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Exhibit 4.5  


 
 

AMENDED AND RESTATED DECLARATION OF TRUST    
    


        THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration of Trust"), dated as of January 13, 1999, by and among FOSTER WHEELER CORPORATION, a New York
corporation, as Sponsor, and Richard J. Swift, David J. Roberts and Robert D. Iseman as the initial Administrative Trustees, Harris Trust and Savings Bank, as the initial Property Trustee and
Wilmington Trust Company, as the initial Delaware Trustee, not in their individual capacities but solely as Trustees, and the Holders, from time to time, of undivided beneficial ownership interests in
the Issuer Trust to be issued pursuant to this Declaration of Trust. 


        WHEREAS,
the Trustees and the Sponsor established FW Preferred Capital Trust I (the "Issuer Trust"), a business trust under the Business Trust Act (as defined, together with other
capitalized terms, herein) pursuant to a Declaration of Trust, dated as of May 8, 1998, (the "Original Declaration") and a Certificate of Trust (the "Certificate of Trust") filed with the
Secretary of State of the State of Delaware on May 8, 1998; and 


        WHEREAS,
the sole purpose of the Issuer Trust shall be to issue and sell certain securities representing undivided beneficial ownership interests in the assets of the Issuer Trust, to
invest the proceeds from such sales in the Junior Subordinated Debentures issued by the Debenture Issuer and to engage in only those activities necessary or incidental thereto; and 


        WHEREAS,
all of the Trustees and the Sponsor, by this Declaration of Trust, amend and restate each and every term and provision of the Original Declaration. 



        NOW,
THEREFORE, it being the intention of the parties hereto to continue the Issuer Trust as a business trust under the Business Trust Act and that this Declaration of Trust constitute
the governing instrument of such business trust, the Trustees hereby declare that all assets contributed to the Issuer Trust be held in trust for the benefit of the Holders, from time to time, of the
Trust Securities representing undivided beneficial ownership interests in the assets of the Issuer Trust issued hereunder, subject to the provisions of this Declaration of Trust. 


 
 

ARTICLE 1
  
    INTERPRETATION AND DEFINITIONS    
    


        SECTION
1.1    Interpretation and Definitions.    


        Unless
the context otherwise requires: 


        (a)   capitalized
terms used in this Declaration of Trust but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1; 





 

        (b)   a
term defined anywhere in this Declaration of Trust has the same meaning throughout; 


        (c)   all
references to "the Declaration of Trust" or "this Declaration of Trust" are to this Declaration of Trust as modified, supplemented or amended from time to time; 



        (d)   all
references in this Declaration of Trust to Articles, Sections, Recitals and Exhibits are to Articles and Sections of, or Recitals and Exhibits to, this Declaration
of Trust unless otherwise specified; 


        (e)   unless
otherwise defined in this Declaration of Trust, a term defined in the Trust Indenture Act has the same meaning when used in this Declaration of Trust; and 


        (f)    a
reference to the singular includes the plural and vice versa and a reference to any masculine form of a term shall include the feminine form of a term, as applicable. 


        (g)   the
following terms have the following meanings: 


        "Administrative
Trustee" means any Trustee other than the Property Trustee and the Delaware Trustee. 


        "Affiliate"
has the same meaning as given to that term in Rule 405 of the Securities Act or any successor rule thereunder. 


        "Authorized
Officer" of a Person means any Person that is authorized to bind such Person. 



        "Beneficial
Owners" means, for Preferred Securities represented by a Global Security, the person who acquires an interest in the Preferred Securities which is reflected on the records of
the Depositary through the Depositary Participants. 


        "Business
Day" means each day except Saturday, Sunday and any day on which (a) banking institutions in the Borough of Manhattan, The City of New York and Chicago, Illinois are
authorized or required by law, regulation or executive order to close or (b) a day on which the Corporate Trust Office of the Trustee is closed for business. 



        "Business
Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time, or any successor legislation. 


        "Cedel"
means Cedel Bank, société anonyme. 


        "Certificate"
means a Common Security Certificate or a Preferred Security Certificate. 


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        "Certificate
of Trust" has the meaning specified in the Recitals hereto. 


        "Closing
Date" means the date on which the Preferred Securities are issued and sold. 


        "Code"
means the Internal Revenue Code of 1986, as amended from time to time, or any successor legislation. A reference to a specific section of the Code refers not only to such specific
section but also to any corresponding provision of any federal tax statute enacted after the date of this Declaration of Trust, as such specific section or corresponding provision is in effect on the
date of application of the provisions of this Declaration of Trust containing such reference. 


        "Commission"
means the Securities and Exchange Commission. 


        "Common
Securities Holder" means Foster Wheeler Corporation, in its capacity as purchaser and holder of all of the Common Securities issued by the Issuer Trust. 


        "Common
Security" has the meaning specified in Section 7.1. 


        "Common
Security Certificate" means a definitive certificate in fully registered form representing a Common Security, substantially in the form of Exhibit B hereto. 


        "Corporate
Trust Office" means the principal office of the Property Trustee at which at any particular time its corporate trust business shall be administered, which office at the date
of execution of this Declaration of Trust is located at 311 West Monroe Street, 12th floor, Chicago, Illinois 60606. 



        "Covered
Person" means (a) any officer, director, shareholder, partner, member, representative, employee or agent of (i) the Issuer Trust or (ii) the Issuer Trust's
Affiliates; and (b) any Holder of Trust Securities. 


        "Debenture
Issuer" means Foster Wheeler Corporation, in its capacity as issuer of the Junior Subordinated Debentures under the Junior Subordinated Indenture. 


        "Debenture
Issuer Indemnified Person" means (a) any Administrative Trustee; (b) any Affiliate of any Administrative Trustee; (c) any officers, directors,
shareholders, members, partners, employees,
representatives or agents of any Administrative Trustee or any Affiliate thereof; or (d) any officer, employee or agent of the Issuer Trust or its Affiliates other than the Property Trustee,
the Delaware Trustee and their respective affiliates. 


        "Debenture
Trustee" means Harris Trust and Savings Bank, in its capacity as trustee under the Junior Subordinated Indenture until a successor trustee is appointed thereunder, and
thereafter means such successor trustee. 


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        "Delaware
Trustee" has the meaning specified in Section 6.1. 


        "Depositary"
means, with respect to Trust Securities issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that
is designated to act as Depositary for such Trust Securities. 



        "Depositary
Participant" means a member of, or participant in, the Depositary. 


        "Direct
Action" has the meaning specified in Section 3.8(e). 


        "Distribution"
means a distribution payable to Holders of Trust Securities in accordance with Annex I hereto. 


        "Euroclear"
means Morgan Guaranty Trust Company of New York, Brussels office, as operator of the Euroclear System. 


        "Exchange
Act" means the Securities Exchange Act of 1934, as amended from time to time, or any successor legislation. 


        "Fiduciary
Indemnified Person" has the meaning set forth in Section 9.4(b). 


        "Fiscal
Year" has the meaning specified in Section 10.1. 


        "Global
Security" means a fully registered, global Preferred Security Certificate. 


        "Guarantee"
means the Guarantee Agreement, dated as of January 13, 1999 of the Sponsor in respect of the Trust Securities. 



        "Holder"
means any holder of Trust Securities, as registered on the books and records of the Issuer Trust; provided, however, that in determining whether the Holders of the requisite
liquidation amount of Preferred Securities have voted on any matter provided for in this Declaration of Trust, then for the purpose of such determination only (and not for any other purpose
hereunder), if the Preferred Securities remain in the form of one or more Global Securities and if the Depositary which is the holder of such Global Securities has sent an omnibus proxy to the Issuer
Trust assigning voting rights to Depositary Participants to whose accounts the Preferred Securities are credited on the record date, the term "Holders" shall mean such Depositary Participants acting
at the direction of the Beneficial Owners. 


        "Indemnified
Person" means a Debenture Issuer Indemnified Person or a Fiduciary Indemnified Person. 


        "Indenture
Event of Default" has the meaning given to the term "Event of Default" in the Junior Subordinated Indenture. 


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        "Investment
Company" means an investment company as defined in the Investment Company Act and the regulations promulgated thereunder. 



        "Investment
Company Act" means the Investment Company Act of 1940, as amended from time to time, or any successor legislation. 


        "Investment
Company Event" means the receipt by the Issuer Trust of an opinion of counsel, rendered by a law firm having a recognized national securities practice, to the effect that, as
a result of the
occurrence of a change in law or regulation or a change in interpretation or application of law or regulation by any legislative body, court, governmental agency or regulatory authority (a "Change in
1940 Act Law"), there is more than an insubstantial risk that the Issuer Trust is or will be considered an "investment company" that is required to be registered under the Investment Company Act,
which Change in 1940 Act Law becomes effective on or after the Closing Date. 


        "Issuer
Trust" has the meaning specified in the Recitals hereto. 


        "Junior
Subordinated Debentures" means series of debentures to be issued by the Debenture Issuer under the Junior Subordinated Indenture and held by the Property Trustee. 


        "Junior
Subordinated Indenture" means the Junior Subordinated Indenture, dated as of January 13, 1999 between the Debenture Issuer and Harris Trust and Savings Bank, as trustee,
and as amended and supplemented by any amendment or supplement thereto, pursuant to which the Junior Subordinated Debentures are to be issued. 


        "Legal
Action" has the meaning specified in Section 3.6(g). 


        "List
of Holders" has the meaning specified in Section 2.2(a). 


        "Majority
in Liquidation Amount" means, except as provided in the terms of the Preferred Securities or by the Trust Indenture Act, Holder(s) of outstanding Trust Securities, voting
together as a single class, or, as the context may require, Holders of outstanding Preferred Securities or Holders of outstanding Common Securities, voting separately as a class, who are the record
owners of more than 50% of the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accumulated and unpaid Distributions to the
date upon which the voting percentages are determined) of all outstanding Trust Securities of the relevant class. 


        "New
York Stock Exchange" means the New York Stock Exchange, Inc. or any successor thereto. 


        "Officers'
Certificate" means, with respect to any Person, a certificate signed on behalf of such Person by two Authorized Officers of such Person. Any Officers' Certificate 


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delivered
with respect to compliance with a condition or covenant provided for in this Declaration of Trust shall include: 


        (a)   a
statement that each officer signing the Officers' Certificate has read the covenant or condition and the definitions relating thereto; 


        (b)   a
brief statement of the nature and scope of the examination or investigation undertaken by each officer on behalf of such Person in rendering the Officers' Certificate; 



        (c)   a
statement that each such officer has made such examination or investigation as, in such officer's opinion, is necessary to enable such officer on behalf of such Person
to express an informed opinion as to whether or not such covenant or condition has been complied with; and 


        (d)   a
statement as to whether or not, in the opinion of each such officer acting on behalf of such Person, such condition or covenant has been complied with; provided, that
the term "Officers' Certificate", when used with reference to Administrative Trustees who are natural persons shall mean a certificate signed by two of the Administrative Trustees which otherwise
satisfies the foregoing requirements. 


        "Paying
Agent" has the meaning specified in Section 3.8(h). 


        "Payment
Amount" has the meaning specified in Annex I hereto. 


        "Person"
means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature. 


        "Preferred
Security" has the meaning specified in Section 7.1. 


        "Preferred
Security Certificate" means a definitive certificate in fully registered form representing a Preferred Security, substantially in the form of Exhibit A. 


        "Property
Account" has the meaning specified in Section 3.8(c). 


        "Property
Trustee" means the Trustee meeting the eligibility requirements set forth in Section 6.3. 


        "Pro
Rata" means pro rata to each Holder of Trust Securities according to the aggregate liquidation amount of the Trust Securities held by the relevant Holder in relation to the
aggregate liquidation amount of all Trust Securities outstanding. 


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        "Quorum"
means a majority of the Administrative Trustees or, if there are only two Administrative Trustees, both of them. 


        "Redemption/Distribution
Notice" has the meaning specified in Annex I hereto. 


        "Redemption
Price" means the amount for which the Trust Securities will be redeemed, which amount will equal (i) the redemption price paid by the Debenture Issuer to repay or
redeem, in whole or in part, the Junior Subordinated Debentures held by the Issuer Trust plus an amount equal to accumulated and unpaid Distributions on such Trust Securities through the date of their
redemption or (ii) such lesser amount as will be received by the Issuer Trust in respect of the Junior Subordinated Debentures so repaid or redeemed. 


        "Related
Party" means, with respect to the Sponsor, any direct or wholly owned subsidiary of the Sponsor or any Person that owns, directly or indirectly, 100% of the outstanding voting
securities of the Sponsor. 


        "Responsible
Officer" means, with respect to the Property Trustee, any officer with direct responsibility for the administration of this Declaration of Trust and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is referred because of that officer's knowledge of and familiarity with the particular subject. 


        "Rule 3a-5"
means Rule 3a-5 under the Investment Company Act or any successor rule thereunder. 



        "Securities
Act" means the Securities Act of 1933, as amended from time to time, or any successor legislation. 


        "Special
Event" means a Tax Event or an Investment Company Event. 


        "Sponsor"
means Foster Wheeler Corporation, a New York corporation, or any successor entity in a merger, consolidation, amalgamation or replacement by or conveyance, transfer or lease of
its properties substantially as an entirety, in its capacity as sponsor of the Issuer Trust. 



        "Successor
Delaware Trustee" has the meaning specified in Section 6.6(b). 


        "Successor
Entity" has the meaning specified in Section 3.15(b)(i). 


        "Successor
Property Trustee" has the meaning specified in Section 6.6(b). 


        "Successor
Security" has the meaning specified in Section 3.15(b)(i)B. 



        "Super
Majority" has the meaning specified in Section 2.6(a)(ii). 


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        "Tax
Event" means the receipt by the Issuer Trust of an opinion of independent counsel experienced in such matters, to the effect that, as a result of (a) any amendment to,
clarification of, or change (including any announced proposed change) in, the laws (or any regulations thereunder) of the United States or any political subdivision or taxing authority thereof or
therein, or change in the official position with respect thereto or (b) any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or proposed change, pronouncement, notice, announcement or decision is announced on or after the Closing Date, there is more than an insubstantial risk that
(i) the Issuer Trust is, or will be within 90 days of the date of such opinion, subject to the United States federal income tax with respect to income received or accumulate on the
Junior Subordinated Debentures, (ii) interest payable by the Debenture Issuer on the Junior Subordinated Debentures is not, or within 90 days of the date of such opinion, will not be,
deductible by the Debenture Issuer, in whole or in part, by the Debenture Issuer for United States
federal income tax purposes, or (iii) the Issuer Trust is, or will be within 90 days of the date of such opinion, subject to more than a de
minimis amount of other taxes, duties or other governmental charges. 


        "10%
in Liquidation Amount" means, except as provided in the terms of the Preferred Securities or by the Trust Indenture Act, Holder(s) of outstanding Trust Securities, voting together
as a single class, or, as the context may require, Holders of outstanding Preferred Securities or Holders of outstanding Common Securities, voting separately as a class, who are the record owners of
10% or more of the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which
the voting percentages are determined) of all outstanding Trust Securities of the relevant class. 


        "Treasury
Regulations" means the income tax regulations, including temporary and proposed regulations, promulgated under the Code by the United States Treasury, as such regulations may
be amended from time to time (including corresponding provisions of succeeding regulations). 


        "Trust
Enforcement Event" in respect of the Trust Securities means an Indenture Event of Default has occurred and is continuing in respect of the Junior Subordinated Debentures. 



        "Trust
Indenture Act" means the Trust Indenture Act of 1939, as amended from time to time, or any successor legislation. 


        "Trust
Securities" means the Common Securities and the Preferred Securities. 


        "Trustee"
or "Trustees" means each Person who has signed this Declaration of Trust as a trustee, so long as such Person shall continue in office in accordance with the terms hereof, and
all other Persons who may from time to time be duly appointed, qualified and serving as Trustees in accordance with the provisions hereof, and references herein to a Trustee 


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or the Trustees shall refer to such Person or Persons solely in their capacity as trustees hereunder. 


 
 

ARTICLE 2
  
    TRUST INDENTURE ACT    
    


        SECTION
2.1    Trust Indenture Act; Application.    


        (a)   This
Declaration of Trust is subject to the provisions of the Trust Indenture Act that are required to be part of this Declaration of Trust and shall, to the extent
applicable, be governed by such provisions. 


        (b)   The
Property Trustee shall be the only Trustee which is a Trustee for the purposes of the Trust Indenture Act. 


        (c)   If
and to the extent that any provision of this Declaration of Trust conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control. 


        (d)   The
application of the Trust Indenture Act to this Declaration of Trust shall not affect the Issuer Trust's classification as a grantor trust for United States federal
income tax purposes and shall not affect the nature of the Trust Securities as equity securities representing undivided beneficial ownership interests in the assets of the Issuer Trust. 


        SECTION
2.2    Lists of Holders of Trust Securities.    


        (a)   Each
of the Sponsor and the Administrative Trustees on behalf of the Issuer Trust shall provide the Property Trustee, (i) except while the Preferred Securities
are represented by one or more Global Securities, at least one Business Day prior to the date for payment of Distributions, a list, in such form as the Property Trustee may reasonably require, of the
names and addresses of the Holders of the Trust Securities ("List of Holders") as of the record date relating to the payment of such Distributions and (ii) at any other time, within
30 days of receipt by the Issuer Trust of a written request from the Property Trustee for a List of Holders as of a date no more than 15 days before such List of Holders is given to the
Property Trustee; provided that neither the Sponsor nor the Administrative Trustees on behalf of the Issuer Trust shall be obligated to provide such List of Holders at any time the List of Holders
does not differ from the most recent List of Holders given to the Property Trustee by the Sponsor and the Administrative Trustees on behalf of the Issuer Trust. The Property Trustee shall preserve, in
as current a form as is reasonably practicable, all information contained in Lists of Holders given to it or which it receives in the capacity as Paying Agent (if acting in such capacity), provided
that the Property Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders. 


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        (b)   The
Property Trustee shall comply with its obligations under, and shall be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act. 



        SECTION
2.3    Reports by the Property Trustee.    


        Within
60 days after May 15 of each year (commencing with the year of the first anniversary of the issuance of the Preferred Securities), the Property Trustee shall provide
to the Holders of the Preferred Securities such reports as are required by Section 313 of the Trust Indenture Act, if any, in the form and in the manner provided by Section 313 of the
Trust Indenture Act. The Property Trustee shall also comply with the requirements of Section 313(d) of the Trust Indenture Act. 



        SECTION
2.4    Periodic Reports to the Property Trustee.    


        Each
of the Sponsor and the Administrative Trustees on behalf of the Issuer Trust shall provide to the Property Trustee such documents, reports and information as required by
Section 314 of the Trust Indenture Act (if any) and the compliance certificate required by Section 314 of the Trust Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act. 


        SECTION
2.5    Evidence of Compliance with Conditions Precedent.    



        Each
of the Sponsor and the Administrative Trustees on behalf of the Issuer Trust shall provide to the Property Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Declaration of Trust that relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) may be given in the form of an Officers' Certificate. 


        SECTION
2.6    Trust Enforcement Events; Waiver.    



