DECLARATION OF TRUST
OF
FEDERAL-MOGUL FINANCING TRUST
THIS DECLARATION OF TRUST is made as of November 21,1997 (this
"Declaration"), by and between Federal-Mogul Corporation, a
Michigan corporation, as sponsor (the "Sponsor"), and The Bank of
New York (Delaware), a Delaware banking corporation, as trustee
(the "Trustee"). The Sponsor and the Trustee hereby agree as
follows:
1. The trust created hereby shall be known as "Federal-Mogul
Financing Trust" (the "Trust"), in which name the Trustee or the
Sponsor, to the extent provided herein, may conduct the business
of the Trust, make and execute contracts, and xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets
over to the Trust the sum of $l0. Such amount shall constitute the
initial trust estate, It is the intention of the parties hereto
that the Trust created hereby constitute a business trust under
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. ss. 3801,
et seq. (the "Business Trust Act"), and that this document
constitute the governing instrument of the Trust. The Trustee is
hereby authorized and directed to execute and file a certificate
of trust with the Delaware Secretary of State in such form as the
Trustee may approve.
3. The Sponsor and the Trustee will enter into an amended
and restated Declaration satisfactory to each such party to provide
for the contemplated operation of the Trust created hereby and
the issuance of the Convertible Preferred Securities and Common
Securities referred to therein. Prior to the execution and
delivery of such amended and restated Declaration, the Trustee
shall not have any duty or obligation hereunder or with respect
of the trust estate, except as otherwise required by applicable
law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by
applicable law or otherwise. Notwithstanding the foregoing, the
Trustee may take all actions deemed proper as are necessary to
effect the transactions contemplated herein.
4. The Sponsor, as sponsor of the Trust, is hereby authorized,
in its discretion, (i) to prepare one or more offering memoranda in
preliminary and final form relating to the offering and sale of
Convertible Preferred Securities of the Trust in a transaction
exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and such other forms or
filings as may be required by the 1933 Act, the Securities
Exchange Act of 1934, as amended, or the Trust Indenture Act of
1939, as amended, in each ease relating to the Convertible
Preferred Securities of the Trust; (ii) to file and execute on
behalf of the Trust, such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of
process and other papers and documents that shall be necessary or
desirable to register or establish the exemption from registration
of the Convertible Preferred Securities of the Trust under the
securities or "Blue Sky" laws of such jurisdictions as the
Sponsor, on behalf of the Trust, may deem necessary or desirable;
(iii) to execute and file an application, and all other
applications, statements, certificates, agreements and other
instruments that shall be necessary or
desirable, to the Private Offerings, Resales and Trading through
Automated Linkages ("PORTAL") Market and, if and at such time as
determined by the Sponsor, to the New York Stock Exchange or any
other national stock exchange or the Nasdaq National Market for
listing or quotation of the Convertible Preferred Securities of
the Trust; (iv) to execute and deliver letters or documents to,
or instruments for filing with, a depository relating to the
Convertible Preferred Securities of the Trust; and (v) to
execute, deliver and perform on behalf of the Trust one or more
purchase agreements, registration rights agreements, dealer
manager agreements, escrow agreements and other related
agreements providing for or relating to the sale of the
Convertible Preferred Securities of the Trust.
In the event that any filing referred to in this Section 4 is
required by the rules and regulations of the Securities and
Exchange Commission (the "Commission"), PORTAL or state
Securities or Blue Sky laws to be executed on behalf of the Trust
by the Trustee, the Trustee, in its capacity as trustee of the
Trust, is hereby authorized and directed to join in any such
filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that the Trustee, in its capacity
as trustee of the Trust, shall not be required to join in any
such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission,
PORTAL or state securities or Blue Sky laws.
5. This Declaration may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be one
and thereafter the number of trustees of the Trust shall be such
number as shall be fixed from time to time by a written
instrument signed by the Sponsor which may increase or decrease
the number of trustees of the Trust; provided, however, that to
the extent required by the Business Trust Act, one trustee of the
Trust shall either be a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable Delaware law.
Subject to the foregoing, the Sponsor is entitled to appoint or
remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to
the Sponsor.
7. This Declaration shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without
regard to conflict of laws principles).
8. In the event that this Declaration is not amended and
restated within ninety days after the date hereof, the Trust shall be
automatically terminated,
9. To the fullest extent permitted by applicable law, the
Sponsor shall indemnify and hold harmless the Trustee from and against
any loss, damage or claim incurred by the Trustee by reason of
any act or omission performed or omitted by the Trustee in good
faith on behalf of the Trust and in a manner the Trustee
reasonably believed to be within the scope of authority conferred
on the Trustee by this Declaration, except that the Trustee shall
not be entitled to be indemnified in respect of any loss, damage
or claim incurred by the Trustee by reason of gross negligence or
willful misconduct with respect to such acts or omissions.
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IN WITNESS WHEREOF, the parties hereto have caused this
Declaration to be duly executed as of the day and year first
above written.
FEDERAL-MOGUL CORPORATION,
as Sponsor
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Vice President, General
Counsel and Secretary
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but solely as
trustee of the Trust
By:
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Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this
Declaration to be duly executed as of the day and year first
above written.
FEDERAL-MOGUL CORPORATION,
as Sponsor
By:
------------------------------
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but solely as
trustee of the Trust
By: /s/ Xxxxxx X. Xxxxxx
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Name: XXXXXX X. XXXXXX
Title: Authorized Signatory
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