<PAGE>
As Filed with the Securities and Exchange Commission on November 12, 1996
REGISTRATION NO. 333-13457
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
MOBIL MARINE FINANCE COMPANY I INC.
MOBIL MARINE FINANCE COMPANY II INC.
MOBIL LEASE FINANCE COMPANY INC.
MOBIL CORPORATION MOBIL CHEMICAL FINANCE (TEXAS) INC.
MOBIL CHEMICAL FINANCE (LOUISIANA) INC.
(EXACT NAME OF REGISTRANT MOBIL PETRORAIL FINANCE INC.
AS SPECIFIED IN ITS CHARTER) MOBIL TRANSPORT FINANCE COMPANY INC.
MOBIL EQUIPMENT FINANCE COMPANY INC.
(EXACT NAME OF REGISTRANT AS
SPECIFIED IN ITS CHARTER)
DELAWARE DELAWARE
(STATE OR OTHER JURISDICTION OF (STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION) INCORPORATION OR ORGANIZATION)
[EACH TO BE APPLIED FOR]
13-2850309 (I.R.S. EMPLOYER IDENTIFICATION NO.)
(I.R.S. EMPLOYER IDENTIFICATION NO.)
C/O MOBIL CORPORATION
3225 GALLOWS ROAD 3225 GALLOWS ROAD
FAIRFAX, VIRGINIA 22037-0001 FAIRFAX, VIRGINIA 22037-0001
(703) 846-3000 (703) 846-3000
(ADDRESS INCLUDING ZIP CODE, AND (ADDRESS INCLUDING ZIP CODE, AND
TELEPHONE NUMBER, INCLUDING AREA TELEPHONE NUMBER, INCLUDING AREA
CODE, OF EACH REGISTRANT'S CODE, OF EACH REGISTRANT'S
PRINCIPAL EXECUTIVE OFFICES) 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. JOHN B. BRADY, JR., ESQ. JOEL S. KLAPERMAN, ESQ.
MANAGING COUNSEL, CORPORATE, DEBEVOISE & PLIMPTON SHEARMAN & STERLING
FINANCE AND SECURITIES 875 THIRD AVENUE 599 LEXINGTON AVENUE
MOBIL CORPORATION NEW YORK, NEW YORK 10022 NEW YORK, NEW YORK 10022
3225 GALLOWS ROAD (212) 909-6000 (212) 848-4000
FAIRFAX, VIRGINIA 22037-0001
(703) 846-3000
--------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time, as determined by market conditions, after this Registration Statement
becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, other than securities offered only in connection with dividend
or interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
<PAGE>
PROSPECTUS
$650,000,000
PASS THROUGH CERTIFICATES
MOBIL MARINE FINANCE COMPANY I INC.
MOBIL MARINE FINANCE COMPANY II INC.
MOBIL LEASE FINANCE COMPANY INC.
MOBIL CHEMICAL FINANCE (TEXAS) INC.
MOBIL CHEMICAL FINANCE (LOUISIANA) INC.
MOBIL PETRORAIL FINANCE INC.
MOBIL TRANSPORT FINANCE COMPANY INC.
MOBIL EQUIPMENT FINANCE COMPANY INC.
--------------------
APPLICABLE UNDERLYING PAYMENTS FULLY AND UNCONDITIONALLY
GUARANTEED BY
MOBIL CORPORATION
Up to $650,000,000 aggregate public offering price of Pass Through
Certificates (the "Certificates") (or its equivalent (based on the
applicable exchange rate at the time of sale) in one or more foreign
currencies or units based on or related to currencies, including European
Currency Units) may be offered for sale from time to time pursuant to
this Prospectus and related Prospectus Supplements (as defined below).
Certificates may be issued in one or more series in amounts, at prices
and on terms to be determined at the time of the offering. In respect of
each offering of Certificates, a separate Mobil Pass Through Trust for
each series of Certificates being offered (each, a "Pass Through Trust")
will be formed pursuant to a Pass Through Trust Agreement (the "Basic
Agreement"), among Mobil Marine Finance Company I Inc., Mobil Marine
Finance Company II Inc., Mobil Lease Finance Company Inc., Mobil Chemical
Finance (Texas) Inc., Mobil Chemical Finance (Louisiana) Inc., Mobil
Petrorail Finance Inc., Mobil Transport Finance Company Inc., Mobil
Equipment Finance Company Inc. (each, a "Lessee"), Mobil Corporation
("Mobil") and State Street Bank and Trust Company (the "Trustee"), as
trustee under each Pass Through Trust, and a supplement thereto (each, a
"Trust Supplement") relating to such Pass Through Trust to be entered
into among one or more of the Lessees, Mobil and the Trustee. Each
Certificate in a series will represent a fractional undivided interest in
the related Pass Through Trust and will have no rights, benefits or
interests in respect
<PAGE>
of any other Pass Through Trust. The property of each Pass Through Trust
will consist of notes (the "Secured Notes") issued on a nonrecourse basis
by one or more owner trustees (each, an "Owner Trustee") of one or more
separate owner trusts (each, an "Owner Trust") in connection with one or
more separate leveraged lease transactions to finance or refinance all or
a portion of the cost of certain real or personal property to be
specified in a Prospectus Supplement, which property may consist of title
to, an estate for years or a leasehold or similar interest in equipment,
manufacturing, drilling or production facilities, marine tankers, rail
cars, corporate aircraft (including engines), drilling platforms,
refineries, pipelines, chemical plants, and other real or personal
property or undivided interests therein (each such specified property,
"Leased Property"). Each Leased Property has been or will be leased or
chartered to a Lessee pursuant to separate lease agreements, sublease
agreements, charters or similar agreements (each, a "Lease"). Although
neither the Certificates nor the Secured Notes will be obligations of, or
guaranteed by, any Lessee or Mobil, the amounts unconditionally payable
under the Lease or Leases related to a Pass Through Trust will be at
least sufficient to pay in full when due all payments of principal and
interest and, except in the limited circumstances set forth in the
applicable Prospectus Supplement, premium, if any, due in respect of the
Secured Notes held in that Pass Through Trust. Mobil will fully and
unconditionally guarantee (in each case pursuant to a "Parent Guaranty")
to the holders of Certificates from time to time the full and prompt
payment of amounts payable by the Lessee under a related Lease when and
as the same shall become due and payable.
The specific terms of the particular Certificates in respect of which
this Prospectus is being delivered will be set forth in a supplement to
this Prospectus (each, a "Prospectus Supplement") which will be delivered
together with this Prospectus, and which will include, where applicable,
the specific designation, form, aggregate principal amount, initial
public offering price and distribution dates relating to such
Certificates, the currency in which such Certificates will be payable,
and the use of the net proceeds from the offering of such Certificates.
The Prospectus Supplement will also describe the Pass Through Trust or
Pass Through Trusts relating to such Certificates, the Secured Notes to
be purchased by such Pass Through Trust or Pass Through Trusts, each
Leased Property relating to such Secured Notes, the leveraged lease
transactions relating to such Secured Notes and other special terms
relating to such Certificates.
If so specified in a Prospectus Supplement related to an offering of
Certificates, the Trust Property (as defined below) of a Pass Through
Trust will consist of Secured Notes related to Leased Property which are
subordinated in right of payment to other Secured Notes related to the
same Leased Property. In respect of such offering, only Secured Notes
having the same priority of payment may be held in the same Pass Through
Trust. In addition, the related Prospectus Supplement may provide that
the Trustees on behalf of the applicable Pass Through Trusts may enter
into an intercreditor or subordination agreement establishing priorities
among series of Certificates or that one or more payments of interest on
the related Secured Notes of one or more series or distributions made by
the Trustee of the related Pass Through Trust will be supported by a
liquidity facility issued by an institution identified in the related
Prospectus Supplement.
2
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Secured Notes may be issued in respect of one or more items of Leased
Property. Secured Notes in respect of a particular item of Leased
Property may be issued in one or more series, each of which may have a
different interest rate and different final maturity dates. For each
series of Certificates, the Trustee will purchase one or more Secured
Notes issued with respect to one or more items of Leased Property such
that all of the Secured Notes held in the related Pass Through Trust will
have identical interest rates (in each case equal to the rate applicable
to the Certificates issued by such Pass Through Trust), and such that the
latest maturity date for such Secured Notes will occur on or before the
final distribution date for such Certificates. Interest paid on the
Secured Notes held in each Pass Through Trust will be passed through to
the holders of the Certificates relating to such Pass Through Trust on
the dates and at the rate per annum set forth in the Prospectus
Supplement relating to such Certificates until the final distribution
date for such Pass Through Trust. Principal paid on the Secured Notes
held in each Pass Through Trust will be passed through to the holders of
the Certificates relating to such Pass Through Trust in scheduled amounts
on the dates set forth in the Prospectus Supplement relating to such
Certificates until the final distribution date for such Pass Through
Trust. The Secured Notes to be held in a Pass Through Trust will be
secured by (i) an assignment of certain of the issuing Owner Trustee's
rights as lessor or charterer under the Lease relating to the Leased
Property to which such Secured Notes relate, including the right to
receive rentals and certain other payments from the Lessee, (ii) an
assignment of certain of such Owner Trustee's rights under the Parent
Guaranty relating to such Leased Property and (iii) to the extent
specified in the applicable Prospectus Supplement, a mortgage or other
security interest in such Leased Property or in construction contracts or
other agreements, collateral accounts or other security, in each case
subject to the rights of the Lessee under the related Lease and other
rights, if any, described in the applicable Prospectus Supplement.
The Certificates may be sold to or through underwriters, through
dealers or agents or directly to purchasers. See "Plan of Distribution."
Each Prospectus Supplement will set forth the names of any underwriters,
dealers or agents involved in the sale of the Certificates in respect of
which that Prospectus Supplement is being delivered, the proposed
amounts, if any, to be purchased by underwriters and the compensation, if
any, of such underwriters or agents. See "Plan of Distribution" for
information concerning secondary trading of the Certificates.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF CERTIFICATES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR 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.
3
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THE DATE OF THIS PROSPECTUS IS NOVEMBER 12, 1996.
4
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NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THESE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY RELATED PROSPECTUS
SUPPLEMENT IN CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS AND SUCH
PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY MOBIL, ANY LESSEE OR ANY
UNDERWRITERS, AGENTS OR DEALERS. THIS PROSPECTUS AND ANY RELATED PROSPECTUS
SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR SOLICITATION OF AN OFFER TO BUY
SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS AND ANY RELATED
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF MOBIL OR ANY LESSEE SINCE THE DATE HEREOF OR THEREOF OR THAT THE
INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AT ANY TIME SUBSEQUENT TO THE
DATE HEREOF.
________________
TABLE OF CONTENTS
Page
----
AVAILABLE INFORMATION........................................ 6
DOCUMENTS INCORPORATED BY REFERENCE.......................... 7
FORMATION OF THE TRUSTS...................................... 8
OUTLINE OF THE LEVERAGED LEASE STRUCTURE..................... 8
USE OF PROCEEDS.............................................. 9
MOBIL CORPORATION........................................... 10
THE LESSEES................................................. 10
RATIO OF EARNINGS TO FIXED CHARGES OF MOBIL CORPORATION..... 10
DESCRIPTION OF THE CERTIFICATES............................. 11
DESCRIPTION OF THE SECURED NOTES............................ 25
FEDERAL INCOME TAX CONSEQUENCES............................. 30
CERTAIN MASSACHUSETTS TAXES................................. 34
ERISA CONSIDERATIONS........................................ 35
PLAN OF DISTRIBUTION........................................ 35
LEGAL OPINIONS.............................................. 37
EXPERTS..................................................... 37
5
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AVAILABLE INFORMATION
Mobil and the Lessees have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3
(together with any amendments thereto, the "Registration Statement")
under the Securities and Exchange Act of 1933, as amended (the
"Securities Act"), with respect to 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, the Lessees or the Certificates offered hereby,
reference is made to the Registration Statement, exhibits, financial
statements, notes and schedules filed as part thereof, which may be
inspected at the public reference facilities of the Commission at the
addresses set forth below. Statements made in this Prospectus as to the
contents of any contract, agreement or other document referred to are not
necessarily complete. With respect to each such contract, agreement or
other document filed as an exhibit to the Registration Statement,
reference is made to the exhibit for a more complete description of the
document or matter involved, and each such statement made herein with
respect to such contract, agreement or document 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 7 World Trade
Center, Suite 1300, New York, New York 10048 and at 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. The Commission also
maintains a site on the World Wide Web at http://www.sec.gov that
contains reports, proxy and information statements and other information
filed electronically by Mobil. In addition, such 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 separate financial statements of any of the Lessees have been
included or incorporated by reference herein. Mobil and the Lessees do
not consider that such financial statements would be material to holders
of the Certificates because (i) all of the voting securities of each
Lessee will be owned, directly or indirectly, by Mobil, a reporting
company under the Exchange Act, (ii) each of the Lessees is a newly-
formed special purpose entity, has no independent operations and will not
engage in any activity other than leasing Leased Property and (iii) the
obligations of each of the Lessees are fully and unconditionally
guaranteed by Mobil as and to the extent described herein. See "The
Lessees," "Description of the Certificates," and "Parent Guaranties."
6
<PAGE>
DOCUMENTS INCORPORATED BY REFERENCE
Mobil's Annual Report on Form 10-K for the year ended December 31,
1995, its Quarterly Reports on Form 10-Q for the quarters ended March 31,
1996, June 30, 1996 and September 30, 1996, and its Current Reports on
Form 8-K filed on January 22, 1996, February 14, 1996, February 29, 1996,
April 23, 1996, May 13, 1996, May 17, 1996, July 22, 1996, August 7,
1996, September 3, 1996 and October 21, 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 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).
7
<PAGE>
FORMATION OF THE TRUSTS
In respect of each offering of Certificates, a separate Pass Through
Trust for each series of Certificates being offered will be formed
pursuant to the Basic Agreement and a Trust Supplement to be entered into
among Mobil, the Trustee and one or more Lessees (each Lessee that is
liable under one or more related Leases, an "Applicable Lessee").
Following the execution and delivery of a Trust Supplement, the Trustee,
on behalf of the related Pass Through Trust, will purchase the Secured
Notes to be held in such Pass Through Trust having an interest rate (or,
in the case of Secured Notes with a zero coupon, accrual rate) equal to
the interest rate (or accrual rate) applicable to the Certificates
evidencing interests in such Pass Through Trust. The maturity date of the
Secured Notes acquired by a Pass Through Trust will occur not later than
the final scheduled distribution date applicable to the Certificates
evidencing an interest in such Pass Through Trust. The Trustee will
distribute all payments of principal, premium, if any, and interest
received by it as holder of such Secured Notes to the holders of
Certificates evidencing an interest in the Pass Through Trust in which
such Secured Notes are held. See "Description of the Certificates."
OUTLINE OF THE LEVERAGED LEASE STRUCTURE
Unless otherwise specified in the applicable Prospectus Supplement,
the Certificates offered pursuant to any Prospectus Supplement will be
issued to facilitate the acquisition by one or more Owner Trustees, each
acting not in its individual capacity (except as expressly set forth in
such Prospectus Supplement) but solely as trustee under a separate trust
agreement (each, an "Owner Trust Agreement") for one or more equity
investors (each, an "Owner Participant"), of certain items of Leased
Property. Owner Participants may include affiliates of Mobil. Not later
than the delivery date of the applicable Leased Property to an Owner
Trustee, such Owner Trustee will lease or charter such Leased Property to
a Lessee pursuant to a separate Lease. Such Lessee may initially
sublease or subcharter such Leased Property to an affiliate of Mobil.
The Owner Trustees will obtain a portion of the funding for the Leased
Property from the equity investments of the related Owner Participants,
which will be the beneficiaries of the related Owner Trusts, and will
obtain the remainder of the funding from the issuance on a non-recourse
basis of the Secured Notes to be held in the related Pass Through Trusts
and, to the extent set forth in the applicable Prospectus Supplement,
additional debt secured by such Leased Property or other sources. The
Secured Notes to be held in the Pass Through Trusts will be acquired by
the Trustee with the proceeds from the sale of Certificates.
Secured Notes relating to a particular Leased Property will be issued
under a separate indenture and security agreement or a similar agreement
(each, an "Indenture") with respect to such Leased Property. Each
Indenture will be entered into by and among a financial institution (the
"Corporate Indenture Trustee") and, where required by applicable law, an
individual who may be an officer or employee of the Corporate Indenture
Trustee (the "Individual Indenture Trustee"), as trustees thereunder (the
Corporate Indenture Trustee and the Individual Indenture Trustee, in such
capacities, the "Indenture Trustees"), and the issuing Owner Trustee. No
8
<PAGE>
Owner Trustee or Owner Participant will be personally liable for any
amount payable under the related Indenture or the Secured Notes issued
thereunder.
The Secured Notes issued under each Indenture and held in each Pass
Through Trust will be secured by (i) an assignment of certain of the
related Owner Trustee's rights as lessor or charterer under the Lease
with respect to the applicable Leased Property, including the right to
receive certain rentals and other payments from the Applicable Lessee,
(ii) an assignment of certain of such Owner Trustee's rights under the
Parent Guaranty relating to such Leased Property, and (iii) to the
extent specified in the applicable Prospectus Supplement, a mortgage or
other security interest in such Leased Property, or in construction
contracts or other agreements, collateral accounts or other security, in
each case subject to the rights of the Applicable Lessee under the
related Lease and other rights, if any, described in the applicable
Prospectus Supplement. (Such security with respect to each Indenture
shall be referred to as the "Indenture Estate.") Unless otherwise set
forth in the applicable Prospectus Supplement, the Secured Notes issued
under an Indenture will not be secured by any of the Leased Properties
securing the Secured Notes issued under any other Indenture (including
any other Leased Properties acquired by the related Owner Trustee) and
will not be cross-defaulted with Secured Notes issued under any other
Indenture (including any other Indenture entered into by such Owner
Trustee).
The rents and other amounts payable by the Applicable Lessee under the
related Lease will be sufficient to pay in full when due all payments of
principal and interest and, except in the limited circumstances set
forth in the applicable Prospectus Supplement, premium, if any, due in
respect of the Secured Notes issued under the Indenture. The Secured
Notes will not be recourse obligations of any Owner Participant or
issuing Owner Trustee, but will be payable solely from the rents or
charter hire and other amounts payable under the Lease of the Leased
Property securing such Secured Notes and amounts realized from the
exercise of the Indenture Trustee's remedies under the Indenture against
the related Indenture Estate. Pursuant to a Parent Guaranty, Mobil will
fully and unconditionally guarantee the full and prompt payments payable
by the Applicable Lessee under the related Lease when and as the same
shall become due and payable. See "Description of the Secured Notes."
USE OF PROCEEDS
The Certificates offered pursuant to this Prospectus and a related
Prospectus Supplement will be issued in order to facilitate the financing
or refinancing of all or a portion of the cost of certain Leased Property
specified in such Prospectus Supplement. The proceeds from the sale of
Certificates in respect of such Leased Property is not expected to exceed
90% of the value of such Leased Property at the time of financing or
refinancing, which may be established by appraisal or by reference to its
original cost. Except as set forth in a Prospectus Supplement for a
specific offering of Certificates, the proceeds from the sale of the
Certificates will be used by the Trustee or Trustees on behalf of the
applicable Pass Through Trust or Pass Through Trusts to purchase Secured
Notes. See "Description of the Certificates" and "Description of the
Secured Notes." In the event that, at the time Certificates are issued,
the Secured Notes to be
9
<PAGE>
purchased by the applicable Pass Through Trust or Pass Through Trusts are
not available for purchase, the proceeds of the sale of such Certificates
may be used by the Trustee to purchase certain limited investments on an
interim basis, as described in the applicable Prospectus Supplement. In
such event, any portion of the proceeds of the sale of such Certificates
not used for the purchase of Secured Notes on or prior to the date set
forth in such Prospectus Supplement will be distributed on a Special
Distribution Date (as defined below) to the applicable
Certificateholders, together with interest, but without premium. See
"Description of the Certificates--Delayed Purchase."
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, had
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.
THE LESSEES
Each Lessee is a wholly-owned special purpose finance subsidiary of
Mobil. Each Lessee has no business activities other than leasing and
subleasing Leased Property as permitted by the Applicable Lease. Each
Lessee's offices are located at 3225 Gallows Road, Fairfax, Virginia
22037-0001, and its telephone number is (703) 846-3000.
RATIO OF EARNINGS TO FIXED CHARGES OF MOBIL CORPORATION
The following table sets forth the consolidated ratio of earnings to
fixed charges for Mobil for the periods indicated.
<TABLE>
<CAPTION>
NINE
MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
----------------------------------- -------------
1991 1992 1993 1994 1995 1996
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges 4.6 3.9 5.7(a) 5.3 5.9 8.1
</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
10
<PAGE>
discount expense (including capitalized interest) and the portion of
rents deemed representative of the interest factor.
DESCRIPTION OF THE CERTIFICATES
In connection with each offering of Certificates, one or more separate
Pass Through Trusts will be formed and one or more series of Certificates
will be issued pursuant to the Basic Agreement and one or more separate
Trust Supplements to be entered into among Mobil, the Applicable Lessee
or Applicable Lessees and the Trustee on behalf of the related Pass
Through Trust. The statements made under this caption are summaries and
do not purport to be complete. Reference is made to, and the summaries
are qualified in their entirety by reference to, the detailed provisions
of the Basic Agreement, the form of which has been filed as an exhibit to
the Registration Statement of which this Prospectus is a part and which
will be qualified under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"). The summaries relate to the Basic Agreement to
be entered into and each of the Trust Supplements, the Pass Through
Trusts to be formed thereby and the Certificates to be issued by each
Pass Through Trust except to the extent, if any, described in the
applicable Prospectus Supplement. Reference is also made to, and the
summaries are qualified in their entirety by reference to, the detailed
provisions of the form of Parent Guaranty, which has been filed as an
exhibit to the Registration Statement of which this Prospectus is a part.
The Trust Supplement relating to each series of Certificates and the
forms of the related Indenture, Lease, Participation Agreement or similar
agreements will be filed as exhibits to a post-effective amendment to the
Registration Statement of which this Prospectus is a part, a Current
Report on Form 8-K, a Quarterly Report on Form 10-Q or an Annual Report
on Form 10-K, as applicable, to be filed by Mobil with the Commission.
The Certificates offered pursuant to this Prospectus will be limited to
$650,000,000 aggregate public offering price (or its equivalent (based on
the applicable exchange rate at the time of sale) in one or more foreign
currencies or units based on or related to currencies, including European
Currency Units).
Certain provisions of the description of the Certificates in this
Prospectus do not necessarily apply to one Certificate of each Pass
Through Trust which may be issued in a denomination of less than $1,000.
To the extent that any provision in any Prospectus Supplement is
inconsistent with any provision in this summary, the provision of such
Prospectus Supplement will control.
GENERAL
Each Certificate will represent a fractional undivided interest in the
Pass Through Trust created by the Trust Supplement pursuant to which such
Certificate was issued and all payments and distributions shall be made
only from the related Trust Property (as defined below). The property of
each Pass Through Trust (the "Trust Property") will include the Secured
Notes held
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in such Pass Through Trust, all monies at any time paid thereon and all
monies due and to become due thereunder and funds from time to time
deposited with the Trustee in accounts relating to such Pass Through
Trust. Each Certificate will represent a pro rata share of the
outstanding principal amount of the Secured Notes held in the related
Pass Through Trust and, unless otherwise specified in the applicable
Prospectus Supplement, will be issued in minimum denominations of $1,000
or any integral multiple thereof. The Certificates do not represent an
interest in or obligation of Mobil, any Lessee, the Trustee, any of the
Indenture Trustees or Owner Trustees in their individual capacities, any
Owner Participant, or any of their respective affiliates. Each
Certificateholder by its acceptance of a Certificate agrees to look
solely to the income and proceeds from the Trust Property as provided in
the Basic Agreement and the applicable Trust Supplement.
No holder of a Certificate issued with respect to a Pass Through Trust
will have any rights, benefits or interests in respect of any other Pass
Through Trust or in the property held by any other Pass Through Trust.
All payments and distributions on the Certificates will be made only from
the related Trust Property, or pursuant to intercreditor, subordination
or similar agreements to which the related Trustee may be a party.
Secured Notes issued under an Indenture may be held in more than one
Pass Through Trust and one Pass Through Trust may hold Secured Notes
issued under more than one Indenture.
Interest will be passed through to Certificateholders of each Pass
Through Trust at the rate per annum payable on the Secured Notes held in
such Pass Through Trust, as set forth for such Pass Through Trust on the
cover page of the applicable Prospectus Supplement.
None of the Basic Agreement, the Indentures nor the Leases will include
financial covenants or "event risk" provisions that would afford
Certificateholders protection in the event of a highly leveraged or other
transaction involving Mobil or the Lessees. The Certificateholders will
have the benefit of a lien on the Leased Property and the other property
in each Indenture Estate securing the Secured Notes held in the related
Pass Through Trust, as discussed under "Description of the Secured Notes-
-Security."
Reference is made to the Prospectus Supplement that accompanies this
Prospectus for a description of the specific series of Certificates being
offered thereby, including: (1) the specific designation and title of
such Certificates; (2) the Regular Distribution Dates (as defined below)
and Special Distribution Dates (as defined below) applicable to such
Certificates; (3) the currency or currencies (including currency units)
in which such Certificates may be denominated; (4) the specific form of
such Certificates, including whether or not such Certificates are to be
issued in accordance with a book-entry system; (5) a description of the
Secured Notes to be purchased by the related Pass Through Trust,
including the period or periods within which, the price or prices at
which, and the terms and conditions upon which such Secured Notes may or
must be redeemed, purchased or defeased in whole or in part, by the
Applicable Lessee or the related Owner Trustee or Owner Participant, (6)
a description of the related Leased Property and the rights and interests
of the related Owner Trustee, the
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Applicable Lessee and others therein; (7) a description of the related
Indenture, including a description of the events of default under the
related Indenture, the remedies exercisable upon the occurrence of such
events of default and any limitations on the exercise of such remedies
with respect to such Secured Notes; (8) a description of the related
Lease, Owner Trust Agreement and Participation Agreement, including (a)
the names of the related Owner Trustees, (b) a description of the events
of default under the related Leases, the remedies exercisable upon the
occurrence of such events of default and any limitations on the exercise
of such remedies with respect thereto, and (c) the rights of the related
Owner Trustee, if any, and/or Owner Participant, if any, to cure failures
of the Applicable Lessee to pay rent under the related Lease; (9) the
extent, if any, to which the provisions of the operative documents
applicable to such Secured Notes may be amended by the parties thereto
without the consent of the holders of, or only upon the consent of the
holders of a specified percentage of aggregate principal amount of, such
Secured Notes; (10) the terms of the related Parent Guaranty; (11) the
terms of any intercreditor, subordination or similar agreement relating
to the Certificates or Secured Notes or of any liquidity or credit
facility and (12) any other special terms pertaining to such Certificates
or Secured Notes, including any modification of the terms set forth
herein.
If any Certificates are denominated in one or more foreign currencies
or currency units, the restrictions, certain United States federal income
tax considerations, specific terms and other information with respect to
such Certificates and such foreign currency or currency units will be set
forth in the applicable Prospectus Supplement.
If any Certificates relate to Secured Notes that were sold at a
substantial discount below the stated principal amount of such Secured
Notes, certain United States federal income tax considerations, specific
terms and other information with respect to such Certificates will be set
forth in the applicable Prospectus Supplement.
BOOK-ENTRY REGISTRATION
GENERAL
If specified in the applicable Prospectus Supplement, the Certificates
issued thereunder will be subject to the provisions described below and
under the caption "--Definitive Certificates." Upon issuance, each series
of Certificates will be represented by one fully registered global
certificate. Each global certificate will be deposited with, or on
behalf of, The Depository Trust Company ("DTC") and registered in the
name of Cede & Co. ("Cede"), or its nominee. No person acquiring an
interest in such Certificates ("Certificate Owner") will be entitled to
receive a certificate representing such person's interest in such
Certificates, except as set forth below under "--Definitive
Certificates." Unless and until Definitive Certificates (as defined
below) are issued under the limited circumstances described herein and in
the applicable Prospectus Supplement, 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 Cede, as the registered holder of such Certificates,
or to DTC Participants for distribution to Certificate Owners in
accordance with DTC procedures.