        (a)   The
Holders of a Majority in Liquidation Amount of the Preferred Securities may, by vote or written consent, on behalf of the Holders of all of the Preferred Securities,
waive any past Trust Enforcement Event in respect of the Preferred Securities and its consequences, provided that, if the underlying Indenture Event of Default: 




	(i)
	is
not waivable under the Junior Subordinated Indenture, the Trust Enforcement Event under the Declaration of Trust shall also not be waivable; or



	(ii)
	requires
the consent or vote of greater than a majority in principal amount of the holders of the Junior Subordinated Debentures (a "Super Majority") to be waived under
the Junior Subordinated Indenture, the related Trust Enforcement Event under the 




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Declaration
of Trust may only be waived by the vote or written consent of the Holders of at least the proportion in liquidation amount of the Preferred Securities that the relevant Super Majority
represents of the aggregate principal amount of the Junior Subordinated Debentures outstanding. 






        The
foregoing provisions of this Section 2.6(a) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(l)(B) of the Trust
Indenture Act is hereby expressly excluded from this Declaration of Trust and the Trust Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such default shall cease to exist,
and any Trust Enforcement Event with respect to the Preferred Securities arising therefrom shall be deemed to have been cured, for every purpose of this Declaration of Trust and the Preferred
Securities, but no such waiver shall extend to any subsequent or other Trust Enforcement Event with respect to the Preferred Securities or impair any right consequent thereon. Any waiver by the
Holders of the Preferred Securities of a Trust Enforcement Event with
respect to the Preferred Securities shall also be deemed to constitute a waiver by the Holders of the Common Securities of any such Trust Enforcement Event with respect to the Common Securities for
all purposes of this Declaration of Trust without any further act, vote, or consent of the Holders of the Common Securities. 


        (b)   The
Holders of a Majority in Liquidation Amount of the Common Securities may, by vote or written consent, on behalf of the Holders of all of the Common Securities, waive
any past Trust Enforcement Event in respect of the Common Securities and its consequences, provided that, if the underlying Indenture Event of Default: 




	(i)
	is
not waivable under the Junior Subordinated Indenture, except where the Holders of the Common Securities are deemed to have waived such Trust Enforcement Event under
the Declaration of Trust as provided below in this Section 2.6(b), the Trust Enforcement Event under the Declaration of Trust shall also not be waivable; or



	(ii)
	requires
the consent or vote of a Super Majority to be waived under the Junior Subordinated Indenture, except where the Holders of the Common Securities are deemed to
have waived such Trust Enforcement Event under the Declaration of Trust as provided below in this Section 2.6(b), the Trust Enforcement Event under the Declaration of Trust may only be waived
by the vote or written consent of the Holders of at least the proportion in liquidation amount of the Common Securities that the relevant Super Majority represents of the aggregate principal amount of
the Junior Subordinated Debentures outstanding; 




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provided
further, that each Holder of Common Securities will be deemed to have waived any Trust Enforcement Event and all Trust Enforcement Events with respect to the Common Securities and the
consequences thereof until all Trust Enforcement Events with respect to the Preferred Securities have been cured, waived or otherwise eliminated, and until such Trust Enforcement Events with respect
to the Preferred Securities have been so cured, waived or otherwise eliminated, the Property Trustee will be deemed to be acting solely on behalf of the Holders of the Preferred Securities and only
the Holders of the Preferred Securities will have the right to direct the Property Trustee in accordance with the terms of the Trust Securities. The foregoing provisions of this Section 2.6(b)
shall be in lieu of Sections 316(a)(l)(A) and 316(a)(l)(B) of the Trust Indenture Act and such Sections 316(a)(l)(A) and 316(a)(l)(B) of the Trust Indenture Act are hereby expressly excluded from this
Declaration of Trust and the Trust Securities, as permitted by the Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b), upon such cure, waiver or other elimination,
any such default shall cease to exist and any Trust Enforcement Event with respect to the Common Securities arising therefrom shall be deemed to have been cured for every purpose of this Declaration
of Trust, but no such waiver shall extend to
any subsequent or other Trust Enforcement Event with respect to the Common Securities or impair any right consequent thereon. 



        (c)   A
waiver of an Indenture Event of Default by the Property Trustee at the direction of the Holders of the Preferred Securities constitutes a waiver of the corresponding
Trust Enforcement Event with respect to the Preferred Securities under this Declaration of Trust. The foregoing provisions of this Section 2.6(c) shall be in lieu of Section 316(a)(l)(B)
of the Trust Indenture Act and such Section 316(a)(l)(B) of the Trust Indenture Act is hereby expressly excluded from this Declaration of Trust and the Trust Securities, as permitted by the
Trust Indenture Act. 


        SECTION
2.7    Trust Enforcement Event; Notice.    



        (a)   The
Property Trustee shall, within 90 days after the occurrence of a Trust Enforcement Event, transmit by mail, first class postage prepaid, to the Holders of the
Trust Securities, notices of all defaults with respect to the Trust Securities actually known to a Responsible Officer of the Property Trustee, unless such defaults have been cured before the giving
of such notice (the term "defaults" for the purposes of this Section 2.7(a) being hereby defined to be an Indenture Event of Default, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided that, except for a default in the payment of principal of (or premium, if any) or interest on any of the Junior Subordinated
Debentures, the Property Trustee shall be protected in withholding such notice if and so long as a Responsible Officer of the Property Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Trust Securities. 


        (b)   The
Property Trustee shall not be deemed to have knowledge of any default except; 


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	(i)
	a
default under Sections 5.01(a) or 5.01(b) of the Junior Subordinated Indenture; or



	(ii)
	any
default as to which the Property Trustee shall have received written notice or of which a Responsible Officer of the Property Trustee charged with the
administration of this Declaration of Trust shall have actual knowledge. 







        As
used herein, the term "actual knowledge" means the actual fact or statement of knowing without any duty to make any investigation without regard thereto. 


 
 

ARTICLE 3
  
    ORGANIZATION    
    


        SECTION
3.1    Name and Organization.    


        The
Issuer Trust hereby continued is named "FW Preferred Capital Trust I" as such name may be modified from time to time by the Administrative Trustees following written notice to the
Holders of Trust Securities. The Issuer Trust's activities may be conducted under the name of the Issuer Trust or any other name deemed advisable by the Administrative Trustees. 



        SECTION
3.2    Office.    


        The
address of the principal office of the Issuer Trust is c/o Foster Wheeler Corporation, Perryville Corporate Park, Clinton, New Jersey 08809. On 10 Business Days' written notice to
the Holders of Trust Securities, the Administrative Trustees may designate another principal office. 


        SECTION
3.3    Purpose.    



        The
exclusive purposes and functions of the Issuer Trust are (a) to issue and sell Trust Securities and use the gross proceeds from such sale to acquire the Junior Subordinated
Debentures, and (b) except as otherwise limited herein, to engage in only those other activities necessary or incidental thereto. The Issuer Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets or otherwise undertake (or permit to be undertaken) any activity that would cause the Issuer Trust not to be classified as a grantor trust
for United States federal income tax purposes. 


        By
the acceptance of this Issuer Trust, none of the Trustees, the Sponsor, the Holders of the Preferred Securities or Common Securities or the Preferred Securities Beneficial Owners will
take any position
for United States federal income tax purposes which is contrary to the classification of the Issuer Trust as a grantor trust. 


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        SECTION 3.4    Authority.    


        (a)   Subject
to the limitations provided in this Declaration of Trust and to the specific duties of the Property Trustee, the Administrative Trustees shall have exclusive
authority to carry out the purposes of the Issuer Trust. An action taken by the Administrative Trustees in accordance with their powers shall constitute the act of and serve to bind the Issuer Trust
and an action taken by the Property Trustee on behalf of the Issuer Trust in accordance with its powers shall constitute the act of and serve to bind the Issuer Trust. In dealing with the Trustees
acting on behalf of the Issuer Trust, no person shall be required to inquire into the authority of the Trustees to bind the Issuer Trust. Persons dealing with the Issuer Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this Declaration of Trust. 


        (b)   Except
as expressly set forth in this Declaration of Trust and except if a meeting of the Administrative Trustees is called with respect to any matter over which the
Administrative Trustees have power to act, any power of the Administrative Trustees may be exercised by, or with the consent of, any one such Administrative Trustee. 



        (c)   Unless
otherwise determined by the Administrative Trustees, and except as otherwise required by the Business Trust Act or applicable law, any Administrative Trustee is
authorized to execute on behalf of the Issuer Trust any documents which the Administrative Trustees have the power and authority to cause the Issuer Trust to execute pursuant to Section 3.6(b);
and 


        (d)   an
Administrative Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the
purposes of signing any documents which the Administrative Trustees have power and authority to cause the Issuer Trust to execute pursuant to Section 3.6. 



        SECTION
3.5    Title to Property of the Issuer Trust.    


        Except
as provided in Section 3.8 with respect to the Junior Subordinated Debentures and the Property Account or as otherwise provided in this Declaration of Trust, legal title to
all assets of the Issuer Trust shall be vested in the Property Trustee (in its capacity as such) to be held and administered by the Property Trustee in trust for the benefit of the Issuer Trust and
the Holders in accordance with this
Declaration of Trust. The Holders shall not have legal title to any part of the assets of the Issuer Trust, but shall have an undivided beneficial ownership interest in the assets of the Issuer Trust. 


14





 

        SECTION
3.6    Powers and Duties of the Administrative Trustees.    


        The
Administrative Trustees shall have the exclusive power, duty and authority to cause the Issuer Trust to engage in the following activities: 



        (a)   to
establish the terms and form of the Preferred Securities and the Common Securities in the manner specified in Section 7.1 and issue and sell the Preferred
Securities and the Common Securities in accordance with this Declaration of Trust; provided, however, that the Issuer Trust may issue no more than one series of Preferred Securities and no more than
one series of Common Securities, and, provided further, that there shall be no interests in the Issuer Trust other than the Trust Securities, and the issuance of Trust Securities shall be limited to a
one-time, simultaneous issuance of both Preferred Securities and Common Securities on the Closing Date; 



        (b)   in
connection with the issue and sale of the Preferred Securities, at the direction of the Sponsor, to: 




	(i)
	execute
and file an application, prepared by the Sponsor, to the New York Stock Exchange or any other national stock exchange or the NASDAQ Stock Market for listing of
any Preferred Securities, the Guarantee and the Junior Subordinated Debentures;



	(ii)
	execute
and file with the Commission one or more registration statements on the applicable forms prepared by the Sponsor, including any amendments thereto, pertaining
to the Preferred Securities, the Guarantee and the Junior Subordinated Debentures;



	(iii)
	execute
and file any documents prepared by the Sponsor, or take any acts as determined by the Sponsor to be necessary, in order to qualify or register all or part of
the Preferred Securities in any state in which the Sponsor has determined to qualify or register such Preferred Securities for sale; and



	(iv)
	negotiate
the terms of and execute and enter into an underwriting agreement and other related agreements providing for the sale of the Preferred Securities; 





        (c)   to
acquire the Junior Subordinated Debentures with the proceeds of the sale of the Preferred Securities and the Common Securities; provided, however, that the
Administrative Trustees shall cause legal title to the Junior Subordinated Debentures to be held of record in the name of the Property Trustee for the benefit of the Holders of the Preferred
Securities and the Holders of the Common Securities; 


15





 

        (d)   to
give the Sponsor and the Property Trustee prompt written notice of the occurrence of any Special Event; provided that the Administrative Trustees shall consult with
the Sponsor and the Property Trustee before taking or refraining from taking any action in relation to any such Special Event; 



        (e)   to
establish a record date with respect to all actions to be taken hereunder that require a record date be established, including and with respect to, for the purposes
of Section 316(c) of the Trust Indenture Act, Distributions, voting rights, redemptions and exchanges, and to issue relevant notices to the Holders of Preferred Securities and Holders, of
Common Securities as to such actions and applicable record dates; 


        (f)    to
take all actions and perform such duties as may be required of the Administrative Trustees pursuant to the terms of this Declaration of Trust and the Trust
Securities; 


        (g)   to
bring or defend, pay, collect, compromise, arbitrate, resort to legal action or otherwise adjust claims or demands of or against the Issuer Trust ("Legal Action"),
unless pursuant to Section 3.8(e), the Property Trustee has the exclusive power to bring such Legal Action; 


        (h)   to
employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors and consultants to conduct only
those services that the Administrative Trustees have authority to conduct directly, and to pay reasonable compensation for such services; 



        (i)    to
cause the Issuer Trust to comply with the Issuer Trust's obligations under the Trust Indenture Act; 


        (j)    to
give the certificate required by Section 314(a)(4) of the Trust Indenture Act to the Property Trustee, which certificate may be executed by any Administrative
Trustee; 


        (k)   to
incur expenses that are necessary or incidental to carry out any of the purposes of the Issuer Trust; 


        (1)   to
act as, or appoint another Person to act as, registrar and transfer agent for the Trust Securities; 



        (m)  to
give prompt written notice to the Holders of the Trust Securities of any notice received from the Debenture Issuer of its election to defer payments of interest on
the Junior Subordinated Debentures by extending the interest payment period under the Junior Subordinated Debentures as authorized by the Junior Subordinated Indenture; 


        (n)   to
take all action that may be necessary or appropriate for the preservation and the continuation of the Issuer Trust's valid existence, rights, franchises and
privileges as a 


16





 

statutory
business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred
Securities and the Holders of the Common Securities or to enable the Trust to effect the purposes for which the Issuer Trust was created; 


        (o)   to
take any action, not inconsistent with applicable law, that the Administrative Trustees determine in their discretion to be necessary or desirable in carrying out the
purposes and functions of the Issuer Trust as set out in Section 3.3 or the activities of the Issuer Trust as set out in this Section 3.6, including, but not limited to: 




	(i)
	causing
the Issuer Trust not to be deemed to be an Investment Company required to be registered under the Investment Company Act;



	(ii)
	causing
the Issuer Trust to be classified as a grantor trust for United States federal income tax purposes; and



	(iii)
	cooperating
with the Debenture Issuer to ensure that the Junior Subordinated Debentures will be treated as indebtedness of the Debenture Issuer for United States
federal income tax purposes. 





        (p)   to
take all action necessary to cause all applicable tax returns and tax information reports on Internal Revenue Service Form 1041 and the
Schedule K-1s attached thereto that are required to be filed with respect to the Issuer Trust to be duly prepared and filed by the Administrative Trustees on behalf of the Issuer
Trust; and 


        (q)   to
execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Issuer Trust in all matters necessary or incidental to
the foregoing. 


        The
Administrative Trustees shall exercise the powers set forth in this Section 3.6 in a manner that is consistent with the purposes and functions of the Issuer Trust set out in
Section 3.3, and the Administrative Trustees shall have no power to, and shall not, take any action that is inconsistent with the purposes and functions of the Issuer Trust set forth in
Section 3.3. 


        Subject
to this Section 3.6, the Administrative Trustees shall have none of the powers or the authority of the Property Trustee set forth in Section 3.8. 


        Any
expenses incurred by the Administrative Trustees pursuant to this Section 3.6 shall be reimbursed by the Debenture Issuer. 



        SECTION
3.7    Prohibition of Actions by the Issuer Trust and the Trustees.    


17





 

        (a)   The
Issuer Trust shall not, and the Trustees (including the Property Trustee) shall cause the Issuer Trust not to, engage in any activity other than as required or
authorized by this Declaration of Trust. In particular, the Issuer Trust shall not, and the Trustees (including the Property Trustee) shall cause the Issuer Trust not to: 




	(i)
	invest
any proceeds received by the Issuer Trust from holding the Junior Subordinated Debentures in securities that mature on or prior to the next distribution date, but
shall distribute all such proceeds to Holders of Trust Securities pursuant to the terms of this Declaration of Trust and of the Trust Securities;



	(ii)
	acquire
any assets other than as expressly provided herein;



	(iii)
	possess
Issuer Trust property otherwise than in accordance with the terms of this Declaration of Trust;



	(iv)
	make
any loans or incur any indebtedness;



	(v)
	possess
any power or otherwise act in such a way as to vary the Issuer Trust assets;



	(vi)
	possess
any power or otherwise act in such a way as to vary the terms of the Trust Securities in any way whatsoever (except to the extent expressly authorized in this
Declaration of Trust or by the terms of the Trust Securities);



	(vii)
	issue
any securities or other evidences of beneficial ownership of, or beneficial interest in, the Issuer Trust other than the Trust Securities;



	(viii)
	other
than as provided in this Declaration of Trust or by the terms of the Trust Securities, (A) direct the time, method and place of exercising any trust or
power conferred upon the Debenture Trustee with respect to the Junior Subordinated Debentures, (B) waive any past default that is waivable under the Junior Subordinated Indenture,
(C) exercise any right to rescind or annul any declaration that the principal of all the Junior Subordinated Debentures shall be due and payable, or (D) consent to any amendment,
modification or termination of the Junior Subordinated Indenture or the Junior Subordinated Debentures where such consent shall be required unless the Issuer Trust shall have received an opinion of
counsel to the effect that such modification will not cause more than an insubstantial risk that the Issuer Trust will be deemed an Investment Company required to 




18





 





be
registered under the Investment Company Act, and the Issuer Trust will not be classified as a grantor trust for United States federal income tax purposes; 



	(ix)
	take
any action inconsistent with the status of the Issuer Trust as a grantor trust for United States federal income tax purposes; or



	(x)
	revoke
any action previously authorized or approved by vote of the Holders of the Preferred Securities. 





        SECTION
3.8    Powers and Duties of the Property Trustee.    



        (a)   The
legal title to the Junior Subordinated Debentures shall be owned by and held of record in the name of the Property Trustee in trust for the benefit of the Issuer
Trust and the Holders of the Securities. The right, title and interest of the Property Trustee to the Junior Subordinated Debentures shall vest automatically in each Person who may hereafter be
appointed as Property Trustee in accordance with Section 6.6. Such vesting and cessation of title shall be effective whether or not conveyancing documents with regard to the Junior Subordinated
Debentures have been executed and delivered. 



        (b)   The
Property Trustee shall not transfer its right, title and interest in the Junior Subordinated Debentures to the Administrative Trustees or to the Delaware Trustee
(unless the Property Trustee also acts as Delaware Trustee). 


        (c)   The
Property Trustee shall: 




	(i)
	establish
and maintain a segregated non-interest bearing trust account (the "Property Account") in the name of and under the exclusive control of the
Property Trustee on behalf of the Holders of the Trust Securities and, upon the receipt of payments of funds made in respect of the Junior Subordinated Debentures held by the Property Trustee, deposit
such funds into the Property Account and make payments to the Holders of the Preferred Securities and Holders of the Common Securities from the Property Account in accordance with Section 7.2.
Funds in the Property Account shall be held uninvested until disbursed in accordance with this Declaration of Trust. The Property Account shall be an account that is maintained with a banking
institution the rating on whose long-term unsecured indebtedness is at least equal to the rating assigned to the Preferred Securities by a "nationally recognized statistical rating
organization", within the meaning of Rule 436(g)(2) under the Securities Act; 




19





 


	(ii)
	engage
in such ministerial activities as shall be necessary or appropriate to effect the redemption of the Preferred Securities and the Common Securities to the extent
the Junior Subordinated Debentures are redeemed or mature; and



	(iii)
	upon
written notice of dissolution of the Issuer Trust issued by the Administrative Trustees in accordance with the terms of the Trust Securities, engage in such
ministerial activities as so directed and as shall be necessary or appropriate to effect the distribution of the Junior Subordinated Debentures to Holders of Trust Securities. 





