EX-10.8






Exhibit 10.8




	 	 	 
	

	 	Bank of Scotland

Corporate Banking

Beauclerc House

3 Queens Road

Reading

RG1 4AR

For the attention of:

Peter Jackson
	 
	 	 
	The Directors

Foster Wheeler Limited

Registered number 163609

Shinfield Park

Reading

Berkshire RG2 9FW

(the “ Parent”); and

	 	Telephone: 0118 980 2995

Fax:           0118 980 2926






Each of the Companies listed in Schedule 5




Date: 21 November 2008




Dear Sirs



UNCOMMITTED GUARANTEE FACILITY OF £90,000,000 AND PAYMENT SYSTEMS



We refer to the Facility Letter dated 19 October 2007 (“Original Facility Letter”) between the
Parent, and the companies listed in Schedule 5 (the “Borrowers” and each one a “Borrower”) and
ourselves pursuant to which certain facilities have been made available to each of the Parent and
the Borrowers (the “Original Facilities”).



We are pleased to offer the Borrowers an uncommitted guarantee facility (the “Guarantee Facility”),
a Forward Foreign Exchange Facility (“FFEC Facility”), a daily foreign exchange facility (“Daily FX
Facility”) and access to payment systems (the “Payment Systems”) on the terms set out in this
letter. Together the Guarantee Facility, the FFEC Facility, the Daily FX Facility and the Payment
Systems are referred to as the “Facilities”.



This offer is open for acceptance by the Borrowers until 16 December 2008 when it will lapse. If
accepted, this letter and its schedules will form the agreement between the Borrowers and BoS for
the Facilities. Consequently upon acceptance of the terms of this offer by the Borrowers the
Original Facilities will cease to be available and the terms of the Original Facility Letter shall
be replaced by the terms of this letter.



The definitions which shall apply to this letter are given or referred to in Schedule 2 below.





	1.	 	Conditions Precedent
	 
	1.1	 	The Facilities may not be drawn or utilised until BoS has received, in form and substance
satisfactory to it:-










 






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	 	1.1.1	 	a Secretary’s Certificate in respect of each company which is a party to a
BoS Document;
	 
	 	1.1.2	 	a letter of comfort in terms acceptable to BoS from Foster Wheeler Ltd, the
ultimate holding company of the Parent; and
	 
	 	1.1.3	 	A global deed of counter indemnity in terms acceptable to BoS from each of
the Borrower’s in favour of BoS.






	1.2	 	The Borrowers shall ensure that:






	 	1.2.1	 	before a Borrower uses the FFEC Facility (and BoS will not permit any
Borrower to use the FFEC Facility unless this condition is satisfied) that Borrower
shall have completed and delivered the ISDA Documents;
	 
	 	1.2.2	 	the Security Trust Deed is entered into substantially in the terms of the
document annexed to this letter by any bank providing facilities permitted by clause
15.1 of this letter where that bank requires that such facilities should be secured in
their favour.






	2.	 	The Facilities
	 
	2.1.	 	The Guarantee Facility and the FFEC Facility may (subject to the limits set out below) be
drawn and utilised as:-






	 	2.1.1.	 	Guarantees up to £90,000,000 (the “Guarantee Limit”);
	 
	 	2.1.2.	 	Forward Foreign Exchange Contracts up to £36,000,000 (equivalent for guidance
purposes only to a gross contract value of approximately £150,000,000 for periods of
less than 3-years duration (the “FFEC Limit”) on the terms and conditions set out or
referred to in this letter;






	2.2.	 	BoS will (subject to the limits set out below) make available to the Borrowers the following
facilities in relation to the Payment Systems:-






	 	2.2.1.	 	BACS facilities with a limit of £15,000,000 (the “BACS Limit”)
	 
	 	2.2.2.	 	CHAPS facilities with a limit of £15,000,000 (the “CHAPS Limit”)
	 
	 	2.2.3.	 	International Payment Processing facilities with a limit of £13,000,000 (“the IPP
Limit”)
	 
	 	2.2.4.	 	CIB Sterling Payment facilities with a limit of £15,000,000 (the “CIB Sterling
Payments Limit”)
	 
	 	2.2.5.	 	Treasury Settlement facilities with a limit of £30,000,000 (the “Treasury Settlement
Limit”)






	 	 	on the terms and conditions set out or referred to in this letter.
	 
	2.3	 	Availability






	 	2.3.1	 	If BoS cancels the availability of any of the Facilities then the Facilities
will cease to be available and the access to the Payment Systems shall be cancelled.
Before any cancellation, other than under clause 2.3.3, BoS will











 



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	 	 	 	give the Borrower not more than 5 Business Days prior written notice of
cancellation but BoS need not give such prior notice where it reasonably
determines that its interests are likely to be materially adversely affected.
	 
	 	2.3.2	 	If BoS wishes to vary the terms upon which the Facilities are to continue
BoS shall agree the revised terms with the Borrowers.
	 
	 	2.3.3	 	BoS shall review the Facilities annually on the Review Date. If agreement
is not reached between BoS and the Borrowers prior to close of business on the Review
Date then BoS may notify the Borrower in writing that the Facilities have ceased to be
available provided that BoS will give the Borrower not less than 60 days prior written
notice of cancellation. BoS shall not be obliged to permit any further utilisation of
the Guarantee Facility during such notice period unless cash cover acceptable to BoS
is provided by the Borrowers prior to the issue of any Guarantees requested or, prior
to any utilisation of the Payment Systems required by the Borrowers during such notice
period. Such cash cover shall be equal to 100% of the face value of any Guarantee to
be issued or, in the case of the Payment Systems, the Borrowers shall provide such
cleared funds in advance in an amount reasonably determined by BoS as being sufficient
to enable such proposed utilisation.
	 
	 	2.3.4	 	Pending BoS issuing any such notice to the Borrowers under clause 2.3.3
(time not being of the essence) the Facilities will continue to be available on the
terms applying immediately prior to the relevant Review Date.
	 