DTC is a limited purpose trust company organized under the laws of the
State of New York, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the
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New York Uniform Commercial Code and a "clearing agency" registered
pursuant to section 17A of the Exchange Act. DTC holds securities for
its participants ("DTC Participants") and facilitates the clearance and
settlement of securities transactions between DTC Participants through
electronic computerized book-entries in DTC Participants' accounts,
thereby eliminating the need for physical movement of certificates. DTC
Participants include securities brokers and dealers, banks, trust
companies and clearing corporations. Indirect access to the DTC system
also is available to others such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a
DTC Participant either directly or indirectly ("Indirect Participants").
Certificate Owners that are not DTC Participants or Indirect
Participants but desire to purchase, sell or otherwise transfer ownership
of, or other interests in, the Certificates may do so only through DTC
Participants and Indirect Participants. In addition, Certificate Owners
will receive all distributions of principal and interest from the Trustee
through DTC Participants or Indirect Participants, as the case may be.
Under a book-entry format, Certificate Owners may experience some delay
in their receipt of payments, because such payments will be forwarded by
the Trustee to Cede, as nominee for DTC. DTC will forward such payments
in same-day funds to DTC Participants who are credited with ownership of
the Certificates in amounts proportionate to the principal amount of each
such DTC Participant's respective holdings of beneficial interests in the
Certificates. DTC Participants will thereafter forward payments to
Indirect Participants or Certificate Owners, as the case may be, in
accordance with customary industry practices. The forwarding of such
distributions to the Certificate Owners will be the responsibility of
such DTC Participants. Unless and until the Definitive Certificates are
issued under the limited circumstances described herein, the only
"Certificateholder" will be Cede, as nominee of DTC. Certificate Owners
will not be recognized by the Trustee as Certificateholders, as such term
is used in the Basic Agreement, and Certificate Owners will be permitted
to exercise the rights of Certificateholders only indirectly through DTC
and DTC Participants.
Under the rules, regulations and procedures creating and affecting DTC
and its operations (the "Rules"), DTC is required to make book-entry
transfers of the Certificates among DTC Participants on whose behalf it
acts with respect to the Certificates and to receive and transmit to DTC
Participants distributions of principal, premium, if any, and interest
with respect to the Certificates. DTC Participants and Indirect
Participants with which Certificate Owners have accounts with respect to
the Certificates similarly are required to make book-entry transfers and
receive and transmit such payments on behalf of their respective
customers. Accordingly, although Certificate Owners will not possess the
Certificates, the Rules provide a mechanism by which Certificate Owners
will receive payments and will be able to transfer their interests.
Because DTC can only act on behalf of DTC Participants, who in turn act
on behalf of Indirect Participants, the ability of a Certificate Owner to
pledge the Certificates to persons or entities that do not participate in
the DTC system, or to otherwise act with respect to such Certificates,
may be limited due to the lack of a physical certificate for such
Certificates.
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DTC will take any action permitted to be taken by a Certificateholder
under the Basic Agreement only at the direction of one or more DTC
Participants to whose accounts with DTC the Certificates are credited.
Additionally, in the event any action requires approval by
Certificateholders of a certain percentage of beneficial interest in each
Pass Through Trust, DTC will take such action only at the direction of
and on behalf of DTC Participants whose holders include undivided
interests that satisfy any such percentage. DTC may take conflicting
actions with respect to other undivided interests to the extent that such
actions are taken on behalf of DTC Participants whose holders include
such undivided interests.
None of Mobil, the Lessees or the Trustee will have any liability for
any aspect of the records relating to or payments made on account of
beneficial ownership interests in the Certificates held by Cede, as
nominee for DTC, or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
The applicable Prospectus Supplement will specify any additional book-
entry registration procedures applicable to Certificates denominated in a
currency other than United States dollars.
The information in this section concerning DTC and DTC's book-entry
system has been attained from sources that Mobil believes to be reliable,
but neither Mobil nor any Lessee has independently verified such
information or takes responsibility for its accuracy.
DEFINITIVE CERTIFICATES
Certificates will be issued in fully registered certificated form
("Definitive Certificates") to Certificate Owners or their nominees,
rather than to DTC or its nominee, only if (i) the Applicable Lessee
advises the Trustee in writing that DTC is no longer willing or able to
discharge properly its responsibilities as depository with respect to
such Certificates and the Trustee or such Lessee is unable to locate a
qualified successor, (ii) the Applicable Lessee, at its option, elects to
terminate the book-entry system through DTC or (iii) after the occurrence
of certain events of default or other events specified in the related
Prospectus Supplement, Certificate Owners of Certificates evidencing
fractional undivided interests aggregating not less than a majority in
interest in the related Pass Through Trust advise the Trustee, the
Applicable Lessee and DTC through DTC 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 interest.
Upon the occurrence of any event described in the immediately preceding
paragraph, the Trustee will be required to notify all Certificate Owners
through DTC Participants of the availability of Definitive Certificates.
Upon surrender by DTC of the global certificates representing the
Certificates and receipt of instructions for re-registration, the Trustee
will reissue the Certificates as Definitive Certificates to Certificate
Owners.
Distributions of principal, premium, if any, and interest with respect
to Certificates will thereafter be made by the Trustee directly in
accordance with the procedures set forth in the
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Basic Agreement and the applicable Trust Supplements, to holders in whose
names the Definitive Certificates were registered at the close of
business on the applicable record date. Such distributions will be made
by check mailed to the address of such holder as it appears on the
register maintained by the Trustee. The final payment on any
Certificate, however, will be made only upon presentation and surrender
of such Certificate at the office or agency specified in the notice of
final distribution to Certificateholders.
Definitive Certificates will be freely transferable and exchangeable at
the office of the Trustee upon compliance with the requirements set forth
in the Basic Agreement and the applicable Trust Supplements. No service
charge will be imposed for any registration of transfer or exchange, but
payment of a sum sufficient to cover any tax or other governmental charge
shall be required.
PAYMENTS AND DISTRIBUTIONS
Payments of principal, premium, if any, and interest with respect to
the Secured Notes held in each Pass Through Trust will be distributed by
the Trustee, upon receipt, to Certificateholders of such Pass Through
Trust on the dates and in the currency specified in the applicable
Prospectus Supplement, except in certain cases when some or all of such
Secured Notes are in default as described in the applicable Prospectus
Supplement. Payments of principal of, and interest on, the Secured Notes
held in each Pass Through Trust will be scheduled to be received by the
Trustee on the dates specified in the applicable Prospectus Supplement
(such scheduled payments of interest and principal on the Secured Notes
to the Trustee are herein referred to as "Scheduled Payments," and the
dates specified in the applicable Prospectus Supplement for distribution
of Scheduled Payments by the Trustee are herein referred to as "Regular
Distribution Dates"). Each Certificateholder of each Pass Through Trust
will be 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 such Pass Through Trust. The Regular Distribution
Dates on which, and the amounts in which, Scheduled Payments of principal
on the Secured Notes held in each Pass Through Trust are payable will be
set forth in the accompanying Prospectus Supplement.
Payments of principal, premium, if any, and interest received by the
Trustee on account of the redemption or purchase, if any, of any of the
Secured Notes held in a Pass Through Trust, and payments received by the
Trustee following an Event of Default (as defined below) in respect of
any of the Secured Notes held in a Pass Through Trust (including payments
received by the Trustee on account of the purchase by the related Owner
Trustees or Owner Participants of such Secured Notes or payments received
on account of the sale of such Secured Notes by the Trustee) ("Special
Payments") will be distributed on a date or dates described in the
accompanying Prospectus Supplement (each, a "Special Distribution Date").
The Trustee will mail notice to the Certificateholders of record of the
related Pass Through Trust not less than 20 days prior to the Special
Distribution Date on which any Special Payment is scheduled to be
distributed by the Trustee in the event the Secured Notes are to be
redeemed or purchased prior to their maturity and, in all other
instances, as soon as practicable after the Trustee has received the
Special Payment. The notice will specify the anticipated Special
Distribution Date, the
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amount of such anticipated Special Payment, the reason for the Special
Payment and the total amount to be distributed if such Special
Distribution Date is the same date as a Regular Distribution Date. Each
distribution of a Special Payment, other than a final distribution, on a
Special Distribution Date for a Pass Through Trust will be made by the
Trustee to the Certificateholders of such Pass Through Trust on the
record date prior to such Special Distribution Date.
The Basic Agreement requires that the Trustee establish and maintain,
for the benefit of the Certificateholders of each Pass Through Trust, one
or more non-interest bearing accounts (with respect to each such Pass
Through Trust, the "Certificate Account") for the deposit of payments
representing Scheduled Payments on the Secured Notes held in the related
Pass Through Trust. The Basic Agreement also requires that the Trustee
establish and maintain, for the benefit of the Certificateholders of each
Pass Through Trust, one or more non-interest bearing accounts (with
respect to each such Pass Through Trust, the "Special Payments Account")
for the deposit of payments representing Special Payments. Pursuant to
the terms of the Basic Agreement, the Trustee is required to deposit any
Scheduled Payments on the Secured Notes held in the applicable Pass
Through Trust received by it in the Certificate Account for such Pass
Through Trust and to deposit any Special Payments so received by it in
the Special Payments Account for such Pass Through Trust. All amounts so
deposited will be distributed by the Trustee on a Regular Distribution
Date or a Special Distribution Date, as the case may be, to the
Certificateholders of such 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 interest.
POOL FACTORS
Unless there has been an early redemption, or a purchase of one or more
of the Secured Notes held in a Pass Through Trust by the related Owner
Trustee or Owner Participant after an Indenture Event of Default (as
defined below), a default in the payment of principal in respect of one
or more issues of the Secured Notes held in a Pass Through Trust or
certain actions have been taken following a default thereon, as described
in the applicable Prospectus Supplement, the Pool Factor (as defined
below) for each 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 in the applicable Prospectus Supplement. In
the event of such redemption, purchase or default, the Pool Factor and
the Pool Balance (as defined below) of each Pass Through Trust so
affected will be recomputed after giving effect thereto and notice
thereof will be mailed to the Certificateholders of such Pass Through
Trust. Each Pass Through Trust will have a separate Pool Factor.
Unless otherwise described in the applicable Prospectus Supplement, the
"Pool Balance" for each Pass Through Trust indicates, as of any Regular
Distribution Date or Special Distribution Date, the aggregate unpaid
principal amount of the Secured Notes held in such Pass Through
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Trust on such date plus any amounts in respect of principal on such
Secured Notes held by the Trustee and not yet distributed. The Pool
Balance for each Pass Through Trust as of any Regular Distribution Date
or Special Distribution Date shall be computed after giving effect to the
payment of principal, if any, on the Secured Notes held in such Pass
Through Trust and the distribution thereof to be made on that date.
Unless otherwise described in the applicable Prospectus Supplement, the
"Pool Factor" for each Pass Through Trust as of any Regular Distribution
Date or Special Distribution Date is the quotient (rounded to the seventh
decimal place) computed by dividing (i) the then outstanding Pool Balance
by (ii) the aggregate original principal amount of the 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
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 Pool Factor for each
Pass Through Trust will initially be 1.0000000; thereafter, the Pool
Factor for each Pass Through Trust will decline as described above to
reflect reductions in the Pool Balance of such Pass Through Trust. The
amount of a Certificateholder's pro rata share of the Pool Balance of a
Pass Through Trust can be determined by multiplying the original
denomination of the holder's Certificate of such Pass Through Trust by
the Pool Factor for such Pass Through Trust as of the applicable Regular
Distribution Date or Special Distribution Date. The Pool Factor and the
Pool Balance for each Pass Through Trust will be mailed to
Certificateholders of such Pass Through Trust on each Regular
Distribution Date and Special Distribution Date.
REPORTS TO CERTIFICATEHOLDERS
On each Regular Distribution Date and Special Distribution Date, the
Trustee will include with each distribution of a Scheduled Payment or
Special Payment to Certificateholders 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 aggregate principal
amount of Certificate for such Pass Through Trust, 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.
So long as the Certificates are registered in the name of Cede, as
nominee for DTC, on the record date prior to each Regular Distribution
Date and Special Distribution Date, the Trustee will request from DTC a
Securities Position Listing setting forth the names of all DTC
Participants reflected on DTC's books as holding interests in the
Certificates on such record date. On each Regular Distribution Date and
Special Distribution Date, the Trustee will mail
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to each such DTC Participant the statement described above and will make
available additional copies as requested by such DTC Participant for
forwarding to Certificate Owners.
In addition, after the end of each calendar year, the Trustee will
prepare for each Certificateholder of each Pass Through Trust at any time
during the preceding calendar year a report containing the sum of the
amounts determined pursuant to clauses (i) and (ii) above with respect to
the Pass Through Trust for such calendar year or, in the event such
person was a Certificateholder during only a portion of such calendar
year, for the applicable portion of such calendar 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 DTC Participants and shall
be delivered by the Trustee to such DTC Participants to be available for
forwarding by such DTC Participants to Certificate Owners in the manner
described above.
At such time, if any, as the Certificates are issued in the form of
Definitive Certificates, the Trustee will prepare and deliver the
information described above to each Certificateholder of record of each
Pass Through Trust as the name and period of beneficial ownership of such
Certificateholder appears on the records of the registrar of the
Certificates.
VOTING OF SECURED NOTES
The Trustee, as holder of the Secured Notes held in a Pass Through
Trust, will have the right to vote and give consents and waivers with
respect to such Secured Notes under the related Indenture. The Basic
Agreement and related Trust Supplement will set forth (i) the
circumstances in which a Trustee may direct any action or cast any vote,
as the holder of the Secured Notes held in the applicable Pass Through
Trust, in its own discretion, (ii) the circumstances in which such
Trustee shall seek instructions from the Certificateholders of such Pass
Through Trust and (iii) the percentage of Certificateholders required to
direct such Trustee to take any such action.
EVENTS OF DEFAULT AND CERTAIN RIGHTS UPON AN EVENT OF DEFAULT
The Basic Agreement defines an event of default with respect to a Trust
(an "Event of Default") as the occurrence and continuance of an event of
default under one or more of the related Indentures (an "Indenture Event
of Default"). The Prospectus Supplement for a series of Certificates will
specify the Indenture Events of Default under the related Indentures.
Certain of the Indenture Events of Default will arise with reference to
events of default under the relevant Lease (a "Lease Event of Default").
Since the Secured Notes issued under an Indenture may be held in more
than one Pass Through Trust, a continuing Indenture Event of Default
under such Indenture would result in an Event of Default under each Pass
Through Trust holding such Secured Notes. Unless otherwise provided in a
Prospectus Supplement, all of the Secured Notes issued under the same
Indenture will relate only to specified Leased Property, there will be no
cross-collateralization or cross-default provisions in the Indentures,
and events resulting in an Indenture Event of Default under any
particular Indenture will not necessarily result in an Indenture Event of
Default occurring under any other
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Indentures. If an Indenture Event of Default occurs in fewer than all of
the Indentures related to a Pass Through Trust, notwithstanding the
treatment of Secured Notes issued under any related Indenture under which
an Indenture Event of Default has occurred, payments of principal and
interest on the Secured Notes issued pursuant to any related Indenture
with respect to which an Indenture Event of Default has not occurred will
continue to be made as originally scheduled.
The ability of the applicable Owner Trustee or Owner Participant under
the related Indenture to cure Indenture Events of Default, including
Indenture Events of Default that result from the occurrence of a Lease
Event of Default under the related Lease, will be described in the
applicable Prospectus Supplement.
The ability of the Certificateholders with respect to any one Pass
Through Trust to cause the Indenture Trustee with respect to any Secured
Notes held in such Pass Through Trust to accelerate the Secured Notes
under the related Indenture or to direct the exercise of remedies by the
Indenture Trustee under the related Indenture will depend, in part, upon
the proportion between the aggregate principal amount of the Secured
Notes outstanding under such Indenture and held in such Pass Through
Trust and the aggregate principal amount of all Secured Notes outstanding
under such Indenture. If Secured Notes outstanding under an Indenture
are held by more than one Pass Through Trust, then each Pass Through
Trust will hold Secured Notes with different terms from the Secured Notes
held in the other Pass Through Trusts and therefore the
Certificateholders of a Pass Through Trust may have divergent or
conflicting interests from those of the Certificateholders of the other
Pass Through Trusts holding Secured Notes relating to the same Indenture.
In addition, so long as the same institution acts as Trustee of each Pass
Through Trust, in the absence of instructions from the Certificateholders
of any such Pass Through Trust, the 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. In such event, the Basic Agreement
will provide that the Trustee will resign as trustee of one or all such
Pass Through Trusts, and a successor trustee will be appointed in
accordance with the terms of the Basic Agreement.
As an additional remedy, if an Indenture Event of Default under an
Indenture shall have occurred and be continuing, the Basic Agreement
provides that the Trustee of a Pass Through Trust holding Secured Notes
issued under such Indenture 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, sell
all or part of such Secured Notes for cash to any person. Any proceeds
received by the Trustee upon any such sale shall be deposited in the
Special Payments Account for the Certificateholders of such series and
shall be distributed to the Certificateholders of the related 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. Furthermore, so long as the
same institution acts as Trustee of multiple Pass Through Trusts, it may
be faced with a conflict in deciding from which Pass Through Trust to
sell Secured Notes to available buyers. If the Trustee sells any such
Secured Notes with respect to which an Indenture Event of Default exists
for less than their outstanding principal amount, the Certificateholders
of such Pass Through Trust will receive a smaller amount of principal
distributions than anticipated and will not have any claim for the
shortfall against Mobil, any Lessee, any Owner Trustee, any Owner
Participant or the Trustee. Furthermore, neither the Trustee nor the
Certificateholders of such
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Pass Through Trust could take any action with respect to any remaining
Secured Notes held in such Pass Through Trust so long as no Indenture
Events of Default exist with respect thereto.
Any amount, other than Scheduled Payments received on a Regular
Distribution Date, distributed to the Trustee of any Pass Through Trust
by the Indenture Trustee under any Indenture on account of the Secured
Notes held in such Pass Through Trust following an Indenture Event of
Default under such Indenture shall be deposited in the Special Payments
Account for such Pass Through Trust and shall be distributed to the
Certificateholders of such Pass Through Trust on a Special Distribution
Date. In addition, if a Prospectus Supplement provides that the
applicable Owner Trustee or Owner Participant may, under circumstances
specified therein, redeem or purchase the outstanding Secured Notes
issued under the related Indenture, the price paid by such Owner Trustee
or Owner Participant to the Trustee of any Pass Through Trust for the
Secured Notes issued under such Indenture and held in such Pass Through
Trust shall be deposited in the Special Payments Account for such Pass
Through Trust and shall be distributed to the Certificateholders of such
Pass Through Trust on a Special Distribution Date.
Any funds representing payments received with respect to any Secured
Notes in default held in a Pass Through Trust, or the proceeds from the
sale by the Trustee of any such Secured Notes, held by the Trustee in the
Special Payments Account for such Pass Through Trust shall, to the extent
practicable, be invested and reinvested by the Trustee in Permitted
Investments pending the distribution of such funds on a Special
Distribution Date. "Permitted Investments" are obligations of the United
States maturing in not more than 60 days or such lesser time as is
required for the distribution of any such funds on a Special Distribution
Date.
The Basic Agreement will provide that the Trustee of a Pass Through
Trust shall, within 90 days after the occurrence of a default in respect
of such Pass Through Trust, give to the Certificateholders of such Pass
Through Trust notice, transmitted by mail, of all uncured or unwaived
defaults with respect to such Pass Through Trust 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 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. The term "default" as used in this
paragraph only means the occurrence of an Event of Default with respect
to a Pass Through Trust as described above, except that in determining
whether any such Event of Default has occurred, any grace period or
notice in connection therewith shall be disregarded.
The Basic Agreement contains a provision entitling the Trustee of each
Pass Through Trust, subject to the duty of the Trustee during a default
to act with the required standard of care, to be offered reasonable
security or indemnity by the Certificateholders of such Pass Through
Trust before proceeding to exercise any right or power under the Basic
Agreement at the request of such Certificateholders.
In certain cases, the holders of Certificates of a Pass Through Trust
evidencing fractional undivided lnterests aggregating not less than a
majority in interest of such Pass Through Trust may on behalf of the
holders of all Certificates of such Pass Through Trust waive any past
default or Event of Default with respect to such Pass Through Trust and
its consequences, except (i) a default in payment of the principal of,
premium, if any, or interest on any of the Secured Notes held in such
Pass Through Trust and (ii) a default in respect of any covenant or
provision of the Basic Agreement or the related Trust Supplement that
cannot be modified or amended without the consent of each
Certificateholder of such Pass Through Trust affected thereby. Each
Indenture will provide that, with certain exceptions, the holders of a
majority in aggregate unpaid principal amount of the Secured Notes issued
thereunder and held in a related Pass Through Trust may on behalf of all
such holders waive any past default or Indenture Event of Default
thereunder. In the event of a waiver with respect to a Pass Through Trust
as described above, the principal amount of the Secured Notes issued
under the related Indenture held in such Pass Through Trust shall be
counted as waived in the determination of the majority in aggregate
unpaid principal amount of Secured Notes required to waive a default or
an Indenture Event of Default under such Indenture. Therefore, if the
Certificateholders of a Pass Through Trust or Pass Through Trusts waive a
past default or Event of Default such that the principal amount of the
Secured Notes held either individually in such Pass Through Trust or in
the aggregate in such Pass Through Trusts constitutes the required
majority in aggregate unpaid principal amount under the applicable
Indenture, such past default or Indenture Event of Default under such
Indenture shall be waived.
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MODIFICATIONS OF THE BASIC AGREEMENT
The Basic Agreement contains provisions permitting Mobil, the
Applicable Lessee or Applicable Lessees and the Trustee of each Pass
Through Trust to enter into a supplemental trust agreement, without the
consent of the holders of any of the Certificates of such Pass Through
Trust, (i) to provide for the formation of such Pass Through Trust and
the issuance of a series of Certificates, (ii) to evidence the succession
of another corporation to Mobil or a Lessee and the assumption by such
corporation of Mobil's or such Lessee's obligations with respect to one
or more series of Certificates under the Basic Agreement and the
applicable Trust Supplement, (iii) to add to the covenants of Mobil or a
Lessee for the benefit of holders of such Certificates, or to surrender
any right or power in the Basic Agreement conferred upon Mobil or a
Lessee, (iv) to cure any ambiguity or correct or supplement any defective
or inconsistent provision of the Basic Agreement or the applicable Trust
Supplement or to make any other provisions with respect to matters or
questions arising under the Basic Agreement as may be necessary or
desirable, provided such action shall not adversely affect the interests
of the holders of such Certificates, or to correct any mistake, (v) to
modify, eliminate or add to the provisions of the Basic Agreement or the
applicable Trust Supplement to the extent as shall be necessary to
continue the qualification of the Basic Agreement (including any
supplemental agreement) under the Trust Indenture Act and to add to the
Basic Agreement such other provisions as may be expressly permitted by
the Trust Indenture Act, (vi) to provide for a successor Trustee or to
add to or change any provision of the Basic Agreement or the applicable
Trust Supplement as shall be necessary to facilitate the administration
of the Pass Through Trusts thereunder by more than one Trustee, (vii) to
correct or supplement the description of any property constituting
property of such Pass Through Trust and (viii) to make any other
amendments or modifications to the Basic Agreement or applicable Trust
Supplement, provided such amendments or modifications shall only apply to
Certificates issued thereafter.
The Basic Agreement also contains provisions permitting Mobil, the
Applicable Lessee or Applicable Lessees and the Trustee of a related Pass
Through Trust, with the consent of the Certificateholders of such Pass
Through Trust evidencing fractional undivided interests aggregating not
less than a majority in interest of such Pass Through Trust, and, with
respect to any Leased Property, with the consent of the applicable 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 Basic Agreement, to the extent
relating to such Pass Through Trust and the applicable Trust Supplement,
or modifying the rights of the Certificateholders, except that no such
supplemental trust agreement may, without the consent
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of each Certificateholder so affected thereby, (a) reduce in any manner
the amount of, or delay the timing of, any receipt by the Trustee of
payments on the Secured Notes held in such Pass Through Trust or
distributions in respect of any Certificate related to such Pass Through
Trust, or change the date or place of any payment in respect of any such
Certificate, or make distributions payable in coin or currency other than
that provided for in such Certificates, or impair the right of any
Certificateholder of such Pass Through Trust to institute suit for the
enforcement of any such payment when due, (b) permit the disposition of
any Secured Note held in such Pass Through Trust, except as provided in
the Basic Agreement or the applicable Trust Supplement, or otherwise
deprive any Certificateholder of the benefit of the ownership of the
applicable Secured Notes, (c) reduce the percentage of the aggregate
fractional undivided interests of such Pass Through Trust provided for in
the Basic Agreement or the applicable Trust Supplement, the consent of
the holders of which is required for any such supplemental trust
agreement or for any waiver provided for in the Basic Agreement or such
Trust Supplement, or (d) modify any of the provisions relating to the
rights of the Certificateholders in respect of the waiver of events of
default or receipt of payment except to increase the percentage of the
aggregate fractional undivided interests of such Pass Through Trust
required for such a waiver.
MODIFICATION OF INDENTURE AND RELATED AGREEMENTS
In the event that the Trustee, as the holder of any Secured Notes held
in a Pass Through Trust, receives a request for its consent to any
amendment, modification or waiver under the Lease or other document
relating to such Secured Notes, the Trustee shall mail a notice of such
proposed amendment, modification or waiver to each Certificateholder of
such Pass Through Trust as of the date of such notice. The Trustee shall
request instructions from the Certificateholders of such Pass Through
Trust as to whether or not to consent to such amendment, modification or
waiver. The Trustee shall vote or consent with respect to such Secured
Notes in such Past Through Trust in the same proportion as the
Certificates of such Pass Through Trust were actually voted by the
holders thereof by a certain date. Notwithstanding the foregoing, if an
Event of Default in respect of such Pass Through Trust shall have
occurred and be continuing, the Trustee may in its own discretion consent
to such amendment, modification or waiver, and may so notify the
Indenture Trustee to which such consent relates.
TERMINATION OF THE PASS THROUGH TRUSTS
The obligations of Mobil, the Applicable Lessee and the Trustee with
respect to a Pass Through Trust will terminate upon the distribution to
the Certificateholders of such Pass Through Trust of all amounts required
to be distributed to them pursuant to the Basic Agreement and the
applicable Trust Supplement and the disposition of all property held in
such Pass Through Trust. The Trustee will send to each Certificateholder
of record of such Pass Through Trust notice of the termination of such
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 of such
Pass Through Trust will be made only upon surrender of such
Certificateholder's Certificates at the office or agency of the Trustee
specified in such notice of termination.
DELAYED PURCHASE
A Prospectus Supplement may specify that, pending availability of some
or all of the Secured Notes intended to be purchased with the proceeds of
an issuance of Certificates, such proceeds may, as more fully described
in such Prospectus Supplement, be (a) invested by the Trustee in United
States government obligations or certain other limited investments
described in such Prospectus
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Supplement ("Specified Investments"), in which event Mobil or the
Applicable Lessee would be responsible for paying to the Trustee amounts
equal to any loss on such investments and any deficiency in the earnings
of such investments under the amount scheduled to be distributed on such
Certificates in respect of interest and would be entitled to receive any
earnings on such investments in excess of the amount so needed for
distribution on the Certificates, or (b) used by the Trustee to acquire
debt instruments issued on an interim basis by Mobil or by one or more of
the Applicable Lessees and guaranteed by Mobil, in each case having an
interest rate and payment provisions corresponding to the interest rate
and payment provisions of the Secured Notes intended to be purchased with
such proceeds and requiring repayment to the Trustee at the time the
Trustee is to purchase such Secured Notes. Any such debt instruments
will be secured by a collateral account that may be invested in Specified
Investments or by other security described in the applicable Prospectus
Supplement.