        (d)   The
Property Trustee shall take all actions and perform such duties as may be specifically required of the Property Trustee pursuant to the terms of this Declaration of
Trust and the Trust Securities. 


        (e)   The
Property Trustee shall take any Legal Action which arises out of or in connection with a Trust Enforcement Event of which a Responsible Officer of the Property
Trustee has actual knowledge or the Property Trustee's duties and obligations under this Declaration of Trust or the Trust Indenture Act; provided, however, that if a Trust Enforcement Event has
occurred and is continuing and such event is attributable to the failure of the Debenture Issuer to pay interest, principal or other required payments on the Junior Subordinated Debentures on the date
such interest, principal or other required payments are otherwise payable (or in the case of redemption, on the redemption date), then a Holder of Preferred Securities may directly institute a
proceeding against the Debenture Issuer for enforcement of payment to such Holder of the principal of or interest on Junior Subordinated Debentures having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such Holder (a "Direct Action") on or after the respective due date specified in the Junior Subordinated Debentures. 



        (f)    The
Property Trustee shall continue to serve as a Trustee until either: 




	(i)
	the
Issuer Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders of Trust Securities pursuant to the terms of the Trust
Securities; or



	(ii)
	a
Successor Property Trustee has been appointed and has accepted that appointment in accordance with Section 6.6. 





        (g)   The
Property Trustee shall have the legal power to exercise all of the rights, powers and privileges of a holder of Junior Subordinated Debentures under the Junior
Subordinated Indenture and, if a Trust Enforcement Event actually known to a Responsible Officer of the Property Trustee occurs and is continuing, the Property Trustee shall, for the benefit of
Holders of the Trust Securities, enforce its rights as holder of the Junior Subordinated Debentures subject to the rights of the Holders pursuant to the terms of such Trust Securities. 


20







   
        (h)   The Property Trustee may authorize one or more Persons (each, a "Paying Agent") to pay Distributions, redemption payments or liquidation payments on behalf of the Issuer
Trust with respect to all Trust Securities and any such Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any Paying Agent may be removed by the Property Trustee at any
time and a successor Paying Agent or additional Paying Agents may be appointed at any time by the Property Trustee. 



        (i)    Subject
to this Section 3.8, the Property Trustee shall have none of the duties, liabilities, powers or the authority of the Administrative Trustees set forth in
Section 3.6. 


        The
Property Trustee shall exercise the powers set forth in this Section 3.8 in a manner that is consistent with the purposes and functions of the Issuer Trust set out in
Section 3.3, and the Property Trustee shall have no power to, and shall not, take any action that is inconsistent with the purposes and functions of the Issuer Trust set out in
Section 3.3. 


        SECTION
3.9    Certain Duties and Responsibilities of the Property Trustee.    


        (a)   The
Property Trustee, before the occurrence of any Trust Enforcement Event and after the curing of all Trust Enforcement Events that may have occurred, shall undertake
to perform only such duties as are specifically set forth in this Declaration of Trust and no implied covenants shall be read into this Declaration of Trust against the Property Trustee. In case a
Trust Enforcement Event has occurred (that has not been cured or waived pursuant to Section 2.6) of which a Responsible Officer of the Property Trustee has actual knowledge, the Property
Trustee shall exercise such of the rights and powers vested in it by this Declaration of Trust, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs. 


        (b)   No
provision of this Declaration of Trust shall be construed to relieve the Property Trustee from liability for its own negligent action, its own negligent failure to
act or its own willful misconduct, except that: 




	(i)
	prior
to the occurrence of a Trust Enforcement Event and after the curing or waiving of all such Trust Enforcement Events that may have occurred:



	a.
	the
duties and obligations of the Property Trustee shall be determined solely by the express provisions of this Declaration of Trust and the Property Trustee shall not be liable except
for the performance of such duties and obligations as are specifically set forth in this Declaration of Trust, and no implied covenants or obligations shall be read into this Declaration of Trust
against the Property Trustee; and 







21





 





	b.
	in
the absence of bad faith on the part of the Property Trustee, the Property Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Property Trustee and conforming to the requirements of this Declaration of Trust; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be furnished to the Property Trustee, the Property Trustee shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Declaration of Trust;






	(ii)
	the
Property Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Property Trustee, unless it shall be proved that
the Property Trustee was negligent in ascertaining the pertinent facts;



	(iii)
	the
Property Trustee shall not be liable with respect to any action taken or omitted to be taken by it without negligence, in good faith in accordance with the
direction of the Holders of not less than a Majority in Liquidation Amount of the Trust Securities relating to the time, method and place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the Property Trustee under this Declaration of Trust;



	(iv)
	no
provision of this Declaration of Trust shall require the Property Trustee to expend or risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Declaration of Trust or indemnity reasonably satisfactory to the Property Trustee against such risk or liability is not reasonably assured to it;



	(v)
	the
Property Trustee's sole duty with respect to the custody, safe-keeping and physical preservation of the Junior Subordinated Debentures and the Property
Account shall be to deal with such property in a similar manner as the Property Trustee deals with similar property for its own account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration of Trust and the Trust Indenture Act; 




22





 


	(vi)
	the
Property Trustee shall have no duty or liability for or with respect to the value, genuineness, existence or sufficiency of the Junior Subordinated Debentures or
the payment of any taxes or assessments levied thereon or in connection therewith;



	(vii)
	the
Property Trustee shall not be liable for any interest on any money received by it except as it may otherwise agree with the Sponsor. Money held by the Property
Trustee need not be segregated from other funds held by it except in relation to the Property Account maintained by the Property Trustee pursuant to Section 3.8(c)(i) and except to the
extent otherwise required by law; and



	(viii)
	the
Property Trustee shall not be responsible for monitoring the compliance by the Administrative Trustees or the Sponsor with their respective duties under this
Declaration of Trust, nor shall the Property Trustee be liable for any default or misconduct of the Administrative Trustees or the Sponsor. 





        SECTION
3.10    Certain Rights of Property Trustee.    


        (a)   Subject
to the provisions of Section 3.9: 




	(i)
	the
Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed, sent
or presented by the proper party or parties;



	(ii)
	any
direction or act of the Sponsor or the Administrative Trustees contemplated by this Declaration of Trust shall be sufficiently evidenced by an Officers'
Certificate;



	(iii)
	whenever
in the administration of this Declaration of Trust, the Property Trustee shall deem it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely
upon an Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the Sponsor or the Administrative Trustees; 




23





 


	(iv)
	the
Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any
filing under tax or securities laws) or any rerecording, refiling or registration thereof;



	(v)
	before
the Property Trustee acts or refrains from acting, it may consult with counsel of its choice or other experts and the written advice or opinion of such counsel
and experts with respect to legal matters or advice within the scope of such experts' area of expertise 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 accordance with such advice or opinion, such counsel may be counsel to the Sponsor or any of its Affiliates, and may include any of its employees. The
Property Trustee shall have the right at any time to seek instructions concerning the administration of this Declaration of Trust from any court of competent jurisdiction;



	(vi)
	the
Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Declaration of Trust at the request or direction of any
Holder, unless such Holder shall have provided to the Property Trustee security and indemnity, reasonably satisfactory to the Property Trustee, against the costs, expenses (including attorneys' fees
and expenses and the expenses of the Property Trustee's agents, nominees or custodians) and liabilities that might be incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Property Trustee; provided that nothing contained in this Section 3.10(a) shall be taken to relieve the Property Trustee, upon the occurrence of
an Indenture Event of Default, of its obligation to exercise the rights and powers vested in it by this Declaration of Trust;



	(vii)
	the
Property 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, note, other evidence of indebtedness or other paper or document, but the Property Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit;



	(viii)
	the
Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees
or attorneys and the Property 




24





 







Trustee
shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; 



	(ix)
	any
action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders of the Trust Securities, and the signature of the Property Trustee
or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its
compliance with any of the terms and provisions of this Declaration of Trust, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action;



	(x)
	whenever
in the administration of this Declaration of Trust the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders of the Trust Securities which instructions may only be given by the Holders of the
same proportion in liquidation amount of the Trust Securities as would be entitled to direct the Property Trustee under the terms of the Trust Securities in respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (iii) shall be protected in conclusively relying on or acting
in or accordance with such instructions;



	(xi)
	except
as otherwise expressly provided by this Declaration of Trust, the Property Trustee shall not be under any obligation to take any action that is discretionary
under the provisions of this Declaration of Trust;



	(xii)
	the
Property Trustee shall not be liable for any action taken, suffered or omitted to be taken by it without negligence, in good faith and reasonably believed by it to
be authorized or within the discretion, rights or powers conferred upon it by this Declaration of Trust; and



	(xiii)
	the
Property Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder. 




25





 





        (b)   No
provision of this Declaration of Trust shall be deemed to impose any duty or obligation on the Property Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which the Property Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a
duty. 


        SECTION
3.11    Delaware Trustee.    


        Notwithstanding
any other provision of this Declaration of Trust other than Section 6.1, the Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware
Trustee have any of the duties and responsibilities of the Administrative Trustees or the Property Trustee described in this Declaration of Trust. Except as set forth in Section 6.1, the
Delaware Trustee shall be a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Business Trust Act. 


        SECTION
3.12    Execution of Documents.    


        Unless
otherwise determined by the Administrative Trustees, and except as otherwise required by the Business Trust Act, any Administrative Trustee is authorized to execute on behalf of
the Trust any documents that the Administrative Trustees have the power and authority to execute pursuant to Section 3.6; provided that, the registration statements referred to in
Section 3.6(b)(ii), including any amendments thereto, shall be signed by or on behalf of a majority of the Administrative Trustees. 



        SECTION
3.13    Not Responsible for Recitals or Issuance of Trust Securities.    


        The
recitals contained in this Declaration of Trust and the Trust Securities shall be taken as the statements of the Sponsor, and the Trustees do not assume any responsibility for their
correctness. The Trustees make no representations as to the value or condition of the property of the Trust or any part thereof. The Trustees make no representations as to the validity or sufficiency
of this Declaration of Trust, the Trust Securities, the Junior Subordinated Debentures or the Junior Subordinated Indenture. 



        SECTION
3.14    Duration of Issuer Trust.    


        The
Issuer Trust shall exist until terminated pursuant to the provisions of Article 8 hereof. 


26





 

        SECTION
3.15    Mergers.    


27





 

        (a)   The
Issuer Trust may not consolidate, amalgamate, merge with or into, or be replaced by, or convey, transfer or lease its properties and assets substantially as an
entirety to any corporation or other body, except as described in Section 3.15(b) and (c). 


        (b)   The
Issuer Trust may, at the request of the Sponsor and with the consent of the Administrative Trustees or, if there are more than two, a majority of the Administrative
Trustees and without the consent of the Holders of the Trust Securities, the Delaware Trustee or the Property Trustee, consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties substantially as an entirety to a trust organized as such under the laws of any State; provided, that: 




	(i)
	if
the Issuer Trust is not the successor, such successor entity (the "Successor Entity") either:



	A.
	expressly
assumes all of the obligations of the Issuer Trust with respect to the Trust Securities; or



	B.
	substitutes
for the Preferred Securities other securities having substantially the same terms as the Preferred Securities (the "Successor Securities") so long as the Successor
Securities rank the same as the Preferred Securities rank in priority with respect to Distributions and payments upon liquidation, redemption and otherwise;






	(ii)
	the
Debenture Issuer expressly appoints a trustee of such Successor Entity that possesses the same powers and duties as the Property Trustee as the holder of the Junior
Subordinated Debentures;



	(iii)
	the
Preferred Securities or any Successor Securities are listed, or any Successor Securities will be listed upon notification of issuance, on any national securities
exchange or with any other or organization on which the Preferred Securities are then listed or quoted;



	(iv)
	such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not cause the Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization;



	(v)
	such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the Holders of
the Preferred Securities (including any Successor Securities) in any material respect; 




28





 


	(vi)
	such
Successor Entity has a purpose identical to that of the Issuer Trust;



	(vii)
	prior
to such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease the Sponsor has received an opinion in writing of independent counsel to
the Issuer Trust experienced in such matters to the effect that:



	A.
	such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the Holders of the Preferred
Securities (including any Successor Securities) in any material respect;



	B.
	following
such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease neither the Issuer Trust nor the Successor Entity will be required to register as an
Investment Company; and



	C.
	following
such merger, consolidation, amalgamation or replacement, the Issuer Trust (or the Successor Entity) will continue to be classified as a grantor trust for United States
federal income tax purposes;






	(viii)
	the
Sponsor or any permitted successor or assignee owns all of the Common Securities and guarantees the obligations of such Successor Entity under the Successor
Securities at least to the extent provided by the Guarantee;



	(ix)
	such
Successor Entity expressly assumes all of the obligations of the Issuer Trust with respect to the Trustees; and



	(x)
	the
trustee of any such Successor Entity shall be a United States person within the meaning of Section 7701(a)(30) of the Code. 







        (c)   Notwithstanding
Section 3.15(b), the Issuer Trust shall not, except with the consent of Holders of 100% in aggregate liquidation amount of the Trust Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to, any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it, if such consolidation, amalgamation, merger, replacement, conveyance, transfer or lease would cause the Issuer Trust or Successor Entity to
be classified as other than a grantor trust for United States federal income tax purposes and each Holder of the Trust Securities not to be treated as owning an undivided interest in the Junior
Subordinated Debentures. 


29





 

        SECTION
3.16    Property Trustee May File Proofs of Claim.    



        In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other similar judicial proceeding relative to
the Issuer Trust or any other obligor upon the Trust Securities or the property of the Issuer Trust or of such other obligor or their creditors, the Property Trustee (irrespective of whether any
Distributions on the Trust Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Property Trustee shall have made any demand on
the Issuer Trust for the payment of any past due Distributions) shall be entitled and empowered, to the fullest extent permitted by law, by intervention in such proceeding or otherwise: 



        (a)   to
file and prove a claim for the whole amount of any Distributions owing and unpaid in respect of the Trust Securities (or, if the Trust Securities are original issue
discount Trust Securities, such portion of the liquidation amount as may be specified in the terms of such Securities) and to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Property Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Property Trustee, its and counsel) and of the Holders
allowed in such judicial proceeding, and 


        (b)   to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; 



and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the
Property Trustee and, in the event the Property Trustee shall consent to the making of such payments directly to the Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its agents and counsel, and any other amounts due the Property Trustee. 


        Nothing
herein contained shall be deemed to authorize the Property Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement
adjustment or compensation affecting the Trust Securities or the rights of any Holder thereof or to authorize the Property Trustee to vote in respect of the claim of any Holder in any such proceeding. 


30






  



 
 

ARTICLE 4
  
    SPONSOR    
    


        SECTION
4.1    Responsibilities of the Sponsor.    


        In
connection with the issue and sale of the Preferred Securities, the Sponsor shall have the exclusive right and responsibility to engage in the following activities to the extent the
Sponsor determines such activities to be necessary: 


        (a)   to
prepare for filing by the Issuer Trust with the Commission one or more registration statements on the applicable forms, including any amendments thereto, pertaining
to the Preferred Securities, the Guarantee and the Junior Subordinated Debentures; 


        (b)   to
determine the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and to do any and all such acts,
other than actions which must be taken by the Issuer Trust, and advise the Issuer Trust of actions it must take, and prepare for execution and filing any documents to be executed and filed by the
Issuer Trust, as the Sponsor deems necessary or advisable in order to comply with the applicable laws of any such states; 



        (c)   to
prepare for filing by the Issuer Trust an application to the New York Stock Exchange or any other national stock exchange or the NASDAQ Stock Market for listing upon
notice of issuance of any Preferred Securities, the Guarantee and the Junior Subordinated Debentures; and 


        (d)   to
negotiate the terms of an underwriting agreement and other related agreements providing for the sale of the Preferred Securities. 


        SECTION
4.2    Indemnification and Expenses of the Trustees.    



        The
Sponsor, in its capacity as Debenture Issuer, agrees to indemnify the Property Trustee and the Delaware Trustee for, and to hold each of them harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part of the Property Trustee or the Delaware Trustee, as the case may be, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of defending either of them against or investigating any claim or liability in connection with the exercise or performance of any of
their respective powers or duties hereunder, the provisions of this Section 4.2 shall survive the resignation or removal of the Delaware Trustee or the Property Trustee or the termination of
this Declaration of Trust. 


ARTICLE 5  


31





 
TRUST COMMON SECURITIES HOLDER  


        SECTION
5.1    Debenture Issuer's Purchase of Common Securities.    



        On
the Closing Date, the Debenture Issuer will purchase all of the Common Securities issued by the Issuer Trust, for an amount equal to at least 3% of the capital of the Issuer Trust, at
the same time as the Preferred Securities are sold. 


        The
aggregate stated liquidation amount of Common Securities outstanding at any time shall not be less than 3% of the capital of the Issuer Trust. 


        SECTION
5.2    Covenants of the Common Securities Holder.    



        For
so long as the Preferred Securities remain outstanding, the Common Securities Holder will covenant (i) to maintain, directly or indirectly, 100% ownership of the Common
Securities, (ii) to cause the Issuer Trust to remain a statutory business trust and not to voluntarily dissolve, wind up, liquidate or be terminated, except as permitted by this Declaration of
Trust, (iii) to use its commercially reasonable efforts to ensure that the Issuer Trust will not be an investment company for purposes of the Investment Company Act, and (iv) to take no
action which would be reasonably likely to cause the Issuer Trust to be classified as an association or a publicly traded partnership taxable as a corporation for United States federal income tax
purposes. 


 
 

ARTICLE 6
  
    TRUSTEES    
    


        SECTION
6.1    Number of Trustees.    


        The
number of Trustees initially shall be five, and: 


        (a)   at
any time before the issuance of any Trust Securities, the Sponsor may, by written instrument, increase or decrease the number of Trustees; and 



        (b)   after
the issuance of any Trust Securities, the number of Trustees may be increased or decreased by vote of the Holders of a Majority in Liquidation Amount of the Common
Securities voting as a class at a meeting of the Holders of the Common Securities or by written consent in lieu of such meeting; provided that the number of Trustees shall at all times be at least
three; and provided further that (1) one Trustee (the "Delaware Trustee") shall, in the case of a natural person, be a person who is a resident of the State of Delaware or that, if not a
natural person, is an entity which has its principal place of business in the State of Delaware and otherwise meets the requirements of the Business Trust Act and any other applicable law;
(2) at least one Trustee shall be an Administrative Trustee who shall be an employee or officer of, or 


32





 

be
affiliated with, the Sponsor, and (3) one Trustee shall be the Property Trustee for so long as this Declaration of Trust is required to qualify as an indenture under the Trust Indenture
Act, and such Trustee may also serve as Delaware Trustee if it meets the applicable requirements in which event, Section 3.11 shall have no application. 


