Exhibit 4.13


 


EXECUTION COPY


 


SECOND
SUPPLEMENTAL INDENTURE, dated as of the 16th day of August, 2002, among FOSTER
WHEELER LLC, a limited liability company duly organized and existing under the
laws of the State of Delaware (the “COMPANY”) and successor by merger to the
obligations of Foster Wheeler Corporation, a corporation previously organized
and existing under the laws of the State of New York, each of the entities
listed on Schedule I attached hereto (all such entities, collectively, the
“GUARANTORS” and each, a “Guarantor”), and BNY MIDWEST TRUST COMPANY, an
Illinois trust company, as Trustee (the “TRUSTEE”) and successor to the
obligations of Harris Trust and Savings Bank, an Illinois banking corporation.


 


WHEREAS, the
Company and the Trustee have entered into an Indenture dated as of November 15,
1995, as amended (the “Indenture”) to provide for the issuance from time to
time of the Company’s unsecured debentures, notes or other evidences of
indebtedness, which may be convertible into shares of Capital Stock (as such
term is defined in the Indenture) of the Company to be issued in one or more
series as provided in the Indenture.


 


WHEREAS, the
Indenture was previously amended by the Amended and Restated First Supplemental
Indenture, dated as of August 10, 2001, among the Company, Foster Wheeler USA
Corporation, Foster Wheeler Energy International, Inc., Foster Wheeler Energy
Corporation, Foster Wheeler Inc., Foster Wheeler International Holdings, Inc.,
Foster Wheeler, Ltd., Foreign Holdings Ltd. and BNY Midwest Trust Company (the
“Restated First Supplemental Indenture”).


 


WHEREAS,
Section 1004 of the Indenture provides that, except as expressly permitted
therein, the Company will not, and will not permit any Subsidiary (as such term
is defined in the Indenture) to, incur, issue, assume or guarantee any Debt (as
such term is defined in the Indenture) secured after the date of the Indenture
by pledge of, or mortgage or other lien on (“Lien”), any Principal Property (as
such term is defined in the Indenture) of the Company or any Subsidiary, or any
shares of stock or Debt of any Subsidiary (such Principal Property and shares
of stock and Debt are collectively referred to as the “Restricted Collateral”)
without effectively providing that the Debt Securities (as such term is defined
in the Indenture) of all series issued pursuant to the Indenture shall be
secured equally and ratably with such secured Debt, so long as such secured
Debt shall be so secured.


 


WHEREAS, the
Company desires to secure its obligations under, and certain of the Company’s
Subsidiaries desire to secure their guarantees of the Company’s obligations
under, that certain Third Amended and Restated Term Loan and Revolving Credit
Agreement, dated as of August 16, 2002, among the Company, the Guarantors
signatory thereto, Bank of America, N.A., as Administrative Agent and
Collateral Agent, and the lenders party thereto, by the creation of security
interests in certain property of the Company or its Subsidiaries, as the case
may be.


 


WHEREAS, pursuant
to Section 1004 of the Indenture, the Company and those Guarantors that are
Subsidiaries of the Company desire to secure their respective obligations in
respect of the Debt hereunder (including under the New Guaranty referred to
below) by a Lien on the Restricted Collateral as, and to the extent, required
by the Indenture.


 

















 


WHEREAS,
Section 901 of the Indenture provides that the Company may enter into one or
more supplemental indentures without the written consent of any Holders (as
such term is defined in the Indenture), when authorized by Board Resolutions
(as such term is defined in the Indenture) and in form satisfactory to the
Trustee, to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities (as defined in the Indenture) any property or
assets.


 


WHEREAS, all
acts and things prescribed by the Indenture, by law and by the certificate of
incorporation and the by-laws of the Company, the Guarantors and of the Trustee
necessary to make this Second Supplemental Indenture a valid instrument legally
binding on the Company, the Guarantors and the Trustee, in accordance with its
terms, have been duly done and performed.


 


WHEREAS, the
Company on November 15, 1995 issued $200 million in aggregate principal amount
of its 6 3/4% Notes due November 15, 2005 (the “NOTES”) pursuant to the
Indenture on behalf of the holders from time to time of the Notes (the
“Noteholders”).