To the extent that the full amount of the proceeds from the sale of any
Certificates is not used to purchase Secured Notes on or prior to the
date set forth in the applicable Prospectus Supplement, an amount equal
to the unused proceeds will be distributed by the Trustee to the holders
of record of such Certificates on a pro rata basis on a Special
Distribution Date, together with interest thereon at a rate equal to the
rate applicable to such Certificates, but without premium.
THE TRUSTEE
Except as otherwise provided in the Prospectus Supplement, State Street
Bank and Trust Company will be the Trustee for each of the Pass Through
Trusts. With certain exceptions, the Trustee will make no
representations as to the validity or sufficiency of the Basic Agreement,
the Trust Supplements, the Certificates, the Secured Notes, the
Indentures, the Leases or other related documents. The Trustee shall not
be liable with respect to any series of Certificates for any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the holders of a majority in principal amount of outstanding
Certificates of such series. Subject to such provisions, such Trustee
shall be under no obligation to exercise any of its rights or powers
under the Basic Agreement at the request of any holders of Certificates
issued thereunder unless they shall have offered to the Trustee indemnity
satisfactory to it. The Basic Agreement provides that the Trustee in its
individual or any other capacity may acquire and hold Certificates issued
thereunder and, subject to certain conditions, may otherwise deal with
Mobil and the Lessees and, with respect to the Leased Property, with any
Owner Trustee and Owner Participant with the same rights it would have if
it were not the Trustee.
The Trustee may resign with respect to any or all of the Pass Through
Trusts at any time, in which event Mobil and the Applicable Lessee will
be obligated to appoint a successor trustee. If the Trustee ceases to be
eligible to continue as Trustee with respect to a Pass Through Trust or
becomes incapable of acting as Trustee or becomes insolvent, Mobil and
the Applicable Lessee may remove such Trustee, or any Certificateholder
of such Pass Through Trust 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 Trustee and the
appointment of a successor
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trustee. Any resignation or removal of the Trustee with respect to a
Pass Through Trust and appointment of a successor trustee for such Pass
Through Trust does not become effective until acceptance of the
appointment by the successor trustee. Pursuant to such resignation and
successor trustee provisions, it is possible that a different trustee
could be appointed to act as the successor trustee with respect to each
Pass Through Trust related to a single offering of Certificates. All
references in this Prospectus to the Trustee should be read to take into
account the possibility that the Pass Through Trusts could have different
successor trustees in the event of such a resignation or removal.
The Basic Agreement provides that Mobil or the Applicable Lessee will
pay the Trustee's fees and expenses and indemnify the Trustee against
certain liabilities.
DESCRIPTION OF THE SECURED NOTES
The statements made under this caption are summaries and do not purport
to be complete. Such statements are qualified in their entirety by, and
reference is made to, the entire Prospectus and detailed information
appearing in the applicable Prospectus Supplement.
To the extent that any provision in any Prospectus Supplement is
inconsistent with any provision in this summary, the provision of such
Prospectus Supplement will control.
GENERAL
All Secured Notes related to a Leased Property and held in a Pass
Through Trust will be issued under a separate Indenture between the
related Owner Trustee of an Owner Trust for the benefit of the related
Owner Participant, and the related Indenture Trustee. Such Secured Notes
will be nonrecourse obligations of the applicable Owner Trust. Each such
Secured Note will be authenticated under an Indenture by the Indenture
Trustee.
With respect to each Leased Property, the related Owner Trustee has
acquired or will acquire such Leased Property and, unless otherwise
provided in the Prospectus Supplement, has granted or will grant a lien
on and a security interest in such Leased Property to the related
Indenture Trustee as security for the payments of the related Secured
Notes, and has leased or will lease such Leased Property to the
Applicable Lessee pursuant to the related Lease which has been or will be
assigned to the related Indenture Trustee. Pursuant to each such Lease,
the Applicable Lessee will be obligated to make or cause to be made
rental and other payments to the related Indenture Trustee on behalf of
the related Owner Trustee in amounts that will be sufficient to make
payments of the principal and interest and, except in the limited
circumstances set forth in the applicable Prospectus Supplement, premium,
if any, due in respect of such Secured Notes when and as due and payable.
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PRINCIPAL AND INTEREST PAYMENTS
Interest received by the Trustee on the Secured Notes held in each Pass
Through Trust will be passed through to the Certificateholders of such
Pass Through Trust on the dates and at the rate per annum set forth in
the applicable Prospectus Supplement until the final distribution date
for such Pass Through Trust. Principal received by the Trustee on the
Secured Notes held in each Pass Through Trust will be passed through to
the Certificateholders of such Pass Through Trust in scheduled amounts on
the dates set forth in the applicable Prospectus Supplement until the
final distribution date for such Pass Through Trust.
If any date scheduled for any payment of principal, premium, if any, or
interest with respect to the Secured Notes is not a business day, such
payment will be made on the next succeeding business day without any
additional interest.
REDEMPTION
The applicable Prospectus Supplement will describe the circumstances,
whether voluntary or involuntary, under which the Secured Notes may be
redeemed or purchased prior to the stated maturity date thereof, in whole
or in part, the premium, if any, applicable upon certain redemptions or
purchases and other terms applying to the redemptions or purchases of
such Secured Notes.
SECURITY
The Secured Notes to be held in the Pass Through Trusts will be secured
by (i) an assignment by the related Owner Trustee to the related
Indenture Trustee of such Owner Trustee's rights (except for certain
rights, including those described below) under the Lease or Leases with
respect to the related Leased Property including the right to receive
payments of rent thereunder, (ii) an assignment of certain of such Owner
Trustee's rights under the Parent Guaranty relating to such Leased
Property, and (iii) to the extent provided in the applicable Prospectus
Supplement, a mortgage or other security interest in such Leased Property
or in construction contracts or other agreements, collateral accounts or
other security, in each case subject to the rights of the Lessee under
the Lease related thereto and other rights, if any, described in the
applicable Prospectus Supplement.
Under the terms of each Lease, the Applicable Lessee's obligations in
respect of the related Leased Property will be those of a lessee under a
"net lease." Accordingly, such Lessee will be obligated, among other
things, to pay all costs and expenses of operating and maintaining the
Leased Property. With respect to the Leased Property, the assignment by
the related Owner Trustee to the related Indenture Trustee of its rights
under the related Lease will exclude, among other things, rights of such
Owner Trustee and the related Owner Participant relating to
indemnification by such Lessee for certain matters, insurance proceeds
payable to such Owner Trustee in its individual capacity and to such
Owner Participant under liability insurance maintained by such Lessee
pursuant to such Lease or by such Owner Trustee or such Owner
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Participant, insurance proceeds payable to such Owner Trustee in its
individual capacity or to such Owner Participant under certain casualty
insurance maintained by such Owner Trustee or such Owner Participant
pursuant to such Lease and any rights of such Owner Participant or such
Owner Trustee to enforce payment of the foregoing amounts and their
respective rights to the proceeds of the foregoing. Such rights excluded
from the assignment shall be referred to as "Excepted Payments."
The applicable Prospectus Supplement will specify the required
insurance coverage, if any, with respect to the Leased Property.
Unless otherwise specified in the applicable Prospectus Supplement, the
Secured Notes will not be cross-collateralized and consequently the
Secured Notes issued in respect of any Leased Property will not be
secured by any other Leased Property or the Lease related thereto.
Unless and until an Indenture Event of Default with respect to a Leased
Property has occurred and is continuing, the related Indenture Trustee
may exercise only limited rights of the related Owner Trustee under the
related Lease.
Funds, if any, held from time to time by the Indenture Trustee with
respect to any Leased Property, prior to the distribution thereof, will
be invested and reinvested by such Indenture Trustee. Such investment
and reinvestment will be at the direction of the Applicable Lessee, as
agent for the related Owner Trustee (except in the case of a related
Lease Event of Default under the applicable Lease) in certain investments
described in the related Indenture. The net amount of any loss resulting
from any such investments will be paid by such Lessee, as agent for such
Owner Trustee.
ADDITIONAL NOTES
Under certain circumstances and conditions as described in the
applicable Prospectus Supplement, for the purpose of providing funds to
finance the cost of certain modifications, alterations, additions,
improvements or replacement parts to any particular item of Leased
Property, a Lessee may cause the financing of such additional costs
through the issuance and sale by the Owner Trustee of additional Secured
Notes (the "Additional Notes").
The terms, conditions and designations of such Additional Notes will be
set forth in a supplement to the related Indenture. All rent and other
amounts payable by the Applicable Lessee under the related Lease will be
adjusted to the extent necessary to provide for rent and other amounts
sufficient to provide for the payment, when due, of all scheduled
payments of principal of, premium (except for those instances where such
Lessee shall not be responsible for such premium), if any, and interest
on the Secured Notes, including the Additional Notes so issued.
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PAYMENTS AND LIMITATION OF LIABILITY
Each Leased Property will be leased by the applicable Owner Trustee to
the Applicable Lessee pursuant to a Lease for a term commencing not later
than the delivery date thereof to such Owner Trustee and expiring on a
date not earlier than the latest maturity date of the related Secured
Notes, unless previously terminated as permitted by the terms of such
Lease. The basic rent or hire and other payments under each such Lease
will be payable by the Applicable Lessee in accordance with the terms
specified in such Lease and will be described in the applicable
Prospectus Supplement, and (other than Excepted Payments) will be
assigned by the applicable Owner Trustee under the applicable Indenture
to an Indenture Trustee to provide the funds necessary to pay principal
and interest and, except in the limited circumstances set forth in the
applicable Prospectus Supplement, premium, if any, due in respect of the
Secured Notes issued under such Indenture. In certain cases, the basic
rent payments under a Lease may be adjusted, but each Lease will provide
that under no circumstances will the rental payments which the Applicable
Lessee is obligated to make or cause to be made be less than the
scheduled payments of principal and interest on the related Secured
Notes. The balance of any basic rent payment under each Lease, after
payment of amounts due on the Secured Notes issued under the Indenture
corresponding to such Lease, will be paid over to the applicable Owner
Trustee. The Applicable Lessee's obligation to pay rent and to cause
other payments to be made under each Lease will be general obligations of
such Lessee.
Except in certain circumstances involving a Lessee's purchase of
Leased Property and the assumption of the Secured Notes related thereto,
the Secured Notes will not be obligations of, or guaranteed by, any
Lessee or Mobil. None of the Owner Trustees, the Owner Participants or
the Indenture Trustees shall be personally liable to any holder of such
Secured Notes for amounts payable under such Secured Notes, or, except as
provided in the Indentures relating thereto in the case of the Owner
Trustees and the Indenture Trustees, for any liability under such
Indentures. Except in the circumstances referred to above, all amounts
payable under any Secured Notes (other than payments made in connection
with an optional redemption or purchase by the related Owner Trustee or
the related Owner Participant) will be made only from the assets subject
to the lien of the related Indenture with respect to such Leased Property
or the income and proceeds received by the related Indenture Trustee
therefrom (including rent payable by the Applicable Lessee under the
related Lease).
Except as otherwise provided in the related Indentures, no Owner
Trustee shall be personally liable for any amount payable or for any
statements, representations, warranties, agreements or obligations under
such Indentures or under the Secured Notes except for its own willful
misconduct or gross negligence. None of the Owner Participants shall
have any duty or responsibility under the Indentures or under such
Secured Notes to the related Indenture Trustee or to any holder of any
such Secured Note.
MERGER, CONSOLIDATION AND TRANSFER OF ASSETS
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Each Lessee and Mobil is prohibited from consolidating with or merging
into any other corporation or transferring substantially all of its
assets to another corporation unless such Lessee or Mobil, as the case
may be, 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
or, in the case of Mobil, any other jurisdiction, and (b) the successor
corporation shall expressly assume the due and punctual performance and
observance of all the covenants and conditions of the operative documents
to which such Lessee or Mobil, as the case may be, is a party and which
are to be performed thereby.
DEFEASANCE OF THE INDENTURES AND THE SECURED NOTES IN CERTAIN
CIRCUMSTANCES
Unless otherwise specified in the applicable Prospectus Supplement, the
applicable Indenture will provide that the obligations of the related
Indenture Trustee and the related Owner Trustee in respect of any series
of Secured Notes issued in accordance with the terms of such Indenture
shall be deemed to have been discharged and paid in full (except for
certain obligations, including the obligations to register the transfer
or exchange of Secured Notes, to replace stolen, lost, destroyed or
mutilated Secured Notes and to maintain paying agencies and hold money
for payment in trust) upon the irrevocable deposit with the related
Indenture Trustee of money or certain obligations of the United States or
any agency or instrumentality thereof the payment of which is backed by
the full faith and credit of the United States which, through the payment
of principal and interest in respect thereof in accordance with their
terms, will provide money in an aggregate amount sufficient to pay when
due (including as a consequence of redemption in respect of which notice
is given on or prior to the date of such deposit) principal of, premium,
if any, and interest on such Secured Notes. Such discharge may occur
only if, among other things, there has been published by the Internal
Revenue Service a ruling to the effect that holders of such Secured Notes
will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit, defeasance and discharge and will be subject
to federal income tax on the same amount and in the same manner and at
the same time as would have been the case if such deposit, defeasance and
discharge had not occurred.
Upon such defeasance, or upon payment in full of the principal of,
premium, if any, and interest on all Secured Notes issued under any
Indenture on the maturity date therefor or deposit with the applicable
Indenture Trustee of money sufficient therefor no earlier than one year
prior to the date of such maturity, the holders of such Secured Notes
will have no beneficial interest in or other rights with respect to the
related Leased Property or other assets subject to the lien of such
Indenture (other than amounts or obligations deposited to effect such
discharge) and such lien shall terminate.
ASSUMPTION OF OBLIGATIONS BY LESSEE
A Prospectus Supplement may specify that, with respect to any Leased
Property and subject to the satisfaction of the conditions described in
such Prospectus Supplement, the Applicable Lessee may, upon the exercise
of any purchase and certain other termination options it may have under
the related Lease, assume on a full recourse basis all of the obligations
of the related
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Owner Trustee under the Indenture with respect to such Leased Property,
including the obligations to make payments in respect of the related
Secured Notes. In such event, such Lessee shall execute a supplemental
indenture to the related Indenture (such supplemental indenture, together
with the related Indenture, a "Company Indenture"). The Parent Guaranty
will continue to apply to such Lessee's obligations. Unless otherwise
specified in the applicable Prospectus Supplement, the Leased Property
will continue to be subject to the lien of the Company Indenture, and the
Company Indenture will incorporate certain relevant provisions of the
Lease so terminated, including (among others) provisions relating to
maintenance, possession and use of the related Leased Property, liens,
insurance, possession and events of default.
THE PARENT GUARANTIES
As described in the applicable Prospectus Supplement, Mobil will
unconditionally guarantee the full and prompt payment of all amounts
payable by the Applicable Lessee under the related Lease when and as the
same shall become due and payable. Each Parent Guaranty will be
enforceable without any need first to enforce any Lease against the
Applicable Lessee. Each Parent Guaranty will be an unsecured obligation
of Mobil.
FEDERAL INCOME TAX CONSEQUENCES
The following is a general discussion of the anticipated material
federal income tax consequences of the purchase, ownership and
disposition of the Certificates by a Certificate Owner purchasing
Certificates in the initial offering thereof and should be read in
conjunction with any additional discussion of federal income tax
consequences included in the applicable Prospectus Supplement. 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. The Pass Through Trusts are
not indemnified for any federal income taxes that may be imposed upon
them, and the imposition of any such taxes could result in a reduction in
the amounts available for distribution to the Certificate Owners of a
Pass Through Trust. In connection with each offering of Certificates,
Mobil and the Applicable Lessee will receive an opinion from Debevoise &
Plimpton, or other counsel specified in the applicable Prospectus
Supplement, that, based upon the applicable law then in effect, the
following discussion, as amended or supplemented by the applicable
Prospectus Supplement, properly describes in general the anticipated
principal United States federal income tax consequences of acquiring,
holding and disposing of the Certificates.
INVESTORS SHOULD CONSULT THEIR OWN TAX ADVISORS AS TO THE FEDERAL,
STATE, LOCAL, FOREIGN AND ANY OTHER TAX CONSEQUENCES TO THEM OF THE
PURCHASE, OWNERSHIP AND DISPOSITION OF THE CERTIFICATES, INCLUDING THE
ADVISABILITY OF MAKING ANY ELECTION
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DISCUSSED BELOW, IN LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES.
GENERAL
Based upon an interpretation of analogous authorities under currently
applicable law, each Pass Through Trust will be classified as a grantor
trust (and not as an association taxable as a corporation) and each
Certificate Owner will be treated as the owner of a pro rata undivided
interest in the Secured Notes or any other property held in the
applicable Pass Through Trust. Each Certificate Owner will be required to
report on its federal income tax return its pro rata share of the entire
income from the Secured Notes and any other property in the applicable
Pass Through Trust, in accordance with such Certificate Owner's method of
accounting. Thus, a Certificate Owner using the cash method of
accounting will take into account its pro rata share of income as and
when received by the Trustee in respect of the applicable Pass Through
Trust, and a Certificate Owner using an accrual method of accounting will
take into account its pro rata share of income as it accrues or is
received by the Trustee in respect of the applicable Pass Through Trust,
whichever is earlier.
If a Pass Through Trust will hold more than one Secured Note, a
purchaser of a Certificate will be treated as purchasing an interest in
each Secured Note and any other property in the related Pass Through
Trust at a price determined by allocating the purchase price paid for the
Certificate among such Secured Notes and other property in proportion to
their fair market values at the time of purchase of the Certificate.
SALES OF CERTIFICATES
A Certificate Owner that sells a 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 will be taxable as interest income) and the Certificate
Owner's adjusted tax basis in the Certificate. Subject to the market
discount provisions of the Internal Revenue Code of 1986, as amended (the
"Code") (described below), any such gain or loss will be capital gain or
loss if the Certificate was held as a capital asset and, if the
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 a
Certificate at the offering price set forth in the applicable Prospectus
Supplement) will be considered to have acquired an interest in a Secured
Note held in the applicable Pass Through Trust at a "market discount" to
the extent the remaining principal amount of such Secured Note allocable
to such Certificate exceeds the purchaser's tax basis allocable to such
Secured Note, unless the excess does not
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exceed a prescribed de minimis amount. In the event such excess exceeds
the de minimis amount, the Certificate Owner 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
must be 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 in ordinary income as if the Certificate
Owner had sold the 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.
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, 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 a loan 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 regarding
the treatment of certain gain as ordinary income and the deferral of
interest expense will not apply to the taxpayer.
32
<PAGE>
PREMIUM
A Certificate Owner generally will be considered to have acquired an
interest in a Secured Note held in the applicable Pass Through Trust at a
premium to the extent the Certificate Owner's tax basis allocable to such
Secured Note exceeds the remaining principal amount of the Secured Note
allocable to such Certificate Owner's Certificate. In that event, a
Certificate Owner who holds such Certificate as a capital asset may elect
to amortize that premium as an offset to interest income with
corresponding reductions in the Certificate Owner's tax basis in its
interest in the Secured Note. This election is made by claiming the bond
premium on the Certificate Owner's tax return. Generally, if the
foregoing election is made such amortization is taken on a constant yield
basis. However, in the case of amortizing obligations, 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."
Under current Treasury regulations, in the case of Secured Notes that
may be called at a premium prior to maturity, amortizable bond premium
may be determined by reference to an early call date. Under proposed
Treasury regulations issued in June 1996, a holder of an obligation that
may be called at a premium prior to maturity generally would not be
entitled to determine the amount of amortizable bond premium by reference
to an early call date, but may be allowed, if an early call occurred, to
deduct all or part of any unamortized bond premium in the year of such
call. The proposed regulations provide that they will apply with respect
to debt instruments issued on or after 60 days following the date final
regulations are published in the Federal Register. Any Prospectus
Supplement to which such final regulations may apply will so indicate.
Due to the complexities of the amortizable premium rules, particularly
if there is more than one possible call date and the amount of any
premium is uncertain, Certificate Owners are urged to consult their own
tax advisors as to the amount of any such amortizable premium and the
advisability of making an amortization election.
ORIGINAL ISSUE DISCOUNT
Unless otherwise specified in the applicable Prospectus Supplement,
subject to the aggregation rules discussed below, the Secured Notes will
not be issued with original issue discount. Under the aggregation rules
set forth in the current Treasury Regulations, if one investor purchases
Certificates issued by more than one Pass Through Trust, certain of that
investor's interests in the Secured Notes in those Trusts must in certain
circumstances be treated together as a single debt instrument, which, for
purposes of calculating and amortizing any original issue discount, has a
single issue price, maturity date, stated redemption price at maturity,
and yield to maturity. If such aggregation rules were applicable to an
investor, such Secured Notes could be treated with respect to such
investor as having been issued with original issue discount. Generally, a
holder of a debt instrument issued with original issue discount that is
not de minimis must include such original issue discount in income for
federal income tax
33
<PAGE>
purposes as it accrues, in advance of the receipt of the cash
attributable to such income, under a method that takes into account the
compounding of interest. Certificate Owners are urged to consult their
own tax advisors regarding the application of the aggregation rules.
BACKUP WITHHOLDING
Payments made on the Certificates, and proceeds from the sale of the
Certificates to or through certain brokers, may be subject to a "backup"
withholding tax of 31% unless the Certificate Owner complies with certain
reporting procedures or is exempt from such requirements. Any such
withheld amounts are allowed as a credit against the Certificate Owner's
federal income tax and may entitle such Certificate Owner 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 Certificate Owner who is required to supply information but
who does not do so in the proper manner.
CERTAIN MASSACHUSETTS TAXES
The Trustee is a Massachusetts trust company with its corporate
trust office at Two International Place, Boston, Massachusetts 02110.
Bingham, Dana & Gould LLP, counsel to the Trustee, has advised Mobil
that, in its opinion, under currently applicable law, assuming that each
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 Trusts 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 Commonwealth of Massachusetts
or any political subdivision thereof, and (ii) Certificate Owners who are
not residents of or otherwise subject to tax in Massachusetts 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
Commonwealth of Massachusetts or any political subdivision thereof as a
result of purchasing, holding (including receiving payments with respect
to) or selling a Certificate. Neither the Pass Through Trusts nor the
Certificate Owners 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 Certificate Owners of such Pass Through Trust. In
general, should a Certificate Owner or a Pass Through Trust be subject to
any state or local tax which would not be imposed if the Trustee were
located in a different jurisdiction in the United States, the Trustee
will resign and a new trustee in such other jurisdiction will be
appointed.
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ERISA CONSIDERATIONS
Unless otherwise indicated in the applicable Prospectus Supplement,
the Certificates may, subject to certain legal restrictions, be purchased
and held by an employee benefit plan (a "Plan") subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
an individual retirement account or an employee benefit plan subject to
section 4975 of the Code. A fiduciary of a Plan must determine that the
purchase and holding of a 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 Title I of ERISA or section 4975 of
the Code. The Certificates may, subject to certain legal restrictions,
be purchased and held by such plans.
PLAN OF DISTRIBUTION
Certificates may be sold to one or more underwriters for public
offering and sale by them or to investors or other persons directly or
through one or more dealers or agents. Any such underwriter, dealer or
agent involved in the offer and sale of the Certificates will be named in
the applicable Prospectus Supplement.
The Certificates may be sold at a fixed price or prices, which may be
changed, or from time to time at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices. Dealer trading may take place in certain of the Certificates,
including Certificates not listed on any securities exchange. Neither
Mobil nor the Lessees intend to apply for listing of the Certificates on
a national securities exchange. Mobil and the Lessees also may, from
time to time, authorize underwriters acting as their agents to offer and
sell the Certificates upon the terms and conditions as shall be set forth
in any Prospectus Supplement. In connection with the sale of
Certificates, underwriters may be deemed to have received compensation
from Mobil and the Applicable Lessee in the form of underwriting
discounts or commissions and may also receive commissions from purchasers
of Certificates for whom they may act as agent. Underwriters may sell
Certificates to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions (which may be changed from time to
time) from the purchasers for whom they may act as agent.
If a dealer is used directly by Mobil or a Lessee in the sale of
Certificates in respect of which this Prospectus is delivered, such
Certificates will be sold to the dealer, as principal. The dealer may
then resell such Certificates to the public at varying prices to be
determined by such dealer at the time of resale. Any such dealer and the
terms of any such sale will be set forth in the Prospectus Supplement
relating thereto.
35
<PAGE>
Certificates may be offered and sold through agents designated by Mobil
and the Applicable Lessee from time to time. Any such agent involved in
the offer or sale of the Certificates in respect of which this Prospectus
is delivered will be named in, and any commissions payable by Mobil and
such Lessee to such agent will be set forth in, the applicable Prospectus
Supplement. Unless otherwise indicated in the applicable Prospectus
Supplement, any such agent will be acting on a best efforts basis for the
period of its appointment.
Offers to purchase Certificates may be solicited directly by Mobil and
the Applicable Lessees and sales thereof may be made by Mobil and the
Applicable Lessees directly to institutional investors or others who may
be deemed to be underwriters within the meaning of the Securities Act
with respect to any resale thereof. The terms of any such sales will be
described in the Prospectus Supplement relating thereto. Except as set
forth in the applicable Prospectus Supplement, no director, officer or
employee of Mobil or the Lessees will solicit or receive a commission in
connection with direct sales by Mobil or the Lessees of the Certificates,
although such persons may respond to inquiries by potential purchasers
and perform ministerial and clerical work in connection with any such
direct sales.
Any underwriting compensation paid by Mobil and the Applicable Lessee
to underwriters, dealers or agents in connection with the offering of
Certificates, and any discounts, concessions or commissions allowed by
underwriters to participating dealers, will be set forth in an applicable
Prospectus Supplement. Underwriters, dealers and agents participating in
the distribution of the Certificates may be deemed to be underwriters,
and any discounts and commissions received by them and any profit
realized by them on resale of the Certificates may be deemed to be
underwriting discounts and commissions under the Securities Act.
Underwriters, dealers and agents may be entitled, under agreements with
Mobil and the Applicable Lessee, to indemnification against and
contribution toward certain civil liabilities, including liabilities
under the Securities Act, and to reimbursement by Mobil and such Lessee
for certain expenses.
Underwriters, dealers and agents and their affiliates may engage in
transactions with, or perform services for, Mobil and its subsidiaries
from time to time.
If so indicated in an applicable Prospectus Supplement and subject to
existing market conditions, Mobil and the Applicable Lessee will
authorize dealers acting as Mobil's and such Lessee's agents to solicit
offers by certain institutions to purchase Certificates at the public
offering price set forth in such Prospectus Supplement pursuant to
Delayed Delivery Contracts ("Contracts") providing for payment and
delivery on the date or dates stated in such Prospectus Supplement. Each
Contract will be for an amount not less than, and the aggregate principal
amount of Certificates sold pursuant to Contracts shall not be less nor
more than, the respective amounts stated in such Prospectus Supplement.
Institutions with whom Contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and other
institutions, but will in all cases be subject to the approval of Mobil
and the Applicable Lessee. Contracts will not be subject to any
conditions except the purchase by an institution of the Certificates
covered
36
<PAGE>
by its Contracts shall not at the time of delivery be prohibited under
the laws of any jurisdiction in the United States to which such
institution is subject. A commission indicated in the applicable
Prospectus Supplement will be granted to underwriters and agents
soliciting purchases of Certificates pursuant to Contracts accepted by
Mobil and the Applicable Lessee. Agents and underwriters will have no
responsibility in respect of the delivery or performance of Contracts.
