to the Exchange Offer, and FSBU agrees so to serve, on the
terms and conditions set forth herein.
NOW, THEREFORE, the parties agree as follows:
1. Appointment of Exchange Agent. Mobil and MGB hereby appoint FSBU as
-----------------------------
Exchange Agent (the "Exchange Agent"). In connection with such appointment,
Mobil and MGB have provided to the Exchange Agent (or are providing herewith)
copies of each of the following documents:
(a) A Letter of Transmittal substantially in the form attached hereto
as Exhibit A (the "Letter of Transmittal");
(b) Guidelines for Certification of Taxpayer Identification Number or
Substitute Form W-9 (the "W-9 Guidelines");
(c) Notice of Guaranteed Delivery;
<PAGE>
(d) The Prospectus relating to the Exchange Offer; and
(e) A letter from Mobil and MGB to the Certificateholders
2. Exchange Offer. The Exchange Offer will be made by the Pass Through
--------------
Trustee to the holders of Old Certificates ("Certificateholders"). The Pass
Through Trustee shall furnish to the Exchange Agent a list containing the names
and addresses of the holders of record of Old Certificates, and shall indicate
with respect to each Certificateholder the principal amount of Old Certificates
owned by each such Certificateholder as of the Commencement Date. In carrying
out its duties as Exchange Agent in connection with the Exchange Offer, the
Exchange Agent is to act in accordance with the following:
(a) The Exchange Agent shall mail, postage prepaid, as soon as practicable
after the date the Registration Statement is effective (the
"Commencement Date"), to each holder of record of Old Certificates as
of the Commencement Date, copies of the Letter of Transmittal, the W-9
Guidelines, the Notice of Guaranteed Delivery, the Prospectus, a
return envelope addressed to the Exchange Agent and a letter from
Mobil and MGB to Certificateholder. Copies of such items will be
furnished to the Exchange Agent by Mobil and MGB in sufficient
quantities so that the Exchange Agent may give copies of such
documents to any person so requesting. The Letter of Transmittal will
contain instructions with respect to the delivery of New Certificates
for Old Certificates tendered.
(b) The Exchange Offer will expire at 5:00 p.m., New York City time, on
the date that is 60 days after the Commencement Date (the "Initial
Expiration Date"), or at any subsequent time to which Mobil and MGB
may extend the Exchange Offer. Mobil and MGB have no current
intention to extend the Exchange Offer but expressly reserve the
right, in their sole discretion, to extend the Exchange Offer at any
time and from time to time by giving oral or written notice to the
Exchange Agent before 9:00 a.m. on the first business day following
the scheduled expiration date and by timely public announcement
communicated, unless otherwise required by applicable law or
regulation, by making a release to the Dow Jones News Service. The
later of the Initial Expiration Date and the latest date and time to
which the Exchange Offer has been so extended is herein referred to as
the "Expiration Date."
(c) The Exchange Agent is authorized to accept Old Certificates tendered
for exchange by Certificateholders if (i) the Certificateholder
complies with the procedure for book-entry transfer and the Letter of
Transmittal or a facsimile thereof (all references herein to the
Letter of Transmittal being deemed to include a facsimile thereof) is
duly executed and properly completed in accordance with the
instructions set forth therein and properly delivered with any
required signature guarantees to the Exchange Agent as directed in the
Letter of Transmittal on or prior to the Expiration Date or (ii) the
Certificateholder complies with the guaranteed delivery procedures
described below.
2
<PAGE>
(d) The Exchange Agent will establish a book entry account with the
Depository Trust Company ("DTC") for purposes of the Exchange Offer
promptly after the date of the Prospectus, and any financial
institution that is a participant in DTC's system may make book-entry
delivery of the Old Certificates by causing DTC to transfer such Old
Certificates into the account maintained by the Exchange Agent
pursuant to this paragraph in accordance with DTC's procedures for
such transfer. This account will be maintained until all Old
Certificates tendered pursuant to the Exchange Offer have been either
accepted for exchange or returned. However, although delivery of Old
Certificates may be effected through book-entry transfer, the Letter
of Transmittal properly completed and duly executed together with any
required signature guarantees and any other required documents must,
in any case, be received or confirmed by the Exchange Agent on or
prior to the Expiration Date, or, if the guaranteed delivery
procedures described below are complied with, within the time period
provided under such procedures in order for Old Certificates to be
properly tendered.