 


WHEREAS,
Foster Wheeler USA Corporation (“USA CORP.”), Foster Wheeler Power Group Inc.
(“POWER GROUP”) and Foster Wheeler Energy Corporation (“ENERGY CORP.”) issued a
Guaranty dated as of February 12, 1999 (the “Existing Guaranty”) and each of
Foster Wheeler Inc., Foster Wheeler International Holdings, Inc., Foster
Wheeler Ltd. and Foreign Holdings, Ltd. subsequently agreed to be bound by such
Existing Guaranty, to guaranty as primary obligor the full and prompt payment
when due (whether at the stated maturity, by acceleration of otherwise) of the
principal of, premium, if any, and interest on, the Notes, together with all
the other obligations and liabilities of the Company to the Noteholders in
respect of the Notes and to the Trustee in its capacity as such under the
Indenture (including, in each case, without limitation, indemnities, fees and
interest thereon), whether now existing or hereafter incurred, and the due
performance and compliance by the Company with all of the terms, conditions and
agreements contained in the Notes and the Indenture to the Trustee and the
Noteholders.


 


WHEREAS, USA
Corp., Power Group and Energy Corp., to secure their obligations under the
Existing Guaranty, entered into a Pledge Agreement, dated as of February 12,
1999 (the “Existing Pledge Agreement”).


 


WHEREAS, the
Company and the Guarantors desire to terminate the Existing Guaranty and the
Existing Pledge Agreement and replace them with a new Guaranty (the “New
Guaranty”) and Security Agreement (the “New Security Agreement”).


 


WHEREAS, all
conditions precedent to supplement the Indenture have been met.


 


NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Company, the Guarantors and the Trustee agree as follows for the benefit of
each other and for the equal and proportionate benefit of the Noteholders or of
series thereof.


 


2

















 


1.                                                                                       DEFINITIONS.


 


1.1 For
purposes of this Second Supplemental Indenture, except as otherwise expressly
provided or unless the context otherwise requires, the terms defined in this
Section have the meanings assigned to them in this Section.  All capitalized terms not otherwise defined
in this Second Supplemental Indenture have the meanings given to such terms in
the Indenture.


 


“COLLATERAL
AGENT” means Bank of America, N.A. in its capacity as collateral agent pursuant
to the terms of the New Security Agreement, together with any successor
collateral agent thereunder.


 


“NEW SECURITY
AGREEMENT” means the Security Agreement, dated as of August 16, 2002, among the
Company, the Guarantors and Bank of America, N.A., as Collateral Agent, as in
effect from time to time.


 


“TEMPORARY
CASH INVESTMENT” means any investment in (a) securities issued or directly and
fully guaranteed or insured by the United States of America government or any
agency or instrumentality thereof having maturities of not more than one year
from the date of acquisition, (b) marketable direct obligations issued by any
State of the United States or any political subdivision of any such State or
any public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either Standard & Poor’s Rating Group, a
division of McGraw-Hill, Inc. (together with its successors, “S&P”) or
Moody’s Investors Service, Inc. (together with its successors, “MOODY’S”), (c)
demand deposits, time deposits and certificates of deposits with maturities of
one year or less from the date of acquisition, bankers’ acceptances with
maturities not exceeding one year from the date of acquisition and overnight
bank deposits, in each case with any bank or trust company organized or
licensed under the laws of the United States of America or any State thereof
having capital, surplus and undivided profits in excess of $250 million, (d)
repurchase obligations with a term of not more than seven days for underlying
securities of the type described in clauses (a), (b) and (c) above entered into
with any financial institution meeting the qualifications specified in clause
(c) above, (e) commercial paper rated at least P-1 by Moody’s and A-1 by
S&P at the time of acquisition thereof or, if such commercial paper is
rated by only one such agency, at least such rating from such agency, and (f)
investments in any Dollar denominated money market fund as defined by Rule 2a-7
of the General Rules and Regulations promulgated under the Investment Company
Act of 1940.


 


1.2 The
definitions of “CO-OBLIGOR”, “CO-OBLIGOR REQUEST”, “NEW GUARANTOR” and “NEW
GUARANTOR REQUEST” set forth in the Restated First Supplemental Indenture are
removed in their entirety and all references to such terms are deleted and
given no effect.