If an underwriter or underwriters are utilized in the sale of any
Certificates, the applicable Prospectus Supplement will contain a
statement as to the intention, if any, of such underwriters at the date
of such Prospectus Supplement to make a market in the Certificates. No
assurances can be given that there will be a market for the Certificates.
The place and time of delivery for the Certificates in respect of which
this Prospectus is delivered will be set forth in the applicable
Prospectus Supplement.
LEGAL OPINIONS
Unless otherwise indicated in the applicable Prospectus Supplement, the
validity of the Certificates and the Parent Guaranties will be passed
upon for Mobil and the Lessees by Ralph N. Johanson, Jr., Managing
Counsel, Corporate, Finance and Securities of Mobil and by Debevoise &
Plimpton, 875 Third Avenue, New York, New York 10022, and for any agents
or underwriters by Shearman & Sterling, 599 Lexington Avenue, New York,
New York 10022. Unless otherwise indicated in the applicable Prospectus
Supplement, Mr. Johanson, Debevoise & Plimpton and Shearman & Sterling
will rely on the opinion of counsel for the Trustee as to certain matters
relating to the authorization, execution and delivery of such
Certificates by, and the valid and binding effect thereof on, such
Trustee.
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.
37
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the issuance and distribution
of the securities being registered, other than underwriting discounts and
commissions, are set forth in the following table.
<TABLE>
<S> <C>
Securities and Exchange Commission Filing Fee.. $ 196,980
---------
Printing and engraving expenses................ 85,000
---------
Accountants' fees and expenses................. 15,000
---------
Legal fees and expenses........................ 250,000
---------
Blue Sky fees and expenses..................... 20,000
---------
Trustees' fees and expenses.................... 5,000
---------
Rating Agency fees............................. 85,750
---------
Miscellaneous.................................. 10,000
---------
Total....................................... $ 667,730
---------
</TABLE>
/*/ Estimated and subject to future contingencies.
ITEM 15. 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.
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 each
Lessee's By-Laws provides for indemnification of the directors and
certain officers of such Lessee 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 the Lessees are insured against certain liabilities they may
incur in their respective capacities.
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<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
1.1 * Form of Underwriting Agreement for Pass Through
Certificates of Mobil Marine Finance Company I Inc., Mobil
Marine Finance Company II Inc., Mobil Lease Finance Company
Inc., Mobil Chemical Finance (Texas) Inc., Mobil Chemical
Finance (Louisiana) Inc., Mobil Petrorail Finance Inc.,
Mobil Transport Finance Company Inc. and Mobil Equipment
Finance Company Inc.
4.1 Form of Pass Through Trust Agreement among Mobil
Corporation, Mobil Marine Finance Company I Inc., Mobil
Marine Finance Company II Inc., Mobil Lease Finance Company
Inc., Mobil Chemical Finance (Texas) Inc., Mobil Chemical
Finance (Louisiana) Inc., Mobil Petrorail Finance Inc.,
Mobil Transport Finance Company Inc. and Mobil Equipment
Finance Company Inc., and State Street Bank and Trust
Company, as Trustee for the Pass Through Trusts.
4.2 Form of Pass Through Certificate (included as part of
Exhibit 4.1).
4.3 * Form of Guaranty of Mobil Corporation.
5.1 Opinion of Debevoise & Plimpton.
5.2 Opinion of Ralph N. Johanson, Jr., Managing Counsel,
Corporate, Finance and Securities of Mobil Corporation.
5.3 Opinion of Bingham, Dana & Gould, counsel for the Trustee.
8.1 Tax Opinion of Debevoise & Plimpton--Included in Exhibit
5.1.
12 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Debevoise & Plimpton--Included in Exhibit 5.1.
23.2 Consent of Ralph N. Johanson, Jr., Managing Counsel,
Corporate, Finance and Securities of Mobil Corporation--
Included in Exhibit 5.2.
23.3 Consent of Bingham, Dana & Gould--Included in Exhibit 5.3.
23.4 Consent of Ernst & Young LLP, Independent Auditors.
24.1(a)* Power of Attorney--Mobil Corporation.
24.1(b)* Power of Attorney--Mobil Corporation.
24.2 * Power of Attorney--Mobil Marine Finance Company I Inc.
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<PAGE>
24.3 * Power of Attorney--Mobil Marine Finance Company II Inc.
24.4 * Power of Attorney--Mobil Lease Finance Company Inc.
24.5 * Power of Attorney--Mobil Chemical Finance (Texas) Inc.
24.6 * Power of Attorney--Mobil Chemical Finance (Louisiana) Inc.
24.7 * Power of Attorney--Mobil Petrorail Finance Inc.
24.8 * Power of Attorney--Mobil Transport Finance Company Inc.
24.9 * Power of Attorney--Mobil Equipment Finance Company Inc.
25 * Statement of Eligibility of Pass Through Trustee on Form
T-1.
(b) Financial Statement Schedules
Not Applicable.
* Previously filed.
ITEM 17. UNDERTAKINGS.
(A) 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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
posteffective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
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;
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<PAGE>
(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;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by Mobil pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), that are incorporated by reference 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.
(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.
(B) Each of the undersigned registrants hereby undertakes 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.
(C) Each of the undersigned registrants hereby undertakes, if
securities are to be offered pursuant to competitive bidding, (1) to use
its best efforts to distribute prior to the opening of bids, to
prospective bidders, underwriters and dealers, a reasonable number of
copies of a prospectus which at that time meets the requirements of
section 10(a) of the Securities Act, and relating to the securities
offered at competitive bidding, as contained in this registration
statement, together with any supplements thereto, and (2) to file an
amendment to this registration statement reflecting the results of
bidding, the terms of the reoffering and related matters to the extent
required by the applicable form, not later than the first use, authorized
by the issuer after the opening of bids, of a prospectus relating to the
securities offered at competitive bidding, unless no further public
offering of such securities by the issuer and no reoffering of such
securities by purchasers is proposed to be made.
(D) 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, 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 Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by a registrant of expenses
incurred or paid by a director, officer or controlling person of such
registrant in the successful
II-4
<PAGE>
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the applicable registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
II-5
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, EACH REGISTRANT CERTIFIES
THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS
FOR FILING ON S-3 AND HAS DULY CAUSED THIS AMENDMENT NO. 1 TO BE SIGNED
ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF
FAIRFAX, COMMONWEALTH OF VIRGINIA, ON NOVEMBER 12, 1996.
<TABLE>
<S> <C>
MOBIL MARINE FINANCE MOBIL CORPORATION
COMPANY I INC.
By: /s/ Gordon G. Garney By: /s/ Gordon G. Garney
-------------------- --------------------
Gordon G. Garney, as Attorney-In-Fact Gordon G. Garney, as Attorney-In-Fact
NOVEMBER 12, 1996 NOVEMBER 12, 1996
MOBIL MARINE FINANCE MOBIL LEASE FINANCE
COMPANY II INC. COMPANY INC.
By:/s/ Gordon G. Garney By: /s/ Gordon G. Garney
-------------------- --------------------
Gordon G. Garney, as Attorney-In-Fact Gordon G. Garney, as Attorney-In-Fact
NOVEMBER 12, 1996 NOVEMBER 12, 1996
MOBIL CHEMICAL FINANCE (TEXAS) MOBIL CHEMICAL FINANCE
INC. (LOUISIANA) INC.
By: /s/ Gordon G. Garney By: /s/ Gordon G. Garney
-------------------- --------------------
Gordon G. Garney, as Attorney-In-Fact Gordon G. Garney, as Attorney-In-Fact
NOVEMBER 12, 1996 NOVEMBER 12, 1996
MOBIL PETRORAIL FINANCE INC. MOBIL TRANSPORT FINANCE
COMPANY INC.
By: /s/ Gordon G. Garney By: /s/ Gordon G. Garney
-------------------- --------------------
Gordon G. Garney, as Attorney-In-Fact Gordon G. Garney, as Attorney-In-Fact
NOVEMBER 12, 1996 NOVEMBER 12, 1996
</TABLE>
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<PAGE>
MOBIL EQUIPMENT FINANCE
COMPANY INC.
By: /s/ Gordon G. Garney
--------------------
Gordon G. Garney, as Attorney-In-Fact
NOVEMBER 12, 1996
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
NO. 1 HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
MOBIL CORPORATION
PRINCIPAL EXECUTIVE OFFICER:
Lucio A. Noto* Director and Chairman of the Board,
President and Chief Executive Officer
PRINCIPAL FINANCIAL OFFICER:
Thomas C. DeLoach, Jr.* Senior Vice President and Chief
Financial Officer
PRINCIPAL ACCOUNTING OFFICER:
Martha F. Keeth* Controller
DIRECTORS:
Lewis M. Branscomb*
Donald V. Fites*
Charles A. Heimbold, Jr.*
Paul J. Hoenmans*
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<PAGE>
Allen F. Jacobson*
Samuel C. Johnson*
Helene L. Kaplan*
J. Richard Munro*
Lucio A. Noto*
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.
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<PAGE>
MOBIL MARINE FINANCE COMPANY I INC.
PRINCIPAL EXECUTIVE OFFICER:
Walter R. Arnheim* President
PRINCIPAL FINANCIAL OFFICER:
Debra D. Drumheller* Vice President and
Chief Financial Officer
PRINCIPAL ACCOUNTING OFFICER:
Martha F. Keeth* Controller
DIRECTORS:
Walter R. Arnheim*
Ralph N. Johanson, Jr.*
Debra D. Drumheller*
------------------------
* 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 Marine Finance
Company I Inc. and its Directors and Officers.
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<PAGE>
MOBIL MARINE FINANCE COMPANY II INC.
PRINCIPAL EXECUTIVE OFFICER:
Walter R. Arnheim* President
PRINCIPAL FINANCIAL OFFICER:
Debra D. Drumheller* Vice President and
Chief Financial Officer
PRINCIPAL ACCOUNTING OFFICER:
Martha F. Keeth* Controller
DIRECTORS:
Walter R. Arnheim*
Ralph N. Johanson, Jr.*
Debra D. Drumheller*
------------------------
* 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 Marine Finance
Company II Inc. and its Directors and Officers.
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<PAGE>
MOBIL LEASE FINANCE COMPANY INC.
PRINCIPAL EXECUTIVE OFFICER:
Walter R. Arnheim* President
PRINCIPAL FINANCIAL OFFICER:
Debra D. Drumheller* Vice President and
Chief Financial Officer
PRINCIPAL ACCOUNTING OFFICER:
Martha F. Keeth* Controller
DIRECTORS:
Walter R. Arnheim*
Ralph N. Johanson, Jr.*
Debra D. Drumheller*
------------------------
* 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 Lease Finance
Company Inc. and its Directors and Officers.
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<PAGE>
MOBIL CHEMICAL FINANCE (TEXAS) INC.
PRINCIPAL EXECUTIVE OFFICER:
Walter R. Arnheim* President
PRINCIPAL FINANCIAL OFFICER:
Debra D. Drumheller* Vice President and
Chief Financial Officer
PRINCIPAL ACCOUNTING OFFICER:
Martha F. Keeth* Controller
DIRECTORS:
Walter R. Arnheim*
Ralph N. Johanson, Jr.*
Debra D. Drumheller*
------------------------
* 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 Chemical
Finance (Texas) Inc. and its Directors and Officers.
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<PAGE>
MOBIL CHEMICAL FINANCE (LOUISIANA) INC.
PRINCIPAL EXECUTIVE OFFICER:
Walter R. Arnheim* President
PRINCIPAL FINANCIAL OFFICER:
Debra D. Drumheller* Vice President and
Chief Financial Officer
PRINCIPAL ACCOUNTING OFFICER:
Martha F. Keeth* Controller
DIRECTORS:
Walter R. Arnheim*
Ralph N. Johanson, Jr.*
Debra D. Drumheller*
------------------------
* 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 Chemical
Finance (Louisiana) Inc. and its Directors and Officers.
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<PAGE>
MOBIL PETRORAIL FINANCE INC.
PRINCIPAL EXECUTIVE OFFICER:
Walter R. Arnheim* President
PRINCIPAL FINANCIAL OFFICER:
Debra D. Drumheller* Vice President and
Chief Financial Officer
PRINCIPAL ACCOUNTING OFFICER:
Martha F. Keeth* Controller
DIRECTORS:
Walter R. Arnheim*
Ralph N. Johanson, Jr.*
Debra D. Drumheller*
------------------------
* 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 Petrorail
Finance Inc. and its Directors and Officers.
II-14
<PAGE>
MOBIL TRANSPORT FINANCE COMPANY INC.
PRINCIPAL EXECUTIVE OFFICER:
Walter R. Arnheim* President
PRINCIPAL FINANCIAL OFFICER:
Debra D. Drumheller* Vice President and
Chief Financial Officer
PRINCIPAL ACCOUNTING OFFICER:
Martha F. Keeth* Controller
DIRECTORS:
Walter R. Arnheim*
Ralph N. Johanson, Jr.*
Debra D. Drumheller*
------------------------
* 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 Transport
Finance Company Inc. and its Directors and Officers.
II-15
<PAGE>
MOBIL EQUIPMENT FINANCE COMPANY INC.
PRINCIPAL EXECUTIVE OFFICER:
Walter R. Arnheim* President
PRINCIPAL FINANCIAL OFFICER:
Debra D. Drumheller* Vice President and
Chief Financial Officer
PRINCIPAL ACCOUNTING OFFICER:
Martha F. Keeth* Controller
DIRECTORS:
Walter R. Arnheim*
Ralph N. Johanson, Jr.*
Debra D. Drumheller*
------------------------
* 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 Equipment
Finance Company Inc. and its Directors and Officers.
II-16
<PAGE>
Exhibits
1.1 * Form of Underwriting Agreement for Pass Through Certificates
of Mobil Marine Finance Company I Inc., Mobil Marine Finance
Company II Inc., Mobil Lease Finance Company Inc., Mobil
Chemical Finance (Texas) Inc., Mobil Chemical Finance
(Louisiana) Inc., Mobil Petrorail Finance Inc., Mobil
Transport Finance Company Inc. and Mobil Equipment Finance
Company Inc.
4.1 Form of Pass Through Trust Agreement among Mobil Corporation,
Mobil Marine Finance Company I Inc., Mobil Marine Finance
Company II Inc., Mobil Lease Finance Company Inc., Mobil
Chemical Finance (Texas) Inc., Mobil Chemical Finance
(Louisiana) Inc., Mobil Petrorail Finance Inc., Mobil
Transport Finance Company Inc. and Mobil Equipment Finance
Company Inc., and State Street Bank and Trust Company, as
Trustee for the Pass Through Trusts.
4.2 Form of Pass Through Certificate (included as part of Exhibit
4.1).
4.3 * Form of Guaranty of Mobil Corporation.
5.1 Opinion of Debevoise & Plimpton.
5.2 Opinion of Ralph N. Johanson, Jr., Managing Counsel,
Corporate, Finance and Securities of Mobil Corporation.
5.3 Opinion of Bingham, Dana & Gould, counsel for the Trustee.
8.1 Tax Opinion of Debevoise & Plimpton--Included in Exhibit 5.1.
12 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Debevoise & Plimpton--Included in Exhibit 5.1.
23.2 Consent of Ralph N. Johanson, Jr., Managing Counsel,
Corporate, Finance and Securities of Mobil Corporation--
Included in Exhibit 5.2.
23.3 Consent of Bingham, Dana & Gould--Included in Exhibit 5.3.
23.4 Consent of Ernst & Young LLP, Independent Auditors.
24.1(a)* Power of Attorney--Mobil Corporation.
24.1(b)* Power of Attorney--Mobil Corporation.
24.2 * Power of Attorney--Mobil Marine Finance Company I Inc.
24.3 * Power of Attorney--Mobil Marine Finance Company II Inc.
24.4 * Power of Attorney--Mobil Lease Finance Company Inc.
24.5 * Power of Attorney--Mobil Chemical Finance (Texas) Inc.
24.6 * Power of Attorney--Mobil Chemical Finance (Louisiana) Inc.
24.7 * Power of Attorney--Mobil Petrorail Finance Inc.
24.8 * Power of Attorney--Mobil Transport Finance Company Inc.
24.9 * Power of Attorney--Mobil Equipment Finance Company Inc.
25 * Statement of Eligibility of Pass Through Trustee on Form
T-1.
(b) Financial Statements Schedules
Not Applicable.
* Previously filed.
<PAGE>
EXHIBIT 4.1
MOBIL CORPORATION,
MOBIL MARINE FINANCE COMPANY I INC.,
MOBIL MARINE FINANCE COMPANY II INC.,
MOBIL LEASE FINANCE COMPANY INC.,
MOBIL CHEMICAL FINANCE (TEXAS) INC.,
MOBIL CHEMICAL FINANCE (LOUISIANA) INC.,
MOBIL PETRORAIL FINANCE INC.,
MOBIL TRANSPORT FINANCE COMPANY INC.,
MOBIL EQUIPMENT FINANCE COMPANY INC.
and
STATE STREET BANK AND TRUST COMPANY
as Trustee
_______________________________
PASS THROUGH TRUST AGREEMENT
Dated as of , 1996
-------- --
_______________________________
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.1. Definitions............................................. 2
Section 1.2. Compliance Certificates and Opinions.................... 11
Section 1.3. Form of Documents Delivered to Trustee.................. 12
Section 1.4. Acts of Certificateholders.............................. 12
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF SECURED NOTES
Section 2.1. Amount Unlimited, Issuable in Series.................... 14
Section 2.2. Acquisition of Secured Notes............................ 16
Section 2.3. Acceptance by Trustee................................... 18
Section 2.4. Limitation of Powers.................................... 18
ARTICLE III
THE CERTIFICATES
Section 3.1. Form, Denomination and Execution of Certificates........ 19
Section 3.2. Authentication of Certificates.......................... 19
Section 3.3. Temporary Certificates.................................. 20
Section 3.4. Registration of Transfer and Exchange of Certificates... 20
Section 3.5. Mutilated, Destroyed, Lost or Stolen Certificates....... 21
Section 3.6. Persons Deemed Owners................................... 21
Section 3.7. Cancellation............................................ 21
Section 3.8. Limitation of Liability................................. 21
Section 3.9. Book-Entry and Definitive Certificates.................. 22
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.1. Certificate Account and Special Payments Account........ 24
Section 4.2. Distributions from Certificate Account and
Special Payments Account.............................. 25
i
<PAGE>
Section 4.3. Statements to Certificateholders........................ 26
Section 4.4. Investment of Special Payment Moneys.................... 27
ARTICLE V
THE GUARANTOR AND THE COMPANIES
Section 5.1. Maintenance of Corporate Existence...................... 27
Section 5.2. Consolidation, Merger, etc.............................. 27
Section 5.3. Right of Guarantor to Act............................... 28
ARTICLE VI
DEFAULT
Section 6.1. Events of Default....................................... 28
Section 6.2. Incidents of Sale of Secured Notes...................... 29
Section 6.3. Judicial Proceedings Instituted by Trustee, Trustee
May Bring Suit........................................ 30
Section 6.4. Control by Certificateholders........................... 30
Section 6.5. Waiver of Past Defaults................................. 30
Section 6.6. Right of Certificateholders to Receive Payments
Not to Be Impaired.................................... 31
Section 6.7. Certificateholders May Not Bring Suit Except
Under Certain Conditions.............................. 31
Section 6.8. Remedies Cumulative..................................... 32
Section 6.9. Undertaking to Pay Court Costs.......................... 32
ARTICLE VIII
THE TRUSTEE
Section 7.1. Notice of Defaults...................................... 33
Section 7.2. Certain Rights of Trustee............................... 33
Section 7.3. Not Responsible for Recitals or Issuance of
Certificates.......................................... 34
Section 7.4. May Hold Certificates................................... 35
Section 7.5. Money Held in Trust..................................... 35
Section 7.6. Compensation and Reimbursement.......................... 35
Section 7.7. Corporate Trustee Required, Eligibility................. 36
Section 7.8. Resignation and Removal, Appointment of Successor....... 37
Section 7.9. Acceptance of Appointment by Successor.................. 39
Section 7.10. Merger, Conversion, Consolidation or
Succession to Business............................... 39
Section 7.11. Maintenance of Agencies................................ 40
Section 7.12. Money for Certificate Payments to Be Held in Trust..... 41
ii
<PAGE>
Section 7.13. Registration of Secured Notes in Trustee's Name........ 41
Section 7.14. Representations and Warranties of Trustee.............. 41
Section 7.15. Withholding Taxes, Information Reporting............... 42
Section 7.16. Trustee's Liens........................................ 43
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.1. Names and Addresses of Certificateholders............... 43
Section 8.2. Preservation of Information, Communications to
Certificateholders.................................... 43
Section 8.3. Reports by Trustee...................................... 43
Section 8.4. Reports by the Guarantor and each Company............... 44
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.1. Supplemental Agreements Without Consent of
Certificateholders.................................... 45
Section 9.2. Supplemental Agreements with Consent of
Certificateholders.................................... 46
Section 9.3. Documents Affecting Trustee............................. 47
Section 9.4. Execution of Supplemental Agreements.................... 47
Section 9.5. Effect of Supplemental Agreements....................... 47
Section 9.6. Conformity with Trust Indenture Act..................... 47
Section 9.7. Reference in Certificates to Supplemental Agreements.... 47
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS
Section 10.1. Amendments and Supplements to Indenture and
Other Note Documents................................. 47
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.1. Termination of the Trusts.............................. 48
iii
<PAGE>
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1. Limitation on Rights of Certificateholders............. 49
Section 12.2. Certificates Nonassessable and Fully Paid.............. 49
Section 12.3. Notices................................................ 49
Section 12.4. Governing Law.......................................... 51
Section 12.5. Severability of Provisions............................. 51
Section 12.6. Trust Indenture Act Controls........................... 51
Section 12.7. Effect of Headings and Table of Contents............... 51
Section 12.8. Successors and Assigns................................. 51
Section 12.9. Benefits of Agreement.................................. 51
Section 12.10. Legal Holidays........................................ 51
Section 12.11. Counterparts.......................................... 52
EXHIBIT A - Form of Certificate
iv
<PAGE>
Reconciliation and tie between Pass Through Trust Agreement dated as of
-------
, 1996 and the Trust Indenture Act of 1939. This reconciliation does not
- --
constitute part of the Pass Through Trust Agreement.
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
--------------- -----------------
310(a)(1) 7.7
(a)(2) 7.7
312(a) 3.9; 8.1; 8.2
313 8.3
314(a) 8.4(a) - (c)
(a)(4) 8.4(d)
(c)(1) 1.2
(c)(2) 1.2
(d)(1) 7.12
11.1
(d)(2) 7.12; 11.1
(d)(3) 2.1
(e) 1.2
315(b) 8.3
316(a)(last sentence) 1.1
(a)(1)(A) 6.4
(a)(1)(B) 6.5
(b) 6.6
(c) 1.4(d)
317(a)(1) 6.3
(b) 7.12
318(a) 12.6
v
<PAGE>
This PASS THROUGH TRUST AGREEMENT, dated as of ___________, 1996, among
Mobil Corporation, a Delaware corporation (the "Guarantor"), Mobil Marine
Finance Company I Inc., a Delaware corporation, Mobil Marine Finance Company II
Inc., a Delaware corporation, Mobil Lease Finance Company Inc., a Delaware
corporation, Mobil Chemical Finance (Texas) Inc., a Delaware corporation, Mobil
Chemical Finance (Louisiana) Inc., a Delaware corporation, Mobil Petrorail
Finance Inc., a Delaware corporation, Mobil Transport Finance Company Inc., a
Delaware corporation, Mobil Equipment Finance Company Inc., a Delaware
corporation (each a "Company" and collectively the "Companies") and State Street
Bank and Trust Company, a Massachusetts trust company, as Trustee, is made with
respect to the formation from time to time of separate Mobil Corporation
Pass Through Trusts, and the issuance from time to time of separate series of
Pass Through Certificates representing fractional undivided interests in the
respective Trusts.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, from time to time the Guarantor and one or more Companies and the
Trustee may enter into a Trust Supplement (this and certain other defined terms
used herein are defined in Section 1.1) pursuant to which the Trustee shall
declare the creation of a separate Trust for the benefit of the Holders of the
series of Certificates to be issued in respect of such Trust, and the initial
Holders of the Certificates of such series, as the grantors of such Trust, by
their respective acceptances of the Certificates of such series, shall join in
the creation of such Trust with the Trustee;
WHEREAS, all Certificates to be issued in respect of each separate Trust
will be issued as a separate series pursuant to this Agreement, will evidence
fractional undivided interests in such Trust and will have no rights, benefits
or interests in respect of any other separate Trust or the property held
therein;
WHEREAS, from time to time, pursuant to the terms and conditions of this
Agreement with respect to each separate Trust formed hereunder, the Trustee on
behalf of such Trust shall purchase one or more issues of Secured Notes having
the same interest rate as, and final maturity dates not later than the final
Regular Distribution Date of, the series of Certificates issued in respect of
such Trust and shall hold such Secured Notes in trust for the benefit of the
Certificateholders of such Trust;
WHEREAS, to facilitate the sale of Secured Notes to, and the purchase of
Secured Notes by, the Trustee on behalf of each Trust created from time to time
pursuant to this Agreement, the Guarantor and each Company has duly authorized
the execution and delivery of this Basic Agreement and are undertaking to
perform certain administrative and ministerial duties hereunder and to pay the
fees and expenses of the Trustee; and
WHEREAS, this Basic Agreement, as supplemented from time to time, is
subject to the provisions of the Trust Indenture Act of 1939, as amended, and
shall, to the extent applicable, be governed by such provisions;
<PAGE>
NOW THEREFORE, in consideration of the mutual agreements herein contained,
and of other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. (a) For all purposes of this Basic 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 other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, or by SEC rule
under the Trust Indenture Act, have the meanings assigned to them therein;
(3) all references in this Basic Agreement to designated "Articles",
"Sections", "Subsections" and other subdivisions are to the designated
Articles, Sections, Subsections and other subdivisions of this Basic
Agreement;
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Basic Agreement as a whole and not to any
particular Article, Section or other subdivision;
(5) the term "this Agreement" (as distinguished from "this Basic
Agreement") refers, unless the context otherwise requires, to this Basic
Agreement as supplemented by the Trust Supplement creating a particular
Trust and establishing the series of Certificates issued or to be issued in
respect thereof, with reference to such Trust and such series of
Certificates, as this Basic Agreement as so supplemented may be further
supplemented with respect to such Trust and such series of Certificates;
and
(6) unless the context otherwise requires, whenever words "including",
"include" or "includes" are used herein, it shall be deemed followed by the
phrase "without limitation".
(b) For all purposes of this Basic Agreement, the following
capitalized terms have the following respective meanings:
Act: With respect to any Certificateholder, has the meaning specified
---
in Section 1.4.
2
<PAGE>
Affiliate: With respect to any specified Person, means any other
---------
Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such Person. For the purposes of this
definition, "control", when used with respect to any specified Person,
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise, and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
Agreement: Has the meaning specified in Section 1.1(a)(5).
---------
Applicable Company: With respect to any Trust means the Company or
------------------
Companies that execute and deliver the Trust Supplement relating thereto
and are liable as lessee under each related Lease or, if the related
Property is not leased to a Company, are liable on the related Secured
Notes. If with respect to any Trust there is more than one Applicable
Company, all references in this Agreement to "Applicable Company" shall be
deemed to include, as the context may require, each Applicable Company and
each request, consent or other action by the "Applicable Company" requires
the request, consent or other action, severally, of each Applicable
Company, it being understood that the obligations of each such Applicable
Company with respect to such Trust shall be several and not joint, and that
such obligations shall be, as the context may require, determined by
reference to the relative obligations of such Applicable Company under each
Lease related to such Trust on which such Applicable Company is liable, or
if the related Property is not leased to such Applicable Company, on each
series of Secured Notes related to such Trust on which such Applicable
Company is liable.
Authorized Agent: With respect to the Certificates of any series,
----------------
means any Paying Agent or Registrar for the Certificates of such series.
