Prepared and filed by St Ives Burrups





Exhibit 10.44

AMENDMENT NO. 2

TO LOAN AND SECURITY AGREEMENT



AMENDMENT
    NO. 2, dated as of
February 24, 2003 (this “Amendment”), to the Loan and
Security Agreement, dated as of August 15, 2002, as amended by Amendment No.
1 to Loan
and
Security Agreement, dated as of January 22, 2003 (as so amended, the “Loan

Agreement”), by and among, on the one hand, the lenders party
thereto
(each a “Lender” and
collectively, the “Lenders”), FOOTHILL CAPITAL CORPORATION,
a California corporation, as the arranger and administrative agent for the Lenders
(the “Agent”), and, on the other hand, FOSTER WHEELER FUNDING
LLC, a Delaware limited liability company
(the “Borrower”).

WHEREAS, the Borrower, the Agent and the Required Lenders are willing to amend the Loan Agreement;

NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the parties hereto hereby agree as follows:

1.      Definitions.
Any capitalized term used herein and not defined herein shall have the meaning assigned to it in the Loan Agreement.


2.     Financial
Covenants.



(a)     Section
7.20(a)(i) of the Loan Agreement is hereby amended in its entirety to read as
follows:



“(i)     Minimum
Collections.






                              (A)      As
of the end of any week,
the average amount of the weekly Collections with respect to Borrower’s
Accounts during the Testing Period ending at the end of such week to be less than
40% of the Revolver Usage as of the end of such week; provided, however, that
the calculation of weekly Collections determined under this Section 7.20(a)(i)(A) shall
include all amounts not exceeding $3,000,000 paid to subcontractors for goods
and/or services that, pursuant to the terms of any commercial contract between an
Originator and its clients, such Originator pays
such subcontractor (on behalf of, and as agent for, such client)
directly from the clients’ funds; and






                              (B)      as of the end of any two-week period, the average amount of
 the weekly Collections with respect to Borrower’s Accounts during such two-week period
 to be less than $5,000,000; provided, however, that the calculation of weekly
 Collections determined under this Section 7.20(a)(i)(B) shall include all amounts not
  exceeding $1,500,000 paid to subcontractors for goods and/or services that, pursuant to the terms
   of any commercial contract between an Originator and its clients, such Originator pays such subcontractor
    (on behalf of, and as agent for, such client) directly from the
clients’ funds;”.


               (b)      Section 7.20(a)(ii) of the Loan Agreement is hereby amended in its entirety to read as follows:



1







 


“(ii)      [Intentionally Omitted]”.




3.      Conditions. The
effectiveness of this Amendment is subject to the fulfillment, in a manner satisfactory
to the Agent, of each of the following conditions precedent (the date such conditions are
fulfilled or waived by the Required Lenders is hereafter referred to as the “Amendment
Effective Date”):


(a)      The representations and warranties contained herein, in Section 5 of the Loan Agreement and in each other Loan Document and certificate or other writing delivered to the Agent or any Lender pursuant hereto on or prior to the Amendment Effective Date shall be correct on and as of the Amendment Effective Date as though made on and as of such date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall be true and correct on and as of such date).

(b)      No Default or Event of Default shall have occurred and be continuing on the Amendment Effective Date, or result from this Amendment becoming effective in accordance with its terms.

(c)      The Agent shall have received the Amendment Fee (as hereinafter defined) in immediately available funds.

(d)      The Agent and the Required Lenders shall have executed this Amendment and received a counterpart of this Amendment, which bears the signature of the Borrower.

(e)      The Guarantor shall have executed and delivered to
the Agent an Acknowledgment and Consent in the form attached hereto.


4.      Amendment Fee. The
 Borrower hereby agrees that, in consideration of the willingness of the Agent and
 the Required Lenders to enter into this Amendment, the Borrower shall pay to the Agent,
 for the benefit of the Lenders, a fee in the amount of $200,000 in immediately available
  funds (the “Amendment Fee”).The Amendment Fee (i) shall be fully
  earned by the Lenders and due and payable upon the execution by the Borrower of this
  Amendment and (ii) shall be non-refundable.

5.      Representations
      and Warranties. The
 Borrower hereby represents and warrants to the Agent and the Lenders as follows:




(a)      The representations and warranties herein, in Section 5 of the Loan Agreement and in each other Loan Document and certificate or other writing delivered to the Agent or any Lender pursuant hereto on or prior to the Amendment Effective Date are correct on and as of the Amendment Effective Date as though made on and as of such date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties are true and correct on and as of such date).

(b)      No Default
or Event of Default has occurred and is continuing or would result from this Amendment
 becoming effective in accordance with its terms.