 


1.3 The
amendments to the definition of “PAYING AGENT” set forth in the Restated First
Supplemental Indenture are hereby rescinded and the definition of “PAYING
AGENT” is hereby amended to read in its entirety as follows:


 


“PAYING AGENT”
means any Person authorized by the Company to pay the principal of or any
premium or interest on any Securities on behalf of the Company.


 


3

















 


2.                                                                                       GRANTING
OF SECURITY INTEREST.


 


2.1 The
Company confirms that in order to secure the due and punctual payment by the
Company and certain of the Guarantors of certain Secured Debt, including the
Securities and all other sums payable by the Company and certain of the
Guarantors under the Indenture and the New Guaranty, the Company and the
Guarantors pursuant to the New Security Agreement are granting to Bank of
America, N.A., as Collateral Agent for the benefit of the Secured Parties (as
such term is defined in the New Security Agreement), a security interest, among
other assets, in such of the Restricted Collateral (as such term is defined in
the New Security Agreement) as is required pursuant to the terms of the
Indenture.  The Company warrants and
represents that pursuant to the New Security Agreement, the Securities are
secured, as to such Restricted Collateral, at least equally and ratably with
all other obligations and indebtedness of the Company and certain of the
Guarantors secured thereby as, and to the extent, required by the Indenture.


 


3.                                                                                       APPLICATION
OF AMOUNTS RECEIVED BY TRUSTEE WITH RESPECT TO COLLATERAL


 


3.1 The
Trustee shall hold in trust for the benefit of the Noteholders from time to
time, in accordance with Section 3.4 below:


 


(a) any cash, securities or other property received by the Trustee from
the Collateral Agent pursuant to the provisions of the Security Agreement or
from the Company in respect of the sale or other disposition of any Restricted
Collateral; and


 


(b) any investments made by the Trustee pursuant to Section 3.2 hereof
and any cash received by the Trustee by way of income or other gain from the
sale, conversion, maturity or redemption of or payment by the Company with
respect to such investments.


 


If the principal of all of the
Securities shall have been declared (or shall have become) immediately due and
payable pursuant to Section 502 of the Indenture, and such acceleration shall
not otherwise have been rescinded or annulled as provided by Section 502 of the
Indenture, then all such amounts held by the Trustee (including amounts held by
an escrow agent on behalf of the Trustee) shall be applied by the Trustee in
accordance with the provisions of the Securities and this Indenture, and
subject to the last paragraph of Section 1003 of the Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
its own Paying Agent) or Depositary as the Trustee may determine, to the
Holders of the particular Securities of such series for the payment of which
such money has been deposited with the Trustee, of all sums due and to become
due thereon at maturity for principal and any premium and interest.


 


3.2 So long as
no Event of Default shall have occurred and be continuing, the Trustee shall
invest and reinvest any cash held by it pursuant to Section 3.1 hereof at the
direction of the Company in Temporary Cash Investments as may be specified in a
written request or requests by the Company signed by its President, Treasurer
or any Vice President and delivered to the Trustee.  Any loss realized as a result of any such investment shall be for
the account of, and shall upon demand by the Trustee be immediately paid in
cash to the Trustee by, the Company.  If
and when cash is required for application in accordance with Section 3.3
hereof, the Trustee is authorized to cause a sufficient amount of such
investments to be sold or otherwise converted into cash, PROVIDED that the
Trustee shall be under no obligation to sell or otherwise convert any


 


4

















 


such investment if such sale or
other conversion would result in the receipt by the Trustee of an amount less
than the aggregate purchase price of such investment (inclusive of commissions
and other purchase costs) unless the Company shall, simultaneously with such
sale or other conversion, make available to the Trustee in cash the amount of
any such deficit.


 


3.3 So long as
no Event of Default shall have occurred and be continuing, the Trustee shall
apply all amounts received as interest on investments pursuant to Section 3.2
hereof to the payment of interest on the Securities when due in accordance with
the provisions of the Securities and the Indenture.


 


3.4 The
Trustee shall hold all funds received by it pursuant to the New Security
Agreement in an account governed by an escrow agreement substantially in the
form attached hereto as Exhibit A.


 


3.5
Notwithstanding any provision of Section 3.1, 3.2 or 3.3 hereof, if at any time
all obligations of the Company under the Securities have been discharged, then
the Trustee shall cause any and all funds received by it pursuant to the New
Security Agreement to be paid to the Company.