	 	2.3.5	 	In some circumstances BoS may cancel the availability of any of the
Facilities and, subject to clause 2.3.6, as appropriate may demand payment (other than
in respect of the Guarantees where a demand has not been made by a beneficiary under
of a relevant Guarantee) and/or demand cash cover. This may happen if BoS considers
that:-






	 	(a)	 	any of the terms or conditions of this letter or any other
facility letter in force from time to time between a Borrower and BoS have
been breached; or
	 
	 	(b)	 	the financial condition of any Borrower or any guarantor of
any Borrower has altered in any material adverse way; or
	 
	 	(c)	 	the Facilities were agreed on the basis of incorrect or
incomplete information from the Borrowers which is likely to have a material
adverse effect; or
	 
	 	(d)	 	either (i) control of any Borrower or any of its subsidiary
companies passes to any person or persons (whether acting individually or in
concert) who is or are not a shareholder in it immediately prior to the date
of this letter or (ii) there is a Change of Control, in each case without the
prior written consent of BoS.






	 	2.3.6	 	Upon cancellation under this letter and providing the Borrowers have failed
to meet any of the key performance indicators under clause 6 BoS shall also be
entitled to demand immediate payment and/or cash cover of 100% of the face value of
the Guarantees issued by BoS under the Guarantee Facility to be lodged as security for
the exposure of BoS thereunder.










 



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	3.	 	Guarantees
	 
	3.1.	 	On receipt of a written request (in the form required by BoS) by a Borrower, BoS will issue
Guarantees (up to in aggregate the Guarantee Limit) on its behalf and in its name or in the
name of any other Subsidiary or Affiliate. Before BoS issues a Guarantee on behalf of a
Borrower:






	 	3.1.1	 	BoS must have approved the terms of the Guarantee; and
	 
	 	3.1.2	 	BoS is satisfied that it holds a counter indemnity from the Borrower in a
form acceptable to it or in the alternative the Borrower shall have executed and
delivered to BoS a counter indemnity in a form acceptable to BoS agreeing to indemnify
BoS against any claim under the Guarantee and authorising BoS to debit the amount of a
claim to any of such Borrower’s accounts.






	3.2.	 	A charge of zero point six zero per cent (0.60%) per annum of BoS outstanding liabilities
(whether actual or contingent) from time to time under the Guarantees shall be payable by the
Borrowers in respect of Guarantees issued by BoS on its behalf. This charge will be payable
quarterly in arrears on such dates as may be notified by BoS to the Parent up to and including
the date upon which the Guarantee is returned to BoS for cancellation.
	 
	4.	 	Forward Foreign Exchange Contracts
	 
	4.1.	 	A Borrower may enter into forward foreign exchange contracts (up to in aggregate the FFEC
Limit) with BoS for the purchase or sale of any freely convertible currency and with a
maturity period of up to thirty six months. For the purpose of calculating utilisations of
this component of the Facilities, BoS will calculate the aggregate exposure of BoS in respect
of each forward foreign exchange contract entered into with BoS.
	 
	4.2.	 	Each Borrower must ensure that it makes sufficient funds (either in Sterling or in the
appropriate foreign currency) available to meet its obligations under each of the forward
foreign exchange contracts entered into by it in terms of this letter as and when they fall
due. In the event that a Borrower fails to do so, it shall be liable to BoS in respect of the
lesser of (1) the Sterling equivalent of the amount such Borrower was due to pay BoS on
completion of the relevant forward foreign exchange contract and (2) the Sterling equivalent
of the amount which BoS would have received by completing that contract at the prevailing spot
rate of exchange for the relevant currency on the date of completion of the contract.
	 
	4.3.	 	Whenever the “Sterling equivalent” of any currency amount requires to be calculated it shall
be calculated at the BoS spot rate of exchange for such currency on the applicable day.
	 
	5.	 	Termination
	 
	 	 	Each utilisation of the Facilities referred to in this letter and the Payment Systems shall
immediately cease to be available subject to clauses 2.3.1 and 2.3.3 above if BoS makes a
demand for payment under clauses 2.3.5 or gives written notice to the Parent that the
Facilities are withdrawn.
	 
	6.	 	Key Performance Indicators
	 
	 	 	As long as the Facilities remain available (and thereafter for as long as is necessary











 



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	 	 	for the purposes of assessing satisfaction with or otherwise of the requirements of clause
2.3.6) the Borrowers will provide financial information, including the Financial
Statements, the quarterly management accounts and the quarterly certification required
under Schedule 4, evidencing their performance against the key performance indicators set
out in Schedule 7. In the event of such performance not remaining within any of the target
ratios set out in Schedule 7, BoS reserves the right to either cancel and withdraw the
Facilities or renegotiate the basis on which the Facilities should be made available
including without limitation the right to require cash cover under clause 2.3.6.
	 
	7.	 	Security






	 	7.1	 	The amounts outstanding under the Facilities will be secured by the Security
Documents.
	 
	 	7.2	 	The Borrowers will enter into such further Security Documents in favour of
BoS as BoS may reasonably require from time to time to ensure that BoS continues to
hold security at all times while the Facilities remain available which represents in
aggregate not less than 80% of consolidated turnover and net assets as determined by
the most recent Financial Statements of the Group and all such Security Documents will
secure the Facilities and any other money due, owing or incurred to BoS by the
Borrowers.






	8.	 	Financial Information
	 
	 	 	The Borrowers will supply to BoS the financial information specified in the Schedule 4.
	 
	9.	 	Payments
	 
	9.1	 	All payments by any Borrower to BoS (being a Qualifying Lender) under this letter shall be
free and without deduction of tax unless such Borrower is required by law to make a payment
subject to deduction or withholding of tax, in which case the amount payable by such Borrower
will be sufficiently increased to ensure that BoS receives and retains a net sum equal to that
which it would have received and retained were no deduction or withholding made. If BoS
subsequently receives a tax credit which is referable to the increased payment and which
enhances its position, then it will reimburse the relevant Borrower sufficient to redress the
position up to the amount received so long as by so doing it does not prejudice receipt or
retention of the tax credit.
	 
	9.2	 	Notwithstanding the provisions of clause 9.1 if in relation to BoS circumstances arise which
would result in any deduction, withholding or payment of the nature referred to in clause 9.1
then without in any way limiting, reducing or otherwise qualifying BoS’s rights, BoS shall use
reasonable endeavours to transfer the Facility to another of its or any relevant BoS Group
offices in the UK not affected by the circumstances having the results set out in clause 9.1
and shall otherwise consider taking such reasonable steps as may be open to it to mitigate the
effects of such circumstances.
	 
	9.3	 	All payments, whether of commission or otherwise will be paid to BoS at the relevant
Borrower’s branch unless BoS otherwise directs and shall be in cleared funds in the relevant
currency. If BoS receives a payment that is insufficient to discharge all the amounts then
due and payable under the BoS Documents, BoS shall apply that payment towards the obligations
of the Group Companies under the BoS Documents











 



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	 	 	in such order as BoS considers appropriate and any such appropriation shall override any
instructions by any Group Company.
	 
	9.4	 	All payments to be made by any Borrower under the BoS Documents shall be calculated and be
made without (and free and clear of any deduction for) set-off or counterclaim.
	 
	9.5	 	All sums of commission will accrue on a daily basis and be calculated on the basis of a year
of 365 days (in the case of any amount in Sterling) or 360 days (in the case of any amount in
any other currency) and, in any such case, for the actual number of days elapsed. Commission
shall continue to accrue on sums due following a decree or judgement as well as before it, and
at the same rate.
	 
	9.6	 	Any determination by BoS of any amount whether of commission or charges or an applicable
interest rate or otherwise shall, in the absence of manifest error, be conclusive and binding
on the Borrowers.
	 
	9.7	 	Where the due date for payment of any amount under any BoS Document is not a Business Day
then (without affecting subsequent payment dates) actual payment will be required on the next
Business Day. Each Borrower agrees that any monies from time to time standing to its credit
on any account which is not designated a trust or client account (whether current, deposit,
loan or of any other nature whatsoever) with BoS may be retained as cover for and/or applied
by BoS at any time (whether on or before or after the expiry of any fixed or minimum period
for which such monies may have been deposited) in or towards payment or satisfaction of any
monies or liabilities which are due, owing or incurred by such Borrower to BoS in any manner,
whether present or future, actual or contingent, joint or several, whether incurred as
principal or surety (or guarantor or cautioner) or in any other way whatsoever.
	 
	9.8	 	If BoS exercises any rights in respect of any monies as referred to in clause 9.6 (including,
without limitation, any rights of set-off, accounting retention or similar rights) in respect
of any liability of a Borrower and that liability or any part of it is in a different currency
from any credit balance against which BoS seeks to exercise its rights, BoS may use the
currency of the credit balance to purchase an amount in the currency of the liability at the
then prevailing BoS spot rate of exchange and to pay out of the credit balance all costs,
charges and expenses incurred by BoS in connection with that purchase.
	 
	9.9	 	BoS shall not be liable for any loss of interest caused by the determination before maturity
of any deposits or any loss caused by the fluctuation in any exchange rate of which any
currency is bought or sold by BoS.
	 
	9.10	 	If a Borrower fails to pay any amount due to BoS in Sterling but makes such payment in
another currency, the relevant Borrower shall indemnify BoS against the full cost incurred by
BoS (including all costs, charges and expenses) of converting that payment into Sterling.
	 
	9.11	 	The obligations of each Borrower in relation to the Facilities are joint and several.
	 
	10.	 	Indemnity
	 
	10.1	 	Each Borrower will at all times on demand indemnify BoS against all Indemnified Events and
the Borrowers will pay to BoS the amount of all payments made (whether directly or by way of
set-off, counterclaim or otherwise) and all losses, reasonable costs or expenses suffered or
incurred from time to time by BoS arising under any











 



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	 	 	liability which BoS has incurred (directly or indirectly) in relation to any utilisations
of any or all of the Facilities.
	 
	10.2	 	The liability of the Borrowers under clause 10.1 above shall not be affected by any time
being given or by anything being done or not done by BoS.
	 
	11.	 	Notices
	 
	11.1	 	Any communication to be made under or in connection with this letter shall be made in writing
and, unless otherwise stated, may be made by fax or letter.
	 
	11.2	 	The address and fax number (and the department or officer, if any, for whose attention the
communication is to be made) of BoS for any communication or document to be made or delivered
under or in connection with this letter is that identified with its name at the beginning of
this letter or any substitute address, fax number or department or officer as BoS may notify
to the other parties by not less than five Business Days’ notice.
	 
	11.3	 	The address of each Borrower for any communication or document to be made or delivered under
or in connection with this letter is its registered office at the time such communication or
document is made or delivered. The fax number of each Borrower for any such communication or
document to be made or delivered under or in connection with this letter is the fax number
most recently provided to BoS by such Borrower.
	 
	11.4	 	Any communication made or document made or delivered by one person to another under or in
connection with this letter will only be effective:-






	 	(a)	 	if by way of fax, when received in legible form; or
	 
	 	(b)	 	if by way of letter, when it has been delivered to the relevant address or
three Business Days after being deposited in the post postage prepaid in an envelope
addressed to it at that address,






	 	 	and, if a particular department or officer is specified as part of the address details set
out in clause 10.2 above, if addressed to that department or officer.
	 
	11.5	 	Any communication or document to be made or delivered to BoS will be effective only when
actually received by BoS and then only if it is expressly marked for the attention of the
department or officer identified with its name above (or any substitute department or officer
as BoS shall specify for this purpose). Any communication or document made or delivered to
the Parent in accordance with this clause will be deemed to have been made or delivered to
each of the Group Companies.
	 
	11.6	 	BoS may rely upon any communication by telephone or fax purporting to be on behalf of any
Borrower by anyone previously notified to BoS by the Borrowers as being authorised to do so,
without enquiry by BoS as to authority or identity unless BoS shall have received not less
than 15 Business Days prior written notice of revocation of such authorisation. The Borrowers
agree to indemnify BoS against any liability incurred or sustained by BoS as a result.
















 



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	12.	 	Miscellaneous
	 
	12.1	 	No failure or delay by BoS in exercising any right or remedy under any BoS Document shall
operate as a waiver, and no single or partial exercise shall prevent further exercise, of any
right or remedy.
	 
	12.2	 	If at any time any provision of this letter is or becomes illegal, invalid or unenforceable
in any respect under any law of any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions nor the legality, validity or enforceability or
such provision under the law of any other jurisdiction shall in any way be affected or
impaired.
	 
	12.3	 	The schedules referred to in this letter shall form part of this letter.
	 
	12.4	 	Save to the extent expressly provided to the contrary in a BoS Document, a person who is not
a party to a BoS Document may not enforce any of its terms under the Contracts (Rights of
Third Parties) Act 1999.
	 
	13.	 	Fees and Expenses
	 
	13.1	 	The Borrowers will pay to BoS:-






	 	(a)	 	an arrangement fee of £45,000 payable on acceptance of this letter;
	 
	 	(b)	 	bank charges in relation to the Facilities either as specified in this letter
or otherwise in accordance with the standard terms and conditions of BoS.






	13.2	 	The Borrowers will pay or reimburse to BoS (on a full indemnity basis) all reasonable legal,
accountancy, valuation, due diligence and other fees, costs and expenses or tax charged to or
incurred by BoS in connection with the BoS Documents (including the amendment, waiver,
enforcement or preservation of BoS rights).
	 
	13.3	 	Each of the Borrowers authorises BoS to debit any operating account it has with BoS with the
amount of any such fees, costs, expenses or tax which is payable from time to time.
	 
	14.	 	EMU Compliance
	 
	 	 	If the introduction of, changeover to or operation of a single or unified European currency
results in:-






	 	(a)	 	the currency in which either the Guarantee Facility, the FFEC Facility or any
of the Payment Systems is provided changing or being replaced or BoS (in its
reasonable opinion) requiring to amend the BoS Documents due to changes in price
sources for the national currency of any member state of the European Union or, to the
extent it is applicable to any of the Facilities, the euro or market conventions
relating to the calculation of interest; and/or
	 
	 	(b)	 	BoS incurring an additional or increased cost in relation to its providing
any or all of the Facilities;






	 	 	then the Borrowers agree, in the case of (a) above, that they will permit the BoS
Documents to be amended to the extent necessary (in the reasonable opinion of BoS)










 



9


	 	 	to reflect those changed circumstances and, in the case of (b) above, to indemnify BoS in
respect of that additional or increased cost.






	15.	 	Permitted Borrowings
	 
	15.1	 	Additional Borrowings by any Group Company up to an aggregate maximum amount of £100,000,000
by way of guarantee and bond facilities similar to the Guarantee Facility may be negotiated
with and obtained from other banks subject to obtaining the prior approval of BoS. Any such
facilities approved by BoS must not at any time be permitted to rank ahead of a Borrower’s
obligations in respect of the Facilities and the obligations of any of those Borrowers who are
a party to the Security Documents. For the avoidance of doubt no Borrower shall grant or
permit to be granted any mortgage, charge, security, pledge, lien, right of set-off, right to
retention of title or other encumbrance, whether fixed or floating, over any present or future
property, assets or undertaking (“Encumbrance”) to any other bank in respect of any or all of
these other Borrowings but, subject to clause 15.2, any bank providing such facilities to a
Borrower may participate in the security held by BoS through the Security Documents by
entering into the Security Trust Deed.
	 
	15.2	 	Notwithstanding the provisions of clause 15.1 above, additional Borrowings by any Group
Company up to an aggregate maximum amount of £50,000,000 by way of guarantee and bond
facilities similar to the Guarantee Facility may be negotiated with and obtained from Local
Banks but where such facilities are negotiated and agreed no Group Company may grant any
Encumbrance in favour of any such Local Bank in connection with these facilities.
	 
	15.3	 	Any Group Company which is not registered in the UK under the Companies Acts (“Non-UK Group
Companies”) shall not be subject to any restrictions on borrowing provided that the aggregate
of all such borrowings (howsoever characterised) by the Non UK Group Companies shall not at
any time exceed £3,000,000 and furthermore any such Non UK Group Company may grant any
encumbrances on its assets provided that it gives BoS prior notice of the granting of any such
encumbrance.
	 
	16	 	Assignment, Transfer and Securitisation
	 
	16.1	 	This letter is for the benefit of the Borrower and BoS and their successors and assignees and
transferees. Furthermore and without prejudice to the remaining provisions of this Clause 16
BoS will remain responsible for issuing all Guarantees under this letter.
	 
	16.2	 	The Borrower may not assign or transfer all or any of its rights, obligations or benefits
under this letter.
	 
	16.3	 	BoS will be entitled to (1) assign any of its rights and/or (2) transfer by novation any of
its rights, benefits and obligations under the BoS Documents to any other person or entity.
The Borrower undertakes to execute and to procure that each Group Company will execute all
documents BoS may reasonably require to give effect to an assignment, novation or transfer.
	 
	16.4	 	BoS will be entitled to enter into any sub-participation, or any trust or contractual
arrangement (or any other transaction under which payments are to be made by reference to the
BoS Documents, the Borrower or any Group Company) with any person or entity in relation to the
BoS Documents and (subject to clause 16.5 below) to provide information in relation to the
Group to such persons for such purpose.











 



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	16.5	 	BoS will be entitled to disclose, in confidence, to its advisers and to any prospective or
actual assignee, any party to a securitisation, transferee or participant, any other member of
the BoS Group, its auditors, advisers or applicable regulatory authority, any rating agency,
or any other person or entity who enters or proposes to enter into any transaction as referred
to in clause 16.4 above with BoS in relation to the BoS Documents (in each case, together with
their professional advisers) all information, including any confidential information,
financial information and any other information given to BoS in relation to this letter.






	17.	 	Law
	 
	 	 	This letter will be governed by and construed according to English law and each of the
Borrowers submits to the jurisdiction of the English Courts.





Yours faithfully




/s/ P. Jackson




For and on behalf of

BANK OF SCOTLAND PLC










 



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	Agreed and accepted on behalf of

	 	Agreed and accepted on behalf of
	Foster Wheeler Limited by

	 	Foster Wheeler Energy Limited by
	 
	 	 
	/s/ Michael Beaumont     Director

	 	/s/ Michael Beaumont     Director
	 
	 	 
	/s/ Laurent Dupagne     Director

	 	/s/ Laurent Dupagne     Director
	 
	 	 
	Date: 27 November 2008

	 	Date: 27 November 2008
	 
	 	 
	Agreed and accepted on behalf of

	 	Agreed and accepted on behalf of
	Foster Wheeler World Services Limited by

	 	Foster Wheeler (GB) Limited by
	 
	 	 
	/s/ Michael Beaumont     Director

	 	/s/ Michael Beaumont     Director
	 
	 	 
	/s/ Laurent Dupagne     Director

	 	/s/ Laurent Dupagne     Director
	 
	 	 
	Date: 27 November 2008

	 	Date: 27 November 2008





IMPORTANT NOTICE: As with any legally binding agreement, we recommend that you consult your
solicitor or other independent legal adviser before accepting this letter.










 



12




SCHEDULE 1




PAYMENT SYSTEMS





	1.	 	BACS Facility
	 
	1.1.	 	BACS Limit £15,000,000
	 
	1.2.	 	Purpose
	 
	 	 	The BACS facility may only be used by the Borrowers to make fund transfers up to an
aggregate at any time of the amount of the BACS Limit utilising the Bankers Automated
Clearing System. The Borrower may use the BACS facility to make such fund transfers,
subject to sufficient funds being made available by the Borrowers to cover the BACS
payments by close of business on the same day.






	1.3.	 	Terms and Conditions
	 
	 	 	The BACS facility shall be made available to the Borrowers subject to:-






	 	1.3.1.	 	the terms and conditions of the Bankers Automated Clearing System operated by BACS
Limited; and
	 
	 	1.3.2.	 	its rules of operation as agreed between BoS and the Borrowers from time to time.






	2.	 	CHAPS Facility
	 
	2.1.	 	CHAPS Limit £15,000,000
	 
	2.2.	 	Purpose
	 
	 	 	The CHAPS facility may only be used by the Borrowers to make fund transfers up to an
aggregate at any time of the amount of the CHAPS Limit utilising the Clearing House
Automated Payments Systems available from BoS. The Borrowers may use the CHAPS facility to
make such fund transfers, subject to sufficient funds being made available by the Borrowers
to cover each of those CHAPS payments by close of business on the same day.
	 
	2.3	 	Terms and Conditions
	 
	 	 	The CHAPS facility shall be made available to the Borrowers subject to the standard terms
and conditions of the Clearing House Automated Payments Systems as advised by BoS.
	 
	3.	 	International Payment Processing Facility
	 
	3.1.	 	IPP Limit £13,000,000
	 
	3.2.	 	Purpose
	 
	 	 	The International Payment Processing facility may only be used by the Borrowers to make
fund transfers using the International Payment Processing facilities provided to the
Borrowers by BoS. The Borrowers may use the IPP Facilities to make such fund transfers,
subject to sufficient funds being made available by the Borrowers to cover such payments by
close of business on the next Business Day.
	 
	3.3	 	Terms and Conditions











 



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	 	 	The International Payment Processing facility shall be made available
to the Borrowers subject to the rules of operation as agreed between
BoS and the Borrowers from time to time.
	 
	4.	 	CIB Sterling Payments Facility
	 
	4.1.	 	CIB Sterling Payments Limit: £15,000,000
	 
	4.2.	 	Purpose
	 
	 	 	The CIB Sterling Payments facility may only be used by the Borrowers to make sterling
payments utilising the BoS Corporate Internet Banking Service (“CIB”) up to an aggregate at
any time of the CIB Sterling Payments Limit. The Borrowers may use the CIB facility to
make such sterling payments subject to sufficient funds being made available by the
Borrowers to cover such payments by close of business on the same day without exceeding the
Overdraft Limit.
	 
	4.3.	 	Terms and Conditions
	 
	 	 	The CIB Sterling Payments facility shall be made available to the Borrowers subject to:-






	 	4.3.1.	 	the terms of and conditions of CIB; and
	 
	 	4.3.2.	 	the rules of operation thereof as agreed between BoS and the Borrowers from time to
time.






	5.	 	Treasury Settlement Facility
	 
	5.1	 	Treasury Settlement Limit £30,000,000.
	 
	5.2	 	Purpose
	 
	 	 	The Treasury Settlement facility may only be used by the Borrowers to
make fund transfers using the Treasury Settlement facilities up to an
aggregate of the Treasury Settlement Limit provided to the Borrowers
by BoS. The Borrowers may use the Treasury Settlement facility to
make such fund transfers subject to sufficient funds being made
available by the Borrowers to cover such payments by close of business
on the date of settlement of such payment without exceeding the
Treasury Settlement Limit.
	 
	5.3	 	Terms and Conditions
	 
	 	 	The Treasury Settlement facility shall be made available to the
Borrower subject to the rules of operation as agreed between BoS and
the Borrowers from time to time.
	 
	6.	 	General
	 
	 	 	Throughout the duration of the Facilities, BoS shall be entitled to vary both the limit and
the terms and conditions referred to above in relation to the Payment Systems by notice to
and as agreed with the Borrowers.











 



14


SCHEDULE 2




DEFINITIONS AND INTERPRETATION





	1.	 	Definitions
	 
	 	 	“Affiliate” means a Subsidiary or a Holding Company or any other Subsidiary of that Holding
Company.
	 
	 	 	“Borrowings” means any indebtedness for or in respect of (but without double counting):






	 	(a)	 	moneys borrowed;
	 
	 	(b)	 	any amount raised by acceptance under any acceptance credit
facility or dematerialised equivalent;
	 
	 	(c)	 	any amount raised pursuant to any note purchase facility or
the issue of bonds, notes, debentures, loan stock or any similar instrument;
	 
	 	(d)	 	the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with GAAP, be treated as a
finance or capital lease;
	 
	 	(e)	 	receivables sold or discounted (other than any receivables
to the extent they are sold on a non recourse basis);
	 
	 	(f)	 	any amount raised under any other transaction (including
any forward sale or purchase agreement) having the commercial effect of a
borrowing, including but not limited to deferred consideration in relation to
earn-out payments arising from acquisitions made by a Group Company;
	 
	 	(g)	 	any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or price (and,
when calculating the value of any derivative transaction, only the, negative
marked to market value shall be taken into account);
	 
	 	(h)	 	any counter-indemnity obligation in respect of a standby or
documentary letter of credit or any other instrument issued by a bank or
financial institution excluding, where a Borrower has provided a counter-
indemnity which is fully cash- backed;
	 
	 	(i)	 	any liability for the acquisition cost of assets or
services payable on deferred payment terms where the period of deferment is
more than 90 days.






	 	 	“BoS” means Bank of Scotland plc, (Company Number SC327000) having its registered office at
The Mound, Edinburgh EH1 1YZ and its successors, assignees and transferees.
	 
	 	 	“BoS Documents” means this letter, the Security Documents and all documents ancillary or
supplemental to any of them.










 



15








	 	 	“Business Day” means a day (other than a Saturday or Sunday) when the branch of BoS at
which the Borrower’s account is located is open for business.
	 
	 	 	“Certified Copy” means a copy certified as true, complete and up to date by the specified
person or, if no-one is specified, by either the secretary of the relevant Group Company or
the Borrower’s solicitors.
	 
	 	 	“Change of Control” means any circumstances in which either a person, not being a Group
Company, alone or together with any associated person or persons becomes the beneficial
owner of shares in the issued share capital of the Parent carrying the right to exercise
more than 50 per cent. of the votes exercisable at a general meeting of the Parent.
	 
	 	 	“Charge over Cash Deposit” means the charge over cash deposit referred to in paragraphs 1.2
and 1.3 of Schedule 3 granted or to be granted by the relevant Borrower in favour of BoS in
respect of the account or accounts (denominated in whatever currency) of each Borrower with
BoS which account or accounts is/are blocked or designated as charged to BoS and is/are
identified in relevant charge over cash deposit;
	 
	 	 	“Encumbrances” has the meaning given in clause 15.1;
	 
	 	 	“Financial Statements” means the audited annual profit and loss account, balance sheet and
cash flow statement of the relevant company for each of its financial years (consolidated
for each financial year during which that company has a subsidiary) together with related
directors’ and auditors’ reports.
	 
	 	 	“GAAP” means generally accepted accounting principles and practices in the UK.
	 
	 	 	“Group” means the Parent and each Subsidiary of the Parent which is not dormant and “Group
Company” is construed accordingly.
	 
	 	 	“Guarantees” means advance payment guarantees, performance bonds and such other similar
instruments as may be required in the normal course of business of the Borrowers.
	 
	 	 	“Holding Company” means, in relation to a company or corporation, any other company or
corporation in respect of which it is a Subsidiary
	 
	 	 	“Indemnified Events” means all actions, suits, proceedings, claims, demands, liabilities,
costs, expenses, losses, damages and charges whatsoever (except those arising as a result
of the negligence or wilful misconduct of BoS) which may occur in relation to or arising
out of any utilisations of any of the Facilities made available under this letter.
	 
	 	 	“ISDA Documents” means the form of ISDA master agreement, schedule and associated
confirmations used from time to time by BoS for entities like the Borrower together with
all other documents referred to in, or supplemental to, such documentation.
	 
	 	 	“Local Banks” means a non UK bank based in a jurisdiction where the giving of guarantee and
bond facilities similar to the Guarantee Facility must be made by a bank located in that
jurisdiction, contemplated in clause 15.2.












 



16



	 	 	“Qualifying Lender” means a person which, in relation to the relevant payment, is
beneficially entitled to the income in respect of which the payment is made and is:-






	 	(a)	 	a company resident in the United Kingdom for tax purposes; or
	 
	 	(b)	 	a company not so resident in the United Kingdom which carries on a trade in
the United Kingdom through a branch or agency and which brings the payment into
account in computing its chargeable profits (within the meaning given by section 11(2)
of the Taxes Act); or
	 
	 	(c)	 	a person fulfilling any one of the conditions set out in sub-sections (3) to
(7) of Section 349B of the Taxes Act,






	 	 	in each case in respect of which the Borrower has not received a notification (which
remains valid) from the Board of the Inland Revenue directing that Section 349A(1) of the
Taxes Act is not to apply to any such payment.
	 
	 	 	“Review Date” means the Business Day immediately preceding each anniversary of the date of
this letter (or such other date as BoS may from time to time notify to the Parent).
	 
	 	 	“Secretary’s Certificate” means, in respect of a company, a certificate in the form set out
in Schedule 6 executed by a director of that company.
	 
	 	 	“Security Documents” means any security documents identified in Schedule 3 (including any
guarantees) granted to BoS by any Group Company or any other person in respect of the
Borrowings of the Group from time to time and any other documents entered into by a
Borrower from time to time creating or evidencing any guarantee, mortgage, charge,
security, pledge, lien, right of set-off, right to retention of title or other encumbrance,
whether fixed or floating, over any present or future property, assets or undertaking in
favour of BoS.
	 
	 	 	“Security Trust Deed” means the security trust deed dated 22 December 2005 between BoS (as
Security Trustee), HSBC Bank Plc and Bank of Ireland as the same may be amended, varied,
supplemented, restated, substituted or novated from time to time and includes any duly
executed and dated accession deed, substantially in the form annexed to the Security Trust
Deed and entered by BoS (as Security Trustee) and any bank providing facilities to the
Borrowers as contemplated in Clause 16.1 of this letter;
	 
	 	 	“Security Trustee” means BoS;
	 
	 	 	“Subsidiary” means, in respect of any company, person or entity, any company, person or
entity directly or indirectly controlled by such company, person or entity (including any
Subsidiary acquired after the date of this letter) and “Subsidiaries” shall mean all or any
of them, as appropriate.
	 
	2.	 	Interpretation
	 
	 	 	Any reference in this letter to:-






	 	(a)	 	statutes, statutory provisions and other legislation shall include all
amendments, substitutions, modifications and re-enactments for the time being in force
and shall include any orders, regulations, instruments or other subordinate
legislation made under the relevant legislation;












 



17








	 	(b)	 	“control” of any company shall be interpreted in accordance with Section 840
of the Taxes Act;
	 
	 	(c)	 	“including” shall not be construed as limiting the generality of the words
preceding it;
	 
	 	(d)	 	any clause, paragraph or schedule shall be construed as a reference to the
clauses in this letter, the schedules to this letter and the paragraphs in such
schedules;
	 
	 	(e)	 	any term or phrase defined in the Companies Act 1985 (as amended from time to
time) shall bear the same meaning in this letter save that any term used in the
definition of “Qualifying Lender” shall be interpreted as such term is interpreted in
accordance with the Taxes Act;
	 
	 	(f)	 	words importing the singular shall include the plural and vice versa and
words denoting any gender shall include all genders;
	 
	 	(g)	 	this letter and to any provisions of it or to any other document referred to
in this letter shall be construed as references to it in force for the time being and
as amended, varied, supplemented, restated, substituted or novated from time to time;
	 
	 	(h)	 	a person is to be construed to include references to a corporation, firm,
company, partnership, joint venture, unincorporated body of persons, individual or any
state or any agency of a state, whether or not a separate legal entity;
	 
	 	(i)	 	any person is to be construed to include that person’s assignees or
transferees or successors in title, whether direct or indirect;
	 
	 	(j)	 	any word or phrase includes all derivations thereof;
	 
	 	(k)	 	any “associated person” means, in relation to a person, a person who is
either acting in concert (as defined in the City Code on Takeovers and Mergers) with
that person or is a connected person (as defined in section 839 of the Taxes Act) of
that person;
	 
	 	(l)	 	the “exposure” of BoS (or any other member of BoS Group) means, in relation
to any guarantee, bond, forward foreign exchange contract or other utilisation, the
amount determined by BoS to be its liability (actual or contingent) in respect thereof
(or, if applicable, the liability of such other member of BoS Group).






	 	 	Clause headings are for ease of reference only and are not to affect the interpretation of
this letter.










 



18







SCHEDULE 3




SECURITY DOCUMENTS





	1.	 	Security
	 
	1.1	 	A Composite Guarantee dated 25 July 2005 by Foster Wheeler Limited, Foster Wheeler Energy
Limited, Foster Wheeler (G.B.) Limited and Foster Wheeler World Services Limited in favour of
BoS (as Security Trustee)
	 
	1.2	 	Charge over Cash Deposit by Foster Wheeler Limited dated 14 January 2005 in favour of BoS
	 
	1.3	 	A first and only debenture from Foster Wheeler Limited dated 25 July 2005 in favour of BoS
(as Security Trustee)
	 
	1.4	 	A first and only debenture from Foster Wheeler Energy Limited dated 25 July 2005 in favour of
BoS (as Security Trustee)
	 
	1.5	 	A first and only debenture from Foster Wheeler (G.B.) Limited dated 25 July 2005 in favour of
BoS (as Security Trustee)
	 
	1.6	 	A first and only debenture from Foster Wheeler World Services Limited dated 25 July 2005 in
favour of BoS (as Security Trustee)
	 
	1.7	 	A global deed of counter indemnity by Foster Wheeler Limited dated 25 July 2005 in favour of
BoS.
	 
	1.8	 	The duly completed letter of comfort referred to in clause 1.1 of this letter.











 



19


SCHEDULE 4




FINANCIAL INFORMATION COVENANTS





	1.	 	Each Borrower covenants that it will supply to BoS:-
	 
	1.1	 	within 160 days after the end of each financial year of the Parent two copies of its
Financial Statements and a copy of the Financial Statements, if available, for each Group
Company and each Affiliate which utilises the Guarantee Facility from time to time;
	 
	1.2	 	within 45 days after the end of each quarter in each financial year of the Parent, management
accounts (including profit and loss account, balance sheet and cash flow statements) on a
consolidated basis for the Group and showing a comparison with budget together with commentary
by the finance director on those management accounts;
	 
	1.3	 	at the same time as it delivers the Financial Statements or the management accounts referred
to above, a certificate evidencing their performance as at the date to which the Financial
Statements or management accounts were prepared against the key performance indicators set out
in Schedule 7 signed by a director of the Parent setting out in reasonable detail supporting
computations and in form and content acceptable to BoS;
	 
	1.4	 	such further financial information as BoS may from time to time reasonably require.
	 
	2.	 	Each Borrower also covenants that:-
	 
	2.1.	 	it will ensure that all Financial Statements delivered by it in terms of paragraph 1.1. above
are prepared in accordance with GAAP and that all management accounts delivered by it in terms
of paragraph 1.2 above shall be prepared in accordance with generally accepted accounting
standards but subject to the limitations applicable to unaudited accounts and, in the case of
the Financial Statements, show a true and fair view of the financial position of the relevant
Group Company;
	 
	2.2	 	it will identify from any consolidated accounts prepared for itself and its parent company or
Subsidiaries, as the case may be, the financial performance of any undertaking included in
those accounts as a subsidiary undertaking (which is not a Subsidiary) and will, excluding any
contingent liabilities, provide details of all financing agreements and arrangements to which
any Group Company is a party which need not be shown in the Financial Statements of the Parent
excluding contingent liabilities;
	 
	2.3	 	it will promptly provide to BoS such documentation and/or information as BoS may reasonably
request from time to time in relation to the Group (or any Group Company or any other person
connected with any Group Company) in order for BoS to comply with any law, regulation or
guidelines applicable to it from time to time (including, without limitation, any anti-money
laundering or “know your customer” rules).











 



20


SCHEDULE 5




AUTHORISED BORROWERS





	1.	 	Foster Wheeler Limited
	 
	2.	 	Foster Wheeler Energy Limited
	 
	3.	 	Foster Wheeler (GB) Limited
	 
	4.	 	Foster Wheeler World Services Limited











 



21


SCHEDULE 6




Secretary’s Certificate




[TO BE COMPLETED BY SECRETARY FOR EACH BORROWER ON EACH BORROWER’S HEADED NOTEPAPER]





			
	To:	 	Bank of Scotland

Corporate Banking

Beauclerc House

3 Queens Road

Reading

RG1 4AR





For the attention of:

Peter Jackson




Date: ● 2008




Re          :          ● Limited (the “Company)




Registered Office :      
●




Registered Number :
      ●



Guarantee Facility of £90,000,000, Forward
Foreign Exchange Facility of £36,000,000 (weighted risk)
and access to payment systems, BACS of £15,000,000, CHAPS limited of £15,000,000, International
Payment Processing limit of £13,000,000, CIB Sterling Payment facilities of £15,000,000 and
Treasury Settlement facilities of £30,000,000 (the “Facilities)



I, [insert full name], the Company Secretary certify that:-





	1.	 	the Company has the necessary power to borrow and to incur the liabilities specified in the
letter(s) from BoS dated ● 2008 offering the Facilities (the “Facility Letter(s)”) and
to draw down the Facilities;
	 
	2.	 	no borrowing limit of the Company will be exceeded by any borrowing under the Facility
Letter(s);
	 
	3.	 	the board of directors of the Company has duly authorised [insert full names of those
authorised] to accept the Facility Letter(s), to draw down the Facilities and all other
documentation to be entered into by the Company pursuant to the terms of the Facility Letter;
	 
	4.	 	the individuals specified in 3 above were at the time of execution of the documentation
referred to above and remain duly appointed [directors] [authorised signatories] of the
Company;
	 
	5.	 	the resolutions giving the authorisations referred to above were validly passed at a properly
convened meeting of the board of directors of the Company, such restrictions contain
declarations of interest by the directors of the Company sufficient










 




22


	 	 	to comply with Section 317 of the Companies Act 1985 and the articles of association of the
Company and such resolutions are in full force and effect.





I attach:



	(1)	 	a list of all the directors of the Company and confirm that those persons listed are all the
directors of the Company as at the date of this letter; and
	 
	(2)	 	a copy of the Certificate of Incorporation [and Certificate(s) of Incorporation on Change of
Name] of the Company and confirm that each copy is true, complete and up to date.





This certificate is authorised by the Board of Directors of the Company.



	 	 	 
	 
	
 

Secretary
	 	 












 




23


SCHEDULE 7


KEY PERFORMANCE INDICATORS



	 	1.	 	For the purposes of this Schedule 7:






	 	 	“Bank Borrowings” mean all Borrowings of a Group Company with a bank or other financial
institution but always excluding an amount not exceeding in total £50,000,000 borrowed to
fund or assist with funding one or more share or business acquisitions by the Group or a
Group Company.
	 
	 	 	“Cash at Bank” means all Group cash held at or lodged with any bank or financial
institution acceptable to BoS as identified in the Financial Statements and the
consolidated management accounts of the Group.
	 
	 	 	“EBIT” means, for any specified period, the consolidated profit of the Parent before the
deduction of Interest and taxation disregarding profits or losses arising in respect of
exceptional or extraordinary items in each case in that period.
	 
	 	 	“EBITDA” means, for any specified period, EBIT for such period after adding back
depreciation and amortisation of goodwill (or any other intangible assets) to the extent
deducted from EBIT, in each case in that period.
	 
	 	 	“Interest” means, for any specified period, interest and any amounts in the nature of
interest in relation to any Borrowings (including, without limitation, the interest element
of finance leases, guarantee fees, non utilisation fees, discount and acceptance fees and
payments under any interest rate hedging arrangements on a net basis but excluding
arrangement fees) in each case in that period.
	 
	 	 	“Trade Debtors” means, at any time, all debts due to each Group Company in the ordinary
course of business outstanding for not more than 180 days from the date payment is due and
which are not bad or doubtful but excluding:-






	 	(a)	 	any debt owed by another Group Company;
	 
	 	(b)	 	any debt owed by any person who is also a creditor of a Group Company to the
extent of the amount owed by that Group Company to that creditor; and
	 
	 	(c)	 	any debt which has been assigned or charged to or is held in trust for any
third party or is subject to any factoring or invoice discounting or similar
arrangement;






	 	 	with any adjustments BoS may from time to time consider to be appropriate in the context of
the business of each Group Company and the Facilities.
	 
	2.	 	Guarantees plus Bank Borrowings : EBITDA
	 
	 	 	The aggregate value of (i) all Guarantees issued and not returned to BoS (ii) all
Guarantees issued and not returned to any other lender as the case may be in accordance
with clause 15 of the letter and (iii) Bank Borrowings shall not exceed 4 x EBITDA.












 



24








	3.	 	Trade Debtors plus Cash at Bank to Guarantees
	 
	 	 	The aggregate of Trade Debtors, Cash at Bank, other receivables and work in progress (other
receivables and work in progress being those items identified in the Financial Statements
and the consolidated management accounts of the Group) shall at all times equal or exceed
50% of the aggregate value of (i) all Guarantees issued and not returned to BoS and (ii)
all Guarantees issued and not returned to any other lender, as the case may be, in
accordance with clause 15 of the letter.
	 
	4.	 	Testing
	 
	 	 	The key performance indicators in this schedule 7 shall be tested and calculated on a
rolling 12 month basis and shall be tested by reference to:






	 	(a)	 	other than in relation to Guarantees plus Bank Borrowings: EBITDA (i) the
Financial Statements for the relevant accounting reference period and (ii) the
consolidated quarterly management accounts provided in accordance with schedule 4 of
this letter for the relevant period (“Quarterly Management Accounts”); and
	 
	 	(b)	 	in relation to Guarantees plus Bank Borrowings : EBITDA, the Quarterly
Management Accounts. For the avoidance of doubt, EBITDA will be reported as outlined
in the Quarterly Management Accounts and is to be measured before royalties and
management fees.