        SECTION
6.2    [Reserved].    


        SECTION
6.3    Property Trustee; Eligibility.    


        (a)   There
shall at all times be one Trustee (which may be the Delaware Trustee) which shall act as Property Trustee which shall: 




	(i)
	not
be an Affiliate of the Sponsor; and



	(ii)
	be
a corporation organized and doing business under the laws of the United States of America or any state or territory thereof or of the District of Columbia, or a
corporation or other Person permitted by the Commission to act as an institutional trustee under the Trust Indenture Act, authorized under such laws to exercise corporate trust owners, having a
combined capital and surplus of at least 50 million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state, territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the supervising or examining authority referred to above, then for the purposes of this
Section 6.3(a)(ii), the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. 





        (b)   If
at any time the Property Trustee shall cease to be eligible to so act under Section 6.3(a), the Property Trustee shall immediately resign in the manner and
with the effect set forth in Section 6.6(c). 


        (c)   If
the Property Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Property Trustee and
the Holder of the Common Securities (as if it were the obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act. 


        (d)   The
Guarantee shall be deemed to be specifically described in this Declaration of Trust for purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act. 


33





 

        SECTION
6.4    Qualifications of Administrative Trustees and Delaware Trustee Generally.    



        Each
Administrative Trustee and the Delaware Trustee (unless the Property Trustee also acts as Delaware Trustee) shall be either a natural person who is at least 21 years of age
or a legal entity that shall act through one or more Authorized Officers. 


        SECTION
6.5    Initial Administrative Trustees.    


        The
initial Administrative Trustees shall be: 


        Richard
J. Swift, David J. Roberts and Robert D. Iseman, the business address of all of whom is c/o Foster Wheeler Corporation, Perryville Corporate Park, Clinton, New Jersey 08809. 



        SECTION
6.6    Appointment, Removal and Resignation of Trustees.    


        (a)   Subject
to Section 6.6(b), a Trustee may be appointed or removed without cause at any time: 




	(i)
	until
the issuance of any Trust Securities, by written instrument executed by the Sponsor;



	(ii)
	after
the issuance of any Trust Securities, by vote of the Holders of a Majority in Liquidation Amount of the Common Securities voting as a class at a meeting of the
Holders of the Common Securities; and



	(iii)
	if
an Event of Default has occurred and is continuing, by a vote of a Majority in Liquidation Amount of the Preferred Securities outstanding; provided, that no
Administrative Trustee may be removed by Holders of Preferred Securities pursuant to this clause (iii). 





        (b)   The
Trustee that acts as Property Trustee shall not be removed in accordance with Section 6.6(a) until a successor Trustee possessing the qualifications to act as
Property Trustee under Section 6.3(a) (a "Successor Property Trustee") has been appointed and has accepted such appointment by written instrument executed by such Successor Property Trustee and
delivered to the Administrative Trustees and the Sponsor. The Trustee that acts as Delaware Trustee shall not be removed in accordance with Section 6.6(a) until a successor Trustee possessing
the qualifications to act as Delaware Trustee under Sections 6.2 and 6.4 (a "Successor Delaware Trustee") has been appointed and has accepted such appointment by written instrument executed by such
Successor Delaware Trustee and delivered to the Administrative Trustees and the Sponsor. 


34





 

        (c)   A
Trustee appointed to office shall hold office until his or its successor shall have been appointed, until his death or its dissolution or until his or its removal or
resignation. Any Trustee may resign from office (without need for prior or subsequent accounting) by an instrument in writing signed by the Trustee and delivered to the Sponsor and the Trust, which
resignation shall take effect upon such delivery or upon such later date as is specified therein; provided, however, that: 




	(i)
	No
such resignation of the Trustee that acts as the Property Trustee shall be effective:



	a.
	until
a Successor Property Trustee has been appointed and has accepted such appointment by instrument executed by such Successor Property Trustee and delivered to the Issuer Trust, the
Sponsor and the resigning Property Trustee; or



	b.
	until
the assets of the Issuer Trust have been completely liquidated and the proceeds thereof distributed to the holders of the Trust Securities; and






	(ii)
	no
such resignation of the Trustee that acts as the Delaware Trustee shall be effective until a Successor Delaware Trustee has been appointed and has accepted such
appointment by instrument executed by such Successor Delaware Trustee and delivered to the Issuer Trust, the Sponsor and the resigning Delaware Trustee. 





        (d)   The
Holders of the Common Securities shall use their best efforts to promptly appoint a Successor Delaware Trustee or Successor Property Trustee, as the case may be, if
the Property Trustee or the Delaware Trustee delivers an instrument of resignation in accordance with this Section 6.6. 


        (e)   If
no Successor Property Trustee or Successor Delaware Trustee, as the case may be, shall have been appointed and accepted appointment as provided in this
Section 6.6 within 60 days after delivery to the Sponsor and the Issuer Trust of an instrument of resignation or removal, the resigning or removed Property Trustee or Delaware Trustee,
as applicable, may petition any court of competent jurisdiction for appointment of a Successor Property Trustee or Successor Delaware Trustee, as applicable. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor Property Trustee or Successor Delaware Trustee, as the case may be. 


        (f)    No
Property Trustee or Delaware Trustee shall be liable for the acts or omissions to act of any Successor Property Trustee or Successor Delaware Trustee, as the case may
be. 


        SECTION
6.7    Vacancies among Trustees.    


35





 

        If
an Issuer Trustee ceases to hold office for any reason and the number of Trustees is not reduced pursuant to Section 6.1, or if the number of Trustees is increased pursuant to
Section 6.1, a vacancy shall occur. A resolution certifying the existence of such vacancy by the Administrative Trustees or, if there are more than two, a majority of the Administrative
Trustees shall be conclusive evidence of the existence of such vacancy. The vacancy shall be filled with a Trustee appointed in accordance with Section 6.6. 



        SECTION
6.8    Effect of Vacancies.    


        The
death, resignation, retirement, removal, bankruptcy, dissolution, liquidation, incompetence or incapacity to perform the duties of a Trustee shall not operate to annul the Issuer
Trust. Whenever a vacancy in the number of Administrative Trustees shall occur, until such vacancy is filled by the appointment of a Administrative Trustee in accordance with Section 6.6, the
Administrative Trustees in office, regardless of their number, shall have all the powers granted to the Administrative Trustees and shall discharge all the duties imposed upon the Administrative
Trustees by this Declaration of Trust. 


        SECTION
6.9    Meetings.    


        If
there is more than one Administrative Trustee, meetings of the Administrative Trustees shall be held from time to time upon the call of any Administrative Trustee. Regular meetings of
the Administrative Trustees may be held at a time and place fixed by resolution of the Administrative Trustees. Notice of any in-person meetings of the Administrative Trustees shall be
hand delivered or otherwise delivered in writing (including by facsimile, with a hard copy by overnight courier) not less than 48 hours before such meeting. Notice of any telephonic meetings of
the Administrative Trustees shall be hand delivered or otherwise delivered in writing (including by facsimile, with a hard copy by overnight courier) not less than 24 hours before a meeting.
Notices shall contain a brief statement of the time, place and anticipated purposes of the meeting. The presence (whether in person or by telephone) of a Administrative Trustee at a meeting shall
constitute a waiver of notice of such meeting except where a Administrative Trustee attends a meeting for the express purpose of objecting to the transaction of any activity on the ground that the
meeting has not been lawfully called or convened. Unless provided otherwise in this Declaration of Trust, any action of the Administrative Trustees may be taken at a meeting by vote of a majority of
the Administrative Trustees present (whether in person or by telephone) and eligible to vote with respect to such matter, provided that a Quorum is present, or without a meeting by the unanimous
written consent of the Administrative Trustees. In the event there is only one Administrative Trustee, any and all action of such Administrative Trustee shall be evidenced by a written consent of such
Administrative Trustee. 


        SECTION
6.10    Delegation of Power.    


        (a)   Any
Administrative Trustee may, by power of attorney consistent with applicable law, delegate to any natural person over the age of 21 his, her or its power for the
purpose of executing any documents contemplated in Section 3.6, including any registration 


36







  





statement or amendment thereto filed with the Commission, or making any other governmental filing 


        (b)   The
Administrative Trustees shall have power to delegate from time to time to such of their number or to officers of the Issuer Trust the doing of such things and the
execution of such instruments either in the name of the Issuer Trust or the names of the Administrative Trustees or otherwise as the Administrative Trustees may deem expedient, to the extent such
delegation is not prohibited by applicable law or contrary to the provisions of the Issuer Trust, as set forth herein. 


        SECTION
6.11    Merger, Conversion, Consolidation or Succession to Business.    


        Any
corporation into which the Property Trustee, the Delaware Trustee or any Administrative Trustee that is not a natural person may be merged or converted or with such Trustee may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate
trust business of such Trustee shall be the successor of such 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. 


 
 

ARTICLE 7
  
    TERMS OF TRUST SECURITIES    
    


        SECTION
7.1    General Provisions Regarding Trust Securities.    


        (a)   The
Administrative Trustees shall on behalf of the Issuer Trust issue one class of preferred securities representing undivided beneficial ownership interests in the
assets of the Issuer Trust (the "Preferred Securities") and one class of common securities representing undivided beneficial ownership interests in the assets of the Issuer Trust (the "Common
Securities") having such terms as are set forth in Annex I hereto. The Issuer Trust shall issue no securities or other interests in the assets of the Issuer Trust other than the Preferred Securities
and the Common Securities. 


        (b)   The
Certificates shall be signed on behalf of the Issuer Trust by an Administrative Trustee. Such signature shall be the manual or facsimile signature of any
Administrative Trustee holding such position at the time of signature. In case an Administrative Trustee of the Issuer Trust who shall have signed any of the Certificates shall cease to be such
Administrative Trustee before the Certificates so signed shall be delivered by the Issuer Trust, such Certificates nevertheless may be delivered as though the person who signed such Certificates had
not ceased to be such Administrative Trustee; and any Certificate may be signed on behalf of the Issuer Trust by such persons who, at the actual date of execution of such Certificate, shall be the
Administrative Trustees of the Issuer Trust, although at the date of the 


37





 

execution
and delivery of the Declaration of Trust any such person was not such an Administrative Trustee. Certificates shall be printed, lithographed or engraved or may be produced in any other
manner as is reasonably acceptable to the Administrative Trustees, as evidenced by their execution thereof, and may have such letters, numbers or other marks of identification or designation and such
legends or endorsements as the Administrative Trustees may deem appropriate, or as may be required to comply with any law or with any rule or regulation of any stock exchange on which Trust Securities
may be listed, or to conform to usage. 


        A
Certificate representing Preferred Securities shall not be valid until authenticated by the manual signature of an authorized signatory of the Property Trustee. Such signature shall be
conclusive evidence that such Certificate has been authenticated under this Declaration of Trust. 


        Upon
a written order of the Issuer Trust signed by one Administrative Trustee, the Property Trustee shall authenticate the Certificates representing Preferred Securities for original
issue. The aggregate number of Preferred Securities outstanding at any time shall not exceed the liquidation amount set forth in Section l(a) of Annex I. 


        The
Property Trustee may appoint an authenticating agent acceptable to the Issuer Trust to authenticate Certificates. An authenticating agent may authenticate Certificates whenever the
Property Trustee may do so. Each reference in this Declaration of Trust to authentication by the Property
Trustee includes authentication by such agent. An authenticating agent has the same rights as the Property Trustee to deal with the Sponsor or an Affiliate of the Sponsor. 



        (c)   The
consideration received by the Issuer Trust for the issuance of the Trust Securities shall constitute a contribution to the capital of the Issuer Trust and shall not
constitute a loan to the Issuer Trust. 


        (d)   Upon
issuance of the Trust Securities as provided in this Declaration of Trust, the Trust Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable beneficial ownership interests in the assets of the Issuer Trust. 


        (e)   Every
Person, by virtue of having become a Holder or a Preferred Security Beneficial Owner in accordance with the terms of this Declaration of Trust, shall be deemed to
have expressly assented and agreed to the terms of, and shall be bound by, this Declaration of Trust and the terms of the Trust Securities, the Guarantee, the Junior Subordinated Indenture and the
Junior Subordinated Debentures. 


        (f)    The
holders of the Trust Securities shall have no preemptive rights. 


        SECTION
7.2    Paying Agent.    


38





 

        In
the event that any Preferred Securities are not in book-entry only form, the Issuer Trust shall maintain in the Borough of Manhattan, City of New York, State of New York,
an office or agency where the Preferred Securities may be presented for payment ("Paying Agent"). The Issuer Trust may appoint the Paying Agent and may appoint one or more additional Paying Agents in
such other locations as it shall determine. The term "Paying Agent" includes any additional Paying Agent. The Issuer Trust may change any Paying Agent without prior notice to the Holders. The Issuer
Trust shall notify the Property Trustee of the name and address of any Paying Agent not a party to this Declaration of Trust. If the Issuer Trust fails to appoint or maintain another entity as Paying
Agent, the Property Trustee shall act as such. The Issuer Trust or any of its Affiliates may act as Paying Agent. Harris Trust and Savings Bank shall initially act as Paying Agent for the Trust
Securities. In the event Harris Trust and Savings Bank shall no longer be the Paying Agent, the Administrative Trustees shall appoint a successor (which shall be a bank or trust company acceptable to
the Debenture Issuer) to act as Paying Agent. The Paying Agent shall be permitted to resign as Paying Agent upon 30 days' written notice to the Property Trustee and the Debenture Issuer. 


        SECTION
7.3    Listing.    


        The
Sponsor shall use its reasonable best efforts to cause the Preferred Securities to be listed for quotation on the New York Stock Exchange. 


        SECTION
7.4    Transfer of Trust Securities.    


        (a)   Trust
Securities may only be transferred, in whole or in part, in accordance with the terms and conditions set forth in this Declaration of Trust and in the terms of the
Trust Securities. Any transfer or purported transfer of any Trust Security not made in accordance with this Declaration of Trust shall be null and void. 


        (b)   Subject
to this Article 7, Preferred Securities shall be freely transferable. 


        (c)   The
Issuer Trust shall cause to be kept at the Corporate Trust Office of the Property Trustee a register (the register maintained in such office being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Issuer Trust shall provide for the registration of Preferred Securities and of
transfers of Preferred Securities. The Property Trustee is hereby appointed "Security Registrar" for the purpose of registering Preferred Securities and transfers of Preferred Securities as herein
provided. 


        (d)   Upon
surrender for registration of transfer of any Trust Security at an office or agency of the Issuer Trust designated for such purpose, the Issuer Trust shall execute,
and the Property Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Trust Securities of any authorized denominations and of a like
aggregate principal amount. 


39





 

        (e)   At
the option of the Holder, Trust Securities may be exchanged for other Trust Securities of any authorized denominations and of a like aggregate principal amount, upon
surrender of the Trust Securities to be exchanged at such office or agency. Whenever any Trust Securities are so surrendered for exchange, the Issuer Trust shall execute, and in the case of Preferred
Securities the Property Trustee shall authenticate and deliver, the Trust Securities which the Holder making the exchange is entitled to receive. 



        (f)    Every
Trust Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Issuer Trust or the Property Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Issuer Trust and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing. 


        (g)   No
service charge shall be made for any registration of transfer or exchange of Trust Securities, but the Issuer Trust may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Trust Securities. 



        (h)   If
the Trust Securities are to be redeemed in part, the Issuer Trust shall not be required (A) to issue, register the transfer of, or exchange any Trust
Securities during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of any such Trust Securities selected for redemption under
Section 4 of Annex I and ending at the close of business on the day of such mailing, or (B) to register the transfer or exchange of any Trust Security so selected for redemption in whole
or in part, except the unredeemed portion of any Trust Security being redeemed in part. 



        SECTION
7.5    Mutilated, Destroyed, Lost or Stolen Certificates.    


        If: 


        (a)   any
mutilated Certificates should be surrendered to the Administrative Trustees, or if the Administrative Trustees shall receive evidence to their satisfaction of the
destruction, loss or theft of any Certificate; and 


        (b)   there
shall be delivered to the Administrative Trustees such security or indemnity as may be required by them to keep each of them, the Sponsor and the Issuer Trust
harmless, 


then,
in the absence of actual notice that such Certificate shall have been acquired by a bona fide purchaser, any Administrative Trustee on behalf of the Issuer Trust shall execute and deliver, in
exchange for, or in lieu of, any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like denomination. In connection with the issuance of any new Certificate under this
Section 7.5, the Administrative Trustees may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith. Any 


40





 

duplicate
Certificate issued pursuant to this Section shall constitute conclusive evidence of an ownership interest in the relevant Trust Securities, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time. 


        SECTION
7.6    Deemed Security Holders.    


        The
Trustees shall treat the Person in whose name any Certificate shall be registered on the register of the Issuer Trust as the sole holder of such Certificate and of the Trust
Securities represented by such Certificate for purposes of receiving Distributions and for all other purposes whatsoever and, accordingly, shall not be bound to recognize any equitable or other claim
to or interest in such Certificate or in the Trust Securities represented by such Certificate on the part of any Person, whether or not the Issuer Trust shall have actual or other notice thereof. 


        SECTION
7.7    Global Securities.    


        The
Preferred Securities may be issued in the form of one or more Global Securities. If the Preferred Securities are to be issued in the form of one or more Global Securities, then the
Administrative Trustee on behalf of the Issuer Trust shall execute and the Property Trustee shall authenticate and deliver one or more Global Securities that (i) shall represent and shall be
denominated in an amount equal to the aggregate liquidation amount of all of the Preferred Securities to be issued in the form of Global Securities and not yet cancelled, (ii) shall be
registered in the name of the Depositary for such Global Security or Preferred Securities or the nominee of such Depositary, and (iii) shall be delivered by the Property Trustee to such
Depositary or pursuant to such Depositary's instructions. Global Securities shall bear a legend substantially to the following effect: 


        "This
Preferred Security is a Global Security within the meaning of the Declaration of Trust hereinafter referred to and is registered in the name of The Depository Trust Company, a New
York corporation (the "Depositary"), or a nominee of the Depositary. This Preferred Security is exchangeable for Preferred Securities registered in the name of a person other than the Depositary or
its nominee only in the limited circumstances described in the Declaration of Trust and no transfer of this Preferred Security (other than a transfer of this Preferred Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary) may be registered except in limited circumstances. 


        Unless
this Preferred Security Certificate is presented by an authorized representative of the Depositary to FW Preferred Capital Trust I or its agent for registration of transfer,
exchange or payment, and any Preferred Security Certificate issued is registered in the name of Cede & Co. or such other name as registered by an authorized representative of the Depositary
(and any payment hereon is made to Cede & Co. or to such other entity as is requested by an authorized representative of the Depositary), ANY TRANSFER, PLEDGE OR 


41





 

OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein." 


        Preferred
Securities not represented by a Global Security and issued in exchange for all or a part of a Global Security pursuant to this Section 7.7 shall be registered in such
names and in such authorized denominations as the Depositary shall instruct the Property Trustee. Upon execution and authentication, the Property Trustee shall deliver such Preferred Securities not
represented by a Global Security to the persons in whose names such definitive Preferred Securities are so registered. 