 


4.                                                                                       MISCELLANEOUS


 


4.1 The
Existing Pledge Agreement has terminated pursuant to the terms thereof and been
replaced in its entirety by the New Security Agreement and all originals of the
Existing Pledge Agreement held by the Trustee will be returned to the Company.


 


4.2 The
Existing Guaranty has terminated pursuant to the terms thereof and been
replaced in its entirety by the New Guaranty and all originals of the Existing
Guaranty held by the Trustee will be returned to the Company.


 


4.3 The
amendments to Section 1001 of the Indenture set forth in the Restated First
Supplemental Indenture are hereby rescinded and Section 1001 is hereby amended
to read in its entirety as follows:


 


“The Company
and each Guarantor, jointly and severally, covenant and agree for the benefit
of each series of Securities that they will duly and punctually pay or cause to
be paid the principal of, and any premium and interest on, the Securities of
that series and all amounts due to the Trustee in accordance with the terms of
the Securities and this Indenture.”


 


4.4 The
amendments to Section 1006 of the Indenture set forth in the Restated First
Supplemental Indenture are hereby rescinded and Section 1006 is hereby amended
to read in its entirety as follows:


 


“The Company
and each Guarantor shall deliver a certificate of its compliance to the Trustee
on or before April 30 of each year pursuant to Section 314(a)(4) of the Trust
Indenture Act.”


 


5

















 


5.                                                                                       FINAL
PROVISIONS


 


Except as
amended and supplemented hereby, the Indenture is hereby ratified and confirmed
in all respects and shall remain in full force and effect.


 


This Second
Supplemental Indenture shall be governed by, and construed in accordance with,
the laws of the State of New York but without giving effect to applicable
principles of conflicts of law to the extent that the application of the laws
of another jurisdiction would be required thereby.


 


The parties
may sign any number of copies of this Second Supplemental Indenture and may
sign such in counterparts.  Each signed
counterpart copy shall be an original, but all of them together represent the
signed agreement.  One signed copy is
enough to prove this Second Supplemental Indenture.


 


The recitals
contained in this Second Supplemental Indenture shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness.  The Trustee makes no
representations as to the validity or sufficiency of this Second Supplemental
Indenture.


 


* * *


 


6

















 


IN WITNESS
WHEREOF, the parties have caused this Second Supplemental Indenture to be duly
executed as of the date first above written.


 


	
   

  	
  FOSTER
  WHEELER LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EQUIPMENT
  CONSULTANTS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  FOREIGN
  HOLDINGS LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER ASIA LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER CAPITAL

  & FINANCE CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


7

















 


	
   

  	
  FOSTER
  WHEELER CONSTRUCTORS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER DEVELOPMENT CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER ENERGY CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER ENERGY MANUFACTURING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER ENERGY SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


8

















 


	
   

  	
  FOSTER
  WHEELER ENVIRESPONSE,  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER ENVIRONMENTAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER FACILITIES MANAGEMENT, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER INTERNATIONAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


9

















 


	
   

  	
  FOSTER
  WHEELER INTERNATIONAL HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER POWER GROUP,  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER POWER SYSTEMS,  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER PYROPOWER,  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


10

















 


	
   

  	
  FOSTER
  WHEELER REAL ESTATE

  DEVELOPMENT CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER REALTY SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER USA CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER VIRGIN ISLANDS,  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER ZACK,  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


11

















 


	
   

  	
  FW
  MORTSHAL,  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FW
  TECHNOLOGIES HOLDING LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HFM
  INTERNATIONAL,  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PROCESS
  CONSULTANTS,  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PYROPOWER
  OPERATING SERVICES COMPANY,  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


12

















 


	
   

  	
  PERRYVILLE
  III TRUST

  
	
   

  	
   

  
	
   

  	
  By:

  	
  THE BANK OF
  NEW YORK, not in its

  individual capacity but solely

  in its capacity as the Owner Trustee

  of the Perryville III Trust

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
					



 


13

















 


	
   

  	
  BNY MIDWEST
  TRUST COMPANY, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


 


14

















 


SCHEDULE I


 


GUARANTORS


 


	
  Equipment
  Consultants, Inc.