Basic Agreement: Means this Pass Through Trust Agreement, as the same
---------------
may from time to time be supplemented, amended or modified, but not as
supplemented by any Trust Supplement.
Book-Entry Certificates: With respect to the Certificates of any
-----------------------
series, means a beneficial interest in the Certificates of such series,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 3.9.
Business Day: With respect to the Certificates of any series, means
------------
any day other than a Saturday, a Sunday or a day on which commercial banks
are required or authorized to close in New York, New York and, so long as
any such Certificate is outstanding, a city and state in which the Trustee
or any related Loan Trustee maintains its Corporate Trust Office or
receives and disburses funds in respect of such Certificates or the related
Secured Notes, as the case may be.
3
<PAGE>
Certificate: Means any one of the certificates executed and
-----------
authenticated by the Trustee, substantially in the form of Exhibit A
hereto.
Certificate Account: With respect to the Certificates of any series,
-------------------
means the account or accounts created and maintained for such series
pursuant to Section 4.1(a) and the related Trust Supplement.
Certificate Owner: With respect to the Certificates of any series,
-----------------
means, for purposes of Section 3.9, the Person who has a beneficial
ownership interest in a Book-Entry Certificate of such series.
Certificateholder or Holder: With respect to the Certificates of any
---------------------------
series, means the Person in whose name a Certificate of such series is
registered in the Register for Certificates of such series.
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.
Company: Means any of Mobil Marine Finance Company I Inc., Mobil
-------
Marine Finance Company II Inc., Mobil Lease Finance Company Inc., Mobil
Chemical Finance (Texas) Inc., Mobil Chemical Finance (Louisiana) Inc.,
Mobil Petrorail Finance Inc., Mobil Transport Finance Company Inc. or Mobil
Equipment Finance Company Inc. or their respective successors in interest
pursuant to Section 5.2; provided, that with respect to any Trust created
--------
pursuant to a Trust Supplement, "Company" means any Applicable Company or
Applicable Companies which are a party to such Trust Supplement.
Corporate Trust Office: With respect to the Trustee or any Loan
----------------------
Trustee, means the office of such trustee in the city at which at any
particular time its corporate trust business in respect of the related
Certificates or Secured Notes, as the case may be, shall be principally
administered.
Cut-off Date: With respect to the Certificates of any series, means
------------
the date designated as such in this Agreement.
Definitive Certificates: With respect to the Certificate of any
-----------------------
series, has the meaning specified in Section 3.9.
Direction: Has the meaning specified in Section 1.4(c).
---------
4
<PAGE>
ERISA: Means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time, or any successor federal statute.
Escrow Account: With respect to the Certificates of any series, has
--------------
the meaning specified in Section 2.2(b).
Escrowed Funds: With respect to any Trust, has the meaning specified
--------------
in Section 2.2(b).
Event of Default: Means, in respect of any Trust, the occurrence of
----------------
an Indenture Event of Default under any Indenture pursuant to which Secured
Notes held by such Trust were issued.
Fractional Undivided Interest: Means the fractional undivided
-----------------------------
interest in a Trust that is evidenced by a Certificate relating to such
Trust.
Guarantor: Means Mobil Corporation, a Delaware corporation, or its
---------
successor in interest.
Holder: See "Certificateholder or Holder".
------
Indenture: With respect to any Trust, means each of the one or more
---------
separate trust indenture and security agreements or similar documents
described in, or on a schedule attached to, the Trust Supplement creating
such Trust which relates to an issue of Secured Notes to be held in such
Trust; and Indentures means all of such agreements.
----------
Indenture Event of Default: With respect to any Indenture, means any
--------------------------
Indenture Event of Default (as such term is defined in such Indenture).
Initial Regular Distribution Date: With respect to the Certificates
---------------------------------
of any series, means the first Regular Distribution Date on which a
Scheduled Payment is to be made.
Issuance Date: With respect to the Certificates of any series, means
-------------
the date of the issuance of such Certificates.
Lease: With respect to any Secured Note, means any lease between an
-----
Owner Trustee, as the lessor, and a Company, as the lessee, referred to in
the related Indenture, as each such lease may be amended, modified or
supplemented in accordance with its terms; and Leases means all such
------
Leases.
Letter of Representations: With respect to the Certificates of any
-------------------------
series, means the agreement with the initial Clearing Agency relating to
such Certificates.
5
<PAGE>
Loan Trustee: With respect to any Secured Note or the Indenture
------------
applicable thereto, means the bank or trust company designated as
"Indenture Trustee" under such Indenture, and any successor to such Loan
Trustee as such trustee; and Loan Trustees means all of the "Indenture
-------------
Trustees" under the Indentures.
Note Documents: With respect to any Secured Note, means the related
--------------
Indenture, Note Purchase Agreement and, if the related Property is leased
to a Company, the related Lease and the related Owner Trustee's Purchase
Agreement.
Note Purchase Agreement: With respect to the Certificates of any
-----------------------
series, means any note purchase, participation, refunding or similar
agreement providing for, among other things, the purchase of Secured Notes
by the Trustee on behalf of the relevant Trust; and Note Purchase
-------------
Agreements means all such agreements.
----------
Officer's Certificate: Means a certificate signed, (a) in the case of
---------------------
any corporation, by the President, any Vice President or the Treasurer, or
(b) in the case of an Owner Trustee or a Loan Trustee, a Responsible
Officer of such Owner Trustee or such Loan Trustee, as the case may be.
Opinion of Counsel: Means a written opinion of legal counsel who (a)
------------------
in the case of counsel for the Guarantor or a Company may be (i) an
attorney who may be employed by the Guarantor or such Company, (ii) the
Guarantor's Legal Department or (iii) such other counsel designated by the
Guarantor or such Company and (b) in the case of any Owner Trustee or any
Loan Trustee may be such counsel as may be designated by any of them,
whether or not such counsel is an employee of any of them, and who shall be
reasonably acceptable to the Trustee.
Outstanding: With respect to Certificates of any series, means, as of
-----------
the date of determination, all Certificates of such series theretofore
authenticated and delivered under this Agreement, except:
(i) Certificates of such series theretofore cancelled by the
Registrar or delivered to the Trustee or the Registrar for
cancellation;
(ii) All of the Certificates of such series if money in the full
amount required to make the final distribution with respect to such
series pursuant to Section 11.1 hereof has been theretofore deposited
with the Trustee in trust for the Holders of the Certificates of such
series as provided in Section 4.1 pending distribution of such money
to such Certificateholders pursuant to such final distribution
payment; and
(iii) Certificates of such series in exchange for or in lieu of
which other Certificates of such series have been authenticated and
delivered pursuant to this Agreement.
6
<PAGE>
Owner Participant: With respect to any Secured Note, means the "Owner
-----------------
Participant", if any, as referred to in the Indenture pursuant to which
such Secured Note is issued and any permitted successor or assign of such
Owner Participant; and Owner Participants at any time of determination
------------------
means all of the Owner Participants thus referred to in the related
Indentures.
Owner Trustee: With respect to any Secured Note, means the "Owner
-------------
Trustee", if any, as referred to in the Indenture pursuant to which such
Secured Note is issued, not in its individual capacity but solely as
trustee; and Owner Trustees means all of the Owner Trustees party to any of
--------------
the respective Indentures.
Owner Trustee's Purchase Agreement: With respect to any Secured Note,
----------------------------------
if the related Property is leased to a Company, means the "Participation
Agreement" as defined in the related Lease.
Paying Agent: With respect to the Certificates of any series, means
------------
the paying agent maintained and appointed for the Certificates of such
series pursuant to Section 7.11.
Permitted Investments: Means obligations of the United States of
---------------------
America or agencies or instrumentalities thereof 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 from the date of purchase thereof or such
lesser time as is necessary for payment of any Special Payments on a
Special Distribution Date.
Person: Means any person, including any individual, corporation,
------
partnership, limited partnership, limited liability company, joint venture,
association, joint stock company, trust, unincorporated organization, or
government or any agency or political subdivision thereof.
Pool Balance: With respect to any Trust, means as of any date the
------------
aggregate unpaid principal amount of the Secured Notes held in such Trust
on such date plus the amount of the principal payments on such Secured
Notes held by the Trustee and not yet distributed plus the amount of any
moneys held in the related Escrow Account (other than earnings thereon).
The Pool Balance as of any Regular Distribution Date or Special
Distribution Date with respect to such Trust shall be computed after giving
effect to the payment of principal, if any, on such Secured Notes and
distribution thereof to be made on that date.
Pool Factor: With respect to any Trust, means as of any date the
-----------
quotient (rounded to the seventh decimal place, with .00000005 being
rounded upwards) computed by dividing (i) the Pool Balance by (ii) the
aggregate original principal amount of the Certificates issued by such
Trust. The Pool Factor as of any Regular Distribution Date or Special
Distribution Date with respect to such Trust shall be computed after giving
7
<PAGE>
effect to the payment of principal, if any, on the Secured Notes held in
such Trust and distribution thereof to be made on that date.
Postponed Notes: With respect to any Trust or the related series of
---------------
Certificates, means the Secured Notes to be held in such Trust as to which
a Postponement Notice shall have been delivered pursuant to Section 2.2(b).
Postponement Notice: With respect to any Trust or the related series
-------------------
of Certificates, means an Officer's Certificate of the Applicable Company
(1) requesting that the Trustee temporarily postpone purchase of the
related Secured Notes to be held in such Trust to a date later than the
Issuance Date of such series of Certificates, (2) identifying the amount of
the purchase price of each such Secured Note and the aggregate purchase
price for all such Secured Notes, (3) setting forth the reasons for such
postponement and (4) with respect to each such Secured Note, either (a)
setting or resetting a new Transfer Date (which shall be on or prior to the
applicable Cut-off Date) for payment by the Trustee of such purchase price
and issuance of the related Secured Notes, or (b) indicating that such new
Transfer Date (which shall be on or prior to the applicable Cut-off Date)
will be set by subsequent written notice not less than one Business Day
prior to such new Transfer Date.
Property: With respect to any Trust or the related series of
--------
Certificates, means the "Property" as defined in the related Trust
Supplement.
Record Date: With respect to any Trust or the related series of
-----------
Certificates, means (i) for Scheduled Payments to be distributed on any
Regular Distribution Date, other than the final distribution, with respect
to such series, the 15th day (whether or not a Business Day) preceding such
Regular Distribution Date, and (ii) for Special Payments to be distributed
on any Special Distribution Date, other than the final distribution, with
respect to such series, the 15th day (whether or not a Business Day)
preceding such Special Distribution Date.
Register and Registrar: With respect to the Certificates of any
----------------------
series, mean the register maintained and the registrar appointed for such
series pursuant to Sections 3.4 and 7.11.
Regular Distribution Date: With respect to distributions of Scheduled
-------------------------
Payments in respect of any series of Certificates, means each date
designated as such in this Agreement, until payment of all the Scheduled
Payments to be made under the Secured Notes held in the related Trust has
been made or until such Secured Notes have been prepaid in full.
Request: Means a request by the Applicable Company or the Guarantor
-------
setting forth the subject matter of the request accompanied by an Officer's
Certificate and an
8
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Opinion of Counsel of the Applicable Company or the Guarantor, as provided
in Section 1.2.
Responsible Officer: With respect to any Trustee, any Loan Trustee
-------------------
and any Owner Trustee, means any officer in the Corporate Trust
Administration Department or similar department of the Trustee, Loan
Trustee or Owner Trustee or any other person customarily performing
functions similar to those performed by the persons who at the time shall
be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with a
particular subject.
Scheduled Payment: With respect to any Secured Note held in a Trust,
-----------------
means any payment (other than a Special Payment) of principal of and/or
interest on such Secured Note due from the obligor thereon, which
installment represents the installment of principal at the stated maturity
of such installment of principal on such Secured Note or the payment of
regularly scheduled interest accrued on the unpaid principal amount of such
Secured Note, or both.
SEC: Means the Securities and Exchange Commission, as from time to
---
time constituted or created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties on such
date.
Secured Note: With respect to the Certificates of any series, means
------------
each note, certificate or other instrument issued pursuant to any Indenture
relating to such Certificates.
Special Distribution Date: With respect to the Certificates of any
-------------------------
series, means each date on which a Special Payment is to be distributed as
specified in this Agreement.
Special Payment: With respect to a Special Distribution Date in
---------------
respect of the Certificates of any series, means (i) any payment of
principal of, premium, if any, and interest resulting from the redemption
or purchase of a Secured Note held in the applicable Trust, (ii) any
payment of principal of and interest (including any interest accruing upon
default) on, or any other amount in respect of, any such Secured Note upon
an Indenture Event of Default in respect thereof or upon an acceleration
under the Indenture relating thereto, (iii) the amounts required to be
distributed in respect thereof pursuant to the antepenultimate paragraph of
Section 2.2(b), (iv) the amounts required to be distributed in respect
thereof pursuant to the penultimate paragraph of Section 2.2(b), (v) any
Scheduled Payment that is not in fact paid within five days of the Regular
Distribution Date applicable thereto or (vi) any proceeds from the sale of
any such Secured Note by the Trustee pursuant to Article VI hereof; and
Special Payments means all of such Special Payments.
----------------
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Special Payments Account: With respect to the Certificates of any
------------------------
series, means the account or accounts created and maintained for such
series pursuant to Section 4.1(b) and the related Trust Supplement.
Specified Investments: With respect to any Trust, means, unless
---------------------
otherwise specified in the related Trust Supplement, (i) obligations of the
United States Government or agencies thereof, or guaranteed by the United
States Government, (ii) open market commercial paper of any corporation
incorporated under the laws of the United States of America or any State
thereof rated at least P-2 or its equivalent by Moody's Investors Service,
Inc. or at least A-2 or its equivalent by Standard & Poor's Ratings
Services (including the Trustee if such conditions are met), (iii)
certificates of deposit issued by commercial banks organized under the laws
of the United States or of any political subdivision thereof having a
combined capital and surplus in excess of $500,000,000, which banks or
their holding companies have a rating of A or its equivalent by Moody's
Investors Service, Inc. or A2 or its equivalent by Standard & Poor's
Ratings Services (including the Trustee if such conditions are met);
provided, however, that the aggregate amount at any one time so
-------- -------
invested in certificates of deposit issued by any one bank shall not exceed
5% of such bank's capital and surplus, (iv) U.S. dollar denominated
offshore certificates of deposit issued by, or offshore time deposits with,
any commercial bank described in (iii) or any subsidiary thereof and (v)
repurchase agreements with any financial institution having combined
capital and surplus of at least $500,000,000 (including the Trustee if such
conditions are met) with any of the obligations described in clauses (i)
through (iv) as collateral; provided further that if all of the above
-------- -------
investments are unavailable, the entire amounts to be invested may be used
to purchase Federal Funds from an entity described in clause (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 on or before the Special Distribution Date next following the
Cut-off Date for such Trust by more than 20 days.
Transfer Date: Has the meaning assigned to that term or any of the
-------------
terms "Delivery Date", "Funding Date" or "Closing Date" in a Note Purchase
Agreement.
Trust: With respect to the Certificates of any series, means the
-----
related trust created by a Trust Supplement.
Trust Indenture Act: Except as otherwise provided in Section 9.6,
-------------------
means the Trust Indenture Act of 1939, as amended.
Trust Property: With respect to any Trust, means the Secured Notes
--------------
held as the property of such Trust and all monies at any time paid thereon
and all monies due and to become due thereunder, debt instruments issued by
the Guarantor or by an Applicable Company (and guaranteed by the Guarantor)
in accordance with the first paragraph of Section 2.2(b), funds from time
to time deposited in the related Escrow Account, the
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related Certificate Account and the related Special Payments Account and
any proceeds from the sale by the Trustee pursuant to Article VI hereof of
any such Secured Note.
Trust Supplement: Means an agreement supplemental hereto pursuant to
----------------
which (i) a separate Trust is created for the benefit of the Holders of the
Certificates of a series, (ii) the issuance of the Certificates of such
series representing fractional undivided interests in such Trust is
authorized and (iii) the terms of the Certificates of such series are
established, as such agreement may from time to time be supplemented,
amended or modified.
Trustee: In respect of each Trust, means each of the institution or
-------
institutions executing this Basic Agreement and the applicable Trust
Supplement as Trustee, or its successor in interest, and any successor
trustee appointed as provided herein.
Section 1.2. Compliance Certificates and Opinions. Upon any
------------------------------------
application or request by any Company, the Guarantor, any Owner Trustee or any
Loan Trustee to the Trustee to take any action under any provision of this Basic
Agreement or, in respect of the Certificates of any series, this Agreement, such
Company, the Guarantor, such Owner Trustee or such Loan Trustee, as the case may
be, shall furnish to the Trustee an Officer's Certificate stating that, in the
opinion of the signers, all conditions precedent (including any covenants
compliance with which constitutes a condition precedent), if any, provided for
in this Basic Agreement or, in respect of any Series, this 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 (including any
covenants compliance with which constitutes a condition 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 Basic Agreement or, in respect of any Series, this 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 Basic Agreement or, in respect of the
Certificates of any series, this Agreement (other than a certificate provided
pursuant to Section 8.4(d)) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions in this
Basic Agreement or this Agreement 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
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(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 1.3. 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. Any certificate
or opinion of an officer of the Guarantor or any Company may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Guarantor or Applicable
Company stating that the information with respect to such factual matters is in
the possession of such Company unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Basic Agreement or, in respect of the Certificates of any
series, this Agreement, they may, but need not, be consolidated and form one
instrument.
Section 1.4. Acts of Certificateholders. (a) Any direction,
--------------------------
consent, waiver or other action provided by this Agreement in respect of the
Certificates of any series to be given or taken by Certificateholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Certificateholders in person or by an agent or proxy 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 pursuant to this
Agreement, to the Applicable Company or any Loan Trustee. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Certificateholders 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
Agreement and conclusive in favor of the Trustee, the Guarantor, the Applicable
Company and the related Loan 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
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<PAGE>
jurisdiction authorized to take acknowledgments 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 Certificateholders of the requisite
Fractional Undivided Interests of Certificates of any series Outstanding have
given any direction, consent or waiver (a "Direction"), under this Agreement,
Certificates owned by the Guarantor, any Company, any related Owner Trustee,
any related Owner Participant or any Affiliate of any such Person shall be
disregarded and deemed not to be Outstanding for purposes of any such
determination. In determining whether the Trustee shall be protected in relying
upon any such Direction, only Certificates that the Trustee knows to be so owned
shall be so disregarded. Notwithstanding the foregoing, (i) if any such Person
owns 100% of the Certificates of any series Outstanding, such Certificates shall
not be so disregarded as aforesaid, and (ii) if any amount of Certificates of
such series 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 the Guarantor, or a Company, any
related Owner Trustee, any related Owner Participant or any Affiliate of any
such Person.
(d) The Applicable Company may at its option by delivery of an
Officer's Certificate to the Trustee set a record date to determine the
Certificateholders in respect of the Certificates of any series entitled to give
any consent, request, demand, authorization, direction, notice, waiver or other
action. Notwithstanding Section 316(c) of the Trust Indenture Act, such record
date shall be the record date specified in such Officer's Certificate, which
shall be a date not more than 15 days prior to the first solicitation of
Certificateholders in connection therewith. If such a record date is fixed,
such consent, request, demand, authorization, direction, notice, waiver or other
action may be given before or after such record date, but only the
Certificateholders of record of the applicable series at the close of business
on such record date shall be deemed to be Certificateholders for the purposes of
determining whether Certificateholders of the requisite proportion of
Outstanding Certificates of such series have authorized or agreed or consented
to such consent, request, demand, authorization, direction, notice, waiver or
other action, and for that purpose the Outstanding Certificates of such series
shall be computed as of such record date; provided that no such consent,
--------
request, demand, authorization, direction, notice, waiver or other action by the
Certificateholders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Agreement not later than one
year after the record date.
(e) Any request, demand, authorization, notice, direction, consent,
waiver or other action by the Certificateholder of any Certificate shall bind
the Certificateholder of every
13
<PAGE>
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.
(f) Except as otherwise provided in Section 1.4(c), Certificates of
any series owned by or pledged to any Person shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority, or distinction as among all of the Certificates of such
series.
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF SECURED NOTES
Section 2.1. Amount Unlimited, Issuable in Series. (a) The
------------------------------------
aggregate principal amount of Certificates that may be authenticated and
delivered under this Basic Agreement is unlimited. The Certificates may be
issued from time to time in one or more series and shall be designated generally
as the "Pass Through Certificates", with such further designations added or
incorporated in such title for the Certificates of each series as specified in
the related Trust Supplement. Each Certificate shall bear upon its face the
designation so selected for the series to which it belongs. All Certificates of
the same series shall be substantially identical except that the Certificates of
a series may differ as to denomination and as may otherwise be provided in the
Trust Supplement establishing the Certificates of such series. Each series of
Certificates issued pursuant to this Agreement will evidence Fractional
Undivided Interests in the related Trust and will have no rights, benefits or
interests in respect of any other Trust or the Trust Property held therein. All
Certificates of the same series shall be in all respects equally and ratably
entitled to the benefits of this Agreement without preference, priority or
distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions of this Agreement.
(b) The following matters shall be established with respect to the
Certificates of each series issued hereunder by a Trust Supplement executed and
delivered by and among the Guarantor, the Applicable Company and the Trustee:
(1) the formation of the Trust as to which the Certificates of such
series represent Fractional Undivided Interests and its designation (which
designation shall distinguish such Trust from each other Trust created
under this Basic Agreement and a Trust Supplement);
(2) the specific designation and title of the Certificates of such
series (which title shall distinguish the Certificates of such series from
each other series of Certificates created under this Basic Agreement and a
Trust Supplement);
14
<PAGE>
(3) any limit upon the aggregate principal amount of the Certificates
of such series that may be authenticated and delivered (which limit shall
not pertain to Certificates authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Certificates of
the series pursuant to Sections 3.3, 3.4 and 3.5);
(4) the Cut-off Date with respect to the Certificates of such series
and the related Trust;
(5) the Regular Distribution Dates applicable to the Certificates of
such series and the related Trust;
(6) the Special Distribution Dates applicable to the Certificates of
such series and the related Trust;
(7) if other than as provided in Section 3.4 or 7.11(b), the
Registrar or the Paying Agent for the Certificates of such series,
including any Co-Registrar or additional Paying Agent;
(8) if other than as provided in Section 3.1, the denominations in
which the Certificates of such series shall be issuable and, if other than
United States dollars, the currency or currencies (including currency
units) thereof;
(9) the specific form of the Certificates of such series (including
the interest rate applicable thereto) and whether or not Certificates of
such series are to be issued as Book-Entry Certificates and, if such
Certificates are to be Book-Entry Certificates, the form of Letter of
Representations, if any;
(10) a description of the related Secured Notes to be acquired and
held in the related Trust and of the related Property and the related Note
Documents, including whether or not such Secured Notes are senior or
subordinate to any other Secured Notes and if so, the terms and conditions
pursuant to which such Secured Notes are senior to or subordinate to other
Secured Notes or other debt secured by the Property;
(11) provisions with respect to the terms for which the definitions
set forth in Article I hereof or the terms of Section 9.1 hereof permit or
require further specification in the related Trust Supplement;
(12) any restrictions (including legends) in respect of ERISA;
(13) whether such series will be subject to any intercreditor
agreement, liquidity or credit facility or other agreement or instrument;
(14) any other terms of the Certificates of such series (which terms
shall not be inconsistent with the provisions of the Trust Indenture Act),
including any terms that
15
<PAGE>
may be required or advisable under United States laws or regulations or
advisable in connection with the marketing of Certificates of such series;
(15) the extent, if any, to which the Guarantor or the Applicable
Company may acquire Certificates and deliver such Certificates or cash to
the respective Trusts and obtain the release of Secured Notes held by such
Trusts; and
(16) whether the Certificates are issuable as bearer instead of
registered Certificates or both, and the terms upon which bearer
Certificates may be exchanged for registered Certificates.
(c) At any time and from time to time after the execution and delivery
of this Basic Agreement and a Trust Supplement forming a Trust and establishing
the terms of Certificates of a series, Certificates of such series shall be
executed, authenticated and delivered by the Trustee to the Person or Persons
specified by the Applicable Company upon request of the Applicable Company and
upon satisfaction of any conditions precedent set forth in such Trust Supplement
or in any other document to which a Trustee is a party relating to the issuance
of the Certificates of such series.
Section 2.2. Acquisition of Secured Notes. (a) Unless otherwise
----------------------------
specified in the related Trust Supplement, on or prior to the Issuance Date of
the Certificates of a series, the Trustee shall execute and deliver the related
Note Purchase Agreements in the forms delivered to the Trustee by the Applicable
Company. The Trustee shall issue and sell such Certificates, 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 purchase price of
Secured Notes to be held in the applicable Trust as specified in the related
Note Purchase Agreements and, concurrently therewith, the Trustee shall
purchase, pursuant to the terms and conditions of such Note Purchase Agreements,
the Secured Notes (except Postponed Notes, if any) at a purchase price equal to
the amount of such consideration so received. Except as provided in Sections
3.3, 3.4 and 3.5 hereof, the Trustee shall not execute, authenticate or deliver
Certificates of such series in excess of the aggregate amount specified in this
paragraph. The provisions of this Subsection (a) are subject to the provisions
of Subsection (b) below.
(b) If on or prior to the Issuance Date with respect to a series of
Certificates the Applicable Company shall deliver to the Trustee a Postponement
Notice relating to one or more Postponed Notes, the Trustee shall postpone the
purchase of such Postponed Notes and shall deposit into an escrow account (as to
such Trust, the "Escrow Account") to be maintained as a part of the related
Trust an amount equal to the purchase price of such Postponed Notes (the
"Escrowed Funds"). The Escrowed Funds so deposited shall be (i) invested by the
Trustee at the direction and risk of the Applicable Company in Specified
Investments or (ii) if provided in the Trust Supplement relating to such series
of Certificates and subject to the terms and conditions set forth therein,
invested in debt instruments of the Guarantor or the Applicable Company (and
guaranteed by the Guarantor), in each case (x) maturing no later than any
scheduled Transfer Date relating to such series of Certificates, or (y) if no
such Transfer Date
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<PAGE>
has been scheduled, maturing on the next Business Day, or (z) if subsequent to
the giving of the applicable Postponement Notice the Applicable Company has
given notice to the Trustee that any Postponed Notes will not be issued,
thereafter with respect to the portion of the Escrowed Funds relating to such
Postponed Notes, maturing on or before the next applicable Special Distribution
Date, if such investments are reasonably available for purchase. The Trustee
shall make withdrawals from the Escrow Account only as provided in this
Agreement. Upon request of the Applicable Company on one or more occasions and
the satisfaction of the closing conditions specified in the applicable Note
Purchase Agreements on or prior to the related Cut-off Date, the Trustee shall
purchase the applicable Postponed Notes with the Escrowed Funds withdrawn from
the Escrow Account.
The Trustee shall hold all Specified Investments until the maturity
thereof and will not sell or otherwise transfer Specified Investments. If
Specified Investments held in an Escrow Account mature prior to any applicable
Transfer Date, any proceeds received on the maturity of such Specified
Investments (other than any earnings thereon) shall be reinvested by the Trustee
at the direction and risk of, and for the benefit of, the Applicable Company in
Specified Investments maturing as provided in the preceding paragraph.
Any earnings on Specified Investments received from time to time by
the Trustee shall be distributed to the Applicable Company periodically upon its
demand, or if not so distributed, reinvested by the Trustee in Specified
Investments maturing as provided in the applicable Trust Supplement or in the
second preceding paragraph. The Applicable Company shall pay to the Trustee for
deposit to the relevant Escrow Account an amount equal to any losses incurred on
such Specified Investments made at the direction and risk of such Applicable
Company. On the Initial Regular Distribution Date in respect of the
Certificates of any series, the Applicable Company will pay (in immediately
available funds) to the Trustee an amount equal to the interest that would have
accrued on those Postponed Notes related to such Applicable Company, if any,
purchased after the Issuance Date as if such Postponed Notes had been purchased
on the Issuance Date, from the Issuance Date to, but not including, the date of
the purchase of such Postponed Notes by the Trustee, but only to the extent such
accrued interest would be payable on the next succeeding payment date, unless
otherwise specified in the related Trust Supplement.
If, in respect of the Certificates of any series, the Applicable
Company notifies the Trustee prior to the applicable Cut-off Date that any
Postponed Notes will not be issued on or prior to such Cut-off Date for any
reason, on the next Special Distribution Date for such Certificates occurring
more than 20 days following the date of such notice, unless otherwise specified
in the related Trust Supplement, (i) the Applicable Company shall pay to the
Trustee for deposit in the related Special Payments Account, in immediately
available funds, an amount equal to the interest that would have accrued on the
Postponed Notes related to such Applicable Company designated in such notice at
a rate equal to the interest rate applicable to such Certificates from the
Issuance Date to, but not including, such Special Distribution Date and (ii) the
Trustee shall transfer an amount equal to the sum of that amount of Escrowed
Funds that would have been used to purchase the Postponed Notes designated in
such notice plus the
17
<PAGE>
amount paid by such Applicable Company pursuant to the immediately preceding
clause (i) to the related Special Payments Account for distribution as a Special
Payment in accordance with the provisions hereof.
If, on such Cut-off Date, an amount equal to less than all of the
Escrowed Funds (other than Escrowed Funds referred to in the immediately
preceding paragraph) has been used to purchase Postponed Notes, on the next such
Special Distribution Date occurring more than 20 days following such Cut-off
Date, unless otherwise specified in the related Trust Supplement, (i) the
Applicable Company shall pay to the Trustee for deposit in such Special Payments
Account, in immediately available funds, an amount equal to the interest that
would have accrued on such Postponed Notes related to such Applicable Company
contemplated to be purchased with such unused Escrowed Funds (other than
Escrowed Funds referred to in the immediately preceding paragraph) but not so
purchased at a rate equal to the interest rate applicable to such Certificates
from the Issuance Date to, but not including, such Special Distribution Date and
(ii) the Trustee shall transfer the sum of such unused Escrowed Funds plus the
amount paid by such Applicable Company pursuant to the immediately preceding
clause (i) to such Special Payments Account for distribution as a Special
Payment in accordance with the provisions hereof.
If the Applicable Company shall fail to make any payment due under
this Section 2.2, the Guarantor agrees to make such payment in its place.
Section 2.3. Acceptance by Trustee. The Trustee, upon the execution
---------------------
and delivery of a Trust Supplement creating a Trust and establishing a series of
Certificates, shall acknowledge its acceptance of all right, title, and interest
in and to the Secured Notes to be acquired pursuant to Section 2.2 hereof and
the Note Purchase Agreements and shall declare that the Trustee holds and will
hold such right, title, and interest, together with all other property
constituting the Trust Property of such Trust, for the benefit of all then
present and future Certificateholders of such series, upon the trusts herein and
in such Trust Supplement set forth. By its payment for and acceptance of each
Certificate of such series issued to it under this Agreement, each initial
Certificateholder of such series as grantor of such Trust shall thereby join in
the creation and declaration of such Trust.
Section 2.4. Limitation of Powers. Each Trust shall be constituted
--------------------
solely for the purpose of making the investment in the Secured Notes provided
for in the related Trust Supplement, and, except as set forth in Section 2.2(b)
or otherwise in this Agreement, the Trustee shall not be authorized or empowered
to acquire any other investments or engage in any other activities and, in
particular, the Trustee shall not be authorized or empowered to do anything that
would cause such Trust to fail to qualify as a "grantor trust" for federal
income tax purposes (including as subject to this restriction, acquiring any
Property by bidding such Secured Notes or otherwise, or taking any action with
respect to any such Property once acquired).
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<PAGE>
ARTICLE III
THE CERTIFICATES
Section 3.1. Form, Denomination and Execution of Certificates. The
------------------------------------------------
Certificates of each series shall be issued in registered form (except as
otherwise specified in the relevant Trust Supplement) without coupons and shall
be substantially in the form attached hereto as Exhibit A, with such omissions,
variations and insertions as are permitted by this Agreement, and may have such
letters, numbers or other marks of identification and such legends or
endorsements typed, printed, lithographed or engraved thereon, as may be
required to comply with the rules of any securities exchange on which such
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 in Section 3.9, the definitive Certificates of such
series shall be typed, 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 securities exchange on which such Certificates may be listed,
all as determined by the officer executing such Certificates, as evidenced by
his execution of such Certificates.
Except as otherwise provided in the related Trust Supplement, the
Certificates of each series shall be issued in minimum denominations of $1,000
or integral multiples thereof, except that one Certificate of such series may be
issued in a denomination of less than $1,000.
The Certificates of each series shall be executed on behalf of the
Trustee by manual or facsimile signature of a Responsible Officer of the
Trustee. Certificates of any series 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 of
any series shall be entitled to any benefit under this Agreement, or be valid
for any purpose unless there appears on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A hereto executed
by or on behalf of the Trustee by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates of any series shall be dated on the date of their
authentication.
Section 3.2. Authentication of Certificates. The Trustee shall duly
------------------------------
authenticate and deliver Certificates of each series in authorized denominations
equalling in the aggregate the aggregate principal amount of the Secured Notes
to be purchased by the Trustee pursuant to the related Note Purchase Agreements,
and evidencing the entire ownership of the related Trust.
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Section 3.3. Temporary Certificates. Pending the preparation of
----------------------
definitive Certificates of any series, the Trustee may execute, authenticate and
deliver temporary Certificates of such series that are printed, lithographed,
typewritten or otherwise produced, in any denomination, containing substantially
the same terms and provisions as set forth in Exhibit A hereto, 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 such officer's execution of such temporary
Certificates.
If temporary Certificates of any series are issued, the Trustee will
cause definitive Certificates of such series to be prepared without unreasonable
delay. After the preparation of definitive Certificates of such series, the
temporary Certificates shall be exchangeable for definitive Certificates upon
surrender of such temporary Certificates at the Corporate Trust Office of the
Trustee, or at the office or agency of the Trustee maintained in accordance with
Section 7.11, 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 like series, in
authorized denominations and 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 Agreement as definitive Certificates.
Section 3.4. Registration of Transfer and Exchange of Certificates.
-----------------------------------------------------
The Trustee shall cause to be kept at the office or agency to be maintained by
it in accordance with the provisions of Section 7.11 a register (the "Register")
for each series of Certificates in which, subject to such reasonable regulations
as it may prescribe, the Trustee shall provide for the registration of
Certificates of such series and of transfers and exchanges of such Certificates
as herein provided. The Trustee shall initially be the registrar (the
"Registrar") for the purpose of registering Certificates of each series and
transfers and exchanges of such Certificates as herein provided.
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 of like series, in authorized
denominations of a like aggregate Fractional Undivided Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of like series, in authorized denominations and of a like
aggregate Fractional Undivided Interest, upon surrender of the Certificates to
be exchanged at the Corporate Trust Office or 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 Certificateholder thereof or its
attorney duly authorized in writing.
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No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Certificates, but the Trustee shall
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee.
Section 3.5. 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 or
Certificates of like series, in authorized denominations and of like Fractional
Undivided Interest. In connection with the issuance of any new Certificate
under this Section 3.5, 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 3.5 shall constitute conclusive evidence of the
appropriate Fractional Undivided Interest in the related Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
Section 3.6. Persons Deemed Owners. Prior to due presentation of a
---------------------
Certificate for registration of transfer, the Guarantor, the Applicable Company,
the Trustee, the Registrar, and any Paying Agent of the Trustee may treat the
Person in whose name any Certificate is registered on the Register as the owner
of such Certificate for the purpose of receiving distributions pursuant to
Section 4.2 and for all other purposes whatsoever, and neither the Guarantor,
the Applicable Company, the Trustee, the Registrar, nor any Paying Agent of the
Trustee shall be affected by any notice to the contrary.
Section 3.7. Cancellation. All Certificates surrendered for payment
------------
or registration of transfer or exchange shall, if surrendered to any Person
party hereto or any agent of the Trustee other than the Registrar, be delivered
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 Agreement. All cancelled
Certificates held by the Registrar shall be destroyed and a certification of
their destruction delivered to the Trustee.
Section 3.8. Limitation of Liability. All payments or distributions
-----------------------
made to Certificateholders of any series under this Basic Agreement and the
related Trust Supplement shall be made only from the Trust Property of the
related Trust and only to the extent that the Trustee shall have sufficient
income or proceeds from such Trust Property to make such
21
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payments in accordance with the terms of Article IV of this Agreement. Each
Certificateholder, by its acceptance of a Certificate, agrees that it will look
solely to the income and proceeds from the Trust Property of the related Trust
to the extent available for distribution to such Certificateholder as provided
in this Agreement.
Nothing in this Agreement shall be construed as an agreement, or
otherwise creating an obligation, of the Guarantor or any Applicable Company 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. The Guarantor and
each Company are parties to this Agreement solely for purposes of meeting the
requirements of the Trust Indenture Act, and therefore shall not be liable
hereunder (except as otherwise expressly provided herein).
Section 3.9. Book-Entry and Definitive Certificates. (a) Except for
--------------------------------------
one Certificate of each series that may be issued in a denomination of less than
$1,000, the Certificates of any series may, at the sole option of the Applicable
Company, be issued in the form of one or more typewritten Certificates
representing the Book-Entry Certificates of such series, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on behalf of, the
Applicable Company. In such case, the Certificates of such series delivered to
The Depository Trust Company shall initially be registered on the Register in
the name of CEDE & Co., the nominee of the initial Clearing Agency, and no
Certificate Owner will receive a definitive certificate representing such
Certificate Owner's interest in the Certificates of such series, except as
provided above and in Subsection (d) below. As to the Certificates of any
series, except with respect to the one Certificate of such series that may be
issued in a denomination of less than $1,000, unless and until definitive, fully
registered Certificates of such series (the "Definitive Certificates") have been
issued pursuant to Subsection (d) below:
(i) the provisions of this Section 3.9 shall be in full force and
effect;
(ii) the Guarantor, the Applicable Company, the Paying Agent, the
Registrar and the Trustee may deal with the Clearing Agency for all
purposes (including the making of distributions on the Certificates) as the
authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.9 conflict
with any other provisions of this Agreement (other than the provisions of
any Trust Supplement amending this Section 3.9 as permitted by this Basic
Agreement), the provisions of this Section 3.9 shall control;
(iv) the rights of Certificate Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law and
agreements between such Certificate Owners and the Clearing Agency
Participants; and until Definitive Certificates are issued pursuant to
Subsection (d) below, the Clearing Agency will make book-entry transfers
among the Clearing Agency Participants and receive and transmit
22
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distributions of principal and interest and premium, if any, on the
Certificates to such Clearing Agency Participants;
(v) such Certificates of such series may be transferred in whole, but
not in part, and in the manner provided in Section 3.4 by the Clearing
Agency holding such Certificates to a nominee of such Clearing Agency or by
such Clearing Agency to a successor Clearing Agency selected or approved by
the Applicable Company upon notice to the Trustee or to a nominee of such
successor Clearing Agency; and
(vi) whenever this Agreement requires or permits actions to be taken
based upon instructions or directions of Certificateholders of such series
holding Certificates of such series evidencing a specified percentage of
the Fractional Undivided Interests in the related Trust, the Clearing
Agency shall be deemed to represent such percentage only to the extent that
it has received instructions to such effect from Certificate Owners and/or
Clearing Agency Participants owning or representing, respectively, such
required percentage of the beneficial interest in Certificates of such
series and has delivered such instructions to the Trustee. The Trustee
shall have no obligation to determine whether the Clearing Agency has in
fact received any such instructions.
(b) Except with respect to the one Certificate of each series that may
be issued in a denomination of less than $1,000, whenever notice or other
communication to the Certificateholders of such series is required under this
Agreement, unless and until Definitive Certificates shall have been issued
pursuant to Subsection (d) below, the Trustee shall give all such notices and
communications specified herein to be given to Certificateholders of such series
to the Clearing Agency and/or the Clearing Agency Participants, and shall make
available additional copies as requested by such Clearing Agency Participants.
(c) Unless and until Definitive Certificates of a series are issued
pursuant to Subsection (d) below, on the Record Date prior to each applicable
Regular Distribution Date and Special Distribution Date, the Trustee will
request from the Clearing Agency a securities position listing setting forth the
names of all Clearing Agency Participants reflected on the Clearing Agency's
books as holding interests in the Certificates of such series on such Record
Date. The Trustee shall mail to each such Clearing Agency Participant the
statements described in Section 4.3 hereof and will make available additional
copies as requested by such Clearing Agency Participant for forwarding by such
Clearing Agency Participant to Certificate Owners.
(d) If with respect to the Book-Entry Certificates of any series (i)
the Applicable Company advises the Trustee in writing that the Clearing Agency
is no longer willing or able to properly discharge its responsibilities and the
Trustee or the Applicable Company is unable to locate a qualified successor or
(ii) the Applicable Company, at its option, advises the Trustee in writing of
its election to terminate the book-entry system through the Clearing Agency in
respect of the Certificates or (iii) after the occurrence of an Event of
Default, Certificate Owners of Book-Entry Certificates of such series evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in the related Trust advise the Applicable
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Company, the Trustee and the Clearing Agency through the Clearing Agency
Participants in writing that the continuation of a book-entry system through the
Clearing Agency is no longer in the best interests of the Certificate Owners of
such series, then the Trustee shall notify all Certificate Owners of such
series, through the Clearing Agency, of the occurrence of such event and of the
availability of Definitive Certificates. Upon surrender to the Trustee of all
the Certificates of such series held by the Clearing Agency, accompanied by
written registration instructions from the Clearing Agency for registration of
Definitive Certificates in the names of Certificate Owners of such series, the
Trustee shall execute, authenticate and deliver the Definitive Certificates of
such series pursuant to Section 3.4 in accordance with the instructions of the
Clearing Agency. Neither the Guarantor, any Company, the Registrar, the Paying
Agent nor the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such registration instructions. Upon the authentication and delivery of
Definitive Certificates of such series, the Trustee shall recognize the Persons
in whose name the Definitive Certificates are registered in the Register as
Certificateholders hereunder. None of the Applicable Company, the Guarantor and
the Trustee shall be liable if the Trustee or the Applicable Company is unable
to locate a qualified successor Clearing Agency.
(e) Except as otherwise provided in the related Trust Supplement, the
Trustee shall enter into the applicable Letter of Representations with respect
to such series of Certificates and fulfill its responsibilities thereunder.
(f) The provisions of this Section 3.9 may be made inapplicable to any
series or may be amended with respect to any series in the related Trust
Supplement.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.1. Certificate Account and Special Payments Account. (a)
------------------------------------------------
The Trustee shall establish and maintain on behalf of the Certificateholders of
each series a Certificate Account as one or more non-interest-bearing accounts.
The Trustee shall hold the Certificate Account in trust for the benefit of the
Certificateholders of such series, and shall make or permit withdrawals
therefrom only as provided in this Agreement. On each day when a Scheduled
Payment is made under an Indenture to the Trustee, the Trustee, as holder of the
Secured Notes issued under such Indenture and held in the related Trust, upon
receipt shall immediately deposit the aggregate amount of such Scheduled Payment
in the applicable Certificate Account.
(b) The Trustee shall establish and maintain on behalf of the
Certificateholders of each series a Special Payments Account as one or more
accounts, which shall be non-interest bearing except as provided in Section 4.4.
The Trustee shall hold the Special Payments Account in trust for the benefit of
the Certificateholders of such series, and shall make or permit
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withdrawals therefrom only as provided in this Agreement. On each day when one
or more Special Payments (other than a Special Payment that represents the
proceeds of any sale pursuant to Article VI hereof by the Trustee of a Secured
Note) are made under the Indenture to the Trustee, as holder of the Secured
Notes issued under such Indenture and held in the related Trust or pursuant to
the penultimate and antepenultimate paragraphs of Section 2.2(b), the Trustee
upon receipt shall immediately deposit the aggregate amounts of such Special
Payments in such Special Payments Account. Upon the sale of Secured Notes 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 applicable Special Payments Account.
(c) The Trustee shall present to the Loan Trustee to which a Secured
Note held in a related Trust relates such Secured Note on the date of its stated
final maturity or, in the case of any Secured Note held in a related Trust that
is to be redeemed or purchased in whole pursuant to the relevant Indenture, on
the applicable redemption or purchase date under such Indenture.
Section 4.2. Distributions from Certificate Account and Special
--------------------------------------------------
Payments Account. (a) On each Regular Distribution Date with respect to a
- ----------------
series of Certificates or as soon thereafter as the Trustee has confirmed
receipt of the payment of the Scheduled Payments due on the Secured Notes held
in the related Trust on such date, the Trustee shall distribute out of the
applicable Certificate Account the entire amount deposited therein pursuant to
Section 4.1 (a). There shall be so distributed to each Certificateholder of
record of such series on the Record Date with respect to such Regular
Distribution Date (other than as provided in Section 11.1 concerning the final
distribution) by check mailed to such Certificateholder at the address appearing
in the Register such Certificateholder's pro rata share (based on the aggregate
Fractional Undivided Interest in the related Trust held by such
Certificateholder) of the aggregate amount in the applicable Certificate
Account.
(b) On each Special Distribution Date with respect to any Special
Payment with respect to a series of Certificates or as soon thereafter as the
Trustee has confirmed receipt of such Special Payment due on the Secured Notes
held in the related Trust or realized upon the sale of any such Secured Notes,
the Trustee shall distribute out of the applicable Special Payments Account the
entire amount deposited therein pursuant to Section 4.1(b) of such Special
Payment. There shall be so distributed to each Certificateholder of record of
such series on the Record Date with respect to such Special Distribution Date
(other than as provided in Section 11.1 concerning the final distribution) by
check mailed to such Certificateholder at the address appearing in the Register
such Certificateholder's pro rata share (based on the aggregate Fractional
Undivided Interest in the related Trust held by such Certificateholder) of the
aggregate amount in the applicable Special Payments Account on account of such
Special Payment.
(c) The Trustee shall, at the expense of the Applicable Company, cause
notice of each Special Payment with respect to a series of Certificates to be
mailed to each Certificateholder of such series at its address as it appears in
the Register. In the event of redemption or purchase of Secured Notes held in
the related Trust, such notice shall be mailed
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<PAGE>
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 11.1),
(ii) the amount of the Special Payment for each $1,000 face amount
Certificate (taking into account any payment to be made by the Applicable
Company pursuant to Section 2.2(b)) 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 Regular
Distribution Date for the Certificates of such series, the total amount to
be received on such date for each $1,000 face amount Certificate.
If the amount of premium, if any, payable upon the redemption or purchase of a
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 or purchase of the Secured Notes held in any Trust
is cancelled, the Trustee, as soon as possible after learning thereof, shall
cause notice thereof to be mailed to each Certificateholder of the related
series at its address as it appears on the Register.
Section 4.3. Statements to Certificateholders. (a) On each Regular
--------------------------------
Distribution Date and Special Distribution Date with respect to a series of
Certificateholders, the Trustee will include with each distribution to
Certificateholders of record of the related series on the Record Date with
respect to such Regular Distribution Date or Special Distribution Date 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 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 of the related Trust.
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(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 related
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 that a Certificateholder shall reasonably request as
necessary for the purpose of such Certificateholder's preparation of its Federal
income tax returns.
Section 4.4. Investment of Special Payment Moneys. Any money
------------------------------------
received by the Trustee pursuant to Section 4.1(b) representing a Special
Payment that is not to be promptly distributed shall, to the extent practicable,
be invested (and reinvested) in at the written direction of the Applicable
Company Permitted Investments by the Trustee pending distribution of such
Special Payment pursuant to Section 4.2. Any investment (including any
reinvestment) made pursuant to this Section 4.4 shall be in such Permitted
Investments having maturities not later than the date that such moneys are
required to be used to make the payment required under Section 4.2 on the
applicable Special Distribution Date and the Trustee shall hold any such
Permitted Investments until maturity. The Trustee shall have no liability with
respect to any investment made pursuant to this Section 4.4, 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
THE GUARANTOR AND THE COMPANIES
Section 5.1. Maintenance of Corporate Existence. The Guarantor and
----------------------------------
each Company, 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 (charter and statutory) and franchises, except as otherwise
specifically permitted in Section 5.2; provided, however, that neither the
-------- -------
Guarantor nor any Company 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.
Section 5.2. Consolidation, Merger, etc. Neither the Guarantor nor
--------------------------
any Company shall consolidate with or merge into any other corporation or
convey, transfer or lease substantially all of its assets as an entirety to any
Person unless:
(a) the corporation formed by such consolidation or into which the
Guarantor or such Company is merged or the Person that acquires by
conveyance, transfer or lease substantially all of the assets of the
Guarantor or such Company as an entirety shall be organized and validly
existing under the laws of the United States of America or any
27
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State thereof or the District of Columbia or, in the case of the Guarantor,
any other jurisdiction;
(b) the corporation formed by such consolidation or into which the
Guarantor or such Company is merged or the Person that acquires by
conveyance, transfer or lease substantially all of the assets of the
Guarantor or such Company as an entirety shall execute and deliver to the
Trustee an agreement containing an assumption by such successor corporation
or Person of the due and punctual performance and observance of each
covenant and condition to be performed or observed by the Guarantor or such
Company under this Agreement;
(c) the Guarantor or such Company shall have delivered to the Trustee
an Officer's Certificate and an Opinion of Counsel stating that such
consolidation, merger, conveyance, transfer or lease and the assumption
agreement mentioned in clause (b) above comply with this Section 5.2.
Upon any consolidation or merger, or any conveyance, transfer or lease
of substantially all of the assets of the Guarantor or a Company as an entirety
in accordance with this Section 5.2, the successor corporation or Person formed
by such consolidation or into which the Guarantor or such Company 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 Guarantor or
such Company under this Agreement applicable to the Certificates of each series
with the same effect as if such successor corporation or Person had been named
as the Guarantor or such Company herein.
Section 5.3. Right of Guarantor to Act. The Guarantor shall be
-------------------------
entitled, without further confirmation by any Company, to take, give or make on
behalf of any Company any action, direction or Request under this Basic
Agreement or this Agreement that may be taken, given or made by such Company.
ARTICLE VI
DEFAULT
Section 6.1. Events of Default. If, in respect of any Trust, any
-----------------
Indenture Event of Default under any related Indenture shall occur and be
continuing, then, and in each and every case, so long as such Indenture Event of
Default shall be continuing, (a) the Trustee may vote all Secured Notes issued
under the relevant Indenture held in such Trust, and upon the direction of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests in such Trust aggregating not less than a majority in interest in such
Trust, the Trustee shall vote not less than a corresponding majority of such
Secured Notes, in favor of directing the Loan Trustee under such Indenture to
declare the unpaid principal amount of such Secured Notes then outstanding to
which such Indenture Event of Default relates and accrued interest thereon to be
28
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due and payable under, and in accordance with the provisions of, such Indenture,
and (b) the Trustee may in accordance with the provisions of the relevant
Indenture vote such Secured Notes held in such Trust to direct the Loan Trustee
regarding the exercise of remedies provided in such Indenture.
In addition, after an Indenture Event of Default shall have occurred
and be continuing with respect to any Secured Note or Secured Notes held in a
Trust, the Trustee thereof may, subject to Section 6.4, in its discretion, and
upon the direction of the Certificateholders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in such Trust shall, by such officer or agent as it may appoint, 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, in accordance with applicable law, including any
applicable securities laws, and the terms of the applicable Note Documents, 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 such 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 at
the best price obtainable under the circumstances. Notwithstanding the
foregoing, the Trustee shall not take any action under this Section unless, in
the reasonable judgment of the Trustee, such action shall not be adverse to the
best interests of the Certificateholders of the applicable series.
Section 6.2. Incidents of Sale of Secured Notes. Upon any sale of
----------------------------------
all or any part of the Secured Notes held in a Trust made either under the power
of sale given under this Agreement or otherwise for the enforcement of this
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 such Secured Notes, and
upon compliance with the terms of sale, may hold, retain, possess and
dispose of such Secured Notes in its own absolute right without further
accountability.
(2) Receipt of Trustee Shall Discharge Purchaser. The receipt of the
--------------------------------------------
Trustee or of the officer or agent 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 its 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.
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(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
Agreement or otherwise for the enforcement of this Agreement shall be
applied as provided in Section 4.2.
Section 6.3. Judicial Proceedings Instituted by Trustee, 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 held in a Trust 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 applicable 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 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.
Section 6.4. Control by Certificateholders. Subject to Section 6.3,
-----------------------------
the Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the related Trust
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee with respect to such Trust,
or exercising any trust or power conferred on the Trustee under this Agreement,
including any right of the Trustee as holder of the related Secured Notes held
in such Trust, provided that:
--------
(1) such direction shall not be in conflict with any rule of law or
with this Agreement or the terms of the applicable Note Documents 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 of such series not taking
part in such direction,
(3) the Trustee may take any other action permitted by this Agreement
deemed proper by the Trustee that is not inconsistent with such direction,
and
(4) if an Indenture Event of Default under a related Indenture 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 related
Loan Trustee with respect to such Indenture Event of Default.
Section 6.5. Waiver of Past Defaults. The Certificateholders holding
-----------------------
Certificates of a series evidencing Fractional Undivided Interests aggregating
not less than a majority in interest in the related Trust may on behalf of all
of the Certificateholders of such series waive any past default or Event of
Default hereunder or under the related Trust Supplement with
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respect to such series and its consequences or may instruct the Trustee to waive
any past default under any related Indenture or this Agreement or the related
Trust Supplement with respect to such series and its consequences, except a
default:
(1) in the deposit of any Scheduled Payment or Special Payment under
Section 4.1 or in the distribution of any payment under Section 4.2 on the
Certificates of such series, or
(2) in the payment of the principal of (premium, if any) or interest
on the Secured Notes, or
(3) in respect of a covenant or provision hereof that under Article IX
hereof cannot be modified or amended without the consent of each
Certificateholder holding an Outstanding Certificate of such series
affected.
Upon any such waiver, such default shall cease to exist with respect
to the Certificates of such series and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose in respect of such series
and any direction given by the Trustee on behalf of the Certificateholders of
such series to the relevant Loan 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 relevant Indenture held in
the applicable Trust to waive the corresponding Indenture Event of Default (and,
if applicable, the corresponding Lease default).
Section 6.6. Right of Certificateholders to Receive Payments Not to
------------------------------------------------------
Be Impaired. Anything in this Agreement to the contrary notwithstanding,
- -----------
including without limitation Section 6.7, the right of any Certificateholder to
receive distributions of payments required pursuant to Section 4.2 on the
applicable Certificates when due, or to institute suit for the enforcement of
any such payment on or after the applicable Regular Distribution Date or Special
Distribution Date, shall not be impaired or affected without the consent of such
Certificateholder.
Section 6.7. Certificateholders May Not Bring Suit Except Under
--------------------------------------------------
Certain Conditions. A Certificateholder of any series shall not have the right
- ------------------
to institute any suit, action or proceeding at law or in equity or otherwise
with respect to this Agreement, for the appointment of a receiver or for the
enforcement of any other remedy under this Agreement, unless:
(1) such Certificateholder previously shall have given written notice
to the Trustee of a continuing Event of Default;
(2) the Certificateholders holding Certificates of such series
evidencing Fractional Undivided Interests aggregating not less than 25% of
the related Trust shall
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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 7.2(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 holding
Certificates of such series evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in the related Trust.
It is understood and intended that no one or more of the
Certificateholders of any series shall have any right in any manner whatever
hereunder or under the related Trust Supplement or under the Certificates of
such series to (i) surrender, impair, waive, affect, disturb or prejudice any
property in the Trust Property of the related Trust or the lien of any related
Indenture on any property subject thereto, or the rights of the
Certificateholders of such series or the holders of the related Secured Notes,
(ii) obtain or seek to obtain priority over or preference to any other such
Certificateholder of such series or (iii) enforce any right under this
Agreement, except in the manner herein provided and for the equal, ratable and
common benefit of all the Certificateholders of such series subject to the
provisions of this Agreement.
Section 6.8. Remedies Cumulative. Every remedy given hereunder to
-------------------
the Trustee or to any of the Certificateholders of any series 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.
Section 6.9. Undertaking to Pay Court Costs. All parties to this
------------------------------
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
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 not apply to (a) any suit,
- -------
action or proceeding instituted by any Certificateholder or group of
Certificateholders of any series evidencing Fractional Undivided Interests
aggregating more than 10% of the related Trust, (b) any suit, action or
proceeding instituted by any Certificateholder for the enforcement of the
distribution of payments pursuant to Section 4.2 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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ARTICLE VIII
THE TRUSTEE
Section 7.1. Notice of Defaults. As promptly as practicable after,
------------------
and in any event within 90 days after, the occurrence of any default (as such
term is defined below) hereunder, the Trustee shall transmit by mail to the
Applicable Company, the Guarantor, any related Owner Trustees, the related Loan
Trustees and the Certificateholders holding Certificates of the related series
in accordance with Section 313(c) of the Trust Indenture Act, notice of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided that, in the case of defaults not relating to the
--------
payment of money, the Trustee shall not give such notice until the earlier of
the time at which such default becomes an Event of Default and the expiration of
60 days from the occurrence of such default; 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 of the related series. For the purpose of this Section in
respect of any Trust, the term "default" means any event that is, or after
notice or lapse of time or both would become, an Event of Default in respect of
that Trust.
Section 7.2. Certain Rights of Trustee. Subject to the provisions of
-------------------------
Section 315 of the Trust Indenture Act:
(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 the Guarantor or a Company mentioned
herein shall be sufficiently evidenced by a Request;
(c) whenever in the administration of this 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 Officer's Certificate of the Guarantor or
Applicable Company, any related Owner Trustee, any related Owner
Participant or any related Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such
counsel or 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;
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(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Agreement at the request or direction of any
of the Certificateholders pursuant to this 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;
(g) the Trustee may execute any of the trusts or powers under this
Agreement or perform any duties under this Agreement 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 under this Agreement;
(h) 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 holding Certificates of any series evidencing
Fractional Undivided Interests aggregating not less than a majority in
interest in the related 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
Agreement;
(i) the Trustee shall not be required to expend or risk its own funds
in the performance of any of its duties under this Agreement, 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;
(j) except during the continuance of an Event of Default, the Trustee
undertakes and shall be responsible to perform only such duties as are
specifically set forth herein and no implied covenants or obligations shall
be read into this Agreement against the Trustee.
Section 7.3. Not Responsible for Recitals or Issuance of
-------------------------------------------
Certificates. The recitals contained herein and in the Certificates of each
series, 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 7.14, the Trustee makes no representations as
to the validity or sufficiency of this Basic Agreement or any Trust Supplement,
any Note Documents, any Note Purchase Agreement, any Secured Notes held in a
Trust or the Certificates of any series, except that the Trustee hereby
represents and warrants that this Basic Agreement or any Trust Supplement has
been, and each Trust Supplement and each Certificate of each series will be,
executed and delivered by one of its officers who is duly authorized to execute
and deliver such document on its behalf.
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Section 7.4. May Hold Certificates. The Trustee, any Paying Agent,
---------------------
Registrar or any of their Affiliates or any other agent, in their respective
individual or any other capacity, may become the owner or pledgee of
Certificates, and subject to Sections 310(b) and 311 of the Trust Indenture Act,
may otherwise deal with the Guarantor, any Company, any Owner Trustee or any
Loan Trustee with the same rights it would have if it were not Trustee, Paying
Agent, Registrar or such other agent.
Section 7.5. Money Held in Trust. Money held by the Trustee or the
-------------------
Paying Agent in trust hereunder or under any Trust Supplement 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 7.6. Compensation and Reimbursement. The Guarantor and the
------------------------------
Applicable Company agree:
(1) to pay, or cause to be paid, to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law with regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein or in any Trust
Supplement, 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 Basic Agreement or any Trust Supplement (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 7.14;
(3) to indemnify, or cause to be indemnified, the Trustee in its
individual capacity for, and to hold it harmless against, any loss,
liability or expense (other than for or with respect to any tax) incurred
without negligence, willful misconduct or bad faith, on its part, arising
out of or in connection with the acceptance or administration of any Trust,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder, except (i) for any such loss, liability or
expense incurred by reason of the Trustee's breach of its representations
and warranties set forth in Section 7.14 or in any Trust Supplement or the
Trustee's negligence or wilful misconduct and (ii) as provided in Section
7.16. The Trustee shall notify the Guarantor and the Applicable Company
promptly of any claim for which it may seek indemnity. The Guarantor or
the Applicable Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel with the
consent of the Guarantor or the Applicable Company and the Guarantor and
the Applicable Company will pay the
35
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reasonable fees and expenses of such counsel. Neither the Guarantor nor
any Company need pay for any settlement made without its 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
any Trust, including any costs and expenses incurred in contesting the
imposition of any such tax. The Trustee, in its individual capacity, shall
notify the Guarantor and the Applicable Company promptly of any tax for
which it may seek indemnity. The Guarantor or the Applicable Company
shall, if it so elects, 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 the Guarantor or the Applicable Company, and the Guarantor or
the Applicable Company will pay the reasonable fees and expenses of such
counsel. Neither the Guarantor nor any Company need indemnify any taxes
paid, in settlement or otherwise, without its consent.
In addition, the Trustee shall be entitled to reimbursement from, and
shall have a lien prior to the Certificates of each series upon, all property
and funds held or collected by the Trustee in its capacity as Trustee with
respect to such series or the related Trust for any tax (including any taxes
based on, or measured by the income or receipts of such Trust) incurred without
negligence, bad faith or willful misconduct, on its part, arising out of or in
connection with the acceptance or administration of such 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 from the Trust Property of such Trust for any
such tax it will within 30 days mail a brief report setting forth the
circumstances thereof to all Certificateholders of such series as their names
and addresses appear in the Register.
As security for the performance of the obligations of the Guarantor
and each Applicable Company under this Section with respect to each Trust, the
Trustee shall have a lien prior to the Certificates of the related series upon
all property and funds held or collected by the Trustee in its capacity as
Trustee with respect to such Certificates and the related Trust.
Section 7.7. Corporate Trustee Required, Eligibility. Each Trust
---------------------------------------
shall at all times have a Trustee which shall be eligible to act as a trustee
under Section 310(a) of the Trust Indenture Act and shall have a combined
capital and surplus of at least $75,000,000 (or having a combined capital and
surplus in excess of $1,000,000 and the obligations of which, whether now in
existence or hereafter incurred, are fully and unconditionally guaranteed by a
corporation organized and doing business under the laws of the United States,
any State or Territory thereof or of the District of Columbia and having a
combined capital and surplus of at least $75,000,000). If such corporation
publishes reports of conditions at least annually, pursuant to
36
<PAGE>
law or to the requirements of Federal, State, Territorial or District of
Columbia supervising or examining authority, then for the purposes of this
Section 7.7, 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 conditions to be published.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.7 to act as Trustee of any
Trust, the Trustee shall resign immediately as Trustee of such Trust in the
manner and with the effect specified in Section 7.8.
Section 7.8. Resignation and Removal, Appointment of Successor. (a)
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee of any Trust pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 7.9.
(b) The Trustee may resign at any time as trustee of any or all Trusts
by giving written notice thereof to the Guarantor, each Company, the Authorized
Agents, the related Owner Trustees, if any, and the related Loan Trustees. If
an instrument of acceptance by a successor Trustee shall not have been delivered
to the Guarantor, each Company, the related Owner Trustees, if any, the related
Loan Trustees and the Trustee within 30 days after the giving of such notice of
resignation, the Guarantor, any Company or 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 as trustee of any Trust by
Act of the Certificateholders of the related series holding Certificates of such
series evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in such Trust delivered to the Trustee and to the
Guarantor, each Company, the related Owner Trustees and the related Loan
Trustees.
(d) If at any time in respect of any Trust:
(1) the Trustee shall fail to comply with Section 310 of the Trust
Indenture Act after written request therefor by the Guarantor, any Company
or by any Certificateholder of the related series who has been a bona fide
Certificateholder for at least six months; or
(2) the Trustee shall cease to be eligible under Section 7.7 and shall
fail to resign after written request therefor by the Guarantor, any Company
or by any such Certificateholder; or
(3) 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;
37
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then, in any such case, (i) the Guarantor or any Company may remove the Trustee
of such Trust or (ii) any Certificateholder of the related series who has been a
bona fide Certificateholder 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 of
such Trust.
(e) If a Responsible Officer of the Trustee shall obtain actual
knowledge of an Avoidable Tax (as hereinafter defined) in respect of any Trust
that has been or is likely to be asserted, the Trustee shall promptly notify the
Guarantor and the Applicable Company and any related Owner Trustees and shall,
within 30 days of such notification, resign as Trustee of such Trust unless
within such 30-day period the Trustee shall have received notice that the
Guarantor or Applicable Company in its sole discretion has agreed to pay such
tax. Provided that there is a corporation in a jurisdiction where there are no
Avoidable Taxes that is willing to act as Trustee and is eligible under Section
7.7, the Applicable Company shall promptly appoint a successor Trustee of such
Trust in a jurisdiction where there are no Avoidable Taxes. As used herein, an
"Avoidable Tax" in respect of such Trust means a state or local tax: (i) upon
(w) such Trust, (x) such Trust Property, (y) Certificateholders of such Trust or
(z) the Trustee for which the Trustee is entitled to seek reimbursement from the
Trust Property of such Trust, 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 in respect of any Trust if the
Guarantor or any Applicable Company or any Owner Trustee shall agree to pay, and
shall pay, such tax.
(f) If the Trustee shall resign, be removed or become incapable of
acting as trustee of any Trust, or if a vacancy shall occur in the office of the
Trustee of any Trust for any cause, the Applicable Company shall promptly
appoint a successor Trustee of such Trust. If, within one year after such
resignation, removal or incapability, or other occurrence of such vacancy, a
successor Trustee of such Trust shall be appointed by Act of the
Certificateholders of the related series holding Certificates of such series
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in such Trust delivered to the Guarantor, the Applicable Company,
the related Owner Trustees, if any, the related Loan Trustee and the retiring
Trustee, the successor Trustee so appointed shall forthwith upon its acceptance
of such appointment, become the successor Trustee of such Trust and supersede
the successor Trustee of such Trust 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 Certificateholder of the related series 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 of such
Trust.
(g) The successor Trustee of a Trust 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 Certificateholders of the related series 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 7.9. Acceptance of Appointment by Successor. Every successor
--------------------------------------
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Guarantor and the Applicable Company and to the retiring Trustee with respect to
any or all Trusts an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee with respect to such Trusts 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 the Guarantor, the Applicable
Company or the successor Trustee, such retiring Trustee shall execute and
deliver an instrument transferring to such successor Trustee all such 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 in respect of such Trusts hereunder, subject nevertheless to its lien,
if any, provided for in Section 7.6 and all books and records, or true, correct
and complete copies thereof, held by such retiring Trustee in respect of such
Trusts hereunder. Upon request of any such successor Trustee, the Guarantor,
the Applicable Company, 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.
If a successor Trustee is appointed with respect to one or more (but
not all) Trusts, the Guarantor, the Applicable Companies, the predecessor
Trustee and each successor Trustee with respect to any Trust shall execute and
deliver a supplemental agreement hereto that shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the predecessor Trustee with respect to the Trusts as to
which the predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Basic Agreement and the applicable Trust Supplements as shall be necessary to
provide for or facilitate the administration of the Trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental agreement shall be construed as an appointment or constitution of
such Trustees as co-Trustees of the same Trust and that each such Trustee shall
be Trustee of separate 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 7.10. 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 executed or authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation
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to such executing or authenticating Trustee may adopt such execution or
authentication and deliver the Certificates so executed or authenticated with
the same effect as if such successor Trustee had itself executed or
authenticated such Certificates.
Section 7.11. Maintenance of Agencies. (a) With respect to each
-----------------------
series of Certificates unless otherwise provided in the applicable Trust
Supplement, there shall at all times be maintained in the Borough of Manhattan,
The City of New York, an office or agency where Certificates of such series 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 such Certificates or of this Basic Agreement or the related Trust
Supplement may be served. Such office or agency shall be initially at State
Street Bank and Trust Company, National Association, 61 Broadway, Concourse
Level, New York, New York. 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 the Guarantor, each Applicable Company, any Owner Trustees, the Loan
Trustees and the Certificateholders of such series. 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 with respect to the Certificates of each series. 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 $75,000,000, or a corporation the obligations of
which are guaranteed by 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 $75,000,000, 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 3.4,
Registrar hereunder with respect to the Certificates of each series. Each
Registrar shall furnish to the Trustee and each Applicable Company, at stated
intervals of not more than six months, and at such other times as the Trustee or
such Applicable Company may request in writing, a copy of the Register
maintained by such Registrar.
(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, the Guarantor, each Applicable Company,
any related Owner Trustees and the related Loan Trustees. The Applicable
Company may, and at the request of the Trustee shall, at any time terminate the
agency of any Authorized Agent by giving written notice of
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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), the Applicable Company shall promptly appoint one or more
qualified successor Authorized Agents, reasonably satisfactory to the Trustee,
to perform the functions of the Authorized Agent that has resigned or whose
agency has been terminated or who shall have ceased to be eligible under this
Section. The Applicable Company shall give written notice of any such
appointment made by it to the Trustee, any related Owner Trustees and the
related Loan Trustees; and in each case the Trustee shall mail notice of such
appointment to all Certificateholders of the related series as their names and
addresses appear on the Register for such series.
(e) The Guarantor and each Applicable Company agrees to pay, or cause
to be paid, from time to time to each Authorized Agent reasonable compensation
for its services and to reimburse it for its reasonable expenses.
Section 7.12. 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
Certificateholders 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 Certificateholders with respect to which such
money was deposited.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this 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 7.13. Registration of Secured Notes in Trustee's Name. The
-----------------------------------------------
Trustee agrees that all Secured Notes to be held in a Trust and Permitted
Investments, if any, shall be issued in the name of the Trustee as trustee for
the applicable Trust 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 Investments, as the case may be, in the register of the issuer of
such Secured Notes or Permitted Investments. In no event shall the Trustee
invest in, or hold, such Secured Notes or Permitted Investments in a manner that
would cause the Trustee not to have the ownership interest in such Secured Notes
or Permitted Investments under the applicable provisions of the Uniform
Commercial Code in effect where the Trustee holds such Secured Notes or
Permitted Investments or other applicable law then in effect.
Section 7.14. Representations and Warranties of Trustee. The Trustee
-----------------------------------------
hereby represents and warrants that:
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(i) the Trustee is a state chartered trust company duly organized,
validly existing, and in good standing under the laws of Massachusetts;
(ii) the Trustee has full power, authority and legal right to execute,
deliver, and perform this Basic Agreement and has taken all necessary
action to authorize the execution, delivery, and performance by it of this
Basic Agreement;
(iii) the execution, delivery and performance by the Trustee of this
Basic Agreement (a) will not violate any provision of any United States or
Massachusetts 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 Charter Documents or by-laws of
the Trustee, and (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 of any Trust 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
Basic 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 Massachusetts
governmental authority or agency regulating the banking and corporate trust
activities of the Trustee; and
(v) this Basic Agreement has been duly executed and delivered by the
Trustee and constitute the legal, valid, and binding agreements of the
Trustee, enforceable against it in accordance with their terms, provided
that enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights
of creditors generally and (ii) general principles of equity.
Section 7.15. Withholding Taxes, Information Reporting. As to the
----------------------------------------
Certificates of any series, the Trustee, as trustee of the related grantor trust
created by this Agreement, shall exclude and withhold from each distribution of
principal, premium, if any, and interest and other amounts due under this
Agreement or under the Certificates of such series 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 of such series, to withhold such amounts
and timely pay the same to the appropriate authority in the name of and on
behalf of the Certificateholders of such series, 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 such
Certificateholder appropriate documentation showing the payment thereof,
together with such additional documentary evidence
42
<PAGE>
as such Certificateholders of such series 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 7.16. Trustee's Liens. The Trustee in its individual
---------------
capacity agrees that it will, in respect of each Trust created by this
Agreement, at its own cost and expense (and without right of indemnity
hereunder, including Section 7.6), 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 of such Trust that is attributable to the Trustee either
(i) in its individual capacity and that is unrelated to the transactions
contemplated by this Agreement, the related Note Purchase Agreements or the
related Note Documents, or (ii) as Trustee hereunder or in its individual
capacity and that arises out of acts or omissions that are not contemplated by
this Agreement.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.1. Names and Addresses of Certificateholders. The
-----------------------------------------
Applicable Company 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 the Applicable Company
of any such request, a list, in such form as the Trustee may reasonably require,
of all information in the possession or control of the Applicable Company as to
the names and addresses of the Certificateholders of such series, 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 for such
- -------- -------
series, 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 7.11(b).
Section 8.2. Preservation of Information, Communications to
----------------------------------------------
Certificateholders. The Trustee shall preserve, in as current a form as is
- ------------------
reasonably practicable, the names and addresses of Certificateholders of each
series contained in the most recent list furnished to the Trustee as provided in
Section 7.11(b) or Section 8.1, as the case may be, and the names and addresses
of Certificateholders of each series 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 7.11(b) or Section 8.1, as the case may be, upon receipt of
a new list so furnished.
Section 8.3. Reports by Trustee. Within 60 days after May 15 of each
------------------
year commencing with the first full year following the issuance of any series of
Certificates, the Trustee shall transmit to the Certificateholders of each
series, in the manner provided pursuant to Section 313(c) of the Trust Indenture
Act, a brief report dated as of such May 15, if required by Section 313(a) of
the Trust Indenture Act. The Trustee shall also transmit to Certificateholders
such reports, if any, as may be required pursuant to Section 313(b) of the
43
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Trust Indenture Act at the times and in the manner provided pursuant thereto and
to Section 313(c) thereof.
Section 8.4. Reports by the Guarantor and each Company. The
-----------------------------------------
Guarantor and each Company shall:
(a) file with the Trustee, within 30 days after the Guarantor or such
Company is required to file the same with the SEC, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the SEC may from time to time by
rules and regulations prescribe) that the Guarantor or such Company is
required to file with the SEC pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as amended; or, if the Guarantor or
such Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and the
SEC, in accordance with rules and regulations prescribed by the SEC, such
of the supplementary and periodic information, documents and reports that
may be required pursuant to Section 13 of the Securities Exchange Act of
1934, as amended, in respect of a security listed and registered on a
national securities exchange as may be prescribed in such rules and
regulations;
(b) file with the Trustee and the SEC, in accordance with the rules
and regulations prescribed by the SEC, such additional information,
documents and reports with respect to compliance by the Guarantor or such
Company with the conditions and covenants provided for in this Agreement,
as may be required by such rules and regulations, including, in the case of
annual reports, if required by such rules and regulations, certificates or
opinions of independent public accountants, conforming to the requirements
of Section 1.2;
(c) transmit to all Certificateholders of each series, in the manner
and to the extent provided in Section 313(c) of the Trust Indenture Act,
such summaries of any information, documents and reports required to be
filed by the Guarantor and the Applicable Company pursuant to subsections
(a) and (b) of this Section 8.4, as may be required by rules and
regulations prescribed by the SEC; and
(d) furnish to the Trustee, not less often than annually, a brief
certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Guarantor's or the Applicable Company's compliance with all conditions and
covenants under this Agreement (it being understood that for purposes of
this paragraph (d), such compliance shall be determined without regard to
any period of grace or requirement of notice provided under this
Agreement).
44
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ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.1. Supplemental Agreements Without Consent of
------------------------------------------
Certificateholders. Without the consent of the Certificateholders of any
- ------------------
series, the Guarantor and the Companies (provided that supplemental agreements
that only affect one or more specific Trusts shall only be entered into by the
Applicable Company or Companies for such Trust or Trusts) may, and the Trustee
(subject to Section 9.3) 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 provide for the formation of a Trust, the issuance of a series
of Certificates and the other matters contemplated by Section 2.1(b); or
(2) to evidence the succession of another corporation to the Guarantor
or such Company and the assumption by any such successor of the covenants
of the Guarantor or such Company contained in this Agreement; or
(3) to add to the covenants of the Guarantor or the Applicable Company
for the benefit of the Certificateholders of any series, or to surrender
any right or power in this Agreement conferred upon the Guarantor or the
Applicable Company; or
(4) to correct or supplement any provision or to cure any ambiguity in
this Agreement that may be defective or inconsistent with any other
provision herein or in any Trust Supplement, or to make any other
provisions with respect to matters or questions arising under this
Agreement, provided that any such action shall not adversely affect the
--------
interests of the Certificateholders of any series of Certificates
Outstanding or to correct any mistake; or
(5) to modify, eliminate or add to the provisions of this Agreement to
such extent as shall be necessary to continue the qualification of this
Agreement (including any supplemental agreement) under the Trust Indenture
Act, or under any similar Federal statute hereafter enacted, or to add to
this 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
(6) to evidence and provide for the acceptance of appointment under
this Agreement by a successor Trustee with respect to one or more Trusts
and to add to or change any of the provisions of this Agreement as shall be
necessary to provide for or facilitate the administration of the Trusts
hereunder and thereunder by more than one Trustee, pursuant to the
requirements of Section 7.9;
45
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(7) to correct or supplement the description of any property
constituting property of such Trust; or
(8) to make any other amendments or modifications hereto, provided
--------
such amendments or modifications shall only apply to Certificates of one or
more series to be thereafter issued.
Section 9.2. Supplemental Agreements with Consent of
---------------------------------------
Certificateholders. With respect to each separate Trust and the series of
- ------------------
Certificates relating thereto, with the consent of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust, by Act of said Certificateholders
delivered to the Applicable Company and the Trustee, the Guarantor and
Applicable Company may (with the consent of the Owner Trustee, if any, relating
to such Certificates, which consent shall not be unreasonably withheld), and the
Trustee (subject to Section 9.3) 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 Agreement to the extent
applicable to such Certificateholders or of modifying in any manner the rights
and obligations of such Certificateholders under this Agreement; provided,
--------
however, that no such supplemental agreement shall, without the consent of the
- -------
Certificateholder of each Outstanding Certificate of such series 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 held in such Trust
or distributions that are required to be made herein on any Certificate of
such series, or change any date of payment on any Certificate of such
series, or change the place of payment where, or the coin or currency in
which, any Certificate of such series is payable, or impair the right to
institute suit for the enforcement of any such payment or distribution on
or after the Regular Distribution Date or Special Distribution Date
applicable thereto; or
(2) permit the disposition of any Secured Note in the Trust Property
of such Trust except as permitted by this Agreement, or otherwise deprive
such Certificateholder of the benefit of the ownership of the Secured Notes
in such Trust; or
(3) reduce the percentage of the aggregate Fractional Undivided
Interests of such Trust that is required for any such supplemental
agreement, or reduce such percentage required for any waiver (of compliance
with certain provisions of this Agreement or certain defaults hereunder and
their consequences) provided for in this Agreement; or
(4) modify any of the provisions of this Section 9.2 or Section 6.5,
except to increase any percentage required for such consent or waiver or to
provide that certain other provisions of this Agreement cannot be modified
or waived without the consent of the Certificateholder of each Certificate
of such series affected thereby.
46
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It shall not be necessary for any Act of such 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 9.3. Documents Affecting Trustee. If in the opinion of the
---------------------------
Trustee any document required to be executed by it pursuant to the terms of
Section 9.1 or 9.2 affects any interest, right, duty, immunity or indemnity in
favor of the Trustee under this Basic Agreement or any Trust Supplement, the
Trustee may in its discretion decline to execute document.
Section 9.4. Execution of Supplemental 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
Agreement, the Trustee shall be entitled to receive, and 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 Agreement.
Section 9.5. Effect of Supplemental Agreements. Upon the execution
---------------------------------
of any supplemental agreement under this Article, this Basic Agreement shall be
modified in accordance therewith, and such supplemental agreement shall form a
part of this Basic Agreement for all purposes; and every Certificateholder of
each series theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby to the extent applicable to such series.
Section 9.6. Conformity with Trust Indenture Act. Every supplemental
-----------------------------------
agreement executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
Section 9.7. Reference in Certificates to Supplemental Agreements.
----------------------------------------------------
Certificates of each series authenticated and delivered after the execution of
any supplemental agreement applicable to such series 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 of such series after proper presentation and
demand.
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS
Section 10.1. Amendments and Supplements to Indenture and Other Note
------------------------------------------------------
Documents. In the event that the Trustee, as holder of any Secured Notes in
- ---------
trust for the benefit of the Certificateholders of any series, receives a
request for a consent to any amendment, modification, waiver or supplement under
any related Indenture or other related Note Document or any related Note
Purchase Agreement, the Trustee shall forthwith send a notice of such proposed
amendment, modification, waiver or supplement, to each Certificateholder of such
series registered on the Register as of such date. The Trustee shall request
from the
47
<PAGE>
Certificateholders of such series Directions as to (i) whether or not to direct
the Trustee to take or refrain from taking any action that 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 the Secured Notes 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 such Secured Notes, the Trustee shall
vote or consent with respect to such Secured Note, subject to Section 6.5, in
the same proportion as the Certificates of such series were actually voted by
Acts of Certificateholders 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 6.4, in the case that an
Event of Default hereunder with respect to such series shall have occurred and
be continuing, the Trustee may, in its own discretion and at its own direction,
consent and notify the relevant Loan Trustee of such consent to any amendment,
modification, waiver or supplement under the relevant Indenture or any other
related Note Document.
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.1. Termination of the Trusts. In respect of each Trust
-------------------------
created by this Basic Agreement as supplemented by a related Trust Supplement,
the respective obligations and responsibilities of the Guarantor, the Applicable
Company and the Trustee created hereby and thereby and such Trust shall
terminate upon the distribution to all Holders of the Certificates of the series
of such Trust and the Trustee of all amounts required to be distributed to them
pursuant to this Basic Agreement and such Trust Supplement and the disposition
of all property held as part of the Trust Property of the related series of such
Trust; provided, however, that in no event shall such Trust continue beyond the
-------- -------
final expiration date determined as provided in such Trust Supplement.
Notice of any termination of a Trust, specifying the applicable
Regular Distribution Date (or applicable Special Distribution Date, as the case
may be) upon which the Certificateholders of the series issued with respect to
such Trust may surrender their Certificates to the Trustee for payment of the
final distribution and cancellation, shall be mailed promptly by the Trustee to
Certificateholders of such series not earlier than the minimum number of days
and not more than the maximum number of days specified therefor in the related
Trust Supplement preceding such final distribution. Such notice in addition
shall specify (A) the Regular Distribution Date (or Special Distribution Date,
as the case may be) upon which the proposed final payment of the Certificates of
such series will be made upon presentation and surrender of Certificates of such
series at the office or agency of the Trustee therein specified, (B) the amount
of any such proposed final payment, and (C) that the Record Date otherwise
applicable to such Regular 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 of such series at the office or agency of the
Trustee therein specified. The Trustee shall give
48
<PAGE>
such notice to the Registrar at the time such notice is given to
Certificateholders of such series. Upon presentation and surrender of the
Certificates of such series, the Trustee shall cause to be distributed to
Certificateholders of such series amounts distributable on such Regular
Distribution Date (or Special Distribution Date, as the case may be) pursuant to
Section 4.2.
In the event that all of the Certificateholders of such series 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 of such series 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 of such series shall remain
unclaimed for two years (or such lesser time as the Trustee shall be satisfied,
after sixty days' notice from the Applicable Company, 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 each Loan Trustee the appropriate
amount of money relating to such Loan Trustee and shall give written notice
thereof to the related Owner Trustees, if any, the Guarantor and the Applicable
Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1. Limitation on Rights of Certificateholders. The death
------------------------------------------
or incapacity of any Certificateholder of any series shall not operate to
terminate this Agreement, or the related 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 related Trust, nor otherwise affect the rights, obligations,
and liabilities of the parties hereto or any of them.
Section 12.2. Certificates Nonassessable and Fully Paid.
-----------------------------------------
Certificateholders of each series shall not be personally liable for obligations
of the related Trust, the Fractional Undivided Interests represented by the
Certificates of such series shall be nonassessable for any losses or expenses of
such Trust or for any reason whatsoever, and Certificates of such series upon
authentication thereof by the Trustee pursuant to Section 3.02 are and shall be
deemed fully paid. No Certificateholder of such series shall have any right
(except as expressly provided herein) to vote or in any manner otherwise control
the operation and management of the related Trust Property, the related Trust,
or the obligations of the parties hereto, nor shall anything set forth herein,
or contained in the terms of the Certificates of such series, be construed so as
to constitute the Certificateholders of such series from time to time as
partners or members of an association.
Section 12.3. Notices. (a) Unless otherwise specifically provided
-------
herein or in the applicable Trust Supplement with respect to any Trust, all
notices required under the terms and provisions of this Basic Agreement or such
Trust Supplement with respect to such Trust
49
<PAGE>
shall be in English and in writing, and any such notice may be given by United
States mail, courier service, telegram, telex, telemessage, telecopy, telefax,
cable or facsimile (confirmed by telephone or in writing in the case of notice
by telegram, telex, telemessage, telecopy, telefax, cable or facsimile) or any
other customary means of communication, and any such notice shall be effective
when delivered or, if mailed, three days after deposit in the United States mail
with proper postage for ordinary mail prepaid,
if to the Guarantor or any Company, to the Guarantor or such Company
at:
3225 Gallows Road
Fairfax, Virginia 22037-0001
Facsimile:
Telephone: (703) 846-3000
if to the Trustee, to: State Street Bank and Trust Company
Two International Place, 4th Floor
Boston, Massachusetts 02110
Attention: Corporate Trust Department
Facsimile: (617) 664-5371
Telephone: (617) 664-5340
(b) The Guarantor, any Company or the Trustee, by notice to the other,
may designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Certificateholders of any series
shall be mailed by first-class mail to the addresses for Certificateholders of
such series shown on the Register kept by the Registrar and to addresses filed
with the Trustee for Certificate Owners of such series. Failure so to mail a
notice or communication or any defect in such notice or communication shall not
affect its sufficiency with respect to other Certificateholders of such series.
(d) If a notice or communication is mailed in the manner provided
above within the time prescribed, it is conclusively presumed to have been duly
given, whether or not the addressee receives it.
(e) If the Guarantor or any Company mails a notice or communication to
the Certificateholders of such series, it shall mail a copy to the Trustee and
to each Paying Agent for such series at the same time.
(f) Notwithstanding the foregoing, all communications or notices to
the Trustee shall be deemed to be given only when received by a Responsible
Officer of the Trustee.
(g) The Trustee shall promptly furnish the Guarantor and Applicable
Company with a copy of any demand, notice or written communication received by
the Trustee hereunder from any Certificateholder, Owner Trustee or Loan Trustee.
50
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(h) The Trustee shall provide to the Guarantor a copy of any notice or
communication it gives to any Company contemporaneously with giving such notice
or communication to such Company.
Section 12.4. Governing Law. THIS BASIC AGREEMENT HAS BEEN DELIVERED
-------------
IN THE STATE OF NEW YORK AND THIS BASIC AGREEMENT AND THE CERTIFICATES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE 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 12.5. Severability of Provisions. If any one or more of the
--------------------------
covenants, agreements, provisions, or terms of this 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 Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or any Trust, or of
the Certificates of any series or the rights of the Certificateholders thereof.
Section 12.6. Trust Indenture Act Controls. This Agreement is
----------------------------
subject to the provisions of the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions.
Section 12.7. 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 12.8. Successors and Assigns. All covenants, agreements,
----------------------
representations and warranties in this Agreement by the Trustee, the Guarantor
and each Company 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 12.9. Benefits of Agreement. Nothing in this Agreement or in
---------------------
the Certificates of any series, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the
Certificateholders of each series, any benefit or any legal or equitable right,
remedy or claim under this Agreement, except as expressly provided in this
Agreement.
Section 12.10. Legal Holidays. In any case where any Regular
--------------
Distribution Date or Special Distribution Date relating to any Certificate of
any series shall not be a Business Day with respect to such series, then
(notwithstanding any other provision of this 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 Regular Distribution Date or Special
Distribution Date, and no interest shall accrue during the intervening period.
51
<PAGE>
Section 12.11. Counterparts. For the purpose of facilitating the
------------
execution of this Agreement and for other purposes, this 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.
52
<PAGE>
IN WITNESS WHEREOF, the Guarantor, each Company and the Trustee have
caused this Basic Agreement to be duly executed by their respective officers or
authorized representatives, all as of the day and year first above written.
MOBIL CORPORATION
By
--------------------------------
Title:
MOBIL MARINE FINANCE COMPANY I INC.
By
--------------------------------
Title:
MOBIL MARINE FINANCE COMPANY II INC.
By
--------------------------------
Title:
MOBIL LEASE FINANCE COMPANY INC.
By
--------------------------------
Title:
MOBIL CHEMICAL FINANCE (TEXAS) INC.
By
--------------------------------
Title:
53
<PAGE>
MOBIL CHEMICAL FINANCE
(LOUISIANA) INC.
By
--------------------------------
Title:
MOBIL PETRORAIL FINANCE INC.
By
--------------------------------
Title:
MOBIL TRANSPORT FINANCE COMPANY INC.
By
--------------------------------
Title:
MOBIL EQUIPMENT FINANCE COMPANY INC.
By
--------------------------------
Title:
STATE STREET BANK AND TRUST COMPANY
as Trustee
By
--------------------------------
Title:
54
<PAGE>
EXHIBIT A
FORM OF CERTIFICATE
/*/Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York Corporation
("DTC"), to Issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch the registered owner hereof, Cede & Co., has an interest herein.
MOBIL CORPORATION __________ PASS THROUGH TRUST
Pass Through
Certificate, Series _____
Final Distribution Date: ____________, ____
evidencing a fractional undivided interest in a trust, the property of
which includes certain secured notes each secured by Property owned by or
leased to one or more Companies all of whose obligations are guaranteed by
Mobil Corporation.
Certificate
No.______ $__________ Fractional Undivided Interest
representing .___% of the Trust per $1,000 face amount
THIS CERTIFIES THAT __________, for value received, is the registered
owner of a $ dollars) (__________ dollars) Fractional Undivided Interest in the
Mobil Corporation _____ Pass Through Trust (the "Trust") created by State Street
Bank and Trust Company, as trustee (the "Trustee"), pursuant to a Pass Through
Trust Agreement, dated as of _________, 1996 (the "Basic Agreement"), as
supplemented by Trust Supplement No. _____ thereto dated _________, 199_
(collectively, the "Agreement"), among the Trustee, Mobil Corporation, a
Delaware corporation (the "Guarantor") and ____________________, a Delaware
corporation (the "Company"), 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
- ----------
* This legend to appear on Book-Entry Certificates to be deposited with The
Depository Trust Company. One Certificate may be issued in a denomination
of less than $1,000 which shall not have this legend.
A-1
<PAGE>
Agreement. This Certificate is one of the duly authorized Certificates
designated as "Pass Through Certificates, Series _____" (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
Certificateholder is bound. The property of the Trust includes certain Secured
Notes (the "Trust Property"). Each issue of the Secured Notes is secured by a
security interest in Property leased to or owned by the Company.
The Certificates represent fractional undivided interests in the Trust
and the Trust Property, and have no rights, benefits or interest in respect of
any other separate trust established pursuant to the terms of the Basic
Agreement for any other series of certificates issued pursuant thereto.
Subject to and in accordance with the terms of the Agreement, from
funds then available to the Trustee, there will be distributed on each and
(a "Regular Distribution Date"), commencing on ____________, 199_, to the
Person in whose name this Certificate is registered at the close of business on
the 15th day preceding the applicable Regular Distribution Date, an amount in
respect of the Scheduled Payments on the Secured Notes due on such Regular
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, 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 15th day preceding such 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 Regular
Distribution Date or Special Distribution Date is not a Business Day,
distribution shall be made on the immediately following Business Day with the
same force and effect as if made on such Regular Distribution Date or Special
Distribution Date and no interest shall accrue during the intervening period.
The Trustee shall mail notice of each Special Payment and the Special
Distribution Date therefor to the Certificateholder of this Certificate.
Distributions on this Certificate will be made by the Trustee by 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-2
<PAGE>
THE AGREEMENT AND 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.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
MOBIL CORPORATION _____
PASS THROUGH TRUST
By: STATE STREET BANK AND
TRUST COMPANY,
as Trustee
By:
-------------------------------
Title:
Dated:
A-3
<PAGE>
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates referred
to in the within-mentioned Agreement.
STATE STREET BANK AND
TRUST COMPANY,
as Trustee
By:
-----------------------------
Authorized Officer
A-4
<PAGE>
[Reverse of Certificate]
The Certificates do not represent an obligation of, or an
obligation guaranteed by, or an interest in, the Guarantor, the Company 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 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 Certificateholder 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 the
Guarantor, the Company and the rights of the Certificateholders under the
Agreement at any time with the consent of the Holders holding 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 Certificateholder 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
Certificateholders 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 the [Borough of Manhattan, the City of New York],
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 Certificateholder'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 in minimum denominations of $1,000 Fractional Undivided Interest and
integral multiples thereof except that one Certificate may be in a denomination
of less than $1,000. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable
A-5
<PAGE>
for new Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust, as requested by the
Certificateholder 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 Guarantor, the Company, the Trustee, the Registrar and any agent
of the Trustee or the Registrar may treat the person in whose name this
Certificate is registered on the Register as the owner hereof for all purposes,
and neither the Guarantor, the Company, 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-6
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF DEBEVOISE & PLIMPTON]
November 12, 1996
Mobil Corporation
Mobil Marine Finance Company I Inc.
Mobil Marine Finance Company II Inc.
Mobil Lease Finance Company Inc.
Mobil Chemical Finance (Texas) Inc.
Mobil Chemical Finance (Louisiana) Inc.
Mobil Petrorail Finance Inc.
Mobil Transport Finance Company Inc.
Mobil Equipment Finance Company Inc.
3225 Gallows Road
Fairfax, Virginia 22037-0001
Registration Statement on Form S-3
(Registration No. 333-13457)
----------------------------------
Dear Sirs:
We have acted as counsel to Mobil Corporation, a Delaware corporation
("Mobil"), and each of the subsidiaries of Mobil listed above (each, a
"Subsidiary," and each of the Subsidiaries together with Mobil, the "Companies")
in connection with the preparation and filing with the
<PAGE>
Mobil Corporation 2 November 12, 1996
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Act"), of a Registration Statement, as amended, on Form S-3 (Registration
No. 333-13457) (the "Registration Statement") and the prospectus included
therein (the "Prospectus"). The Registration Statement relates to (i) Pass
-
Through Certificates (the "Pass Through Certificates") to be issued in one or
more series in an aggregate offering price of up to $650,000,000 under a Pass
Through Trust Agreement (the "Pass Through Trust Agreement") to be entered into
between each of the Companies and State Street Bank and Trust Company, as
trustee (the "Trustee") and (ii) the guaranties of Mobil (each, a "Guaranty") to
--
be delivered in connection with the issuance of each series of Pass Through
Certificates to be issued. Capitalized terms used herein without definition
have the meanings specified in the form of Pass Through Trust Agreement filed as
an exhibit to the Registration Statement.
In so acting, we have examined and relied upon the originals, or copies
certified or otherwise identified to our satisfaction, of such records,
documents and other instruments as in our judgment are necessary or appropriate
to enable us to render the opinion expressed below.
Based on the foregoing, we are of the following opinion:
1. With respect to the Pass Through Certificates of each Series, when
(a) the execution and delivery of the Pass Through Trust Agreement by the
-
Companies and the Trustee and the execution, authentication and delivery of the
Pass Through Certificates of such series by the Trustee shall have been duly
authorized by all necessary corporate action of the Companies and the Trustee,
(b) the Pass Through Trust Agreement shall have been executed and
-
<PAGE>
Mobil Corporation 3 November 12, 1996
delivered by each Company and the Trustee, (c) the Trust Supplement establishing
-
the terms of the Pass Through Certificates of such series and forming the
related Trust shall have been duly authorized, executed and delivered by each of
Mobil, the applicable Subsidiary and the Trustee in accordance with the terms
and conditions of the Pass Through Trust Agreement, and (d) the Pass Through
-
Certificates of such series shall have been duly executed, authenticated, issued
and delivered by the Trustee and sold as contemplated by each of the
Registration Statement, the Prospectus, the supplement or supplements to the
Prospectus relating to the Pass Through Certificates of such series, the Pass
Through Trust Agreement and the related Trust Supplement, assuming that the
terms of the Pass Through Certificates of such series and the issuance thereof
are in compliance with then applicable law, (i) the Pass Through Trust
-
Agreement, as supplemented by such Trust Supplement, will constitute a valid
and binding obligation of Mobil and such Subsidiary, enforceable against Mobil
and such Subsidiary in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting enforcement of creditors' rights generally and by general principles
of equity, and (ii) the Pass Through Certificates of such series will be validly
--
issued and will be entitled to the benefits of the Pass Through Trust Agreement
and the related Trust Supplement.
2. With respect to each Guaranty, when such Guaranty shall have been
duly authorized, executed and delivered by Mobil as contemplated by each
of the Registration Statement, the Prospectus, the related supplement or
supplements to the Prospectus, the Pass Through Trust Agreement and the related
Trust Supplement, assuming that the terms of such Guaranty and the execution and
delivery thereof are in compliance with then applicable law, such Guaranty will
constitute a valid and legally binding
<PAGE>
Mobil Corporation 4 November 12, 1996
obligation of Mobil, enforceable against Mobil in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting enforcement of creditors' rights generally and
by general principles of equity.
3. The statement under the caption "Federal Income Tax
Consequences" in the Prospectus, insofar as they constitute statements of law or
legal conclusions, are correct in all material respects as of the date hereof.
Our opinion expressed above is limited to the laws of the State of new
York, the corporate law of the State of Delaware and the Federal laws of the
United States of America.
In rendering the opinions in paragraphs 1 and 2 above, we have
relied on the opinions, dated today and addressed to you, of Ralph N. Johanson,
Jr., Mobil's Managing Counsel, Corporate, Finance and Securities, with respect
to the Pass Through Trust Agreement and the Guaranties, and of Bingham, Dana &
Gould, counsel for the Trustee, with respect to the Pass Through Trust Agreement
and the Pass Through Certificates. Our opinion is subject to all the assumptions
contained in such opinions.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the use of our name under the caption "Legal
Opinions" in such Prospectus. In giving such consent, we do not thereby concede
that we are within the category of persons whose consent is required under
Section 7 of the Act or the Rules and Regulations of the Commissions thereunder.
Very truly yours,
/s/ Debevoise & Plimpton
<PAGE>
EXHIBIT 5.2
[LETTERHEAD OF MOBIL CORPORATION]
November 12, 1996
Mobil Corporation Mobil Marine Finance Company I Inc.
3225 Gallows Road 3225 Gallows Road
Fairfax, Virginia 22037 Fairfax, Virginia 22037
Mobil Marine Finance Company II Inc. Mobil Lease Finance Company Inc.
3225 Gallows Road 3225 Gallows Road
Fairfax, Virginia 22037 Fairfax, Virginia 22037
Mobil Chemical Finance (Texas) Inc. Mobil Chemical Finance (Louisiana) Inc.
3225 Gallows Road 3225 Gallows Road
Fairfax, Virginia 22037 Fairfax, Virginia 22037
Mobil Petrorail Finance Inc. Mobil Transport Finance Company Inc.
3225 Gallows Road 3225 Gallows Road
Fairfax, Virginia 22037 Fairfax, Virginia 22037
Mobil Equipment Finance Company Inc.
3225 Gallows Road
Fairfax, Virginia 22037
$650,000,000 OF PASS THROUGH CERTIFICATES
-----------------------------------------
Ladies and Gentlemen:
I am Managing Counsel, Corporate, Finance and Securities 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 subsidiaries Mobil Marine Finance Company I Inc.,
Mobil Marine Finance Company II Inc., Mobil Chemical Finance (Texas) Inc., Mobil
Chemical Finance (Louisiana) Inc., Mobil Lease Finance Company Inc., Mobil
<PAGE>
Petrorail Finance Inc., Mobil Transport Finance Company Inc. and Mobil Equipment
Finance Company Inc., each a Delaware corporation (each, a "Company"), 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, as amended, on Form S-3
(Registration No. 333-13457) (the "Registration Statement") and the prospectus
included therein (the "Prospectus") to register with the Commission (i)
$650,000,000 Pass Through Certificates (the "Certificates") to be issued in one
or more series under a Pass Through Trust Agreement (the "Pass Through Trust
Agreement") to be entered into among the Guarantor, each Company and State
Street Bank and Trust Company, as Pass Through Trustee and (ii) the guaranties
of the Guarantor to be delivered in connection with each series of Pass Through
Certificates to be issued (each, a "Guaranty"). Capitalized terms used herein
and not otherwise defined herein are used as defined in the form of Pass Through
Trust Agreement filed as an exhibit to the Registration Statement.
I or lawyers under my supervision have examined and are familiar
with (a) the Certificates of Incorporation and By-Laws of the Guarantor and each
Company, (b) resolutions of the Board of Directors of each Company duly adopted
on October 1, 1996, and (c) resolutions of the Board of Directors of the
Guarantor duly adopted on January 31, 1986, June 26, 1987 and September 27,
1996.
There have similarly been examined originals or copies,
certified or otherwise satisfactorily identified, of all such agreements and
other instruments, certificates of public officials, certificates of the
Guarantor and each Company and other documents as I or lawyers under my
supervision have deemed relevant and necessary as the basis of the opinions
hereinafter set forth. In making such examination, I or lawyers under my
supervision have assumed the genuineness of all signatures and the authenticity
of all documents submitted as originals or as certified documents, and the
conformity with the originals or certified documents of all documents submitted
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. Each Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware.
3. With respect to the Pass Through Certificates of each
series, (i) each of the Guarantor and the applicable Company has full corporate
power and authority to execute, deliver and perform its obligations under the
Pass Through Trust Agreement and the Trust Supplement establishing the terms of
the Pass Through Certificates of such series and forming the related trust, and
(ii) the Pass Through Trust Agreement and such Trust Supplement have been duly
authorized by the Guarantor and such Company, and when the Pass Through Trust
Agreement and such Trust Supplement have been duly executed and delivered by the
Guarantor and such Company will
<PAGE>
constitute the legal, valid and binding obligations of the Guarantor and such
Company enforceable in accordance with their respective terms.
4. With respect to each Guaranty, (i) the Guarantor has
full corporate power and authority to execute, deliver and perform its
obligations under such Guaranty, (ii) such Guaranty has been duly authorized by
the Guarantor, and (iii) when such Guaranty is duly executed and delivered by
the Guarantor the Guaranty will constitute the legal, valid and binding
obligation of the Guarantor enforceable in accordance with its 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 each Guaranty, the Pass Through
Trust Agreement and each Trust Supplement.
6. Each Company 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 Agreement and
each Trust Supplement.
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
each Guaranty, the Pass Through Trust Agreement and each Trust Supplement 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 corporte 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
Opinions." 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.
<PAGE>
EXHIBIT 5.3
[LETTERHEAD OF BINGHAM, DANA & GOULD LLP]
November 12, 1996
Mobil Corporation
3225 Gallows Road
Fairfax, VA 22037-0001
RE: MOBIL CORPORATION
PASS THROUGH CERTIFICATES
--------------------------
Ladies and Gentlemen:
We are acting as special counsel to State Street Bank and Trust Company,
individually ("SSB"), and as Pass Through Trustee (the "Pass Through Trustee")
under the Pass Through Trust Agreement (the "Agreement"), between Mobil
Corporation, Mobil Marine Finance Company I Inc., Mobil Marine Finance Company
II Inc., Mobil Lease Finance Company Inc., Mobil Chemical Finance (Texas) Inc.,
Mobil Chemical Finance (Louisiana) Inc., Mobil Petrorail Finance Inc., Mobil
Transport Finance Company Inc., Mobil Equipment Finance Company Inc.
(collectively, the "Mobil Affiliates") and the Pass Through Trustee. Pursuant to
the Agreement and as supplemented by a Trust Supplement, the Pass Through
Trustee will issue Pass Through Certificates, in an aggregate principal amount
of up to $650,000,000 ("Pass Through Certificates"), registered with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "1933 Act"), by a Registration Statement on Form S-3 (File No 333-13457),
as amended (the "Registration Statement"). Except as otherwise defined herein,
terms used herein shall have the meanings set forth in the Agreement.
Our representation of the Pass Through Trustee has been as special
counsel for the purposes stated above. As to all matters of fact (including
factual conclusions and characterizations and descriptions of purpose, intention
or other state of mind), we have relied entirely upon (i) the representations of
the parties set forth in the Operative Documents and (ii) certificates delivered
to us by the man-
<PAGE>
Mobil Corporation 2 November 12, 1996
agement of SSB and have assumed, without independent inquiry, the accuracy of
those representations and certificates.
We have examined the Agreement, the Pass Through Certificates, the discussion
in the Prospectus, dated November 12, 1996, applicable to the issuance of the
Pass Through Certificates constituting part of the Registration Statement (the
"Prospectus") entitled "Certain Massachusetts Taxes," and originals or copies
certified or otherwise identified to our satisfaction, of other such records,
documents, certificates, or other instruments as we have deemed necessary or
advisable for the purposes of this opinion.
We have assumed the genuineness of all signatures (other than those on behalf
of SSB and the Pass Through Trustee), the conformity to the originals of all
documents reviewed by us as copies, the authenticity and completeness of all
original documents reviewed by us in original or copy form and the legal
competence of each individual executing any document (other than on behalf of
SSB and the Pass Through Trustee).
Each opinion set forth below relating to the enforceability of any agreement
or instrument against the Pass Through Trustee, is subject to the following
general qualifications:
(i) as to any agreement to which the Pass Through Trustee, as
applicable, is a party, we assume that such agreement is the legal, valid and
binding obligation of each party (other than the Pass Through Trustee) thereto;
(ii) the enforceability of any obligation of the Pass Through Trustee
may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, marshalling and other similar laws and rules of law affecting the
enforcement generally of creditors
<PAGE>
Mobil Corporation 3 November 12, 1996
rights and remedies (including such as may deny giving effect to
waivers of debtors' or guarantors' rights); and
(iii) the enforcement of any rights and the
availability of any specific or equitable relief of any kind may in all
cases be subject to an implied duty of good faith and to general
principles of equity (regardless of whether such enforceability or
relief is considered in a proceeding at law or in equity).
Subject to the limitation set forth below, we have made such
examination of law as we have deemed necessary for the purposes of this
opinion. The opinions set forth in paragraphs 1 and 2 below are based on
and limited to the Federal laws of the United States and the internal
substantive laws of the States of New York and Massachusetts. The
opinion set forth in paragraph 3 below is based on and limited to the
internal substantive laws of the Commonwealth of Massachusetts. Insofar
as the matters referred to herein relate to the laws of the State of New
York, we have relied entirely upon the opinion of even date herewith of
Debevoise & Plimpton and the opinions set forth herein are subject to
each of the qualifications and assumptions contained in said opinion. No
opinion is expressed herein as to the application or effect of federal
securities laws or as to the securities or so-called "Blue Sky" laws of
any state or other jurisdiction. In addition, no opinion is expressed as
to matters governed by any law, statute, rule or regulation of the
United States relating to the acquisition, ownership, registration, use,
operation, maintenance, repair, replacement or sale of or the nature of
the Leased Property.
Based on and subject to the foregoing, we are of the
opinion that:
1. The execution, authentication, delivery and performance by
the Pass Through Trustee of the Pass Through
<PAGE>
Mobil Corporation 4 November 12, 1996
Certificates and the Agreement have been duly authorized by SSB.
2. With respect to the Pass Through Certificates, when (a) a Trust
Supplement shall have been duly authorized, executed and delivered by the Mobil
Affiliates and the Pass Through Trustee in accordance with the terms and
conditions of the Agreement, and (b) the Pass Through Certificates shall have
been duly executed, authenticated, issued and delivered by the Trustee and sold
as contemplated by each of the Registration Statement, a Prospectus, a
Prospectus Supplement, the Agreement and a Trust Supplement, assuming that the
terms of the Pass Through Certificates are in compliance with then applicable
law, (i) the Agreement as supplemented by said Trust Supplement will constitute
a valid and binding obligation of the Trustee enforceable against the Trustee in
accordance with its terms, and (ii) the Pass Through Certificates will be
validly issued and will be entitled to the benefits of the Agreement and said
Trust Supplement.
3 The discussion in the Prospectus Supplement entitled "Certain
Massachusetts Taxes," insofar as it relates to statements of law or legal
conclusions, is correct in all material respects.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement, to the use of our name in the second sentence of the
first paragraph under the caption "Certain Massachusetts Taxes" in the
Prospectus and to the reference to us under the caption "Legal Opinions" in the
Prospectus. In giving this consent, we do not thereby admit that we are in the
category of person whose consent is required under Section 7 of the 1933 Act or
the Rules and Regulations of the Securities and Exchange Commission.
Very truly yours,
/s/ BINGHAM, DANA & GOULD LLP
BINGHAM, DANA & GOULD LLP
<PAGE>
Exhibit 12
Exhibit 12.
MOBIL CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(In millions)
NINE
MONTHS
ENDED
Year Ended December 31, SEPTEMBER 30,
__________________________________________ _____
1991 1992 1993 1994 1995 1996
______ ______ ______ ______ ______ _____
Income Before Change in
Accounting Principle(s).. $1,920 $1,308 $2,084 $1,759 $2,376 $2,288
Add:
Income taxes .............. 2,105 1,567 1,931 1,919 2,015 2,427
Portion of rents
representative of
interest factor ......... 344 319 339 340 368 276
Interest and debt
discount expense ........ 713 612 529(a) 461 467 332
Earnings (greater) less
than dividends from
equity affiliates........ (151) 36 265 (40) (51) 111
------ ------ ------ ------ ------ ----
Income as Adjusted ........ $4,931 $3,842 $5,148 $4,439 $5,175 $5,434
====== ====== ====== ====== ====== ======
Fixed Charges:
Interest and debt
discount expense ........ $ 713 $ 612 $ 529(a)$ 461 $ 467 $332
Capitalized interest ...... 20 42 42 37 47 61
Portion of rents
representative of
interest factor ......... 344 319 339 340 368 276
------ ------ ------ ------ ------ ---
Total Fixed Charges ....... $1,077 $ 973 $ 910 $ 838 $ 882 $669
====== ====== ====== ====== ====== ====
Ratio of Earnings to
Fixed Charges ........... 4.6 3.9 5.7(a) 5.3 5.9 8.1
====== ====== ====== ====== ====== ====
Note:
For the years ended December 31, 1991, 1992, 1993, 1994 and 1995 and the nine
months ended September 30, 1996, Fixed Charges exclude $42 million, $37 million,
$31 million, $37 million, $28 million, and $19 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 23.4
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-3) and related Prospectus of Mobil Corporation
and Mobil Marine Finance Company I Inc., Mobil Marine Finance Company II Inc.,
Mobil Lease Finance Company Inc., Mobil Chemical Finance (Texas) Inc., Mobil
Chemical Finance (Louisiana) Inc., Mobil Petrorail Finance Inc., Mobil Transport
Finance Company Inc. and Mobil Equipment Finance Company Inc. for the
registration of $650,000,000 of Pass Through Certificates 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
November 4, 1996