        At
such time as all interests in Global Securities have been redeemed, repurchased or cancelled, such Global Securities shall be, upon receipt thereof, cancelled by the Property Trustee
in accordance with the standing procedures of the Depositary. At any time prior to such cancellation, if any interest in Global Securities is (i) exchanged for Preferred Securities not
represented by a Global Security, (ii) redeemed or, cancelled or transferred to a transferee who receives Preferred Securities not represented by a Global Security therefor or (iii) any
Preferred Security not represented by a Global Security is exchanged or transferred for an interest in a Global Security, the principal amount of such Global Securities shall, in accordance with the
standing procedures of the Depositary, be reduced or increased, as the case may be, and an endorsement shall be made on such Global Securities by the Property Trustee to reflect such reduction or
increase. 


        The
Issuer Trust and the Property Trustee may for all purposes, including the making of payments due on the Preferred Securities, deal with the Depositary as the authorized
representative of the Holders for the purposes of exercising the rights of Holders hereunder. The rights of an owner of any beneficial interest in a Global Security shall be limited to those
established by law and agreements between such owners and Depositary participants; provided, that no such agreement shall give any rights to any person against the Trust or the Property Trustee
without the written consent of the parties so affected. Multiple requests and directions from and votes of the Depositary as Holder of Preferred Securities in global form with respect to any
particular matter shall not be deemed inconsistent to the extent they do not represent an amount of Preferred Securities in excess of those held in the name of the Depositary or its nominee. 


        If
at any time the Depositary for any Preferred Securities represented by one or more Global Securities notifies the Issuer Trust that it is unwilling or unable to continue as Depositary
for such Preferred Securities or if at any time the Depositary for such Preferred Securities shall no longer be eligible to act as such under this Section 7.7, the Issuer Trust shall appoint a
successor Depositary with respect to such Preferred Securities. If a successor Depositary for such Preferred Securities is not appointed by the Issuer Trust within 90 days after the Issuer
Trust receives such notice or becomes aware of such ineligibility, the Issuer Trust's election that such Preferred Securities be represented by one or more
Global Securities shall no longer be effective and the Issuer Trust shall execute, and the Property Trustee will authenticate and deliver, Preferred Securities in definitive registered form, in
authorized denominations, in an 


42





 

aggregate
liquidation amount equal to the principal amount of the Global Security or Securities representing such Preferred Securities in exchange for such Global Security or Securities. 


        The
Issuer Trust may at any time and in its sole discretion determine that the Preferred Securities issued in the form of one or more Global Securities shall no longer be represented by
a Global Security or Securities. In such event the Issuer Trust shall execute, and the Property Trustee, shall authenticate and deliver, Preferred Securities in definitive registered form, in
authorized denominations, in an aggregate liquidation amount equal to the principal amount of the Global Security or Securities representing such Preferred Securities, in exchange for such Global
Security or Securities. 


        Notwithstanding
any other provisions of this Declaration of Trust (other than the provisions set forth in Annex I hereto), Global Securities may not be transferred except as a whole by
the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary. 


        Interests
of beneficial owners in a Global Security may be transferred or, exchanged for Preferred Securities not represented by a Global Security, and Preferred Securities not
represented by a Global Security may be transferred or exchanged for interests in a Global Security in accordance with rules of the Depositary and the provisions of Annex I hereto. 


 
 

ARTICLE 8
  
    DISSOLUTION AND TERMINATION OF TRUST    
    


        SECTION
8.1    Dissolution and Termination of Issuer Trust.    



        (a)   The
Issuer Trust shall dissolve upon the earliest of: 




	(i)
	the
bankruptcy of the Holder of the Common Securities or the Sponsor;



	(ii)
	the
filing of a certificate of dissolution or its equivalent with respect to the Sponsor, the filing of a certificate of cancellation with respect to the Issuer Trust
after obtaining the consent of the Holders of at least a Majority in Liquidation Amount of the Trust Securities to the filing of a certificate of cancellation with respect to the Issuer Trust or the
revocation of the Sponsor's charter and the expiration of 90 days after the date of revocation without a reinstatement thereof; 




43





 


	(iii)
	the
entry of a decree of judicial dissolution of the Sponsor or the Issuer Trust;



	(iv)
	the
time when all of the Trust Securities shall have been called for redemption and the amounts then due shall have been paid to the Holders in accordance with the
terms of the Trust Securities;



	(v)
	upon
the election of the Administrative Trustees, following the occurrence and continuation of a Special Event pursuant to which the Issuer Trust shall have been
dissolved in accordance with the terms of the Trust Securities, and all of the Junior Subordinated Debentures shall have been distributed to the Holders of Trust Securities in exchange for all of the
Trust Securities;



	(vi)
	the
time when all of the Administrative Trustees and the Sponsor shall have consented to dissolution of the Issuer Trust provided such action is taken before the
issuance of any Trust Securities; or



	(vii)
	upon
the liquidation of the Issuer Trust in accordance with the terms of the Trust Securities and the distribution of all of the Junior Subordinated Debentures
endorsed thereon in exchange for all of the Trust Securities. 





        (b)   As
soon as is practicable after the occurrence of an event referred to in Section 8.1(a) and upon completion of the winding up and liquidation of the
Issuer Trust, the Trustees shall terminate the Issuer Trust by filing a certificate of cancellation with the Secretary of State of the State of Delaware. 



        (c)   The
provisions of Section 4.2 and Article 9 shall survive the termination of the Issuer Trust. 


        SECTION
8.2    Optional Liquidation of Issuer Trust    


        The
Administrative Trustees shall have the right at any time to liquidate the Issuer Trust and cause the Junior Subordinated Debentures to be distributed to the holders of the Trust
Securities in liquidation of the Issuer Trust. 


44








  



 
 

ARTICLE 9
  
    LIMITATION OF LIABILITY OF
  HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS    
    


        SECTION
9.1    Liability.    


        (a)   Except
as expressly set forth in this Declaration of Trust, the Guarantee and the terms of the Trust Securities, the Sponsor: 




	(i)
	shall
not be personally liable for the return of any portion of the capital contributions (or any return thereon) of the Holders of the Trust Securities which shall be
made solely from assets of the Issuer Trust; and



	(ii)
	shall
not be required to pay to the Issuer Trust or to any Holder of Trust Securities any deficit upon dissolution of the Issuer Trust or otherwise. 





        (b)   Pursuant
to Section 3803(a) of the Business Trust Act, the Holder of the Common Securities shall be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware; provided, however, that the Common Securities Holder shall be liable for all of
the debts and obligations of the Issuer Trust (other than with respect to the Securities) to the extent not satisfied out of the Issuer Trust's assets. 


        (c)   Pursuant
to Section 3803(a) of the Business Trust Act, the Holders of the Preferred Securities shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. 


        SECTION
9.2    Exculpation.    



        (a)   No
Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Issuer Trust or any Covered Person for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Issuer Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this Declaration of Trust or by law, except that an Indemnified Person shall be liable for any such loss damage or claim
incurred by reason of such Indemnified Person's gross negligence or willful misconduct with respect to such acts or omissions. 



        (b)   An
Indemnified Person shall be fully protected in relying in good faith upon the records of the Issuer Trust and upon such information, opinions, reports or statements 


45





 

presented
to the Issuer Trust by any Person as to matters the Indemnified Person reasonably believes are within such other Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Issuer Trust, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses or any other facts
pertinent to the existence and amount of assets from which Distributions to Holders of Trust Securities might properly be paid. 


        SECTION
9.3    Fiduciary Duty.    


        (a)   To
the extent that, at law or in equity, an Indemnified Person has duties (including fiduciary duties) and liabilities relating thereto to the Issuer Trust or to any
other Covered Person, an Indemnified Person acting under this Declaration of Trust shall not be liable to the Issuer Trust or to any other Covered Person for its good faith reliance on the provisions
of this Declaration of Trust. The provisions of this Declaration of Trust, to the extent that they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Property Trustee under the Trust Indenture Act), are agreed by the parties hereto to replace such other duties and liabilities of such Indemnified Person. 


        (b)   Unless
otherwise expressly provided herein: 




	(i)
	whenever
a conflict of interest exists or arises between any Covered Persons; or



	(ii)
	whenever
this Declaration of Trust or any other agreement contemplated herein or therein provides that an Indemnified Person shall act in a manner that is, or provides
terms that are, fair and reasonable to the Issuer Trust or any Holder of Trust Securities, 





the
Indemnified Person shall resolve such conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party (including its own interest) to
such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices and any applicable generally accepted
accounting practices or principles. In the absence of bad faith by the Indemnified Person, the resolution, action or term so made, taken or provided by the Indemnified Person shall not constitute a
breach of this Declaration of Trust or any other agreement contemplated herein or of any duty or obligation of the Indemnified Person at law or in equity or otherwise. 


        (c)   Whenever
in this Declaration of Trust an Indemnified Person is permitted or required to make a decision: 




	(i)
	in
its "discretion" or under a grant of similar authority, the Indemnified Person shall be entitled to consider such interests and 




46





 





factors
as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Issuer Trust or any other Person; or 



	(ii)
	in
its "good faith" or under another express standard, the Indemnified Person shall act under such express standard and shall not be subject to any other or different
standard imposed by this Declaration of Trust or by applicable law. 





        SECTION
9.4    Indemnification.    


        (a)(i) The
Debenture Issuer shall indemnify, to the full extent permitted by law, any Debenture Issuer Indemnified Person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Issuer Trust) by
reason of the fact that he is or was a Debenture Issuer Indemnified Person against expenses (including attorney fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Issuer Trust, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction
or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Debenture Issuer Indemnified Person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Issuer Trust, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was
unlawful. 


         (ii)  The
Debenture Issuer shall indemnify, to the full extent permitted by law, any Debenture Issuer Indemnified Person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right of the Issuer Trust to procure a judgment in its favor by reason of the fact that he is or was a Debenture Issuer
Indemnified Person against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the Issuer Trust and except that no such indemnification shall be made in respect of any claim, issue or matter
as to which such Debenture Issuer Indemnified Person shall have been adjudged to be liable to the Issuer Trust unless and only to the extent that the Court of Chancery of Delaware or the court in
which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which such Court of Chancery or such other court shall deem proper. 


        (iii)  Any
indemnification under paragraphs (i) and (ii) of this Section 9.4(a) (unless ordered by a court) shall be made by the Debenture Issuer only as
authorized in the 


47





 

specific
case upon a determination that indemnification of the Debenture Issuer Indemnified Person is proper in the circumstances because he has met the applicable standard of conduct set forth in
paragraphs (i) and (ii). Such determination shall be made (1) by the Administrative Trustees by a majority vote of a quorum consisting of such Administrative Trustees who were not
parties to such action, suit or proceeding, (2) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Administrative Trustees so directs, by independent legal
counsel in a written opinion, or (3) in any event, by the Common Security-Holder. 



        (iv)  Expenses
(including attorneys' fees) incurred by a Debenture Issuer Indemnified Person in defending a civil, criminal, administrative or investigative action, suit or
proceeding referred to in paragraphs (i) and (ii) of this Section 9.4(a) shall be paid by the Debenture Issuer in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such Debenture Issuer Indemnified Person to repay such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Debenture Issuer as authorized in this Section 9.4(a). Notwithstanding the foregoing, no advance shall be made by the Debenture Issuer if a determination is reasonably and
promptly made (i) by the Administrative Trustees by a majority vote of a quorum of disinterested Administrative Trustees, (ii) if such a quorum is not obtainable, or, even if obtainable,
if a quorum of disinterested Administrative Trustees so directs, by independent legal counsel in a written opinion or (iii) in any event, the Common Security Holder, that, based upon the facts
known to the Administrative Trustees, counsel or the Common Security Holder at the time such determination is made, such Debenture Issuer Indemnified Person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the Issuer Trust, or, with respect to any criminal proceeding, that such Debenture Issuer Indemnified Person believed or had
reasonable cause to believe his conduct was unlawful. In no event shall any advance be made in instances where the Administrative Trustees, independent legal counsel or Common Security Holder
reasonably determine that such person deliberately breached his duty to the Issuer Trust or the Common or Preferred Security Holders. 



         (v)  The
indemnification and advancement of expenses provided by, or granted pursuant to, the other paragraphs of this Section 9.4(a) shall not be deemed exclusive of
any other rights to which those seeking indemnification and advancement of expenses may be entitled under any agreement, vote of stockholders or disinterested directors of the Debenture Issuer or
Preferred Security Holders of the Issuer Trust or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. All rights to indemnification
under this Section 9.4(a) (a) shall be deemed to be provided by a contract between the Debenture Issuer and each Debenture Issuer Indemnified Person who serves in such capacity at any
time while this Section 9.4(a) is in effect. Any repeal or modification of this Section 9.4(a) shall not affect any rights or obligations then existing. 


        (vi)  The
Debenture Issuer or the Issuer Trust may purchase and maintain insurance on behalf of any person who is or was a Debenture Issuer Indemnified Person against any
liability asserted against him and incurred by him in any such capacity, or arising out of his 


48






 

status
as such, whether or not the Debenture Issuer would have the power to indemnify him against such liability under the provisions of this Section 9.4(a). 


       (vii)  For
purposes of this Section 9.4(a), references to "the Issuer Trust" shall include, in addition to the resulting or surviving entity, any constituent entity
(including any constituent of a constituent) absorbed in a consolidation or merger, so that any person who is or was a director, trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee, officer, employee or agent of another entity, shall stand in the same position under the provisions of this
Section 9.4(a) with respect to the resulting or surviving entity as he would have with respect to such constituent entity if its separate existence had continued. 


      (viii)  The
indemnification and advancement of expenses provided by, or granted pursuant to, this Section 9.4(a) shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a Debenture Issuer Indemnified Person and shall inure to the benefit of the heirs, executors and administrators of such a person. The obligation
to indemnify as set forth in this Section 9.4(a) shall survive the resignation or removal of the Delaware Trustee or the Property Trustee or the termination of this Declaration of Trust. 



        (b)   The
Debenture Issuer agrees to indemnify the (i) Property Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the Property Trustee and the
Delaware Trustee, and (iv) any officers, directors, shareholders, members, partners, employees, representatives, custodians, nominees or agents of the Property Trustee and the Delaware Trustee
(each of the Persons in (i) through (iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified Person harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself against or investigating any claim or liability in connection with the exercise or performance of any of its powers or
duties hereunder. The obligation to indemnify as set forth in this Section 9.4(b) shall survive the satisfaction and discharge of this Declaration of Trust. 


        SECTION
9.5    Outside Businesses.    


        Any
Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee may engage in or possess an interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the activities of the Issuer Trust, and the Issuer Trust and the Holders of Securities shall have no rights by virtue of this Declaration of Trust in and to
such independent ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if competitive with the activities of the Issuer Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee or the Property Trustee shall be obligated to present any particular investment or other opportunity to the Issuer Trust even if such
opportunity is of a character that, if presented to the Issuer Trust, could be taken by the Issuer Trust, and any Covered Person, the Sponsor, the Delaware Trustee 


49





 

and
the Property Trustee shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be interested in any financial or other transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
depositary for, trustee or agent for, or act on any committee or body of holders of, securities or other obligations of the Sponsor or its Affiliates. 


 
 

ARTICLE 10
  
    ACCOUNTING    
    


        SECTION
10.1    Fiscal Year.    


        The
fiscal year ("Fiscal Year") of the Issuer Trust shall be the calendar year, or such other year as is required by the Code. 


        SECTION
10.2    Certain Accounting Matters.    



        (a)   At
all times during the existence of the Issuer Trust, the Administrative Trustees shall keep, or cause to be kept, full books of account, records and supporting
documents, which shall reflect in reasonable detail, each transaction entered into by the Issuer Trust. The books of account shall be maintained on the accrual method of accounting, in accordance with
generally accepted accounting principles, consistently applied. The Issuer Trust shall use the accrual method of accounting for United States federal income tax purposes. 


        (b)   The
Administrative Trustees shall cause to be duly prepared and delivered to each of the Holders of Trust Securities, an annual United States federal income tax
information statement on Schedule K-l to Form 1041 (or any successor form), to the extent required by the Code, containing such information with regard to the Trust
Securities held by each Holder as is required by the Code and the Treasury Regulations. 


        (c)   The
Administrative Trustees shall cause to be duly prepared and filed, an annual United States federal income tax return, on Form 1041 or such other form as may
be required by United States federal income tax law, and any other income tax returns required to be filed by or on behalf of the Issuer Trust with any state or local taxing authority. 



        SECTION
10.3    Banking.    


        The
Issuer Trust shall maintain one or more bank accounts in the name and for the sole benefit of the Issuer Trust; provided, however, that all payments of funds in respect of the Junior
Subordinated Debentures held by the Property Trustee shall be made directly to the Property Account and no other funds of the Issuer Trust shall be deposited in the Property Account. The sole
signatories for such accounts shall be designated by the Administrative 


50





 

Trustees;
provided, however, that the Property Trustee shall designate the signatories for the Property Account. 


 
 

ARTICLE 11
  
    AMENDMENTS AND MEETINGS    
    


        SECTION
11.1    Amendments.    


        (a)   Except
as otherwise provided in this Declaration of Trust or by any applicable terms of the Trust Securities, this Declaration of Trust may only be amended by a written
instrument approved and executed by the Sponsor and (i) each Administrative Trustee (or, if there are more than two Administrative Trustees, a majority of the Administrative Trustees) and
(ii) the Property Trustee if the amendment affects the rights, powers, duties, obligations or immunities of the Property Trustee; and (iii) by the Delaware Trustee if the amendment
affects the rights, powers, duties, obligations or immunities of the Delaware Trustee. 


        (b)   No
amendment shall be made, and any such purported amendment shall be void and ineffective: 




	(i)
	unless,
in the case of any proposed amendment, the Property Trustee shall have first received an Officers' Certificate from each of the Issuer Trust and the Sponsor to
the effect that such amendment is permitted by, and conforms to, the terms of this Declaration of Trust (including the terms of the Trust Securities);



	(ii)
	unless,
in the case of any proposed amendment which affects the rights, powers, duties, obligations or immunities of the Property Trustee, the Property Trustee shall
have first received:



	a.
	an
Officers' Certificate from each of the Issuer Trust and the Sponsor that such amendment is permitted by, and conforms to, the terms of this Declaration of Trust (including the terms
of the Trust Securities); and



	b.
	an
opinion of counsel (who may be counsel to the Sponsor or the Issuer Trust) that such amendment is permitted by, and conforms to, the terms of this Declaration of Trust (including
the terms of the Trust Securities); and






	(iii)
	to
the extent the result of such amendment would be to: 




51





 



	a.
	cause
the Issuer Trust to be classified other than as a grantor trust for United States federal income tax purposes;



	b.
	reduce
or otherwise adversely affect the powers of the Property Trustee in contravention of the Trust Indenture Act; or



	c.
	cause
the Issuer Trust to be deemed to be an Investment Company required to be registered under the Investment Company Act. 