  	
  Delaware

  
	
  Foreign
  Holdings Ltd.

  	
  Bermuda

  
	
  Foster
  Wheeler Asia Limited

  	
  Delaware

  
	
  Foster Wheeler
  Capital & Finance Corporation

  	
  Delaware

  
	
  Foster
  Wheeler Constructors, Inc.

  	
  Delaware

  
	
  Foster
  Wheeler Development Corporation

  	
  Delaware

  
	
  Foster
  Wheeler Energy Corporation

  	
  Delaware

  
	
  Foster
  Wheeler Energy Manufacturing, Inc.

  	
  Delaware

  
	
  Foster
  Wheeler Energy Services, Inc.

  	
  California

  
	
  Foster
  Wheeler Enviresponse, Inc.

  	
  Delaware

  
	
  Foster
  Wheeler Environmental Corporation

  	
  Texas

  
	
  Foster
  Wheeler Facilities Management, Inc.

  	
  Delaware

  
	
  Foster
  Wheeler Inc.

  	
  Delaware

  
	
  Foster
  Wheeler International Corporation

  	
  Delaware

  
	
  Foster
  Wheeler International Holdings, Inc.

  	
  Delaware

  
	
  Foster
  Wheeler Ltd.

  	
  Bermuda

  
	
  Foster
  Wheeler Power Group, Inc.

  	
  Delaware

  
	
  Foster
  Wheeler Power Systems, Inc.

  	
  Delaware

  
	
  Foster
  Wheeler Pyropower, Inc.

  	
  New York

  
	
  Foster
  Wheeler Real Estate Development Corporation

  	
  Delaware

  
	
  Foster
  Wheeler Realty Services, Inc.

  	
  Delaware

  
	
  Foster
  Wheeler USA Corporation

  	
  Delaware

  
	
  Foster
  Wheeler Virgin Islands, Inc.

  	
  Delaware

  
	
  Foster
  Wheeler Zack, Inc.

  	
  Delaware

  
	
  FW Mortshal,
  Inc.

  	
  Delaware

  
	
  FW
  Technologies Holding LLC

  	
  Delaware

  
	
  HFM International,
  Inc.

  	
  Delaware

  
	
  Process
  Consultants, Inc.

  	
  Delaware

  
	
  Pyropower
  Operating Services Company, Inc.

  	
  California

  
	
  Perryville
  III Trust

  	
  New York

  



 


15

















 


EXHIBIT A


 


ESCROW AGREEMENT


 


This ESCROW
AGREEMENT is made this
              
day of
              ,
20     , by and among FOSTER WHEELER LLC,  a Delaware limited liability company, with
its principal office at Perryville Corporate Park, Clinton, New Jersey 08809 -
4000 (the “Company”), BNY MIDWEST TRUST COMPANY, an Illinois trust company with
its principal offices at 2 N. LaSalle Street, Suite 1020, Chicago, Illinois
60602 (the “Trustee”) and BNY MIDWEST TRUST COMPANY, an Illinois trust company
with its principal corporate trust office at 2 N. LaSalle Street, Suite 1020,
Chicago, Illinois 60602 (the “Escrow Agent”).


 


1.                                       DEPOSIT.


Pursuant to
the terms of the Indenture, the Trustee or the Company may be required from
time to time to deliver to the Escrow Agent cash to be held by the Escrow Agent
and the Escrow Agent hereby agrees that such cash shall be applied only in
conformity with the purposes of, and upon the terms and conditions set forth
in, this Agreement.  All cash delivered
to the Escrow Agent pursuant to this Agreement, together with all investment
income thereon, shall be defined as the “Escrowed Property”.


 


2.                                       ACCRUAL
ON ESCROWED PROPERTY.


The Escrow
Agent shall collect all dividends, principal, interest and any other payment or
distribution on the Escrowed Property, and shall hold the same as part of the
Escrowed Property.