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(c)      The Borrower (i) is duly organized and existing and in good standing under the laws of the jurisdiction of its organization, (ii) has all requisite power and authority to execute, deliver and perform this Amendment and to perform the Loan Agreement, as amended hereby, and (iii) is duly qualified to do business in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary except where the failure to be so qualified could not be expected to have a Material Adverse Change.

(d)      The execution, delivery and performance by the Borrower of this Amendment and the performance by the Borrower of the Loan Agreement, as amended by this Amendment, (i) have been duly authorized by all necessary action, and (ii) do not and will not contravene the Borrower’s Governing Documents.

(e)      The execution, delivery, and performance by
the Borrower of this Amendment and the performance of the Loan Agreement, as
amended by this Amendment, do not and will not require any registration with,
consent, or approval of, or notice to, or other action with or by, any Governmental
Authority or other Person.

(f)      This Amendment and the Loan Agreement, as
amended by this Amendment, when executed and delivered by the Borrower will be the legally
valid and binding obligations of the Borrower, enforceable against the Borrower in accordance
with their respective terms.



6.     Miscellaneous.



(a)      Continued
      Effectiveness of the Loan Agreement. Except as otherwise expressly
      provided herein, the Loan Agreement and the other Loan Documents are, and
      shall continue to be, in full force and effect and are hereby ratified
      and confirmed in all respects, except that on and after the Amendment Effective
      Date (i) all references in the Loan Agreement to “this Agreement”, “hereto”, “hereof”, “hereunder” or
      words of like import referring to the Loan Agreement shall mean the Loan
      Agreement as amended by this Amendment, and (ii) all references in the
      other Loan Documents to the “Loan Agreement”, “thereto”, “thereof”, “thereunder” or
      words of like import referring to the Loan Agreement shall mean the Loan
      Agreement as amended by this Amendment. Except as expressly provided herein,
      the execution, delivery and effectiveness of this Amendment shall not operate
      as an amendment of any right, power or remedy of the Agent or the Lenders
      under the Loan Agreement or any other Loan Document, nor constitute an
      amendment of any provision of the Loan Agreement or any other Loan Document.

(b)      Counterparts. This
    Amendment may be executed in any number of counterparts and by different
    parties hereto in separate counterparts, each of which shall be deemed to
    be an original, but all of which taken together shall constitute one and
    the same agreement.

(c)      Headings. Section
    headings herein are  included for convenience of reference only and shall
    not constitute a part of this Amendment
 for any other purpose.



 

 

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(d)      Governing
      Law. This Amendment shall be governed by, and construed in accordance
      with, the law of the State of New York.

(e)      Costs
      and Expenses. The Borrower agrees to pay on demand all fees,
      costs and expenses of the Agent in connection with the preparation, execution
      and delivery of this Amendment and any other related agreements, instruments
      and documents.

(f)      Amendment as Loan Document. The Borrower hereby acknowledges and agrees that this Amendment constitutes
 a “Loan Document” under the Loan Agreement. Accordingly, it shall be an Event of Default under the Loan Agreement if any representation or warranty made by the Borrower under or in connection with this Amendment shall have been untrue, false or misleading in any material respect when made.

(g)      No Waiver. This Amendment is not a
waiver of, or consent to, any Default or Event of Default now existing or hereafter
arising under the Loan Agreement or any other Loan Document and the Agent and the Lenders
 expressly reserve all of their rights and remedies under the Loan Agreement and the other
 Loan Documents, under applicable law or otherwise.



9386297.
2


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     IN WITNESS WHEREOF, the
        parties hereto have caused this Amendment to be executed and delivered
        as of the date first above written.

  

  
    Borrower:

          

    FOSTER WHEELER FUNDING LLC,

    a Delaware limited liability company

    

    By: /s/ Ryan J. Esko

    Title: Treasurer

    

    Agent and Required Lenders:

    

    FOOTHILL CAPITAL CORPORATION,

    a California corporation

    

    By: /s/ Ronald S. Cote

    Title: Vice President

  

  








ACKNOWLEDGMENT AND CONSENT


  The undersigned, as Guarantor under
      the Guaranty (as defined in the Loan Agreement referred to in Amendment
      No. 2 to Loan and Security Agreement dated as of the date hereof (the “Amendment”,
      all terms defined therein being used herein as defined therein), to which
      this Acknowledgment and Consent is attached), hereby (i) acknowledges and
      consents to the Amendment and (ii) confirms and agrees that the Guaranty
      is, and shall continue to be, in full force and effect and is hereby ratified
      and confirmed in all respects.



Dated: February 25, 2003


  FOSTER WHEELER LTD.,

    a Bermuda limited company

    

    By: /s/ Ryan J. Esko

    Title: Treasurer