        (c)   At
such time after the Issuer Trust has issued any Trust Securities that remain outstanding, any amendment that would (i) adversely affect the powers, preferences
or special rights of the Holders of such Trust Securities, whether by way of amendment to the Declaration of Trust or otherwise, (ii) result in the dissolution, winding-up or
termination of the Issuer Trust other than pursuant to the terms of this Declaration of Trust, (iii) change the amount or timing of any distribution of the Trust Securities or otherwise
adversely affect the amount of any distribution required to be made in respect of the Trust Securities as of a specified date or (iv) restrict the right of a Holder of Trust Securities to
institute suit for the enforcement of any such payment on or after such date, then the Holders of the Trust Securities voting together as a single class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the approval of each of the Holders of the Trust Securities affected thereby; provided that, if any amendment or proposal
referred to in clause (i) above would adversely affect only the Preferred Securities or the Common Securities, then only the affected class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the approval of a Majority in Liquidation Amount of such class of Trust Securities affected thereby. 



        (d)   This
Section 11.1 shall not be amended without the consent of all of the Holders of the Trust Securities. 


        (e)   Articles
4 and 5 shall not be amended without the consent of the Holders of a Majority in Liquidation Amount of the Common Securities. 


        (f)    The
rights of the Holders of the Common Securities under Article 6 to increase or decrease the number of, and appoint and remove Trustees shall not be amended
without the consent of the Holders of a Majority in Liquidation Amount of the Common Securities. 



        (g)   Notwithstanding
Section 11.1(c), this Declaration of Trust may be amended without the consent of the Holders of the Preferred Securities to: 




	(i)
	cure
any ambiguity; 




52





 


	(ii)
	correct
or supplement any provision in this Declaration of Trust that may be defective or inconsistent with any other provision of this Declaration of Trust;



	(iii)
	add
to the covenants, restrictions or obligations of the Sponsor,



	(iv)
	to
conform to any change in Rule 3a-5 or written change in interpretation or application of Rule 3a-5 by any legislative body,
court, government agency or regulatory authority which amendment does not have a material adverse effect on the rights, preferences or privileges of the Holders; or



	(v)
	to
modify, eliminate and add to any provision of this Declaration of Trust to ensure that the Issuer Trust will be classified as a grantor trust for United States
federal income tax purposes at all times that any Trust Securities are outstanding or to ensure that the Issuer Trust will not be required to register as an Investment Company under the Investment
Company Act; provided, however, that such modification, elimination or addition would not adversely affect in any material respect the rights, privileges or preferences of any Holder of the Trust
Securities. 





        SECTION
11.2    Meetings of the Holders of Trust Securities; Action by Written Consent.    


        (a)   Meetings
of the Holders of any class of Trust Securities may be called at any time by the Administrative Trustees (or as otherwise provided in the terms of the Trust
Securities) to consider and act on any matter on which Holders of such class of Trust Securities are entitled to act under the terms of this Declaration of Trust, the terms of the Trust Securities or
the rules of any stock exchange on which the Preferred Securities are then listed or admitted for trading. The Administrative Trustees shall call a meeting of the Holders of such class if directed to
do so by the Holders of at least 10% in Liquidation Amount of such class of Trust Securities. Such direction shall be given by delivering to the Administrative Trustees one or more notices in writing
stating that the signing Holders of Trust Securities wish to call a meeting and indicating the general or specific purpose for which the meeting is to be called. Any Holders of Trust Securities
calling a meeting shall specify in writing the Certificates held by the Holders of Trust Securities exercising the right to call a meeting and only those Trust Securities specified shall be counted
for purposes of determining whether the required percentage set forth in the second sentence of this paragraph has been met. 


        (b)   Except
to the extent otherwise provided in the terms of the Trust Securities, the following provisions shall apply to meetings of Holders of Trust Securities: 


53





 


	(i)
	notice
of any such meeting shall be given to all the Holders of Trust Securities having a right to vote thereat at least 7 days and not more than 60 days
before the date of such meeting. Whenever a vote, consent or approval of the Holders of Trust Securities is permitted or required under this Declaration of Trust or the rules of any stock exchange on
which the Preferred Securities are then listed or admitted for trading, such vote, consent or approval may be given at a meeting of the Holders of Trust Securities. Any action that may be taken at a
meeting of the Holders of Trust Securities may be taken without a meeting if a consent in writing setting forth the action so taken is signed by the Holders of Trust Securities owning not less than
the minimum amount of Trust Securities in liquidation amount that would be necessary to authorize or take such action at a meeting at which all Holders of Trust Securities having a right to vote
thereon were present and voting. Prompt notice of the taking of action without a meeting shall be given to the Holders of Trust Securities entitled to vote who have not consented in writing. The
Administrative Trustees may specify that any written ballot submitted to the Trust Security Holders for the purpose of taking any action without a meeting shall be returned to the Issuer Trust within
the time specified by the Administrative Trustees;



	(ii)
	each
Holder of a Trust Security may authorize any Person to act for it by proxy on all matters in which such Holder is entitled to participate, including waiving notice
of any meeting, or voting or participating at a meeting. No proxy shall be valid after the expiration of 11 months from the date thereof unless otherwise provided in the proxy. Every proxy
shall be revocable at the pleasure of the Holder executing such proxy. Except as otherwise provided herein, all matters relating to the giving, voting or validity of proxies shall be governed by the
General Corporation Law of the State of Delaware relating to proxies, and judicial interpretations thereunder, as if the Issuer Trust were a Delaware corporation and the Holders of the Trust
Securities were stockholders thereof;



	(iii)
	each
meeting of Holders of Trust Securities shall be conducted by the Administrative Trustees or by such other Person that the Administrative Trustees may designate;
and



	(iv)
	unless
the Business Trust Act, this Declaration of Trust, the terms of the Trust Securities, the Trust Indenture Act or the listing rules of any stock exchange on which
the Preferred Securities are then 




54











  






listed
for trading, otherwise provides, the Administrative Trustees, in their sole discretion, shall establish all other provisions relating to meetings of Holders of Trust Securities, including
notice of the time, place or purpose of any meeting at which any matter is to be voted on by any Holders of Trust Securities, waiver of any such notice, action by consent without a meeting, the
establishment of a record date, quorum requirements, voting in person or by proxy or any other matter with respect to the exercise of any such right to vote. 





 
 

ARTICLE 12
  
    REPRESENTATIONS OF PROPERTY TRUSTEE
  AND DELAWARE TRUSTEE    
    


        SECTION
12.1    Representations and Warranties of the Property Trustee.    



        The
Property Trustee represents and warrants to the Issuer Trust and to the Sponsor at the date of this Declaration of Trust, and each Successor Property Trustee represents and warrants
to the Issuer Trust and the Sponsor at the time of the Successor Property Trustee's acceptance of its appointment as Property Trustee that: 


        (a)   the
Property Trustee is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with
trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Declaration of Trust; 



        (b)   the
Property Trustee satisfies the requirements set forth in Section 6.3(a); 


        (c)   the
execution, delivery and performance by the Property Trustee of this Declaration of Trust has been duly authorized by all necessary corporate action on the part of
the Property Trustee. This Declaration of Trust has been duly executed and delivered by the Property Trustee, and it constitutes a legal, valid and binding obligation of the Property Trustee,
enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law); 


        (d)   the
execution, delivery and performance of this Declaration of Trust by the Property Trustee does not conflict with or constitute a breach of the articles of association
or incorporation, as the case may be, or the by-laws (or other similar organizational documents) of the Property Trustee; and 


55





 

        (e)   no
consent, approval or authorization of, or registration with or notice to, any state or federal banking authority is required for the execution, delivery or
performance by the Property Trustee of this Declaration of Trust. 


        SECTION
12.2    Representations and Warranties of the Delaware Trustee.    


        The
Delaware Trustee represents and warrants to the Issuer Trust and to the Sponsor at the date of this Declaration of Trust, and each Successor Delaware Trustee represents and warrants
to the Trust and the Sponsor at the time of the Successor Delaware Trustee's acceptance of its appointment as Delaware Trustee that: 


        (a)   the
Delaware Trustee satisfies the requirements set forth in Section 6.1 and has the power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration of Trust and, if it is not a natural person, is duly organized, validly existing and in good standing under the laws of its jurisdiction of
incorporation or organization; 


        (b)   the
Delaware Trustee has been authorized to perform its obligations under the Certificate of Trust and this Declaration of Trust. This Declaration of Trust, under
Delaware law, constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law); and 



        (c)   no
consent, approval or authorization of, or registration with or notice to, any state or federal banking authority is required for the execution, delivery or
performance by the Delaware Trustee of this Declaration of Trust. 


ARTICLE 13  


 MISCELLANEOUS  


        SECTION
13.1    Notices.    



        All
notices provided for in this Declaration of Trust shall be in writing, duly signed by the party giving such notice, and shall be delivered, telecopied or mailed by registered or
certified mail, as follows: 


        (a)   if
given to the Issuer Trust, in care of the Administrative Trustees at the Issuer Trust's mailing address set forth below (or such other address as the Issuer Trust may
give notice of to the Property Trustee, the Delaware Trustee and the Holders of the Trust Securities): 


56





 

c/o
Foster Wheeler Corporation

Perryville Corporate Park

Clinton, New Jersey 08809

Attention: Corporate Counsel

Telecopy No: (908) 730-5300 




        (b)   if
given to the Delaware Trustee, at the mailing address set forth below (or such other address as the Delaware Trustee may give notice of to the Administrative
Trustees, the Property Trustee and the Holders of the Trust Securities): 



Wilmington
Trust Company

Rodney Square North

1100 North Market Street

Wilmington, Delaware 19890

Attention: Corporate Trustee Administration

Telecopy No: (302) 651-1576 




        (c)   if
given to the Property Trustee, at its Corporate Trust Office at the address set forth below (or such other address as the Property Trustee may give notice of to the
Administrative Trustees, the Delaware Trustee and the Holders of the Trust Securities): 



Harris
Trust and Savings Bank

311 West Monroe Street

12th Floor

Chicago, Illinois 60606

Attention:

Telecopy No.: (312) 461-3525 




        (d)   if
given to the Common Securities Holder, at the mailing address of the Sponsor set forth below (or such other address as the Holder of the Common Securities may give
notice of to the Property Trustee, the Delaware Trustee and the Issuer Trust): 



Foster
Wheeler Corporation

Perryville Corporate Park

Clinton, New Jersey 08809

Attention: Corporate Counsel

Telecopy No.: (908) 730-5300 




        (e)   if
given to any Holder, at the address set forth on the register of the Issuer Trust. 


All
such notices shall be deemed to have been given when received in person, telecopied with receipt confirmed or mailed by first class mail, postage prepaid except that if a notice or other document
is refused delivery or cannot be delivered because of a changed address of which no 


57





 

notice
was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver. 


        SECTION
13.2    Governing Law.    


        This
Declaration of Trust and the rights of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware. 



        SECTION
13.3    Intention of the Parties.    


        It
is the intention of the parties hereto that the Issuer Trust be classified for United States federal income tax purposes as a grantor trust. The provisions of this Declaration of
Trust shall be interpreted in a manner consistent with such classification. 


        SECTION
13.4    Headings.    



        Headings
contained in this Declaration of Trust are inserted for convenience of reference only and do not affect the interpretation of this Declaration of Trust or any provision hereof. 


        SECTION
13.5    Successors and Assigns.    


        Whenever
in this Declaration of Trust any of the parties hereto is named or referred to, the successors and assigns of such party shall be deemed to be included, and all covenants and
agreements in this Declaration of Trust by the Sponsor and the Trustees shall bind and inure to the benefit of their respective successors and assigns, whether so expressed. 



        SECTION
13.6    Partial Enforceability.    


        If
any provision of this Declaration of Trust or the application of such provision to any Person or circumstance, shall be held invalid, the remainder of this Declaration of Trust, or
the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby. 


        SECTION
13.7    Counterparts.    



        This
Declaration of Trust may contain more than one counterpart of the signature page and this Declaration of Trust may be executed by the affixing of the signature of each of the
Trustees to one of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had
signed a single signature page. 


58








        IN WITNESS WHEREOF, the undersigned have caused these presents to be executed as of the day and year first above written. 



	 	 	FOSTER WHEELER CORPORATION,

as Sponsor
	

 	
 	

By:	
 	

/s/  DAVID J. ROBERTS      
 Name:  David J. Roberts

Title:    Administrative Trustee







 


	 	 	HARRIS TRUST AND SAVINGS BANK,

as Property Trustee
	

 	
 	

By:	
 	

/s/  J. BARTOLINI      
 Name:  J. Bartolini

Title:    Vice President




59





 


	 	 	WILMINGTON TRUST COMPANY,

as Delaware Trustee
	

 	
 	

By:	
 	

/s/  DONALD G. MACKELCAN      

	 	 	 	 	Name:    DONALD G. MACKELCAN

Title:    ASSISTANT VICE PRESIDENT




60







	 	 	 	 	/s/  RICHARD J. SWIFT      [ILLEGIBLE]
 Richard J. Swift, as Administrative Trustee
	

 	
 	

 	
 	

/s/  DAVID J. ROBERTS      
 David J. Roberts, as Administrative Trustee
	

 	
 	

 	
 	

/s/  ROBERT D. ISEMAN      
 Robert D. Iseman, as Administrative Trustee








  



 
 

ANNEX I
  
    TERMS OF
  PREFERRED SECURITIES
  AND COMMON SECURITIES    
    



        Pursuant to Section 7.1 of the Amended and Restated Declaration of Trust, dated of January 13, 1999 (as amended from time to time, the "Declaration
of Trust"), the designation rights, privileges, restrictions, preferences and other terms and provisions of the Preferred Securities and the Common Securities are set out below (each capitalized term
used but not defined herein has the meaning set forth in the Declaration of Trust or, if not defined in such Declaration of Trust, as defined in the Prospectus referred to below): 


        1.    Designation and Number.    



        (a)    Preferred Securities.    Preferred Securities of the Issuer Trust with an aggregate liquidation amount with
respect to the assets of the Issuer Trust of $175,000,000 and a liquidation amount with respect to the assets of the Issuer Trust of $25 per Preferred Security, are hereby designated for the purposes
of identification only as the "9% Preferred Securities, Series I" (the "Preferred Securities"). The Certificates evidencing the Preferred Securities shall be substantially in the form of
Exhibit A to the Declaration of Trust, with such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice or to conform to the rules of any
stock exchange on which the Preferred Securities are listed. 



        (b)    Common Securities.    Common Securities of the Issuer Trust with an aggregate liquidation amount with respect
to the assets of the Issuer Trust of $5,412,375 and a liquidation amount with respect to the assets of the Issuer Trust of $25 per common security, are hereby designated for the purposes of
identification only as the "9% Common Securities, Series III (the "Common Securities"). The Certificates evidencing the Common Securities shall be substantially in the form of Exhibit B
to the Declaration of Trust, with such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice. 



        2.    Distributions.    


     (a)(i)  Holders
of Trust Securities shall be entitled to receive cumulative cash distributions at the rate per annum of 9% of the stated liquidation amount of $25 per Trust
Security. The amount of Distributions payable for any period shall be computed (i) for any full quarterly distribution period on the basis of a 360-day year comprised of twelve
30-day months, (ii) for any period shorter than a full quarterly distribution period for which Distributions are computed, on the basis of a 30-day month and
(iii) for periods of less than a month, the actual number of days elapsed per 30-day month. Subject to subparagraph (b) of this paragraph, Distributions shall be made on the
Preferred Securities and the Common Securities on a Pro Rata basis. Distributions on the Trust Securities shall, from the date of original issue, accumulate and be cumulative and shall be payable
quarterly, in arrears, on each January 15, April 15, July 15 and October 15, commencing April 15, 1999, when, as and if available for payment, by the Property
Trustee, except as otherwise described below. Distributions are payable only to the 


I-1





 

extent
that payments are made in respect of the Junior Subordinated Debentures held by the Property Trustee and to the extent that the Issuer Trust has funds available for the payment of such
Distributions in the Property Account. The Debenture Issuer has the right under the Junior Subordinated Indenture to defer payments of interest on the Junior Subordinated Debentures by extending the
interest payment period at any time and from time to time for a period not exceeding 20 consecutive quarterly periods (each an "Extension Period"), provided that  no Extension Period shall end on a day
other than an interest payment date for the Junior Subordinated Debentures or shall extend beyond the date of the maturity of the Junior
Subordinated Debentures. As a consequence of any Extension Period, Distributions will also be deferred. During any Extension Period, quarterly Distributions will continue to accumulate with interest
thereon (to the extent permitted by applicable law) at a rate of 9% per annum, compounded quarterly during any such Extension Period. At the end of the Extension Period, all accumulated and unpaid
Distributions (but only to the extent payments are made in respect of the Junior Subordinated Debentures held by the Property Trustee and to the extent the Property Trustee has funds available
therefore) will be payable to the Holders of the Trust Securities in whose names the Trust Securities are registered in the Security Register on the record date relating to the Distribution Date on
which the Extension Period ends. Prior to the termination of any such Extension Period, the Debenture Issuer may further defer payments of interest by further extending such Extension Period;  provided that such Extension Period together with all such previous and further extensions within such Extension Period may not exceed 20 consecutive
quarterly periods or extend beyond the maturity date of the Junior Subordinated Debentures. Upon the termination of any Extension Period and the payment of all amounts then due, the Debenture Issuer
may commence a new Extension Period, subject to the above requirements. The Company shall give written notice to the Administrative Trustees, the Property Trustee and the Debenture Trustee of its
election of such Extension Period at least one Business Day before the earlier of (i) the next succeeding date on which Distributions on the Trust Securities issued by the Issuer Trust are
payable, or (ii) the date the Issuer Trust is required to give notice of the record date, or the date such Distributions are payable, to any national securities exchange or interdealer
quotation system or to holders of the Preferred Securities issued by the Issuer Trust, but in any event at least one Business Day before such record date. 


         (ii)  Distributions
not paid on the scheduled payment date will accumulate and compound quarterly at the rate of 9% per annum ("Compounded Distributions"). "Distributions"
shall mean ordinary cumulative distributions together with any Compounded Distributions. 


        (iii)  If
and to the extent that the Debenture Issuer makes a payment of interest, premium and/or principal on the Junior Subordinated Debentures held by the Property Trustee
(the amount of any such payment being a "Payment Amount"), the Property Trustee shall make a Pro Rata distribution of the Payment Amount to Holders, subject to subparagraph (b) of this
paragraph. 


        (iv)  Distributions
shall be payable to the Holders thereof as they appear on the register of the Issuer Trust as of the close of business on the relevant record dates. While
the Preferred Securities are represented by one or more Global Securities, the relevant record dates shall be the close of business on the Business Day next preceding such Distribution payment date,
unless a different regular record date is established or provided for the corresponding interest payment date on the Junior Subordinated Debentures. The relevant record dates for the Common Securities
shall be the same as for the Preferred Securities. If the Preferred Securities 


I-2





 

shall
not continue to be represented by one or more Global Securities, the relevant record dates of the Preferred Securities shall be selected by the Administrative Trustees and shall be at least one
Business Day prior to the relevant payment dates. At all times, the Distribution payment dates shall correspond to the interest payment dates on the Junior Subordinated Debentures. Distributions
payable on any Trust Securities that are not punctually paid on any Distribution payment date, as a result of the Debenture Issuer having failed to make a payment under the Junior Subordinated
Debentures, shall cease to be payable to the Person in whose name such Trust Securities are registered on the relevant record date, and such defaulted Distribution will instead be payable to the
Person in whose name such Trust Securities are registered on the Special record date or other specified date determined in accordance with the Declaration of Trust. If any date on which Distributions
are payable on the Trust Securities is not a Business Day, then payment of the Distribution payable on such date will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business
Day, with the same force and effect as if made on such payment date. 


         (v)  Distributions
will be made by check mailed to the Holders entitled thereto in accordance with clause (iv) above at the addresses listed on the register of the
Issuer Trust; provided that so long as the Preferred Securities are represented by one or more Global Securities, Distributions in respect thereof may be made by wire transfer of immediately available
funds to an account designated by the Depositary. 


        (vi)  In
the event that there is any money or other property held by or for the Issuer Trust that is not accounted for hereunder, such property shall be distributed Pro Rata
among the Holders of the Trust Securities. 


        (b)   Payment
of Distributions on, and payment of the Redemption Price upon a redemption of, the Preferred Securities and the Common Securities, as applicable, shall be made
Pro Rata based on the liquidation amount of such Preferred Securities and Common Securities; provided, however, that if on any date on which amounts payable on distribution or redemption, an Indenture
Event of Default shall have occurred and be continuing, no payment of any Distribution on, or Redemption Price of, any of the Common Securities, and no other payment on account of the redemption,
liquidation or other acquisition of such Common Securities, shall be made unless payment in full in cash of all accumulated and unpaid Distributions on all of the outstanding Preferred Securities for
all Distribution periods terminating on or prior thereto, or, in the case of amounts payable on redemption, the full amount of the Redemption Price for all of the outstanding Preferred Securities then
called for redemption, shall have been made or provided for, and all funds available to the Property Trustee shall first be applied to the payment in full in cash of all Distributions on, or the
Redemption Price of, the Preferred Securities then due and payable. The Issuer Trust shall issue no securities or other interests in the assets of the Issuer Trust other than the Preferred Securities
and the Common Securities. 


        3.    Liquidation Distribution Upon Dissolution.    


        (a)   In
the event of any voluntary or involuntary liquidation, dissolution, or winding-up of the Issuer Trust (each a "Liquidation"), the Holders of the Preferred
Securities on 


I-3





 

the
date of the Liquidation will be entitled to receive, out of the assets of the Issuer Trust available for distribution to Holders of Trust Securities after satisfaction of the Issuer Trusts'
liabilities to creditors, if any, payment in cash or other immediately available funds in an amount equal to the aggregate of the stated liquidation amount of $25 per Trust Security plus accumulated
and unpaid Distributions thereon to the date of payment (such amount being the "Liquidation Distribution"), unless, in connection with such Liquidation, Junior Subordinated Debentures in an aggregate
principal amount equal to the aggregate stated liquidation amount of, with an interest rate identical to the distribution rate of, and accumulated and unpaid interest payment equal to accumulated and
unpaid Distributions on, such Trust Securities shall be distributed on a Pro Rata basis to the Holders of the Trust Securities in exchange for such Trust Securities. 


        (b)   If,
upon any such Liquidation, the Liquidation Distribution can be paid only in part because the Issuer Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then the amounts payable directly by the Issuer Trust on the Trust Securities shall be paid on a Pro Rata basis. The Holders of the Common Securities will be
entitled to receive distributions upon any such Liquidation Pro Rata with the Holders of the Preferred Securities except that if an Indenture Event of Default has occurred and is continuing, the
Preferred Securities shall have a preference over the Common Securities with regard to such distributions. 


        4.    Redemption of Trust Securities    


        (a)(i) Upon
the repayment or redemption, in whole or in part, of the Junior Subordinated Debentures held by the Issuer Trust, whether at the stated maturity of the Junior
Subordinated Debentures or upon earlier redemption as provided in the Junior Subordinated Indenture, the proceeds from such repayment or redemption shall be simultaneously applied Pro Rata (subject to
subparagraph (b) of paragraph 2 of this Annex) to redeem Trust Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Junior Subordinated
Debentures so repaid or redeemed at the Redemption Price. Holders shall be given not less than 30 nor more than 60 days notice of such redemption in accordance with subparagraph (b) of
this paragraph. 


         (ii)  The
Administrative Trustees may at any time, elect to dissolve the Issuer Trust upon not less than 30 nor more than 60 days' notice and, after satisfaction of
liabilities to creditors, if any, cause the Junior Subordinated Debentures to be distributed to the holders of the Trust Securities in liquidation of the Issuer Trust. 



        (iii)  On
the date fixed for any distribution of Junior Subordinated Debentures, upon dissolution of the Issuer Trust, (x) the Trust Securities will no longer be
deemed to be outstanding and (y) certificates representing Trust Securities will be deemed to represent the Junior Subordinated Debentures having an aggregate principal amount equal to the
stated liquidation amount of, and bearing accrued and unpaid interest payments equal to accrued and unpaid distributions on, such Trust Securities until such certificates are presented to the Sponsor
or its agent for transfer or reissuance. 


        (b)   The
procedure with respect to redemptions and distributions of Junior Subordinated Debentures shall be as follows: 


I-4





 

          (i)  Notice
of any redemption of, or notice of distribution of Junior Subordinated Debentures in exchange for, the Trust Securities (a "Redemption/Distribution Notice"),
which XXX shall be irrevocable, will be given by the Issuer Trust by mail to each Holder of Trust Securities to be redeemed or exchanged not fewer than 30 nor more than 60 days before the date
fixed for redemption or exchange thereof which, in the case of a redemption, will be the date fixed for redemption of the Junior Subordinated Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to this paragraph, a Redemption/Distribution Notice shall be deemed to be given on the day such notice XXX first mailed by
first-class mail, postage prepaid, to Holders of Trust Securities. Each Redemption/Distribution Notice shall be addressed to the Holders of Trust Securities at the address of each such Holder
appearing in the register of the Issuer Trust. No defect in the Redemption/Distribution Notice or in the mailing of either thereof with respect to any Holder shall affect the validity of the
redemption or exchange proceedings with respect to any other Holder. 


         (ii)  In
the event that fewer than all the outstanding Trust Securities are to be redeemed, then the aggregate liquidation amount of such Trust Securities to be redeemed
shall be allocated Pro Rata (subject to subparagraph (b) of paragraph 2 of this Annex and as described in clause (iii) of this subparagraph (b) below) among the Preferred
Securities and the Common Securities, it being understood that, in respect of Preferred Securities registered in the name of and held of record by the Depositary or its nominee (or any successor
clearing agency or its nominee), the distribution of the proceeds of such redemption will be made to each clearing agency participant (or person on whose behalf such nominee holds such securities) in
accordance with the procedures applied by such agency or nominee. The particular Preferred Securities to be redeemed shall be selected on a Pro Rata basis not more than 60 days prior to the
redemption date by the Property Trustee from the outstanding Preferred Securities not previously called for redemption, by lot or by such method as the Property Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to $25 or an integral multiple of $25 in excess thereof) of the liquidation amount of the Preferred Securities. The Property
Trustee shall promptly notify the Preferred Securities registrar in writing of the Preferred Securities selected for redemption and, in the case of any Preferred Securities selected for partial
redemption, the liquidation amount thereof to be redeemed. The Issuer Trust may not redeem the Trust Securities in part unless all accumulated and unpaid Distributions to the date of redemption have
been paid in full on all Trust Securities than outstanding. For all purposes of this Declaration of Trust, unless the context otherwise requires, all provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred Security redeemed or to be redeemed only in part, to the portion of the aggregate liquidation amount of Preferred Securities which has been or is
to be redeemed. 


        (iii)  Subject
to the Issuer Trust's fulfillment of the notice requirements set forth in subparagraph (b)(i) above, if Trust Securities are to be redeemed, then
(i) with respect to Preferred Securities represented by one or more Global Securities, by 12:00 noon, New York City time, on the redemption date (provided that the Debenture Issuer has paid the
Property Trustee a sufficient amount of cash in connection with the related redemption or maturity of the Junior Subordinated Debentures), the Property Trustee will deposit irrevocably with the
Depositary or its nominee (or successor Depositary or its nominee) funds sufficient to pay the applicable Redemption Price with respect to the Preferred Securities and will give the Depositary
irrevocable instructions and authority to pay the Redemption Price to the Holders of 


I-5





 

the
Preferred Securities and (ii) with respect to Trust Securities not represented by one or more Global Securities (provided that the Debenture Issuer has paid the Property Trustee a
sufficient amount of cash in connection with the related redemption or maturity of the Debentures), the Paying Agent will pay the relevant Redemption Price to the Holders of such Trust Securities by
check mailed to the address of the relevant Holder appearing on the register of the Issuer Trust on the redemption date. If any date fixed for redemption of Trust Securities is not a Business Day,
then payment of the Redemption Price payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) except
that, if such Business Day falls in the next calendar year, such payment will be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date
fixed for redemption. If payment of the Redemption Price in respect of any Trust Securities is improperly withheld or refused and not paid either by the Property Trustee or by the Sponsor as guarantor
pursuant to the Guarantee, Distributions on such Trust Securities will continue to accumulate at the then applicable rate from the original redemption date to the actual date of payment, in which case
the actual payment date will be considered the date fixed for redemption for purposes of calculating the Redemption Price. For these purposes, the applicable Redemption Price shall not include
Distributions which are being paid to Holders who were Holders on a relevant record date. If a Redemption/Distribution Notice shall have been given and funds deposited or paid as required, then
immediately prior to the close of business on the date of such deposit or payment, Distributions will cease to accumulate on the Trust Securities called for redemption and all rights of Holders of
such Trust Securities so called for redemption will cease, except the right of the Holders to receive the Redemption Price, but without interest on such Redemption Price, and from and after the date
fixed for redemption, such Trust Securities will cease to be outstanding. 


        Neither
the Administrative Trustees nor the Issuer Trust shall be required to register or cause to be registered the transfer of any Trust Securities that have been called for
redemption, except in the case of any Trust Securities being redeemed in part, any portion thereof not to be redeemed. 


        (iv)  Subject
to the foregoing and applicable law (including, without limitation, United States federal securities laws), the Debenture Issuer or its subsidiaries may at any
time and from time to time purchase outstanding Preferred Securities by tender, in the open market or by private agreement. 


        5.    Voting Rights of Preferred Securities.    


        (a)   Except
as provided under Section 11.1 of the Declaration of Trust and this paragraph 5 and as otherwise required by the Business Trust Act, the Trust
Indenture Act and other applicable law, the Holders of the Preferred Securities shall have no voting rights. 



        (b)   Subject
to the requirement of the Property Trustee obtaining a tax opinion in certain circumstances set forth in subparagraph (d) below, the Holders of a Majority
in Liquidation Amount of the Preferred Securities voting separately as a class have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Property
Trustee, or to direct the exercise of any trust or power conferred upon the Property Trustee under the Declaration of Trust, including the right to direct the Property Trustee, as Holder of the Junior
Subordinated Debentures, to (1) exercise the remedies available to it under 


I-6





 

the
Junior Subordinated Indenture as a Holder of the Junior Subordinated Debentures; (2) consent to any amendment or modification of the Indenture or the Junior Subordinated Debentures where
such consent shall be required or (3) waive any past default and its consequences that is waivable under Section 5.08 of the Junior Subordinated Indenture; provided, however, that if an
Indenture Event of Default has occurred and is continuing, then the Holders of 25% of the aggregate Liquidation Amount of the Preferred Securities may direct the Property Trustee to declare the
principal of and interest on the Junior Subordinated Debentures due and payable; provided, further, that where a consent or action under the Junior Subordinated Indenture would require the consent or
act of the Holders of more than a majority of the aggregate principal amount of Junior Subordinated Debentures affected thereby, only the Holders of that percentage of the aggregate stated Liquidation
Amount of the Preferred Securities which is at least equal to the percentage required under the Junior Subordinated Indenture may direct the Property Trustee to give such consent to take such action. 


        (c)   If
the Property Trustee fails to enforce its rights under the Junior Subordinated Debentures after a Holder of Preferred Securities has made a written request, such
Holder of Preferred Securities may, to the extent permitted by applicable law, institute a legal proceeding directly against the Debenture Issuer to enforce the Property Trustee's rights under the
Junior Subordinated Indenture without first instituting any legal proceeding against the Property Trustee or any other person or entity. In addition, if a Trust Enforcement Event has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer to make any interest, principal or other required payments when due under the Junior Subordinated Indenture, then a
Holder of Preferred Securities may directly institute a Direct Action against the Debenture Issuer on or after the respective due date specified in the Junior Subordinated Debentures. 



        (d)   Notwithstanding
anything to the contrary herein, the Company shall have the right to set off any payment it would otherwise be required to make in respect of any Trust
Security to the extent the Company has theretofore made, or is concurrently on the date thereof making, a payment under the Guarantee or in connection with a Direct Action. 


        (e)   The
Property Trustee shall notify all Holders of the Preferred Securities of any notice of any Indenture Event of Default received from the Debenture Issuer with respect
to the Junior Subordinated Debentures. Such notification shall state that such Indenture Event of Default also constitutes a Trust Enforcement Event. Except with respect to directing the time, method,
and place of conducting a proceeding for a remedy, the Property Trustee shall be under no obligation to take any of the actions described in subparagraph (b)(1) and (2) above unless the
Property Trustee has obtained an opinion of independent tax counsel to the effect that the Issuer Trust will not fail to be classified as a grantor trust for United States federal income tax purposes
as a result of such action, and each Holder will be treated as owning an undivided beneficial ownership interest in the Junior Subordinated Debentures. 


        (f)    In
the event the consent of the Property Trustee, as the Holder of the Junior Subordinated Debentures, is required under the Junior Subordinated Indenture with respect
to any amendment or modification of the Junior Subordinated Indenture, the Property Trustee shall request the direction of the Holders of the Trust Securities with respect to such amendment or
modification and shall vote with respect to such amendment or modification as directed by not less than 662/3% of the aggregate liquidation amount of the Trust Securities voting
together as a 


I-7





 

single
class; provided, however, that where a consent under the Junior Subordinated Indenture would require the consent of the Holders of more than a majority of the aggregate principal amount of the
Junior Subordinated Debentures, the Property Trustee may only give such consent at the direction of the Holders of at least the same proportion in aggregate stated liquidation amount of the Trust
Securities. The Property Trustee shall not take any such action in accordance with the directions of the Holders of the Trust Securities unless the Property Trustee has obtained an opinion of
independent tax counsel to the effect that the Issuer Trust will not be classified as other than a grantor trust for United States federal income tax purposes as a result of such action, and each
Holder will be treated as owning an undivided beneficial ownership interest in the Junior Subordinated Debentures. 


        (g)   A
waiver of an Indenture Event of Default with respect to the Junior Subordinated Debentures will constitute a waiver of the corresponding Trust Enforcement Event. 



        (h)   Any
required approval or direction of Holders of Preferred Securities may be given at a separate meeting of Holders of Preferred Securities convened for such purpose, at
a meeting of all of the Holders of Trust Securities or pursuant to written consent. The Administrative Trustees shall cause a notice of any meeting at which Holders of Preferred Securities are
entitled to vote, or of any matter upon which action by written consent of such Holders is to be taken, to be mailed to each Holder of record of Preferred Securities. Each such notice shall include a
statement setting forth the following information: (i) the date of such meeting or the date by which such action is to be taken; (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such matter upon which written consent is sought; and (iii) instructions for the delivery of proxies or consents. 


        (i)    No
vote or consent of the Holders of Preferred Securities shall be required for the Issuer Trust to redeem and cancel Preferred Securities or distribute Junior
Subordinated Debentures in accordance with the Declaration of Trust and the terms of the Trust Securities. 


        (j)    Notwithstanding
that Holders of Preferred Securities are entitled to vote or consent under any of the circumstances described above, any of the Trust Securities that are
owned at such time by the Debenture Issuer, the Trustees or any entity directly or indirectly controlled by, or under direct or indirect common control with, the Debenture Issuer or any Trustee, shall
not be entitled to vote or consent and shall, for purposes of such vote or consent, be treated as if such Trust Securities were not outstanding. 


        (k)   Holders
of the Preferred Securities shall have no rights to appoint or remove the Trustees, who may be appointed, removed or replaced solely by the Common Securities
Holder. 


        (l)    If
an Indenture Event of Default has occurred and is continuing, the Property Trustee and the Delaware Trustee may be removed at such time by a Majority in Liquidation
Amount of the Preferred Securities. 


I-8





 

        6.    Voting Rights of Common Securities.    


        (a)   Except
as provided under Sections 6.1(b) or 11.1 of the Declaration of Trust, this paragraph or as otherwise required by the Business Trust Act, the Trust Indenture Act
or other applicable law or by the Declaration of Trust, the Holders of the Common Securities will have no voting rights. 


        (b)   The
Holders of the Common Securities shall be entitled, in accordance with Article 6 of the Declaration of Trust, to vote to appoint, remove or replace any
Trustee or to increase or decrease the number of Trustees. 


        (c)   Subject
to Section 2.6 of the Declaration of Trust and only after all Trust Enforcement Events with respect to the Preferred Securities have been cured, waived,
or otherwise eliminated and subject to the requirement of the Property Trustee obtaining a tax opinion in certain circumstances set forth in this subparagraph (c), the Holders of a Majority in
Liquidation Amount of the Common Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Property Trustee, or direct the exercise of
any trust or power conferred upon the Property Trustee under the Declaration of Trust (in each case, only as it relates to the Common Securities), including the right to direct the Property Trustee,
as Holder of the Junior Subordinated Debentures, to (1) exercise the remedies available to it under the Junior Subordinated Indenture as a Holder of the Junior Subordinated Debentures,
(2) consent to any amendment or modification of the Junior Subordinated Indenture or the Junior Subordinated Debentures where such consent shall be required or (3) waive any past default
and its consequences that is waivable under Section 5.08 of the Junior Subordinated Indenture; provided, however, that where a consent or action under the Junior Subordinated Indenture would
require the consent or act of the Holders of more than a majority of the aggregate principal amount of Junior Subordinated Debentures affected thereby, only the Holders of the percentage of the
aggregate stated Liquidation Amount of the Common Securities which is at least equal to that percentage required under the Junior Subordinated Indenture may direct the Property Trustee to have such
consent or take such action. Except with respect to directing the time, method, and place of conducting a proceeding for a remedy, the Property Trustee shall be under no obligation to take any of the
actions described in subparagraphs (c)(i) and (ii) above unless the Property Trustee has obtained an opinion of independent tax counsel to the effect that, as a result of such action,
for United States federal income tax purposes the Issuer Trust will not fail to be classified as a grantor trust and each Holder will be treated as owning an undivided beneficial ownership interest in
the Junior Subordinated Debentures. 