 


3.                                       INVESTMENT
BY ESCROW AGENT.


Any Escrowed
Property in the form of cash shall be invested or reinvested by the Escrow
Agent without unreasonable delay and only in such obligations which are (a)
securities issued or directly and fully guaranteed or insured by the United
States of America government or any agency or instrumentality thereof having
maturities of not more than one year from the date of acquisition, (b)
marketable direct obligations issued by any State of the United States or any
political subdivision of any such State or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time
of acquisition, having one of the two highest ratings obtainable from either
Standard & Poor’s Rating Group, a division of McGraw-Hill, Inc. (together
with its successors, “S&P”) or Moody’s Investor Service, Inc. (together
with its successors, “MOODY’S”) (c) demand deposits, time deposits and
certificates of deposits with maturities of one year or less from the date of
acquisition, bankers’ acceptances with maturities not exceeding one year from
the date of acquisition and overnight bank deposits, in each case with any bank
or trust company organized or licensed under the laws of the United States of
America or any State thereof having capital, surplus and undivided profits in
excess of $250 million, (d) repurchase obligations with a term of not more than
seven days for underlying securities of the type described in clauses (a), (b)
and (c) above entered into with any financial institution meeting the
qualifications specified in clause (c) above, (e) commercial paper rated at
least P-1 by Moody’s and A-1 by S&P at the time of acquisition thereof or,
if such commercial paper is rated by only one such agency, at least such rating
from such agency, and (f) investments in any Dollar denominated money market
fund as defined by Rule 2a-7 of the


 

















 


EXHIBIT A


Page 2


 


 


General Rules and Regulations
promulgated under the Investment Company Act of 1940, as shall be designated in
writing from time to time by the Company. 
Temporarily uninvested funds held hereunder shall not earn or accrue
interest.


 


4.                                       REPORTING
BY ESCROW AGENT.


The Escrow
Agent shall furnish to the Company and the Trustee (i) upon the receipt of any
Escrowed Property delivered to the Escrow Agent as provided in Section 1
hereof, an acknowledgement of such receipt, and (ii) from time to time
thereafter, monthly itemized summaries of the property held as Escrowed
Property, including all transactions made pursuant to Sections 2 and 3 hereof.


 


5.                                       DISTRIBUTION.


The Escrow
Agent shall release from escrow and distribute the Escrowed Property in
accordance with the directions of the Trustee acting pursuant to the Indenture,
dated as of November 15, 1995, between the Company and the Trustee, as amended
(the “Indenture”).  Upon distribution of
all the Escrowed Property or upon termination of this Agreement, the Escrow
Agent shall be discharged from all obligations under this Agreement and shall
have no further duties or responsibilities in connection herewith.


 


6.                                       COMPENSATION
AND REIMBURSEMENT OF ESCROW AGENT.


(a) For
services rendered hereunder, the Company shall pay the Escrow Agent
compensation in the amount of [$  ]
annually, payable upon execution of this Agreement and within ten business days
of each anniversary of such execution. 
Upon termination of this Agreement, either because all Escrowed Property
has been distributed or for any other reason, the Escrow Agent shall return to
the Company a proportional fraction of the compensation already paid for that
year, less any fee or reimbursement due at that time.


 


(b) The
Company shall pay monthly an Investment Transaction Fee of $50.00 for each
purchase or sale made by the Escrow Agent pursuant to Section 3 hereof.


 


(c) The
Company shall reimburse the Escrow Agent upon request for all expenses,
disbursements, and advances incurred or made by the Escrow Agent in
implementing any of the provisions of this Agreement, including reasonable
compensation and the reasonable expenses and disbursements of its counsel,
except any such expense, disbursement, or advance as may arise from its gross
negligence or willful misconduct.


 


(d) The
Company shall be liable for all payments due under any provision of this
Section 6.


 


(e) The
provisions of this Section 6 shall survive the termination of this Agreement or
the resignation or removal of the Escrow Agent.


 


7.                                       ESCROW
AGENT’S LIEN ON ESCROWED PROPERTY.


The Company
hereby grants to the Escrow Agent a lien on the Escrowed Property such that, in
the event that any and all charges payable under Section 6 and Section 8(c)
hereof shall not be timely paid by the Company, the Escrow Agent shall have the
right to pay itself from the Escrowed


 


 

















EXHIBIT A


Page 3


 


 


Property the full amount owed,
provided that written notice of the Escrow Agent’s intent to proceed under this
Section 7 be given at least five business days in advance of such action.


 


8.
RESPONSIBILITIES OF THE ESCROW AGENT.


(a) The Escrow
Agent shall exercise the same degree of care toward the Escrowed Property as it
exercises toward its own similar property and shall not be held to any higher
standard of care under this Agreement, nor be deemed to owe any fiduciary duty
to the Company.