(e) The Exchange Agent shall examine the Letters of Transmittal and
certificates for Old Certificates delivered or mailed to it to
ascertain whether the Letters of Transmittal are filled out and
executed in accordance with instructions set forth therein and that
certificates for Old Certificates represent validly issued and
outstanding Old Certificates as of the date on which such Old
Certificates are accepted for exchange. All questions as to the form
of documents and the validity, eligibility (including time of receipt)
and acceptance for exchange of any tender of Old Certificates will be
determined by Mobil and MGB, in their sole discretion, which
determination shall be final and binding.
With the written approval of any of the employees of Mobil and MGB
identified or named in Section 7(a) of this Agreement, or any other
person designated by Mobil and MGB, the Exchange Agent is authorized
to waive irregularities in connection with the acceptance of the
Exchange Offer.
If any tendered Old Certificates are not accepted for exchange because
of an invalid tender or otherwise, any such unaccepted Old
Certificates with any related required documents and the Letter of
Transmittal relating thereto will be returned, without expense, to the
tendering Certificateholder thereof as promptly as practicable after
the Expiration Date along with a notice explaining the reason for such
return.
(f) If a Certificateholder desires to tender Old Certificates pursuant to
the Exchange Offer but time will not permit all required documents to
reach the Exchange Agent on or prior to the Expiration Date or the
procedure for book-entry tender cannot be completed on a timely basis,
such Old Certificates may nevertheless be tendered if all the
following conditions are satisfied:
(i) the Exchange Agent has received a letter, telegram or facsimile
from an Eligible Institution (as defined in the Prospectus)
setting forth all required information as to the tendering
Certificateholder on or prior to the Expiration Date;
3
<PAGE>
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery is received by the Exchange Agent as provided below on
or prior to the Expiration Date; and
(iii) the certificates for all tendered Old Certificates, in
proper form for transfer (or a confirmation of book-entry
transfer of such Old Certificates into the Exchange Agent's
account at DTC ("Book-Entry Confirmation")), together with a
properly completed and duly executed Letter of Transmittal and
any other documents required by the Letter of Transmittal are
received by the Exchange Agent within three New York Stock
Exchange trading days after the date of execution of the Notice
of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand or
transmitted by telegram, telex, facsimile transmission or mailed to
the Exchange Agent and must include a guarantee by an Eligible
Institution in the form set forth in such Notice of Guaranteed
Delivery.
The Exchange Agent is authorized to deem a tender received as of the
date when (i) the tendered Certificateholder's properly completed and
duly signed Letter of Transmittal (accompanied by the Old Certificates
or a Book-Entry Confirmation) is received by the Exchange Agent or
(ii) a Notice of Guaranteed Delivery or letter, telegram or facsimile
transmission to similar effect from an Eligible Institution is
received by the Exchange Agent.
Issuances of New Certificates or a book-entry transfer in accordance
with DTC's procedures for such transfer by the Pass Through Trustee in
exchange for Old Certificates tendered pursuant to a Notice of
Guaranteed Delivery or letter, telegram or facsimile transmission to
similar effect (as provided above) by an Eligible Institution will be
made only against deposit of the Letter of Transmittal and the
tendered Old Certificates (or a Book-Entry Confirmation) and any other
required documents.
(g) Validly tendered Old Certificates will be deemed to have been accepted
by the Pass Through Trustee when, as and if Mobil and MGB have given
oral or written notice thereof to the Exchange Agent. Mobil and MGB
will exchange Old Certificates duly tendered on the terms and subject
to the conditions set forth in the Prospectus and the Letter of
Transmittal as they may be amended from time to time. Exchange for
Old Certificates duly tendered and exchanged pursuant to the Exchange
Offer will be made by delivery of the New Certificates by the Exchange
Agent as soon as practicable after notice of acceptance of said Old
Certificates by Mobil and MGB is received by the Exchange Agent.
(h) A tender of Old Certificates pursuant to the Exchange Offer is
irrevocable, except that Old Certificates tendered pursuant to the
Exchange Offer may be withdrawn at any time prior to the Expiration
Date. For a withdrawal to be effective, a written, telegram, telex or
facsimile transmission notice of withdrawal must be received by the
Exchange Agent at the address set forth
4
<PAGE>
in the Letter of Transmittal not later than the close of business on
the Expiration Date. Any such notice of withdrawal must specify the
Certificateholder named in the Letter of Transmittal as having
tendered Old Certificates to be withdrawn, the numbers of the Old
Certificates to be withdrawn and the principal amount thereof, a
statement that such Certificateholder is withdrawing his election to
have such Old Certificates exchanged, and the name of the registered
Certificateholder of such Old Certificates, and must be signed by the
Certificateholder in the same manner as the original signature on the
Letter of Transmittal (including any required signature guarantees) or
be accompanied by evidence satisfactory to Mobil and MGB that the
person withdrawing the tender has succeeded to the beneficial
ownership of the Old Certificates being withdrawn. The Exchange Agent
will return the properly withdrawn Old Certificates promptly following
receipt of notice of withdrawal. If Old Certificates have been
tendered pursuant to the procedure for book-entry transfer, any notice
of withdrawal must specify the name and number of the account at DTC
to be credited with the withdrawn Old Certificates or otherwise comply
with DTC procedure. All questions as to the validity of notices of
withdrawal, including time of receipt, will be determined by Mobil and
MGB, and such determination will be final and binding on all parties.
(i) Notwithstanding any other provision of the Exchange Offer, or any
extension of the Exchange Offer, the Pass Through Trustee will not be
required to issue New Certificates in exchange for properly tendered
Old Certificates not previously accepted, and Mobil and MGB may
terminate the Exchange Offer (by giving oral or written notice to the
Exchange Agent and by timely public announcement communicated, unless
otherwise required by applicable law or regulation, by making a
release to the Dow Jones News Service), or, at their option, modify or
otherwise amend the Exchange Offer, if either of the following events
occur:
(i) any statute, rule or regulation shall have been enacted, or
any action shall have been taken by any court or governmental
authority, including the staff of the Commission, which, in the sole
judgment of Mobil and MGB, would prohibit, restrict or otherwise
render illegal consummation of the Exchange Offer; or
(ii) there shall occur a change in the current interpretation by
the staff of the Commission which permits the New Certificates issued
pursuant to the Exchange Offer in exchange for Old Certificates to be
offered for resale, resold and otherwise transferred by
Certificateholders thereof (other than broker-dealers and any such
Certificateholder which is an "affiliate" of Mobil or MGB within the
meaning of Rule 405 under the Securities Act) without compliance with
the registration and prospectus delivery provisions of the Securities
Act provided that such New Certificates are acquired in the ordinary
course of such Certificateholders' business and such
Certificateholders have no arrangement or understanding with any
person to participate in the distribution of such New Certificates.
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Mobil and MGB expressly reserve the right to terminate the Exchange
Offer and not accept for exchange any Old Certificates upon the
occurrence of either of the foregoing conditions. In addition, Mobil
and MGB may amend the Exchange Offer at any time prior to the
Expiration Date if either of the conditions set forth above occurs.
Moreover, regardless of whether either of such conditions has
occurred, Mobil and MGB may amend the Exchange Offer in any manner
which, in their good faith judgment, is advantageous to
Certificateholders of the Old Certificates.
The foregoing conditions are for the sole benefit of Mobil and MGB and
may be waived by Mobil and MGB, in whole or in part, in their sole
discretion. The foregoing conditions must be either satisfied or
waived prior to termination of the Exchange Offer. Any determination
made by Mobil and MGB concerning an event, development or circumstance
described or referred to above will be final and binding on all
parties.
(j) If, pursuant to the Exchange Offer, Mobil and MGB do not exchange Old
Certificates tendered, the Exchange Agent shall, as promptly as
practicable following the expiration or termination of the Exchange
Offer, return the deposited certificates for such Old Certificates,
with any related required documents and the Letter of Transmittal
relating thereto that are in the Exchange Agent's possession, to the
persons who deposited same, together with a notice explaining the
reasons for their return. In the case of Old Certificates tendered by
book-entry transfer, such Old Certificates will be credited to an
account maintained at DTC.
(k) Certificates for unexchanged Old Certificates and any certificated New
Certificates issuable upon exchange of Old Certificates are to be
forwarded by (a) first-class mail under a blanket surety bond
protecting the Exchange Agent, Mobil and MGB from loss or liability
arising out of the non-receipt or non-delivery of such Certificates or
(b) by registered mail insured separately for the replacement value of
such Certificates.
(l) The Exchange Agent shall advise by telephone, each Thursday, and at
such other times as requested by Mobil, up to and including the
Expiration Date, not later than 5:00 p.m. New York City time, Victor
Fernandez (703-846-1221) of Mobil and such others as he may direct in
writing from time to time, of the number of Old Certificates which
have been duly tendered as of such day, the number of Old Certificates
about which the Exchange Agent has questions concerning the validity
of the tender and the cumulative number of Old Certificates tendered
and not withdrawn through the time of such call and shall provide such
persons with any other information such persons may reasonably
request. As soon as practicable following the Expiration Date, the
Exchange Agent will prepare a final written list of all persons whose
tenders of Old Certificates were accepted and the number of Old
Certificates tendered and not withdrawn in the Exchange Offer and
deliver such list to Mobil and MGB.
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(m) The Exchange Agent will not be required to and will make no
representations as to the validity, value or genuineness of the
Exchange Offer or the New Certificates.
(n) The Exchange Agent shall not be called upon at any time to advise any
person tendering pursuant to the Exchange Offer as to the merits of
making such tender or as to the market value or decline or
appreciation in market value of any security and shall not offer to
pay or pay any concessions or commissions to any brokers, dealers,
banks or other persons, or engage or utilize any person, to solicit
tenders pursuant to the Exchange Offer.
(o) The Exchange Agent shall accept and comply with telephone and mail
requests for information concerning the proper tender of Old
Certificates pursuant to the Exchange Offer and exchange of such Old
Certificates for the New Certificates.
(p) In the event of any inconsistency between this Agreement, on the one
hand, and the Prospectus and the Letter of Transmittal (as they may be
amended from time to time), on the other hand, with respect to the
Exchange Offer, such inconsistency shall be resolved in favor of the
Prospectus and the Letter of Transmittal, except with respect to the
duties, liabilities and rights of FSBU as Exchange Agent in connection
with the Exchange Offer.
3. Lost Certificates; Discrepancies in Ownership. If any holder of Old
---------------------------------------------
Certificates is unable to locate his or her certificates, the Exchange Agent is
authorized upon receipt of an otherwise proper Letter of Transmittal, an
affidavit of loss and a bond of indemnity, satisfactory to the Exchange Agent,
Mobil and MGB and the surety company(s) engaged by the Exchange Agent, to
exchange such holder's Old Certificates pursuant to the Exchange Offer and in
accordance with the terms of this Agreement.
4. Fees and Expenses of Exchange Agent. Mobil and MGB shall reimburse
-----------------------------------
the Exchange Agent for its reasonable out-of-pocket expenses and shall pay fees
for the services performed hereunder by the Exchange Agent in connection with
the Exchange Offer in the amounts set forth in Exhibit B hereto.
5. Indemnification. (a) Mobil and MGB shall indemnify and hold the
---------------
Exchange Agent and its officers, directors, employees, agents, subsidiaries and
affiliates harmless against any loss, liability, damage or expense incurred
without negligence, willful misconduct or bad faith on the Exchange Agent's
part, arising out of or in connection with the administration of the Exchange
Agent's duties under this Agreement, including the cost of defending the
Exchange Agent against any action, proceeding, suit or claim related thereto,
but such indemnity shall not extend to any losses of certificates or other
documents occurring in the process of delivery of certificates representing Old
Certificates to the Exchange Agent or of certificates representing New
Certificates by the Exchange Agent in connection with the Exchange Offer. In no
case shall Mobil or MGB be liable under this indemnity with respect to any
action, suit, proceeding or claim against the Exchange Agent unless Mobil shall
be notified by the Exchange Agent, by letter or by telex or facsimile
transmission confirmed by letter, of the written assertion of an action, suit,
proceeding or claim made or commenced against the Exchange Agent, promptly after
the Exchange Agent shall have been served with
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the summons or other first legal process or shall have received the first
written assertion giving information as to the nature and basis of the action,
proceeding, suit or claim, but failure so to notify Mobil shall not release
Mobil or MGB of any liability which it may have on account of any other
provisions of this Agreement. Mobil and MGB shall be entitled to participate at
their own expense in the defense of any such action, suit, proceeding or claim
and, to the extent that they may wish, to assume the defense thereof, with
counsel reasonably satisfactory to the Exchange Agent, and after notice from
Mobil to the Exchange Agent of its election to assume the defense thereof, Mobil
and MGB will not be liable to the Exchange Agent under this Section for any
legal or other expenses subsequently incurred by the Exchange Agent in
connection with the defense thereof. Mobil and MGB shall not be liable for any
settlement of any such action, proceeding, suit or claim effected without their
written consent.
(b) The Exchange Agent covenants to indemnify and hold Mobil and MGB
and their respective officers, directors, employees, agents, subsidiaries and
affiliates harmless to the same extent as the foregoing indemnity from Mobil and
MGB to the Exchange Agent, but only insofar as any loss, liability, damage or
expense arises out of (i) negligence, bad faith or willful misconduct on the
part of the Exchange Agent or (ii) the Exchange Agent's failure to act or
refrain from acting in accordance with the instructions of Mobil or MGB.
6. Additional Duties and Obligations of Exchange Agent. (a) The Exchange
---------------------------------------------------
Agent shall have no duties or obligations other than those specifically set
forth in this Agreement except for any duties customarily a part of such
engagement, including good faith and due care, or as may subsequently be agreed
to by the Exchange Agent and Mobil or MGB with respect to the Exchange Offer.
(b) The Exchange Agent shall not be obligated to take any legal action
hereunder which might in its judgment involve any expense or liability (other
than de minimis expenses), unless the Exchange Agent shall have been furnished
with such indemnity as shall be reasonably satisfactory to it.
7. Reliance by Exchange Agent on Instructions, Certificates, Opinions,
-------------------------------------------------------------------
Etc. (a) The Exchange Agent may rely on and shall be protected in acting upon
- ----
written instructions from Maxine C. Schnitzer, Ralph N. Johanson, Jr., and
Richard E. Sliwinski, each of whom has been authorized to act on behalf of Mobil
and MGB.
(b) The Exchange Agent may rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter, telegram, or
other document delivered to it and reasonably believed by it to be genuine and
to have been signed by the proper party or parties.
(c) The Exchange Agent may consult counsel satisfactory to it (including
counsel in its employ), and any action taken, suffered, or omitted by the
Exchange Agent hereunder in good faith and in accordance with the opinion of
such counsel, which such opinion shall be furnished in writing to Mobil and MGB
prior to any such action, shall be full and complete authorization and
protection in respect thereto.
8. Tax Matters. The Exchange Agent will arrange to comply with the
-----------
various information reporting and backup withholding requirements of the
Internal Revenue Service (the "IRS") and the Treasury Regulations in connection
with the Exchange Offer. In this
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<PAGE>
regard, Mobil and MGB understand that the Exchange Agent is required to withhold
31% on payments (i) to U.S. holders of Old Certificates (A) that have not
theretofore supplied the Exchange Act with their correct Taxpayer Identification
Number ("TIN") on an IRS Form W-9 (or a substitute form containing all required
information) or (B) for whom the Exchange Agent has been instructed by the IRS
to withhold and (ii) to foreign Certificateholders that have not theretofore
filed with the Exchange Agent a properly completed IRS Form W-8 unless the
Exchange Agent withholds 30% on such payments pursuant to a withholding
obligation under subchapter A of chapter 3 of the Code, or was not required to
withhold under such subchapter and the Exchange Agent (x) has received a
properly completed Form 1001 or Form 4224, as appropriate, or (y) the payment is
portfolio interest and is paid outside the U.S. If such backup withholding is
required, the Exchange Agent will forward the appropriate funds to the IRS.
9. Miscellaneous.
-------------
(a) This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns, except that the
Exchange Agent shall not assign its rights or duties hereunder without the prior
written consent of Mobil and MGB.
(b) This Agreement may be terminated by Mobil and MGB at any time after the
termination of the Exchange Offer by giving written notice of its decision so to
terminate to the Exchange Agent.
(c) Unless otherwise expressly provided herein, all notices, statements and
other communications hereunder shall be in writing, signed by a duly authorized
officer of the party sending such notice, and shall be deemed given when
delivered by hand or by facsimile, addressed or transmitted as follows:
To First Security Bank of Utah, National Association, as Exchange
Agent:
By Hand
-------
First Security Bank of Utah, National Association
79 South Main Street,
Salt Lake City, Utah 84111
Attention: Corporate Trust Department
Fax: 801-246-5053
To Mobil and MGB:
Mobil Corporation
3225 Gallows Road
Fairfax, VA 22037-0001
Attention: Treasurer
Fax: 703-846-1401
(d) If any provision of this Agreement shall be held illegal, invalid, or
unenforceable by any court, this Agreement shall be construed and enforced as if
such
9
<PAGE>
provision had not been contained herein and shall be deemed an Agreement among
the parties hereto to the full extent permitted by applicable law.
(e) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to conflict of laws
rules and principles.
(f) No provision of this Agreement may be amended, modified or waived,
except in writing signed by each of the parties hereto.
(g) This Agreement may be executed in one or more counterparts, which in
the aggregate shall constitute one Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
MOBIL CORPORATION
By: /s/ Ralph N. Johanson, Jr.
----------------------------------------
Name: Ralph N. Johanson, Jr.
Title: Attorney-in-Fact
MOBIL G.B.388 FINANCE INC.
By: /s/ Maxine C. Schnitzer
----------------------------------------
Name: Maxine C. Schnitzer
Title: Vice President
FIRST SECURITY BANK OF UTAH,
NATIONAL ASSOCIATION
By: /s/ Brett R. King
----------------------------------------
Name: Brett R. King
Title: Trust Officer
11