        (d)   If
the Property Trustee fails to enforce its rights under the Junior Subordinated Debentures after a Holder of Common Securities has made a written request, such Holder
of Common Securities may, to the extent permitted by applicable law, directly institute a legal proceeding directly against the Debenture Issuer to enforce the Property Trustee's rights under the
Junior Subordinated Debentures without first instituting any legal proceeding against the Property Trustee or any other person or entity. 



        (e)   A
waiver of an Indenture Event of Default with respect to the Junior Subordinated Debentures will constitute a waiver of the corresponding Trust Enforcement Event. 


I-9





 

        (f)    Any
required approval or direction of Holders of Common Securities may be given at a separate meeting of Holders of Common Securities convened for such purpose, at a
meeting of all of the Holders of Trust Securities or pursuant to written consent. The Administrative Trustees will cause a notice of any meeting at which Holders of Common Securities are entitled to
vote, or of any matter on which action by written consent of such Holders is to be taken, to be mailed to each Holder of record of Common Securities. Each such notice will include a statement setting
forth the following information: (i) the date of such meeting or the date by which such action is to be taken; (ii) a description of any resolution proposed for adoption at such meeting
on which such Holders are entitled to vote or of such matter upon which written consent is sought; and (iii) instructions for the delivery of proxies or consents. 



        (g)   No
vote or consent of the Holders of the Common Securities will be required for the Issuer Trust to redeem and cancel Common Securities or to distribute Junior
Subordinated Debentures in accordance with the Declaration of Trust and the terms of the Trust Securities. 


        7.    Amendments to Declaration of Trust and Junior Subordinated Indenture.    


         (a)  In
addition to any requirements under Section 11.1 of the Declaration of Trust, if any proposed amendment to the Declaration of Trust provides for, or the
Administrative Trustees otherwise propose to effect, (i) any amendment that would adversely affect the rights, privileges or preferences of any Holder of the Trust Securities, whether by way of
amendment to the Declaration of Trust or otherwise, or (ii) the dissolution, winding-up or termination of the Issuer Trust, other than as described in Section 8.1 of the
Declaration of Trust, then the Holders of Trust Securities, voting together as a single class, will be entitled to vote on such amendment or proposal (but not on any other amendment or proposal) and
such amendment or proposal shall not be effective except with the approval of the Holders of at least a Majority in Liquidation Amount of the Trust Securities, affected thereby;  provided, however, that
if any amendment or proposal referred to in clause (i) above would adversely affect only the Preferred Securities or only
the Common Securities, then only the affected class will be entitled to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of a Majority
in Liquidation Amount of such class of Trust Securities. 


         (b)  In
the event the consent of the Property Trustee as the holder of the Junior Subordinated Debentures is required under the Junior Subordinated Indenture with respect to
any amendment, modification or termination of the Junior Subordinated Indenture or the Junior Subordinated Debentures, the Property Trustee shall request the written direction of the Holders of the
Trust Securities with respect to such amendment, modification or termination and shall vote with respect to such amendment, modification or termination as directed by a Majority in Liquidation Amount
of the Trust Securities voting together as a single class; provided, however, that where a consent under the Junior Subordinated Indenture would require
the consent of the holders of a Super Majority, the Property Trustee may only give such consent at the direction of the Holders of at least the proportion in liquidation amount of the Trust Securities
which the relevant Super Majority represents of the aggregate principal amount of the Junior Subordinated Debentures outstanding; provided, further,  that the Property Trustee shall not take any action
in accordance with the directions of the Holders of the Trust Securities under this subparagraph (b) unless the
Property Trustee has obtained an opinion of nationally recognized independent tax 


I-10





 

counsel
experienced in such matters to the effect that for the purposes of United States federal income tax the Issuer Trust will not be classified as other than a grantor trust on account of such
action. 


        8.    Pro Rata.    



        A
reference in these terms of the Trust Securities to any payment, distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder of Trust Securities according to the
aggregate Liquidation Amount of the Trust Securities held by the relevant Holder in relation to the aggregate Liquidation Amount of all Trust Securities outstanding unless, in relation to a payment, a
Trust Enforcement Event has occurred, in which case any funds available to make such payment shall be paid first to each Holder of the Preferred Securities pro rata according to the aggregate
liquidation amount of Preferred Securities held by the relevant Holder relative to the aggregate liquidation amount of all Preferred Securities outstanding, and only after satisfaction of all amounts
owed to the Holders of the Preferred Securities, to each Holder of Common Securities pro rata according to the aggregate liquidation amount of Common Securities held by the relevant Holder relative to
the aggregate liquidation amount of all Common Securities outstanding. In any such proration the Issuer Trust may make such adjustments as may be appropriate in order that only Trust Securities in
authorized denominations shall be redeemed. 


        9.    Ranking.    


        The
Preferred Securities rank pari passu with the Common Securities and payment thereon shall be made Pro Rata with the Common Securities
except that, if a Trust Enforcement Event has occurred the rights of Holders of the Common Securities to payment in respect of Distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights to payment of the Holders of the Preferred Securities. 


        10.    Acceptance of Guarantee and Junior Subordinated Indenture.    


        Each
Holder of Preferred Securities and Common Securities, by its acceptance thereof, agrees to the provisions of the Guarantee and to the provisions of the Junior Subordinated
Indenture, respectively, including the subordination provisions therein. 


        11.    No Preemptive Rights.    


        The
Holders of the Trust Securities shall have no preemptive rights to subscribe for any additional securities. 


        12.    Miscellaneous.    


        These
terms constitute a part of the Declaration of Trust. 


        The
Sponsor will provide a copy of the Declaration of Trust, the Guarantee, and the Junior Subordinated Indenture to a Holder without charge on written request to the Sponsor at its
principal place of business. 


I-11








  



 
 

EXHIBIT A    
    


        [IF THE PREFERRED SECURITY IS TO BE A GLOBAL SECURITY, INSERT THE FOLLOWING: This Preferred Security is a Global Security
within the meaning of the Declaration of Trust hereinafter referred to and is registered in the name of The Depository Trust Company, a New York corporation (the "Depositary"), or a nominee of the
Depositary. This Preferred Security is exchangeable for Preferred Securities registered in the name of a person other than the Depositary or its nominee only in the limited circumstances described in
the Declaration of Trust and no transfer of this Preferred Security (other than a transfer of this Preferred Security as a whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may be registered except in limited circumstances.


        Unless this Preferred Security Certificate is presented by an authorized representative of the Depositary to the issuer or its agent for registration of transfer,
exchange or payment, and any Preferred Security Certificate issued is registered in the name of Cede & Co. or such other name as registered by an authorized representative of the Depositary
(and any payment hereon is made to Cede & Co. or to such other entity as is requested by an authorized representative of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.]


A-1





 


	Certificate No.	 	Number of Preferred Securities:
	CUSIP No.	 	 




 
 

Certificate Evidencing Preferred Securities
  of
  FW Preferred Capital Trust I
  
    9% Preferred Securities, Series I
  (liquidation amount $25 per Preferred Security)


        FW
Preferred Capital Trust I, a statutory business trust formed under the laws of the State of Delaware (the "Issuer Trust"), hereby certifies that Cede & Co. (the "Holder") is
the registered owner of 7,000,000 preferred securities of the Issuer Trust representing undivided beneficial ownership interests in the assets of the Issuer Trust designated the "9% Preferred
Securities, Series I" (liquidation amount $25 per Preferred Security) (the "Preferred Securities"). The Preferred Securities are transferable on the register of the Issuer Trust, in person or by a
duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer as provided in the Declaration of Trust (as defined below). The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the Preferred Securities represented hereby are issued and shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Issuer Trust, dated as of January 13, 1999 (as the same may be amended from time to time (the "Declaration of Trust"), among FOSTER WHEELER CORPORATION, as
Sponsor, Richard J. Swift, David J. Roberts and Robert D. Iseman, as Administrative Trustees, HARRIS TRUST AND SAVINGS COMPANY, as Property Trustee, and WILMINGTON TRUST COMPANY, as Delaware Trustee.
Capitalized terms used herein but not defined shall have the meaning given them in the Declaration of Trust. The Holder is entitled to the benefits of the Guarantee to the extent described therein.
The Sponsor will provide a copy of the Declaration of Trust, the Guarantee and the Junior Subordinated Indenture to a Holder without charge upon written request to the Sponsor at its principal place
of business. 


        Upon
receipt of this certificate, the Holder is bound by the Declaration of Trust and is entitled to the benefits thereunder. 



        By
acceptance, the Holder agrees to treat, for all United States federal tax purposes, the Junior Subordinated Debentures as indebtedness and the Preferred Securities as evidence of
undivided indirect beneficial ownership interests in the Junior Subordinated Debentures. 


A-2





 

        IN
WITNESS WHEREOF, the Issuer Trust has executed this certificate this            day of            ,
        . 



	

 	
 	

FW PREFERRED CAPITAL TRUST I
	

 	
 	

By:	

 
	 	 	 	

	 	 	Name:	 
	 	 	Title:	Administrative Trustee




A-3





 

        This
is one of the Trust Securities referred to in the within-mentioned Declaration of the Trust. 



	

 	
 	

HARRIS TRUST AND SAVINGS BANK,

as Property Trustee
	

 	
 	

By:	

 
	 	 	 	

	 	 	Name:	 
	 	 	Title:	 




A-4





 
[FORM
OF REVERSE OF SECURITY] 


        Each
Preferred Security will be entitled to receive cumulative cash Distributions at a rate per annum of 9% of the stated liquidation amount of $25 per Preferred Security. Distributions
not paid on the
scheduled payment date will accumulate and compound quarterly at the rate of 9% per annum ("Compound Distributions"). The term "Distributions" as used herein shall mean ordinary cumulative
distributions together with any Compound Distributions. A Distribution is payable only to the extent the payments are made in respect of the Junior Subordinated Debentures held by the Property Trustee
and to the extent the Property Trustee has funds available therefor. The Distribution Amount payable for each Distribution Period will be calculated as provided in the Declaration of Trust. 


        Except
as otherwise described below, Distributions on the Preferred Securities will be cumulative, will accumulate from the date of original issuance and will be payable quarterly in
arrears or the fifteenth day of January, April, July and October of each year, commencing on April 15, 1999 to the Holders thereof as they appear on the books and records of the Issuer Trust on
the relevant record dates. While the Preferred Securities are represented by one or more Global Securities, the relevant record dates shall be the close of business on the Business Day next preceding
such Distribution payment date unless different regular record date is established or provided for the corresponding interest payment date on the Junior Subordinated Debentures. If the Preferred
Securities shall not continue to remain represented by one or more Global Securities, the relevant record dates for the Preferred Securities shall be selected by the Administrative Trustees and shall
be at least one Business Day prior to the relevant payment dates. The Debenture Issuer has the right under the Junior Subordinated Indenture to defer payments of interest on the Junior Subordinated
Debentures by extending the interest payment period at any time and from time to time for a period not exceeding 20 consecutive quarterly periods (each an "Extension Period"),  provided that no Extension
Period shall end on a day other than an interest payment date for the Junior Subordinated Debentures or shall extend beyond
the date of the maturity of the Junior Subordinated Debentures. As a consequence of any Extension Period, Distributions will also be deferred. During any Extension Period, quarterly Distributions will
continue to accumulate with interest thereon (to the extent permitted by applicable law) at a rate of 9% per annum, compounded quarterly during any such Extension Period. At the end of the Extension
Period, all accumulated and unpaid Distributions (but only to the extent payments are made in respect of the Junior Subordinated Debentures held by the Property Trustee and to the extent the Property
Trustee has funds available therefore) will be payable to the Holders of the Trust Securities in whose names the Trust Securities are registered in the Security Register on the record date relating to
the Distribution Date on which the Extension Period ends. Prior to the termination of any such Extension Period, the Debenture Issuer may further defer payments of interest by further extending such
Extension Period; provided that such Extension Period together with all such previous and further extensions within such Extension Period may not exceed
20 consecutive quarterly periods or extend beyond the maturity date of the Junior Subordinated Debentures. Upon the termination of any Extension Period and the payment of all amounts then due, the
Debenture Issuer may commence new Extension Period, subject to the above requirements. 


        The
Administrative Trustees shall have the right at any time to dissolve and liquidate the Issuer Trust and cause the Junior Subordinated Debentures to be distributed to the Holders of
the Trust Securities in liquidation of the Issuer Trust. 


        The
Preferred Securities shall be redeemable as provided in the Declaration of Trust. 


A-5





 
 
 

ASSIGNMENT    
    


FOR
VALUE RECEIVED, the undersigned assigns and transfers this Preferred Security Certificate to: 














(Insert assignee's social security or tax identification number) 














(Insert address and zip code of assignee) 


and
irrevocably appoints 















agent to transfer this Preferred Security Certificate on the books of the Issuer Trust. The agent may substitute another to act for him or her. 



	Date:	 	 	 	 
	 	 	
	 	 





	Signature:	 	 	 	 
	 	 	
	 	 
	(Sign exactly as your name appears on the other side of this Preferred Security Certificate)







	Signature Guarantee*:	 	 	 	 
	 	 	
	 	 






	**
	Signature
must be guaranteed by an "eligible guarantor institution" that is a bank, stockbroker, savings and loan association or credit union meeting the requirements of the Registrar,
which requirements include membership or participation in the Securities Transfer Agents Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the securities and Exchange Act of 1934, as amended. 


A-6






  



 
 

EXHIBIT B
  
    THIS CERTIFICATE IS NOT TRANSFERABLE    
    



	Certificate No.	 	Number of Common Securities:    




 
 

Certificate Evidencing Common Securities
  of
  FW Preferred Capital Trust I
  
    9% Common Securities, Series I
  (liquidation amount $25 per Common Security)    
    


        FW Preferred Capital Trust I, a statutory business trust formed under the laws of the State of Delaware (the "Issuer Trust"), hereby certifies that FOSTER WHEELER
CORPORATION (the "Holder") is the registered owner of common securities of the Issuer Trust representing an undivided beneficial ownership interest in the assets of the Issuer Trust designated the "9%
Common Securities, Series I (liquidation amount $25 per Common Security)" (the "Common Securities"). The Common Securities are not transferable and any attempted transfer thereof shall be void.
The designation, rights, privileges, restrictions, preferences and other terms and provisions of the Common Securities represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Issuer Trust, dated as of January 13, 1999 (as the same may be amended from time to time, the "Declaration of Trust"), among
FOSTER WHEELER CORPORATION as Sponsor, Richard J. Swift, David J. Roberts and Robert D. Iseman, as Administrative Trustees, HARRIS TRUST AND SAVINGS BANK, as Property Trustee and
WILMINGTON TRUST COMPANY, as Delaware Trustee. The Holder is entitled to the benefits of the Guarantee to the extent described therein. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration of Trust. The Sponsor will provide a copy of the Declaration of Trust, the Guarantee and the Junior Subordinated Indenture to the Holder without charge upon
written request to the Sponsor at its principal place of business. 


        Upon
receipt of this certificate, the Holder is bound by the Declaration of Trust and is entitled to the benefits thereunder. 


        By
acceptance, the Holder agrees to treat, for all United States federal tax purposes, the Junior Subordinated Debentures as indebtedness and the Common Securities as evidence of an
undivided indirect beneficial ownership interest in the Junior Subordinated Debentures. 


B-1





 

        IN
WITNESS WHEREOF, the Issuer Trust has executed this certificate this            day of            ,
            . 



	 	 	FW PREFERRED CAPITAL TRUST I
	

 	
 	

By:	
 	

 
	 	 	 	 	
 Name:

Title: Administrative Trustee




B-2





 
[FORM
OF REVERSE OF SECURITY] 


        Each
Common Security will be entitled to receive cumulative Distributions at a rate per annum of 9% of the stated liquidation amount of $25 per Common Security. Distributions not paid on
the scheduled payment date will accumulate and compound quarterly at the rate of 9% per annum ("Compound Distributions"). The term "Distributions" as used herein shall mean ordinary cumulative
distributions together with any Compound Distributions. A Distribution is payable only to the extent that payments are made in respect of the Junior Subordinated Debentures held by the Property
Trustee and to the extent the Property Trustee has funds available therefor. The Distribution Amount payable for each Distribution Period will be calculated as provided in the Declaration of Trust. 


        Except
as otherwise described below, distributions on the Common Securities will be cumulative, will accumulate from the date of original issuance and will be payable quarterly in
arrears on the fifteenth day of January, April, July and October of each year, commencing on April 15, 1999, to Holders of record on the relevant record record dates. The Debenture Issuer has
the right under the Junior Subordinated Indenture to defer payments of interest on the Junior Subordinated Debentures by extending the interest payment period at any time and from time to time for a
period not exceeding 20 consecutive quarterly periods (each an "Extension Period"), provided that no Extension Period shall end on a day other than an
interest payment date for the Junior Subordinated Debentures or shall extend beyond the date of the maturity of the Junior Subordinated Debentures. As a consequence of any Extension Period, quarterly
Distributions will also be deferred. During any Extension Period, quarterly Distributions will continue to accumulate with interest thereon (to the extent permitted by applicable law) at a rate of 9%
per annum compounded quarterly during any such Extension Period. At the end of the Extension Period, all accumulated and unpaid Distributions (but only to the extent payments are made in respect of
the Junior Subordinated Debentures held by the Property Trustee and to the extent the Property Trustee has funds available therefor) will be payable to the Holders of the Trust Securities in whose
names the Trust Securities are registered in the Security Register on the record date relating to the Distribution Date on which the Extension Period ends. Prior to the termination of any such
Extension Period; provided that such Extension Period together with all such previous and further extensions with in such Extension Period may not
exceed 20 consecutive quarterly periods or extend beyond the maturity date of the Junior Subordinated Debentures. Upon the termination of any Extension Period and the payment of amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the above requirements. 



        The
Administrative Trustees shall have the right at any time to dissolve and liquidate the Issuer Trust and cause the Junior Subordinated Debentures to be distributed to the holders of
the Trust Securities in liquidation of the Issuer Trust. 


        The
Common Securities shall be redeemable as provided in the Declaration of Trust. 


B-3









QuickLinks


AMENDED AND RESTATED DECLARATION OF TRUST

ARTICLE 1 INTERPRETATION AND DEFINITIONS



ARTICLE 2 TRUST INDENTURE ACT

ARTICLE 3 ORGANIZATION


ARTICLE 4 SPONSOR

ARTICLE 6 TRUSTEES


ARTICLE 7 TERMS OF TRUST SECURITIES

ARTICLE 8 DISSOLUTION AND TERMINATION OF TRUST


ARTICLE 9 LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS

ARTICLE 10 ACCOUNTING

ARTICLE 11 AMENDMENTS AND MEETINGS



ARTICLE 12 REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE


ANNEX I TERMS OF PREFERRED SECURITIES AND COMMON SECURITIES


EXHIBIT A

Certificate Evidencing Preferred Securities of FW Preferred Capital Trust I 9% Preferred Securities, Series I (liquidation amount $25 per Preferred Security)

ASSIGNMENT


EXHIBIT B THIS CERTIFICATE IS NOT TRANSFERABLE

Certificate Evidencing Common Securities of FW Preferred Capital Trust I 9% Common Securities, Series I (liquidation amount $25 per Common Security)