 


(b) The Escrow
Agent shall be obligated to perform only such duties as are expressly set forth
in this Agreement.  No implied covenants
or obligations shall be inferred from this Agreement against the Escrow Agent,
nor shall the Escrow Agent be bound by the provisions of any agreement by the
Company beyond the specific terms hereof.


 


(c) The Escrow
Agent shall not be liable hereunder except for its own gross negligence or
willful misconduct and the Company agrees to indemnify the Escrow Agent for and
hold it harmless as to any loss, liability, or expense, including reasonable
attorney fees, incurred without gross negligence or willful misconduct on the
part of the Escrow Agent and arising out of or in connection with the Escrow
Agent’s duties under this Agreement. 
Specifically and without limiting the foregoing, the Escrow Agent shall
in no event have any liability in connection with its investment or
reinvestment, in good faith and in accordance with the terms hereof, of any
Escrowed Property held by it hereunder, including without limitation any
liability for any delay not resulting from gross negligence or bad faith in
such investment or reinvestment, or for any loss of income incident to any such
delay.  The provisions of this Section 8
shall survive the termination of this Agreement or the resignation or removal
of the Escrow Agent.


 


(d) The Escrow
Agent shall be entitled to rely upon any order, judgment, certification,
instruction, notice or other writing delivered to it in compliance with the
provisions of this Agreement without being required to determine the
authenticity or the correctness of any fact stated therein or the propriety or
validity or service thereof.  The Escrow
Agent may act in reliance upon any instrument comporting with the provisions of
this Agreement or signature believed by it to be genuine and may assume that
any person purporting to give notice or receipt or advice or make any statement
or execute any document in connection with the provisions hereof has been duly
authorized to do so.


 


At any time
the Escrow Agent may request in writing an instruction in writing from the
Company, and may at its own option include in such request the course of action
it proposes to take and the date on which it proposes to act, regarding any
matter arising in connection with its duties and obligations hereunder.  The Escrow Agent shall not be liable for
acting without the Company consent in accordance with such a proposal on or
after the date specified therein, provided that the specified date shall be at
least two business days after the Company receives the Escrow Agent’s request
for instructions and its proposed course of action, and provided further that,
prior to so acting, the Escrow Agent has not received the written instructions
requested.


 


(e) The Escrow
Agent may act pursuant to the advice of counsel chosen by it with respect to
any matter relating to this Agreement and shall not be liable for any action
taken or omitted in accordance with such advice.


 


 

















EXHIBIT A


Page 4


 


 


(f) The Escrow
Agent does not have any interest in the Escrowed Property deposited hereunder
but is serving as escrow holder only and has only possession thereof.


 


(g) In the
event of ambiguity in the provisions governing the Escrowed Property or
uncertainty on the part of the Escrow Agent as to how to proceed, such that the
Escrow Agent, in its sole and absolute judgment, deems it necessary for its
protection so to do, the Escrow Agent may refrain from taking any action other
than to retain custody of the Escrowed Property deposited hereunder until it
shall have received written instructions signed by the Company, or to deposit
the Escrowed Property with a court of competent jurisdiction and thereupon to
have no further duties or responsibilities in connection therewith.


 


(h) The Escrow
Agent makes no representation as to the validity, value, genuineness or
collectability of any security or other document or instrument held by or
delivered to it.


 


(i) The Escrow
Agent shall not be called upon to advise any party as to selling or retaining,
or taking or refraining from taking any action with respect to, any securities
or other property deposited hereunder.


 


9. RESIGNATION
OR REMOVAL OF ESCROW AGENT.


(a) The Escrow
Agent may resign by giving written notice to the Company and the Trustee.  Such resignation shall take effect upon
delivery of the Escrowed Property to a successor Escrow Agent designated in
writing by the Company, and the Escrow Agent shall thereupon be discharged from
all obligations under this Agreement, and shall have no further duties or
responsibilities in connection herewith.


 


(b) The
Company may remove the Escrow Agent upon written notice to the Escrow Agent
signed by the Company.  Such removal
shall take effect upon delivery of the Escrowed Property to a successor Escrow
Agent designated in writing by the Company, and the Escrow Agent shall
thereupon be discharged from all obligations under this Agreement and shall
have no further duties or responsibilities in connection herewith.  The Escrow Agent shall deliver the Escrowed
Property without unreasonable delay after receiving the Company’s designation
of a successor Escrow Agent.


 


(c) If after
30 days from the date of delivery of its written notice of intent to resign or
of the Company’s notice of removal the Escrow Agent has not received a written
designation of a successor Escrow Agent, the Escrow Agent’s sole responsibility
shall be in its sole discretion either to retain custody of the Escrowed
Property without any obligation to invest or reinvest any such Escrowed
Property until it receives such designation, or to apply to a court of
competent jurisdiction for appointment of a successor Escrow Agent and after
such appointment to have no further duties or responsibilities in connection
herewith.


 


10. CHOICE OF
LAW AND JURISDICTION.


This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York.  The parties to this Agreement
hereby agree that jurisdiction over such parties and over the subject matter of
any action or proceeding arising under this Agreement may be exercised by a
competent Court of the State of New York or by a United States Court sitting in
New York City.


 


 

















EXHIBIT A


Page 5


 


 


11. BENEFITS
AND ASSIGNMENT.


Nothing in
this Agreement, expressed or implied, shall give or be construed to give any
person, firm or corporation, other than the parties hereto and their successors
and assigns, any legal claim under any covenant, condition or provision hereof,
all the covenants, conditions and provisions contained in this Agreement being for
the sole benefit of the parties hereto and their successors and assigns.  No party may assign any of its rights or
obligations under this Agreement without the written consent of all the other
parties, which consent be may withheld in the sole discretion of the party
whose consent is sought.


 


12. AMENDMENT
AND WAIVER.


This Agreement
may be modified only by a written amendment signed by all the parties hereto,
and no waiver of any provision hereof shall be effective unless expressed in a
writing signed by the party to be charged.


 


13. USE OF BNY
MIDWEST TRUST COMPANY NAME.


No printed or
other material in any language, including prospectuses, notices, reports, and
promotional material which mentions BNY MIDWEST TRUST COMPANY by name or the
rights, powers, or duties of the Escrow Agent under this Agreement shall be
issued by any of the other parties hereto, or on such party’s behalf, without
the prior written consent of BNY MIDWEST TRUST COMPANY.


 


14. HEADINGS.


The headings
contained in this Agreement are for convenience of reference only and shall
have no effect on the interpretation or operation thereof.


 


15. NOTICES.


All notices,
instructions, reports and other written communications to be given or made
under this Agreement shall be sufficiently given or made if, unless otherwise
indicated, sent by first-class mail, postage prepaid:


 


	
  a)

  	
   

  	
  to the ESCROW
  AGENT at:

  
	
   

  	
   

  	
  BNY Midwest
  Trust Company

  
	
   

  	
   

  	
  2 N. LaSalle
  Street

  
	
   

  	
   

  	
  Suite 1020

  
	
   

  	
   

  	
  Chicago,
  Illinois 60602

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attn:  Carolyn Potter

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  b)

  	
   

  	
  to THE
  COMPANY at:

  
	
   

  	
   

  	
  Foster
  Wheeler LLC

  
	
   

  	
   

  	
  Perryville
  Corporate Park

  
	
   

  	
   

  	
  Clinton, New
  Jersey 08809-4000

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attn:
  TREASURER’S OFFICE

  



 


 

















EXHIBIT A


Page 6


 


 


	
  c)

  	
   

  	
  to the TRUSTEE
  at:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BNY Midwest
  Trust Company

  
	
   

  	
   

  	
  2 N. LaSalle
  Street

  
	
   

  	
   

  	
  Suite 1020

  
	
   

  	
   

  	
  Chicago,
  Illinois 60602

  
	
   

  	
   

  	
  Attn:  Carolyn Potter

  



 


 

















EXHIBIT A


Page 7


 


 


IN WITNESS
WHEREOF, the parties have caused this Escrow Agreement to be executed by duly
authorized officers as of the day and year first written above.


 


 


	
   

  	
  FOSTER
  WHEELER LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  Attest:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Seal]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BNY MIDWEST
  TRUST

  COMPANY,

  
	
   

  	
  as Escrow
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BNY MIDWEST
  TRUST COMPANY,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: