Exhibit 4.17


 


 


FOSTER WHEELER LLC

as Issuer


 


the Guarantors party hereto


 


and


 


WELLS FARGO BANK, NATIONAL ASSOCIATION

not in its individual capacity but solely as Trustee


 


Indenture


 


Dated as
of                 ,
2004


 


      %

Senior Secured Notes

Due 2011, Series A




      %

Senior Secured Notes

Due 2011, Series B



















 


CROSS-REFERENCE TABLE


 


	
  TIA Sections

  	
   

  	
   

  	
  Indenture
  Sections

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  §

  	
   

  	
  310(a)

  	
   

  	
  7.10

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.08

  
	
   

  	
   

  	
  (c)

  	
   

  	
  N/A

  
	
  §

  	
   

  	
  311(a)

  	
   

  	
  7.03

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.03

  
	
   

  	
   

  	
  (c)

  	
   

  	
  N/A

  
	
  §

  	
   

  	
  312

  	
   

  	
  12.02

  
	
   

  	
   

  	
  (b)

  	
   

  	
  12.02

  
	
   

  	
   

  	
  (c)

  	
   

  	
  12.02

  
	
  §

  	
   

  	
  313(a)

  	
   

  	
  7.06

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.06

  
	
   

  	
   

  	
  (c)

  	
   

  	
  7.06

  
	
   

  	
   

  	
  (d)

  	
   

  	
  7.06

  
	
  §

  	
   

  	
  314(a)

  	
   

  	
  4,
  4.02

  
	
   

  	
   

  	
  (b)

  	
   

  	
  10.02

  
	
   

  	
   

  	
  (c)

  	
   

  	
  12.04

  
	
   

  	
   

  	
  (d)

  	
   

  	
  10.03,
  10.04, 12.04

  
	
   

  	
   

  	
  (e)

  	
   

  	
  12.05

  
	
   

  	
   

  	
  (f)

  	
   

  	
  N/A

  
	
  §

  	
   

  	
  315(a)

  	
   

  	
  7.01, 7.02

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.02,
  7.05

  
	
   

  	
   

  	
  (c)

  	
   

  	
  7.01

  
	
   

  	
   

  	
  (d)

  	
   

  	
  7.02

  
	
   

  	
   

  	
  (e)

  	
   

  	
  6.12,
  7.02

  
	
  §

  	
   

  	
  316(a)

  	
   

  	
  2.05, 6.02, 6.04, 6.05

  
	
   

  	
   

  	
  (b)

  	
   

  	
  6.06,
  6.07

  
	
   

  	
   

  	
  (c)

  	
   

  	
  12.02

  
	
  §

  	
   

  	
  317(a) (1)

  	
   

  	
  6.08

  
	
   

  	
   

  	
  (a) (2)

  	
   

  	
  6.09

  
	
   

  	
   

  	
  (b)

  	
   

  	
  2.03

  
	
  §

  	
   

  	
  318

  	
   

  	
  12.01

  
						



 

















 


RECITALS


 


	
  ARTICLE
  1 DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 1.01. Definitions

  	
   

  
	
   

  	
  Section 1.02. Trust Indenture Act
  Provisions

  	
   

  
	
   

  	
  Section 1.03. Rules of Construction

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2
  THE NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 2.01. Form, Dating and
  Denominations; Legends

  	
   

  
	
   

  	
  Section 2.02. Execution and
  Authentication; Exchange Notes

  	
   

  
	
   

  	
  Section 2.03. Registrar, Paying Agent and
  Authenticating Agent; Paying Agent to Hold Money in Trust

  	
   

  
	
   

  	
  Section 2.04. Replacement Notes

  	
   

  
	
   

  	
  Section 2.05. Outstanding Notes

  	
   

  
	
   

  	
  Section 2.06. Temporary Notes

  	
   

  
	
   

  	
  Section 2.07. Cancellation

  	
   

  
	
   

  	
  Section 2.08. CUSIP and CINS Numbers

  	
   

  
	
   

  	
  Section 2.09. Registration, Transfer and Exchange

  	
   

  
	
   

  	
  Section 2.10. Restrictions on Transfer and
  Exchange

  	
   

  
	
   

  	
  Section 2.11. Temporary Offshore Global
  Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3
  REDEMPTION; OFFER TO PURCHASE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 3.01. Optional Redemption

  	
   

  
	
   

  	
  Section 3.02. Optional Redemption; Make
  Whole

  	
   

  
	
   

  	
  Section 3.03. Method and Effect of
  Redemption

  	
   

  
	
   

  	
  Section 3.04. Offer to Purchase

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 4.01. Payment Of Notes

  	
   

  
	
   

  	
  Section 4.02. Maintenance of Office or
  Agency

  	
   

  
	
   

  	
  Section 4.03. Existence

  	
   

  
	
   

  	
  Section 4.04. Payment of Taxes and other
  Claims

  	
   

  
	
   

  	
  Section 4.05. Limitation on Debt and
  Disqualified or Preferred Stock

  	
   

  
	
   

  	
  Section 4.06. Limitation on Restricted
  Payments

  	
   

  
	
   

  	
  Section 4.07. Limitation on Liens

  	
   

  
	
   

  	
  Section 4.08. Limitation on Sale and
  Leaseback Transactions

  	
   

  
	
   

  	
  Section 4.09. Limitation on Dividend and
  Other Payment Restrictions Affecting Restricted Subsidiaries

  	
   

  
	
   

  	
  Section 4.10. Repurchase of Notes upon a
  Change of Control

  	
   

  
	
   

  	
  Section 4.11. Limitation on Asset Sales

  	
   

  
	
   

  	
  Section 4.12. Limitation on Transactions
  with Affiliates

  	
   

  
	
   

  	
  Section 4.13. Additional Note Guarantees
  and Collateral After the Issue Date

  	
   

  
	
   

  	
  Section 4.14. Designation of Restricted
  and Unrestricted Subsidiaries

  	
   

  
	
   

  	
  Section 4.15. Financial Reports

  	
   

  



 


i

















 


	
   

  	
  Section 4.16. Reports to Trustee

  	
   

  
	
   

  	
  Section 4.17. Impairment of Security
  Interest; Security Document Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 CONSOLIDATION,
  MERGER OF SALE OF ASSETS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 5.01. Consolidation, Merger or
  Sale of Assets by the Company; No Lease of All or Substantially All Assets

  	
   

  
	
   

  	
  Section 5.02. Merger by Subsidiary
  Guarantors

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 DEFAULT AND
  REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 6.01. Events of Default

  	
   

  
	
   

  	
  Section 6.02. Consequences of an Event of
  Default

  	
   

  
	
   

  	
  Section 6.03. Other Remedies

  	
   

  
	
   

  	
  Section 6.04. Waiver of Past Defaults

  	
   

  
	
   

  	
  Section 6.05. Control by Majority

  	
   

  
	
   

  	
  Section 6.06. Limitation on Suits

  	
   

  
	
   

  	
  Section 6.07. Rights of Holders to Receive
  Payment

  	
   

  
	
   

  	
  Section 6.08. Collection Suit by Trustee

  	
   

  
	
   

  	
  Section 6.09. Trustee May File Proofs of
  Claim

  	
   

  
	
   

  	
  Section 6.10. Priorities

  	
   

  
	
   

  	
  Section 6.11. Restoration of Rights and
  Remedies

  	
   

  
	
   

  	
  Section 6.12. Undertaking for Costs

  	
   

  
	
   

  	
  Section 6.13. Rights and Remedies
  Cumulative

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7 THE TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 7.01. General

  	
   

  
	
   

  	
  Section 7.02. Certain Rights of Trustee

  	
   

  
	
   

  	
  Section 7.03. Trustee May Hold Notes

  	
   

  
	
   

  	
  Section 7.04. Trustee’s Disclaimer

  	
   

  
	
   

  	
  Section 7.05. Notice of Default

  	
   

  
	
   

  	
  Section 7.06. Reports by Trustee to
  Holders

  	
   

  
	
   

  	
  Section 7.07. Compensation and Indemnity

  	
   

  
	
   

  	
  Section 7.08. Replacement of Trustee

  	
   

  
	
   

  	
  Section 7.09. Successor Trustee by Merger

  	
   

  
	
   

  	
  Section 7.10. Eligibility

  	
   

  
	
   

  	
  Section 7.11. Money Held in Trust

  	
   

  
	
   

  	
  Section 7.12. Appointment of Co-Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 DEFEASANCE
  AND DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 8.01. Discharge of Company’s
  Obligations

  	
   

  
	
   

  	
  Section 8.02. Legal Defeasance

  	
   

  
	
   

  	
  Section 8.03. Covenant Defeasance

  	
   

  
	
   

  	
  Section 8.04. Application of Trust Money

  	
   

  
	
   

  	
  Section 8.05. Repayment to Company

  	
   

  
	
   

  	
  Section 8.06. Reinstatement

  	
   

  



 


ii

















 


	
  ARTICLE 9 AMENDMENTS,
  SUPPLEMENTS AND WAIVERS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 9.01. Amendments Without Consent
  of Holders

  	
   

  
	
   

  	
  Section 9.02. Amendments With Consent of
  Holders

  	
   

  
	
   

  	
  Section 9.03. Effect of Consent

  	
   

  
	
   

  	
  Section 9.04. Trustee’s Rights and
  Obligations

  	
   

  
	
   

  	
  Section 9.05. Conformity With Trust
  Indenture Act

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10
  COLLATERAL ARRANGEMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 10.01. Collateral Documents

  	
   

  
	
   

  	
  Section 10.02. Recordings and Opinions

  	
   

  
	
   

  	
  Section 10.03. Release of Collateral

  	
   

  
	
   

  	
  Section 10.04. Permitted Releases Not To
  Impair Lien; Trust Indenture Act Requirements

  	
   

  
	
   

  	
  Section 10.05. Suits To Protect the
  Collateral

  	
   

  
	
   

  	
  Section 10.06. Purchaser Protected

  	
   

  
	
   

  	
  Section 10.07. Powers Exercisable by
  Receiver or Trustee

  	
   

  
	
   

  	
  Section 10.08. Disposition of Obligations
  Received

  	
   

  
	
   

  	
  Section 10.09. Determinations Relating to
  Collateral

  	
   

  
	
   

  	
  Section 10.10. Release upon Termination
  of the Company’s Obligations

  	
   

  
	
   

  	
  Section 10.11. Notes Collateral Agent’s
  Duties

  	
   

  
	
   

  	
  Section 10.12. Additional Secured
  Obligations

  	
   

  
	
   

  	
  Section 10.13. Designation of New
  Indenture Documents

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  11 GUARANTEES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 11.01. The Guarantees

  	
   

  
	
   

  	
  Section 11.02. Guarantee Unconditional

  	
   

  
	
   

  	
  Section 11.03. Discharge; Reinstatement

  	
   

  
	
   

  	
  Section 11.04. Waiver by the
  Guarantors

  	
   

  
	
   

  	
  Section 11.05. Subrogation and
  Contribution

  	
   

  
	
   

  	
  Section 11.06. Stay of Acceleration

  	
   

  
	
   

  	
  Section 11.07. Limitation on Amount
  of Guarantee

  	
   

  
	
   

  	
  Section 11.08. Execution and
  Delivery of Guarantee

  	
   

  
	
   

  	
  Section 11.09. Release of Guarantee

  	
   

  
	
   

  	
  Section 11.10. No Suspension of
  Remedies

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  12 MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 12.01. Trust Indenture Act
  of 1939

  	
   

  
	
   

  	
  Section 12.02. Noteholder
  Communications; Noteholder Actions

  	
   

  
	
   

  	
  Section 12.03. Notices

  	
   

  
	
   

  	
  Section 12.04. Certificate and
  Opinion as to Conditions Precedent

  	
   

  
	
   

  	
  Section 12.05. Statements Required
  in Certificate or Opinion

  	
   

  
	
   

  	
  Section 12.06. Payment Date Other
  Than a Business Day

  	
   

  
	
   

  	
  Section 12.07. Governing Law

  	
   

  
	
   

  	
  Section 12.08. No Adverse
  Interpretation of Other Agreements

  	
   

  
	
   

  	
  Section 12.09. Successors

  	
   

  
	
   

  	
  Section 12.10. Duplicate Originals

  	
   

  



 


iii

















 


	
   

  	
  Section 12.11. Separability

  	
   

  
	
   

  	
  Section 12.12. Table of Contents and
  Headings

  	
   

  
	
   

  	
  Section 12.13. No Liability of
  Directors, Officers, Employees, Incorporators, Members and Stockholders

  	
   

  
	
   

  	
  Section 12.14. Submission to
  Jurisdiction

  	
   

  
	
   

  	
  Section 12.15. Appointment of Agent

  	
   

  



 


EXHIBITS


 


	
  EXHIBIT A

  	
   

  	
  Form of Series A Note

  
	
  EXHIBIT B

  	
   

  	
  Form of Series B Note

  
	
  EXHIBIT C

  	
   

  	
  Form of Supplemental Indenture

  
	
  EXHIBIT D

  	
   

  	
  Restricted Legend

  
	
  EXHIBIT E

  	
   

  	
  DTC Legend

  
	
  EXHIBIT F

  	
   

  	
  Regulation S Certificate

  
	
  EXHIBIT G

  	
   

  	
  Rule 144A Certificate

  
	
  EXHIBIT H

  	
   

  	
  Institutional Accredited Investor Certificate

  
	
  EXHIBIT I

  	
   

  	
  Certificate of Beneficial Ownership

  
	
  EXHIBIT J

  	
   

  	
  Form of Subordinated Intercompany Note

  
	
  EXHIBIT K

  	
   

  	
  Form of Unsubordinated Intercompany Note

  
	
  EXHIBIT L

  	
   

  	
  Temporary Offshore Global Note Legend

  



 


iv

















 


INDENTURE,
dated as
of                     ,
2004, between Foster Wheeler LLC, a Delaware limited liability company (the “Company”), the
Guarantors party hereto and Wells Fargo Bank, National Association, not in its
individual capacity but solely as Trustee.


 


RECITALS


 


The
Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance of (i) initially up to $150,000,000 aggregate
principal amount of the Company’s      % Senior
Secured Notes due 2011, Series A and up to an additional $120,000,000 Series A
Notes issuable solely in exchange for the Series B Notes, in each case having the
same terms as the Series A Notes except with respect to registration and
Additional Interest (as defined below)(the “Series A Notes”), and (ii) up to
$120,000,000 aggregate principal amount of the Company’s
     % Senior Secured Notes Due 2011, Series B (the “Series B Notes”, and
together with the Series A Notes, the “Notes”). 
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done, and the Company has done
all things necessary to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee and duly issued by the Company, the
valid obligations of the Company as hereinafter provided.


 


In
addition, the Guarantors party hereto have duly authorized the execution and
delivery of this Indenture as guarantors of the Notes.  All things necessary to make this Indenture
a valid agreement of each Guarantor, in accordance with its terms, have been
done, and each Guarantor has done all things necessary to make the Note Guarantees,
when the Notes are executed by the Company and authenticated and delivered by
the Trustee and duly issued by the Company, the valid obligations of such
Guarantor as hereinafter provided.


 


This
Indenture is subject to, and will be governed by, the provisions of the Trust
Indenture Act that are required to be a part of and govern indentures qualified
under the Trust Indenture Act.


 


THIS INDENTURE WITNESSETH


 


For
and in consideration of the premises and the purchase of the Notes by the
Holders thereof, the parties hereto covenant and agree, for the equal and
proportionate benefit of all Holders, as follows:


 


1

















 


ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section
1.01.  Definitions.


 


“Acquired Debt” means Debt of a Person (1)
assumed by such Person from another Person in connection with an Asset
Acquisition from such other Person or (2) existing at the time the Person
merges with or into the Company or a Restricted Subsidiary, or becomes a Restricted
Subsidiary and in each case was not Incurred in connection with such Asset
Acquisition, or in contemplation of, the Person merging with or into the
Company or a Restricted Subsidiary or becoming a Restricted Subsidiary.


 


“Additional Interest” means additional
interest owed to the Holders pursuant to the Registration Rights Agreement.


 


“Additional Registration Rights Agreement”
means the Registration Rights Agreement dated the Issue Date between Parent,
the Company, the Guarantors and the parties named in Schedule A thereto, with
respect to the Common Shares, the Preferred Shares and the Notes held by such
parties.


 


“Affiliate” means, with respect to any
Person, any other Person directly or indirectly controlling, controlled by, or
under direct or indirect common control with, such Person. for purposes of this
definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”) with respect to
any Person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
Notwithstanding the foregoing, a Joint Venture of the Company shall not be
considered an “Affiliate” of the Company or any Restricted Subsidiary so long
as the other parties to the joint venture that are not Affiliates of the
Company or any Restricted Subsidiaries own at least 50% of the Voting Stock of
such joint venture.


 


“Agent” means any Registrar, Paying Agent or
Authenticating Agent.


 


“Agent Member” means a member of, or a
participant in, the Depositary.


 


“Applicable Premium” means, with respect to
any Note on any redemption date, the excess of:


 


(1)           the
present value at such redemption date of (i) the redemption price of the Note
at [            ],
2006 (such redemption price being set forth in Section 3.01), plus (ii) all
required interest payments due on the Note through
[            ],
2006 (excluding accrued but unpaid interest to the redemption date), computed
using a discount rate equal to the Treasury Rate as of such redemption date
plus 50 basis points; over


 


(2)           the
then outstanding principal amount.


 


“Asset Acquisition” means the acquisition by
the Company or any Restricted Subsidiary of the assets of any Person which
constitute the assets of such Person substantially as an entirety


 


2

















 


or the assets of any division, operating unit
or line of business of such Person substantially as an entirety.


 


“Asset Sale” means any sale, lease,
transfer, conveyance or other disposition of any assets outside the ordinary
course of business by the Company or any Restricted Subsidiary, including by
means of a merger, consolidation or similar transaction and including any sale
or issuance of the Equity Interests of any Restricted Subsidiary (each of the
above referred to in this definition as a “disposition”), provided that the following are not
included in the definition of “Asset Sale”:


 


(1)           a
disposition to the Company or a Restricted Subsidiary (including the sale or
issuance by the Company or any Restricted Subsidiary of any Equity Interests of
any Restricted Subsidiary to the Company or any Restricted Subsidiary);


 


(2)           the
disposition by the Company or any Restricted Subsidiary in the ordinary course
of business of (i) cash and cash management investments, (ii) inventory and
other assets acquired and held for resale in the ordinary course of business,
(iii) damaged, worn out or obsolete assets, or (iv) rights granted to others
pursuant to leases or licenses;


 


(3)           the
sale or discount of accounts receivable or claims arising in the ordinary
course of business in connection with the compromise or collection thereof;


 


(4)           a
disposition governed by the provisions of Section 5.01;


 


(5)           a
Restricted Payment permitted under the provisions of Section 4.06 or a
Permitted Investment;


 


(6)           the
issuance of Disqualified or Preferred Stock pursuant to the provisions of
Section 4.05;


 


(7)           dispositions
of accounts receivable and related assets to a Securitization Subsidiary;


 


(8)           the
grant of any Permitted Lien and the exercise by any Person in whose favor a
Permitted Lien is granted of any of its rights in respect of that Permitted
Lien;


 


(9)           the
sale of substantially all of the assets or Equity Interests of any Joint
Venture or Subsidiary, whose assets consist solely of any Construction Project
if sold within two years of commencement of operations of such Construction
Project;


 


(10)         any
settlement with insurers relating to asbestos claims or liability with any
insurer of the Company or any Subsidiary;


 


(11)         any
disposition in a transaction or series of related transactions of assets with a
Fair Market Value of less than $1,000,000 in any twelve-month period; and


 


3

















 


(12)         the
sale or transfer of the Capital Stock of any of Foster Wheeler South Africa
(Proprietary) Limited, Foster Wheeler Properties (Proprietary) Limited, or any
other Restricted Subsidiary organized under the laws of South Africa to the
extent necessary to comply with the Broad-Based Black Economic Empowerment Act
53 of 2003.


 


“Attributable Debt” means, in respect of a
Sale and Leaseback Transaction the present value, discounted at the interest
rate implicit in the Sale and Leaseback Transaction, of the total obligations
of the lessee for rental payments during the remaining term of the lease in the
Sale and Leaseback Transaction.


 


“Authenticating Agent” refers to a Person
appointed by the Trustee pursuant to Section 2.03(a) engaged to authenticate
the Notes in the stead of the Trustee.


 


“Average Life” means, with respect to any
Debt, the quotient obtained by dividing (i) the sum of the products of (x) the
number of years from the date of determination to the dates of each successive
scheduled principal payment of such Debt and (y) the amount of such principal
payment by (ii) the sum of all such principal payments.


 


“bankruptcy default” means an event of
default specified clauses (7) or (8) of Section 6.01.


 


“Board of Directors” means the board of
directors or comparable governing body of a corporation, partnership, limited
liability company, association, trust or other entity.


 


“Board Resolution” means a resolution duly
adopted by the Board of Directors which is certified by the Secretary or an
Assistant Secretary of the Company and remains in full force and effect as of
the date of its certification.


 


“Business Day” means any day except a
Saturday, Sunday or other day on which commercial banks in New York City or in
the city where the Corporate Trust Office of the Trustee is located are
authorized by law to be closed for business.


 


“Capital Lease” means, with respect to any
Person, any lease of any property which, in conformity with GAAP, is required
to be capitalized on the balance sheet of such Person.


 


“Capital Stock” means, with respect to any
Person, any and all shares of stock of a corporation, partnership interests or
other equivalent interests (however designated, whether voting or non-voting)
in such Person’s equity, entitling the holder to receive a share of the profits
and losses, and a distribution of assets, after liabilities, of such Person.


 


“Cash Equivalents” means:


 


(1)           United
States dollars, or money in foreign currencies received in the ordinary course
of business that are readily convertible into United States dollars;


 


(2)           U.S.
Government Obligations with maturities not exceeding one year from the date of
acquisition;


 


4

















 


(3)           (i)
demand deposits, (ii) time deposits and certificates of deposit with maturities
of one year or less from the date of acquisition, (iii) bankers’ acceptances
with maturities not exceeding one year from the date of acquisition, and (iv)
overnight bank deposits, in each case with any bank or trust company organized
or licensed under the laws of the United States or any state thereof having
capital, surplus and undivided profits in excess of $250,000,000 whose
short-term debt is rated “A-2” or higher by S&P or “P-2” or higher by
Moody’s or at least an equivalent rating category of another nationally
recognized securities rating agency;


 


(4)           repurchase
obligations with a term of not more than seven days for underlying securities
of the type described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in clause (3) above;


 


(5)           commercial
paper rated at least P-1 by Moody’s or A-1 by S&P or at least an equivalent
rating category of another nationally recognized securities rating agency and
maturing within 270 days after the date of acquisition;


 


(6)           money
market funds at least 95% of the assets of which consist of investments of the
type described in clauses (1) through (5) above; and


 


(7)           in
the case of a Foreign Restricted Subsidiary, substantially similar investments,
of comparable credit quality, denominated in the currency of any jurisdiction
in which such Person conducts business.


 


“Certificate of Beneficial Ownership” means
a certificate substantially in the form of Exhibit I.


 


“Certificated Note” means a Note in
registered individual form without interest coupons.


 


“Change of Control” means:


 


(1)           the
direct or indirect sale, transfer, conveyance or other disposition (other than
by way of merger or consolidation) in one or a series of related transactions,
of all or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries taken as a whole, to any Person other than a Parent
Guarantor that assumes the Notes in compliance with Section 5.01;


 


(2)           any
“person” or “group” (as such terms are used for purposes of Sections 13(d) and
14(d) of the Exchange Act) is or becomes the “beneficial owner” (as such term
is used in Rules 13d-3 under the Exchange Act), directly or indirectly, of more
than 50% of the total voting power of the Voting Stock of Parent;


 


(3)           with
respect to each of (a) the Company and (b) for so long as the Company is a
Subsidiary of Parent, Parent, individuals who on the Issue Date constituted the
Board of Directors of such Person, together with any new directors of such
Person whose election by the Board of Directors or whose nomination for
election by the stockholders of such Person was approved by a majority of the
directors then still in office who were either directors of such Person or
whose election or nomination for


 


5

















 


election
was previously so approved, cease for any reason to constitute a majority of
the Board of Directors of such Person then in office;


 


(4)           Parent
ceases to own, indirectly, at least 51% of the Capital Stock of the Company or
Foster Wheeler Holdings Ltd. shall cease to hold 100% of the Capital Stock of
the Company (or, if Foster Wheeler Holdings Ltd. shall no longer own the shares
of Capital Stock of the Company, the Parent shall cease to own 100% of such
Capital Stock);


 


(5)           the
adoption by the Board of Directors of the Company of a plan contemplating to
the liquidation or dissolution of the Company; or


 


(6)           Parent
or the Company consolidates with, or merges with or into, any Person or sells
or otherwise disposes of all or substantially all of its assets to any Person,
or any Person, consolidates with, or merges with or into, Parent or the Company
in any such event pursuant to a transaction in which the outstanding Voting
Stock of Parent or the Company is converted into or exchanged for cash,
securities or other property, other than any such transaction where the Voting
Stock of Parent or the Company, as the case may be, immediately prior to such
transaction is converted or exchanged for Voting Stock (other than Disqualified
Stock) of the surviving or transferee Person constituting a majority of the
outstanding shares of such Voting Stock of such surviving or transferee Person
(immediately after giving effect to such issuance).


 


Notwithstanding
anything to the contrary, any merger of the Company with any Parent Guarantor
(other than Parent) that assumes the Notes and otherwise complies with Section
5.01 and whose Capital Stock is pledged to secure the Notes shall not
constitute a Change of Control.


 


“Code” means the Internal Revenue Code of
1986.


 


“Collateral” means all property of the
Company and the Guarantors, whether now owned or existing or hereafter
acquired, upon which a Lien is purported to be created hereunder or under the
Collateral Documents.


 


“Collateral Documents” means (i) the
Security Agreement, (ii) any mortgage, pledge, assignment, deed of trust,
security agreement or other instrument pursuant to which any Lien on any property
of any Parent Guarantor, the Company or any of the Guarantors is granted as
security for the obligations of the Company and the Guarantors in respect of
the Notes, (iii) the Intercreditor Agreement, and (iv) any supplements or other
instruments or documents entered into in connection with any of the foregoing,
in each case as each of the foregoing may from time to time be amended.


 


“Commission” means the Securities and
Exchange Commission.


 


“Common Stock” means Capital Stock that is
not entitled to any preference on dividends or distributions, upon liquidation
or otherwise.


 


“Company” means the party named as such in
the first paragraph of this Indenture or any successor obligor under this
Indenture and the Notes pursuant to Section 5.01.


 


6

















 


“Consolidated Cash Flow” means, for any
period, the sum (without duplication) of


 


(1)           Consolidated
Net Income for such period, plus


 


(2)           Fixed
Charges for such period, to the extent deducted in calculating Consolidated Net
Income for such period, plus


 


(3)           to
the extent deducted in calculating Consolidated Net Income for such period and
as determined on a consolidated basis for the Company and its Restricted
Subsidiaries in conformity with GAAP:


 


(A)          income
taxes and income tax adjustments (whether positive or negative) for such
period, other than income taxes or income tax adjustments (whether positive or
negative) attributable to Asset Sales or extraordinary gains or losses; and


 


(B)           depreciation,
amortization and all other non-cash items reducing Consolidated Net Income for
such period (including impairment loss on long-lived assets, but not including
non-cash charges in a period which reflect cash expenses paid or to be paid in
any subsequent period), less all non-cash items increasing Consolidated Net
Income (other than accrual of revenue in the ordinary course of business); plus


 


(4)           net
after-tax losses attributable to Asset Sales, and net after-tax extraordinary
or non-recurring losses, to the extent reducing Consolidated Net Income; plus


 


(5)           unusual
or nonrecurring non-cash charges or expenses; plus


 


(6)           non-cash
charges for the write-off of unamortized debt costs; plus


 


(7)           non-cash
charges Incurred in connection with the closure of facilities determined to be underperforming
by the Board of Directors of the Company in its sole discretion; plus


 


(8)           expenses
in connection with the restructuring transactions described in this prospectus,
or any equity offerings;


 


provided that, with respect to any Restricted Subsidiary, such items will be
added only to the extent and in the same proportion that the relevant
Restricted Subsidiary’s net income was included in calculating Consolidated Net
Income (and consistent therewith, with respect to Restricted Subsidiaries containing
a minority interest, the portion of such items that are allocable to such
minority interest shall not be added).


 


“Consolidated Net Income” means, for any
period, the aggregate net income (or loss) of the Company and its Restricted
Subsidiaries for such period determined on a consolidated basis in conformity
with GAAP (and consistent therewith, with respect to the net income of
Restricted Subsidiaries containing a minority interest, amounts allocable to
such minority interest shall be


 


7

















 


netted against the net income of such
Restricted Subsidiaries in accordance with GAAP), provided that the following (without duplication) will be
excluded in computing Consolidated Net Income:


 


(1)           the
net income (or loss) of any Person that is not a Subsidiary or that is
accounted for by the equity method of accounting, provided that there shall be included in Consolidated Net
Income for such period any dividends or other distributions paid in cash to the
Company or such Restricted Subsidiary by such Person in such period;


 


(2)           the
net income of any Restricted Subsidiary to the extent that the declaration or
payment of dividends or similar distributions or the making or repayment of
loans during such period to the Company or its Restricted Subsidiaries by such
Restricted Subsidiary of such net income, on the date of determination, is not
permitted without any prior governmental approval (that has not been obtained)
or, directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation (including statutorily imposed limitations on any Restricted
Subsidiary’s ability to distribute in any period more than its statutory income
for such period), applicable to that Restricted Subsidiary or its stockholders
in such period; except to the extent that the excluded portion of such net
income is actually distributed in cash by way of dividends, distributions,
payments of royalties or management fees, repayments of loans or making of
loans in such period to the Company or any Restricted Subsidiary that is not
subject to restrictions of this type; provided
that, (i) in the case of repayment or making of loans, the amount of such
excluded portion to be included in net income shall be equal to the excess, if
any, of cash distributed by repayment or making of loans over the amount of
loans made to such Restricted Subsidiary or repaid to such Restricted
Subsidiary by the Company or any Restricted Subsidiary that is not subject to
restrictions of this type and (ii) none of the excluded portion of such net
income for any period shall be deemed to have been distributed until the
included portion of such net income shall first have been distributed;


 


(3)           any
net after-tax extraordinary gains or losses; and


 


(4)           the
cumulative effect of any change in accounting principles.


 


“Consolidated Net Worth” means on any date
of determination, the consolidated shareholders’ equity (deficit), or total
members’ equity, as the case may be, (excluding Disqualified Stock) of such
Person and its Subsidiaries, as determined in accordance with GAAP on a
consolidated basis.


 


“Consolidated Tangible Assets” means, on any
date, the total assets of the Company and its Subsidiaries on a consolidated
basis as reflected under GAAP, less the following items:


 


(1)           assets
of Unrestricted Subsidiaries;


 


(2)           Investments
in Joint Ventures; and


 


(3)           amounts
representing goodwill, trademarks, patents, provisions for unamortized debt
discount and other intangible assets.


 


8

















 


“Construction Projects” means any facility
engineered or constructed by the Company or any Subsidiary or Joint Venture of
the Company with the intent (as determined by the Company or any Restricted
Subsidiary) to sell such facility upon or within two years of commencement of
operations of such facility, and in any event including without limitation, SET
S.r.l., Societa Enipower Ferrara S.r.l., and MF Power S.r.l.


 


“Contract Performance Arrangements” means,
(A) with respect to any engineering, procurement, construction, manufacturing,
equipment, or supply contract or bid for such contract entered into or made by
any Person, letters of credit, bank guarantees, bankers’ acceptances, bid
bonds, retention bonds, advance payment bonds or other similar instruments
supporting such Person’s performance obligations thereunder, and (B) with
respect to any contract for the acquisition or disposition of any business or
assets entered into by any Person, letters of credit, bank guarantees, bankers’
acceptances, bid bonds, retention bonds, advance payment bonds or other similar
instruments supporting such Person’s indemnification, purchase price adjustment
or advance payment or similar obligations thereunder, including in each case
any reimbursement or similar obligations with respect thereto and the provision
of cash collateral with respect thereto, and provided,
in each case, that such arrangements are entered into in the ordinary course of
business and do not support Debt.


 


“Controlled Joint Venture” means any joint
venture, partnership or similar arrangement (i) in which the Company or any
Restricted Subsidiary, directly or indirectly, owns at least 20% or more of the
Equity Interests of such Person and (ii) as to which the Company, directly or
indirectly through one or more Restricted Subsidiaries, exercises day-to-day
management control, including Non-Wholly Owned Subsidiaries.


 


“Convertible Notes” means the 6.50%
Convertible Subordinated Notes due 2007 issued by Parent and guaranteed by the
Company.


 


“Corporate Trust Office” means the office of
the Trustee at which the corporate trust business of the Trustee is principally
administered, which at the date of this Indenture is located at Wells Fargo
Corporate Trust, c/o The Depository Trust Company, 1st Floor, TADS
Department, 55 Water Street, New York, NY 
10041 .


 


“Credit Agreement” means the Third Amended
and Restated Term Loan and Revolving Credit Agreement dated as of August 2,
2002, among the Company, Foster Wheeler USA Corporation, Foster Wheeler Power
Group, Inc., Foster Wheeler Energy Corporation, the guarantors signatory
thereto, the lenders signatory thereto, Bank of America, N.A., as
Administrative Agent and Collateral Agent and Bank of America Securities LLC,
as Lead Arranger and Book Manager, as amended by Amendment No. 1 thereto dated
November 8, 2002, Amendment No. 2 thereto dated March 24, 2003, Amendment No. 3
thereto dated July 14, 2003, Amendment No. 4 thereto dated October 30, 2003,
and Amendment No. 5 thereto dated May 14, 2004 and as further amended from
time to time.


 


“Credit Facility or Credit Facilities”
means, one or more debt facilities or financings (including, without
limitation, the Credit Agreement) or commercial paper facilities or financings
(including, without limitation, any senior secured notes), in each case, with
banks or other institutional lenders providing for revolving credit loans, term
loans, receivables financing


 


9

















 


(including through the sale of receivables to
such lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced (whether upon or after
termination or otherwise) or refinanced (including by means of sales of debt
securities to institutional investors) in whole or in part from time to time in
each case to the extent such Debt is permitted to be Incurred under such facility
in accordance with Section 4.05(b)(1).


 


“Debt” means, with respect to any Person,
without duplication,


 


(1)           all
indebtedness of such Person for borrowed money;


 


(2)           all
obligations of such Person evidenced by bonds, debentures, notes or other similar
instruments;


 


(3)           all
Trade Obligations and all Performance Obligations;


 


(4)           all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services which are recorded as liabilities under GAAP, excluding
trade payables, advances on contracts and deferred compensation and similar
liabilities arising in the ordinary course of business;


 


(5)           all
rent obligations of such Person as lessee under Capital Leases;


 


(6)           all
Debt of other Persons Guaranteed by such Person to the extent so Guaranteed;


 


(7)           all
Debt of other Persons secured by a Lien on any asset of such Person, whether or
not such Debt is assumed by such Person; and


 


(8)           all
obligations of such Person under Hedging Agreements.


 


Notwithstanding
the foregoing, “Debt” shall not include prepayments or advances by customers or
other arrangements that result in cash being held on the balance sheet as
“restricted cash” entered into or made in the ordinary course of business for
services or products to be provided or delivered in the future.


 


The
amount of Debt of any Person will be deemed to be:


 


(A)          with
respect to contingent obligations, the maximum liability upon the occurrence of
the contingency giving rise to the obligation;


 


(B)           with
respect to Debt secured by a Lien on an asset of such Person but not otherwise
the obligation, contingent or otherwise, of such Person, the lesser of (x) the
Fair Market Value of such asset on the date the Lien attached and (y) the
amount of such Debt;


 


10

















 


(C)           with
respect to any Debt issued with original issue discount, the face amount of
such Debt less the remaining unamortized portion of the original issue discount
of such Debt;


 


(D)          with
respect to any Hedging Agreement, the net amount payable if such Hedging
Agreement were terminated at that time due to default by such Person;


 


(E)           otherwise,
the outstanding principal amount thereof, interest on Debt that is more than 90
days past due and interest that is more than 90 days past due (provided that no
accrual of interest pursuant to this clause (E) shall constitute an
Incurrence); and


 


(F)           with
respect to any Debt incurred pursuant to Section 4.05(b)(8), in the event that
(x) another holder of Equity Interests in the Joint Venture referred to in such
paragraph has agreed to reimburse or indemnify the Company or such Restricted
Subsidiary for any amounts paid pursuant to the Guarantee referred to in said
paragraph and (y) such holder has an Investment Grade Rating, then the amount
of Debt deemed to be incurred pursuant to such paragraph shall be limited to
portion thereof that is not entitled to the benefits of such reimbursement or
indemnification; provided that in
the event the indemnification or reimbursement obligation shall terminate or
otherwise be invalidated, such termination shall be deemed an Incurrence of
that portion of Debt previously entitled to such indemnification or
reimbursement obligation.


 


“Default” means any event that is, or after
notice or passage of time or both would be, an Event of Default.


 


“Depositary” means the depositary of each
Global Note, which will initially be DTC.


 


“Disqualified Equity Interests” means Equity
Interests that by their terms or upon the happening of any event are:


 


(1)           required
to be redeemed or redeemable at the option of the holder on or prior to the
date 90 days after to the Stated Maturity of the Notes for consideration other
than Qualified Equity Interests, or


 


(2)           convertible
at the option of the holder into Disqualified Equity Interests or exchangeable
for Debt prior to the date 90 days after the Stated Maturity of the Notes
(including, upon the occurrence of any contingency);


 


provided that Equity Interests will not constitute Disqualified Equity
Interests solely because of provisions giving holders thereof the right to
require repurchase or redemption upon an “asset sale” or “change of control”
occurring prior to the Stated Maturity of the Notes if those provisions


 


(A)          are
no more favorable to the holders thereof than those described in Sections 4.10,
4.11 and 4.12 and


 


11

















 


(B)           specifically
provide that repurchase or redemption pursuant thereto will not be required
prior to the Company’s repurchase of the Notes as required by this Indenture.


 


“Disqualified Stock” means Capital Stock
constituting Disqualified Equity Interests.


 


“Domestic Restricted Subsidiary” means any
Restricted Subsidiary of the Company formed under the laws of the United States
of America or any jurisdiction thereof.


 


“Domestic Subsidiary” means any Subsidiary
of the Company formed under the laws of the United States of America or any
jurisdiction thereof.


 


“DTC” means The Depository Trust Company, a
New York corporation, and its successors.


 


“DTC Legend” means the legend set forth in
Exhibit E.


 


“Encumbered Performance Obligation” means
any Performance Obligation (i) that is secured by any assets of the Company or
any Restricted Subsidiary (including Capital Stock of single-purpose project
Subsidiaries) other than the assets of the project Subsidiary to which it
relates (ii) that is secured by cash collateral including cash of a project
Subsidiary (but only to the extent of the cash actually collateralizing such
Performance Obligation), (iii) the terms of which limit the ability of the
account party of the Performance Obligation or any guarantor of the account
party’s obligations under the Performance Obligation other than the project
Subsidiary to which such Performance Obligation relates to pay dividends up to
the full amount of its statutory income in any fiscal year or make any other
similar distributions, (iv) the terms of which limit the ability of the party
described in clause (iii) to make loans or advances to the Company or any
Restricted Subsidiary, or (v) the terms of which impose a minimum cash-on-hand
requirement (but only to the extent of the cash actually required to be kept
on-hand) other than with respect to a project Subsidiary to which such
Performance Obligation relates; provided
that in each case issued but undrawn letters of credit issued under the Credit
Agreement or any Credit Facility shall not constitute “Encumbered Performance
Obligations.”


 


“Equity Interests” means all Capital Stock
and all warrants or options with respect to, or other rights to purchase, Capital
Stock, but excluding Debt convertible into or exchangeable for equity.


 


“Event of Default” has the meaning assigned
to such term in Section 6.01.


 


“Event of Loss” means, with respect to any
property or asset, (1) any loss, destruction or damage of such property or
asset or (2) any condemnation, seizure or taking, by exercise of the power of
eminent domain or otherwise, of such property or asset, or confiscation or
requisition of the use of such property or asset.


 


“Excepted Non-Guarantor Subsidiary” means
Foster Wheeler Caribe Corporation, C.A., Foster Wheeler Continental B.V, Foster
Wheeler Europe B.V, Foster Wheeler (Malaysia) Sdn. Bhd., Foster Wheeler
Petroleum Services S.A.E., Foster Wheeler Power Company Ltd./La Societe
D’Energie Foster Wheeler Ltee, F.W. Gestao E Servicos, S.A., FW Management


 


12

















 


Operations, Ltd., FW Overseas Operations
Limited, Manops Limited, P.E. Consultants, Inc., Perryville Service Company
Ltd., Singleton Process Systems GmbH, until such Subsidiary executes a Note
Guarantee.


 


“Excess Proceeds” has the meaning assigned
to such term in Section 4.11.


 


“Exchange Act” means the Securities Exchange
Act of 1934, as amended.


 


“Exchange Notes” means the Series A Notes
issued pursuant to this Indenture in exchange for, and in an aggregate
principal amount equal to, the Series B Notes in compliance with the terms of
the Registration Rights Agreement or the Additional Registration Rights
Agreement (other than Private Exchange Notes) containing terms substantially
identical to the Series B Notes (except that (i) such Series A Notes will be
registered under the Securities Act and will not be subject to transfer
restrictions or bear the Restricted Legend and (ii) the provisions relating to Additional
Interest will be eliminated).


 


“Exchange Offer” means an offer by the
Company to the Holders of the Series B Notes to exchange outstanding Notes for
Exchange Notes, as provided for in the Registration Rights Agreement.


 


“Exchange Offer Registration Statement”
means the Exchange Offer Registration Statement as defined in the Registration
Rights Agreement.


 


“Existing Letter of Credit Facility” means
the letter of credit facility available under the Credit Agreement.


 


“Fair Market Value” with respect to any
asset or property means the sale value that would be obtained in an
arm’s-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to
buy. Fair Market Value shall be determined by the Board of Directors of the
Company acting in good faith, which determination shall be conclusive for all
purposes of this Indenture; provided
that, with respect to any determination referred to in Section 4.12 the opinion
referred to therein shall be provided if required.


 


“Fitch” means Fitch IBCA Inc. or any
successor thereto.


 


“Fixed Charge Coverage Ratio” means, on any
date (the “transaction date”), the ratio of


 


(x)            the
aggregate amount of Consolidated Cash Flow for the four most recent full fiscal
quarters for which internal financial statements are available immediately
preceding the date of the transaction giving rise to the need to calculate the
Fixed Charge Coverage Ratio (the “reference period”) to


 


(y)           the
aggregate Fixed Charges during such reference period.


 


In
making the foregoing calculation,


 


13

















 


(1)           pro
forma effect will be given to any Debt, Disqualified Stock or Preferred Stock
Incurred during or after the reference period to the extent the Debt is
outstanding or is to be Incurred on the transaction date as if the Debt,
Disqualified Stock or Preferred Stock had been Incurred on the first day of the
reference period;


 


(2)           pro
forma calculations of interest on Debt bearing a floating interest rate will be
made as if the rate in effect on the transaction date (taking into account any
Hedging Agreement applicable to the Debt if the Hedging Agreement has a
remaining term of at least 12 months) had been the applicable rate for the entire
reference period and fixed charges attributable to interest on Debt under any
revolving credit facility computed on a pro forma basis will be based on the
average daily balance of such Debt for the entire reference period;


 


(3)           Fixed
Charges related to any Debt, Disqualified Stock or Preferred Stock no longer
outstanding or to be repaid or redeemed on the transaction date, except for
Consolidated Interest Expense accrued during the reference period under a
revolving credit to the extent of the commitment thereunder (or under any
successor revolving credit) in effect on the transaction date, will be
excluded;


 


(4)           pro
forma effect will be given to


 


(A)          the
creation, designation or redesignation of Restricted and Unrestricted
Subsidiaries,


 


(B)           the
acquisition or disposition of companies, divisions or lines of businesses by
the Company and its Restricted Subsidiaries, including any acquisition or
disposition of a company, division or line of business since the beginning of
the reference period by a Person that became a Restricted Subsidiary after the
beginning of the reference period, and


 


(C)           the
discontinuation of any discontinued operations but, in the case of Fixed
Charges, only to the extent that the obligations giving rise to the Fixed
Charges will not be obligations of the Company or any Restricted Subsidiary
following the transaction date


 


that
have occurred since the beginning of the reference period as if such events had
occurred, and, in the case of any disposition, the proceeds thereof applied, on
the first day of the reference period. To the extent that pro forma effect is
to be given to an acquisition or disposition of a company, division or line of
business, the pro forma calculation will be based upon the most recent four
full fiscal quarters for which the relevant financial information is available.


 


“Fixed Charges” means, for any period, the
sum of


 


(1)           Interest
Expense for such period;


 


(2)           all
fees and commissions paid in respect of Trade Obligations and Performance
Obligations; and


 


14

















 


(3)           all
cash dividends paid on any Disqualified Stock or Preferred Stock of the Company
or a Restricted Subsidiary, except for dividends payable in the Company’s
Qualified Stock or paid to the Company or to a Restricted Subsidiary (divided
by, to the extent such dividends are not deductible for income tax purposes, an
amount equal to one minus the effective tax rate of the Company and its
Subsidiaries; provided that if the effective tax rate for such period is negative,
the adjustment described in this parenthetical shall not apply).


 


“Foothill Facility” means the Loan and
Security Agreement by and among Foster Wheeler Funding II LLC as Borrower, the
Lenders that are Signatories thereto and Wells Fargo Foothill Inc. as the
Arranger and Administrative Agent, dated July 31, 2003.


 


“Foreign Restricted Subsidiary” means any
Restricted Subsidiary that is not a Domestic Restricted Subsidiary.


 


“Form S-4” means the Registration Statement
on Form S-4 (Registration No. 333-107054) of the Company and Parent and certain
of their subsidiaries, and the Registration Statement on Form S-3 (Registration
No. 333-114400) of Parent, including the documents incorporated by reference
therein, as declared effective with the Commission on
[            ],
2004.


 


“GAAP” means generally accepted accounting
principles in the United States of America as in effect from time to time.


 


“Global Note” means a Note in registered
global form without interest coupons.


 


“Guarantee” means any obligation, contingent
or otherwise, of any Person directly or indirectly guaranteeing any Debt or
other obligation of any other Person and, without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Debt or other obligation of such other Person or (ii)
entered into for purposes of assuring in any other manner the obligee of such
Debt or other obligation of the payment thereof or to protect such obligee
against loss in respect thereof, in whole or in part; provided that the term “Guarantee” does
not include endorsements for collection or deposit in the ordinary course of
business. The term “Guarantee” used as a verb has a corresponding meaning.


 


“Guarantor” means (i) Parent and Foster
Wheeler Holdings, Ltd.; (ii) the Subsidiaries listed on the signature pages to
this Indenture; and (iii) each Restricted Subsidiary that executes a
supplemental indenture in the form of Exhibit C to this Indenture providing for
the guarantee of the payment of the Notes, in each case unless and until such
Guarantor is released from its Note Guarantee pursuant to this Indenture.


 


“Hedging Agreement” means (i) any interest
rate swap agreement, interest rate cap agreement or other agreement designed to
protect against fluctuations in interest rates, (ii) any foreign exchange
forward contract, currency swap agreement or other agreement designed to
protect against fluctuations in foreign exchange rates or (iii) any commodity
or raw material futures contract or any other agreement designed to protect
against fluctuations in raw material prices; provided that in each case such
agreement or contract is intended in good faith by the Company or the respective
Restricted Subsidiary party thereto to protect against interest, foreign


 


15

















 


exchange or commodity risks to which the
Company or such Restricted Subsidiary, as applicable, anticipates being subject.


 


“Holder” or “Noteholder” means the registered holder of any Note.


 


“Incur” means, with respect to any Debt or
Capital Stock, to incur, create, issue, assume or Guarantee such Debt or
Capital Stock. If any Person becomes a Restricted Subsidiary on any date after
the date of this Indenture (including by redesignation of an Unrestricted
Subsidiary or failure of an Unrestricted Subsidiary to meet the qualifications
necessary to remain an Unrestricted Subsidiary), the Debt and Capital Stock of
such Person outstanding on such date will be deemed to have been Incurred by
such Person on such date for purposes of Section 4.05, but will not be
considered the sale or issuance of Equity Interests for purposes of Section
4.11.  The accretion of original issue
discount or payment of interest in kind will not be considered an Incurrence of
Debt.  The reclassification of an
existing operating lease as a Capital Lease in a Person’s financial statements
as a result of a change in accounting principles shall not constitute and
“Incurrence” of such Capital Lease on such reclassification date.


 


“Indenture” means this Indenture, as amended
or supplemented from time to time pursuant to the provisions hereof.


 


“Initial Series A Notes” means the Series A
Notes issued on the Issue Date and on the date of closing of a subsequent
offering period, if any, as described in the Form S-4, and any Notes issued in
replacement thereof.


 


“Initial Series B Notes” means the Series B
Notes issued on the Issue Date and any Notes issued in replacement thereof, but
not including any Exchange Notes issued in exchange therefor.


 


“Institutional Accredited Investor Certificate”
means a certificate substantially in the form of Exhibit H hereto.


 


“interest”, in respect of the Notes, unless
the context otherwise requires, refers to interest and Additional Interest, if
any.


 


“Intercompany Cash Management Agreement”
means the Intercompany Cash Management Agreement among Foster Wheeler Inc. and
certain Subsidiaries of the Company dated as of January 1, 2004, as in effect
on the Issue Date.


 


“Intercompany Note” means a promissory note
evidencing debt owed by an Obligor or Restricted Subsidiary to an Affiliate of
such Obligor or Restricted Subsidiary.


 


“Intercreditor Agreement” means the
Intercreditor Agreement dated the Issue Date between Bank of America, N.A., in
its capacities as Administrative Agent and Collateral Agent under the Credit
Agreement, and the Trustee.


 


“Interest Expense” means, for any period,
the consolidated interest expense of the Company and its Restricted
Subsidiaries, excluding fees related to the issuance and registration of the
Notes, plus, to the extent not included in such consolidated interest expense,
and to the extent Incurred, accrued or payable by the Company or its Restricted
Subsidiaries, without


 


16

















 


duplication, (i) interest expense
attributable to Sale and Leaseback Transactions, (ii) amortization of debt
discount and debt issuance costs but excluding amortization of deferred financing
charges incurred in respect of the Notes and the Credit Facilities on or prior
to the Issue Date, (iii) capitalized interest, including the interest component
of any Capital Leases, (iv) non-cash interest expense, (v) commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers’ acceptance financing (other than in respect of Contract Performance
Arrangements), (vi) net costs associated with Hedging Agreements (including the
amortization of fees), (vii) any interest expense on Debt of another Person
that is Guaranteed by the Company or any Restricted Subsidiary or secured by a
Lien on assets of the Company or its Restricted Subsidiaries, if and to the
extent such interest is actually paid by the Company or any Restricted
Subsidiary, and (viii) any of the above expenses with respect to Debt of
another Person Guaranteed by the Company or any of its Restricted Subsidiaries,
but only to the extent such expenses are actually paid by the Company or a
Restricted Subsidiary during such period.


 


“Interest Payment Date” means each
[            ] and
[            ] of
each year, commencing
[            ],
2004.


 


“Investment” means


 


(1)           any
direct or indirect advance, loan or other extension of credit to another
Person,


 


(2)           any
capital contribution to another Person, by means of any transfer of cash or
other property or in any other form,


 


(3)           any
purchase or acquisition of Equity Interests, bonds, notes or other Debt, or
other instruments or securities issued by another Person, including the receipt
of any of the above as consideration for the disposition of assets or rendering
of services together with all other items, if any, that are, or would be,
classified as Investments on a balance sheet prepared in accordance with GAAP, or


 


(4)           any
Guarantee of any obligation of another Person, but only when payment has been
made thereunder or such arrangements would be classified and accounted for as a
liability on the balance sheet of the guarantor.


 


If
the Company or any Restricted Subsidiary (x) sells or otherwise disposes of any
Equity Interests of any direct or indirect Restricted Subsidiary so that, after
giving effect to that sale or disposition, such Person is no longer a
Subsidiary of the Company, or (y) designates any Restricted Subsidiary as an
Unrestricted Subsidiary in accordance with the provisions of this Indenture,
the Company or the applicable Restricted Subsidiary, as the case may be, shall
be deemed to have made an Investment in such Person at such time in an amount
equal to the Fair Market Value of the remaining Equity Interests in such Person
held by the Company or such Restricted Subsidiary.


 


“Investment Grade Rating” means, with
respect to any holder of Equity Interests in any Joint Venture, that either (i)
such holder has a rating from Standard and Poor’s, Moody’s or Fitch of BBB-,
Baa3 or BBB-, respectively or better or (ii) if such holder is not rated by any
of such rating agencies, the Board of Directors of Parent has determined in
good faith that such holder


 


17

















 


would have a rating equivalent to such
minimum ratings were it to seek a rating from such agencies.


 


“Issue Date” means
[                        ],
2004.


 


“Joint Venture” means any Person that is not
a Subsidiary of the Company (i) in which the Company or any Restricted
Subsidiary, directly or indirectly, owns at least 20% or more of the Equity
Interests of such Person, and (ii) as to which the Company or such Restricted
Subsidiary, as the case may be, has either (a) the power to control, directly
or indirectly (whether through the exercise of voting rights, representation on
the board of directors or other governing body of such Person, the exercise of
veto rights or otherwise), any decisions by such Person with respect to the
payment of dividends or the making of distributions by such Person or (b) the
right (by contract, applicable law or otherwise) to cause the dissolution and
liquidation of such Person (including pursuant to contractual provisions governing
deadlock that may require good faith efforts to resolve any deadlock prior to
any such dissolution or liquidation).


 


“Lien” means, with respect to any asset, any
mortgage, pledge, security interest, encumbrance, lien or charge of any kind
(including any conditional sale or other title retention agreement or Capital
Lease) whether or not filed, recorded or otherwise perfected under applicable
law.


 


“Moody’s” means Moody’s Investors Service,
Inc. and its successors.


 


“Net Cash Proceeds” means, with respect to
any Asset Sale or Event of Loss, the proceeds of such Asset Sale or Event of
Loss in the form of cash or Cash Equivalents (including (i) payments in respect
of deferred payment obligations, when received in the form of cash or Cash
Equivalents, and (ii) proceeds from the conversion of other consideration
received when converted to cash or Cash Equivalents), net of


 


(1)           brokerage
commissions and other fees and expenses related to such Asset Sale or Event of
Loss, including fees and expenses of counsel, accountants and investment
bankers;


 


(2)           relocation
expenses resulting from such Asset Sale or Event of Loss;


 


(3)           provisions
for taxes payable as a result of such Asset Sale or Event of Loss;


 


(4)           payments
required to be made to holders of minority interests in Restricted Subsidiaries
as a result of such Asset Sale or Event of Loss or to repay Debt outstanding at
the time of such Asset Sale or Event of Loss that is secured by a Lien on the
property or assets sold; and


 


(5)           appropriate
amounts to be provided as a reserve against liabilities associated with such
Asset Sale or Event of Loss in accordance with GAAP, including pension and
other post-employment benefit liabilities, liabilities related to environmental
matters and indemnification obligations associated with such Asset Sale, with
any


 


18

















 


subsequent
reduction of the reserve other than by payments made and charged against the
reserved amount to be deemed a receipt of cash.


 


“New Indenture Documents” shall have the
meaning set forth in the Intercreditor Agreement.


 


“Non-Recourse Debt” means Debt as to which
(1) neither the Company nor any Restricted Subsidiary provides any Guarantee,
(2) no default with respect to which (including the rights that holders of the
Debt may have to take enforcement action against an Unrestricted Subsidiary)
would permit upon notice, lapse of time or both any holder of any other Debt
(other than the Notes) of the Company or any Restricted Subsidiary to declare a
default on such other Debt or cause the payment of the Debt to be accelerated
or payable prior to its stated maturity and (3) the holders of such Debt have
no recourse to the stock or assets of the Company or any of its Restricted
Subsidiaries; provided that a
pledge by a Restricted Subsidiary of the stock held by it of any Unrestricted
Subsidiary to secure such Unrestricted Subsidiary’s Debt shall be permitted
under this clause (3) and shall not prevent such Debt from being Non-Recourse
Debt hereunder.


 


“Non-U.S. Person” means a Person that is not
a U.S. person, as defined in Regulation S.


 


“Non-Wholly Owned Subsidiary” means, with
respect to any Person, any Subsidiary that is not Wholly-Owned.


 


“Notes” has the meaning assigned to such
term in the Recitals.


 


“Notes Collateral Agent” means the Trustee
or any replacement of the Trustee appointed in accordance with this Indenture
and Collateral Documents in its capacity as collateral agent or mortgagee (as
applicable) under the Collateral Documents.


 


“Note Guarantee” means the guarantee of the
Notes by a Guarantor pursuant to this Indenture.


 


“Obligations” means, with respect to any
Debt, all obligations (whether in existence on the Issue Date or arising
afterwards, absolute or contingent, direct or indirect) for or in respect of
principal (when due, upon acceleration, upon redemption, upon mandatory
repayment or repurchase pursuant to a mandatory offer to purchase, or
otherwise), premium, interest, penalties, fees, indemnification, reimbursement
and other amounts payable and liabilities with respect to such Debt, including
all interest accrued or accruing after the commencement of any bankruptcy,
insolvency or reorganization or similar case or proceeding at the contract rate
(including, without limitation, any contract rate applicable upon default)
specified in the relevant documentation, whether or not the claim for such
interest is allowed as a claim in such case or proceeding.


 


“Obligor” means the Company, each Parent
Guarantor and any Restricted Subsidiary that is a Guarantor.


 


“Offer to Purchase” has the meaning assigned
to such term in Section 3.04.


 


19

















 


“Officer” means the chairman of the Board of
Directors, the president or chief executive officer, any vice president, the chief
financial officer, the treasurer or any assistant treasurer, or the secretary
or any assistant secretary, of any Person.


 


“Officers’ Certificate” means a certificate
signed in the name of any Person (i) by the chairman of the Board of Directors,
the president or chief executive officer or a vice president of such Person and
(ii) by the chief financial officer, the treasurer or any assistant treasurer
or the secretary or any assistant secretary of such Person.


 


“Offshore Global Note” means a Global Note representing
Series B Notes issued and sold pursuant to Regulation S.


 


“Opinion of Counsel” means a written opinion
signed by legal counsel, who may be an employee of or counsel to the Company.


 


“Parent” means Foster Wheeler Ltd., a
company organized under the laws of Bermuda.


 


“Parent Guarantors” means Parent and Foster
Wheeler Holdings Ltd., for so long as Foster Wheeler Holdings Ltd. is a
subsidiary of Parent and owns 100% of the Company.


 


“Paying Agent” refers to a Person, appointed
by the Company pursuant to Section 2.03(a), engaged to perform the obligations
of the Trustee in respect of payments made or funds held hereunder in respect
of the Notes.


 


“Performance Obligations” means, as to any
Person, all obligations in respect of letters of credit, bank guarantees,
bankers’ acceptances, surety bonds, performance bonds and other similar
instruments issued for the account of such Person in the ordinary course of
business of such Person that support obligations (other than Debt) in respect
of engineering, procurement, construction, manufacturing, equipment or supply
projects of the Company or its Restricted Subsidiaries and shall include
Contract Performance Arrangements.


 


“Permanent Offshore Global Note” means an
Offshore Global Note that does not bear the Temporary Offshore Global Note
Legend.


 


“Permitted Debt” has the meaning assigned to
such term in Section 4.05(b).


 


“Permitted Investments” means:


 


(1)           Investments
existing on March 26, 2004;


 


(2)           any
Investment in the Company (including any Investment in the Notes) or in a
Restricted Subsidiary of the Company that is also a Guarantor;


 


(3)           any
Investment in Cash Equivalents;


 


(4)           any
Investment by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of such Investment,


 


20

















 


(A)          such
Person becomes a Restricted Subsidiary of the Company that is also a Guarantor,
or


 


(B)           such
Person is merged or consolidated with or into, or transfers or conveys
substantially all its assets to, or is liquidated into, the Company or a
Restricted Subsidiary that is also a Guarantor;


 


(5)           Investments
received as non-cash consideration in an Asset Sale made pursuant to and in
compliance with the provisions of Section 4.11;


 


(6)           Investments
in Restricted Subsidiaries that are not Guarantors in an aggregate amount,
taken together with all other Investments made in reliance on this clause, not
to exceed $10,000,000 (net of, with respect to the Investment in any particular
Person, the cash return thereon received after March 26, 2004 as a result of
any sale for cash, repayment, redemption, liquidity distribution or other cash
realization); provided that no more than $2,000,000 of such Investments may be
made in Excepted Non-Guarantor Subsidiaries;


 


(7)           Hedging
Agreements otherwise permitted under this Indenture;


 


(8)           (i)
receivables owing to the Company or any Restricted Subsidiary, and contracts in
progress of the Company or any Restricted Subsidiary, in either case if created
or acquired in the ordinary course of business, (ii) prepaid expenses and
deposits created or made in the ordinary course of business, (iii) Cash
Equivalents or other cash management investments or liquid or portfolio
securities pledged as collateral pursuant to the provisions of Section 4.07,
and (iv) endorsements for collection or deposit in the ordinary course of
business;


 


(9)           extensions
of credit to customers and suppliers in the ordinary course of business;


 


(10)         Investments
in Joint Ventures in an aggregate amount, taken together with all other
Investments made in reliance on this clause since March 26, 2004, not to exceed
8.5% of the Consolidated Tangible Assets (net of, with respect to the
Investment in any particular Person, the cash return thereon received after
March 26, 2004 as a result of any sale for cash, repayment, redemption,
liquidating distribution or other cash realization to the extent such cash
return has not been included in clause (a)(3)(D) of Section 4.06);


 


(11)         reasonable
payroll, travel and other loans or advances to, or Guarantees issued to support
the obligations of, officers and employees, in each case in the ordinary course
of business:


 


(12)         Investments
in evidences of indebtedness, securities or other property received from
another Person by the Company or any Restricted Subsidiary in connection with
any bankruptcy proceeding or by reason of a composition or readjustment of Debt
or a reorganization of such Person or as a result of foreclosure, perfection or
enforcement of any Lien in exchange for evidences of indebtedness, securities
or other property of such Person held by the Company or any Restricted
Subsidiary, or for other liabilities or


 


21

















 


obligations
of such other Person to the Company or any Restricted Subsidiary that were
created in accordance with the terms of this Indenture or received in
compromise or settlement of Debts created in the ordinary course of business;


 


(13)         so
long as no Default has occurred and is continuing, the repurchase or redemption
of all of the Equity Interests of Martinez Cogen Limited Partnership not owned
by the Company on the Issue Date in accordance with the terms of the
partnership agreement as in effect on the Issue Date; provided that the Fixed Charge Coverage
Ratio immediately after giving effect to such repurchase or redemption exceeds
the Fixed Charge Coverage Ratio immediately prior to such repurchase or
redemption;


 


(14)         any
Guarantee of the Debt of any Person, so long as such Guarantee is permitted by
Section 4.05;


 


(15)         Investments
in a Securitization Subsidiary, that are necessary or desirable to effect any
Permitted Receivables Financing;


 


(16)         any
Investment by a Restricted Subsidiary that is not a Guarantor in any other
Restricted Subsidiary that is not a Guarantor;


 


(17)         with
respect to any construction, engineering of procurement project, deposits or
other arrangements for restricted cash accounts made or created in connection
with (i) advances or prepayments by customers under contracts entered into in
or during the ordinary course of business or (ii) Contract Performance
Arrangements, in each case with any bank or trust company described in clause
(3) of the definition of “Cash Equivalents” or, with respect to deposits or
arrangements made by Foreign Restricted Subsidiaries, determined by the Company
in good faith to be of acceptable credit quality for such purpose, in each case
made in the ordinary course of business; and


 


(18)         any
Investment in Capital Stock of a Joint Venture organized under the laws of South
Africa received as consideration for a sale of the type described in clause
(12) of the definition of Asset Sale above.


 


“Permitted Liens” means


 


(1)           Liens
existing on March 26, 2004;


 


(2)           Liens
in favor of the Company or any Restricted Subsidiary;


 


(3)           Liens
created by this Indenture and the Collateral Documents securing the Notes or
any Note Guarantees;


 


(4)           Liens
on assets or properties, securing Obligations under or with respect to the
Credit Facilities and Hedging Agreements entered into with respect to Debt
under the Credit Facilities and Incurred pursuant to Section 4.05(b)(1) and
(b)(6);


 


(5)           pledges
or deposits under worker’s compensation laws, unemployment insurance laws or
similar legislation, or good faith deposits in connection with bids,


 


22

















 


tenders,
contracts or leases, or to secure public or statutory obligations, surety
bonds, customs duties and the like, or for the payment of rent, in each case
incurred in the ordinary course of business and not securing Debt;


 


(6)           Liens
imposed by law, such as landlords’, carriers’, vendors’, warehousemen’s and
mechanics’ liens, in each case for sums not yet due or being contested in good
faith and by appropriate proceedings;


 


(7)           Liens
in respect of taxes and other governmental assessments and charges which are
not yet due or which are being contested in good faith and by appropriate
proceedings promptly instituted and diligently pursued; provided that any
reserve or other appropriate provision as shall be required in accordance with
GAAP shall have been made therefor;


 


(8)           Liens
securing Trade Obligations that encumber the documents and other property the
purchase of which is supported by such Trade Obligations and the proceeds
thereof;


 


(9)           survey
exceptions, encumbrances, easements or reservations of, or rights of others
for, licenses, rights of way, sewers, electric lines, telegraph and telephone
lines and other similar purposes, or zoning or other restrictions as to the use
of real property, not interfering in any material respect with the conduct of
the business of the Company and its Restricted Subsidiaries;


 


(10)         Liens
arising in the ordinary course of business securing advances, or progress or
partial payments, by a customer of the Company or any Restricted Subsidiary
encumbering assets purchased or built pursuant to any engineering,
construction, procurement, manufacturing, equipment or supply contract with
such customer;


 


(11)         licenses
or leases or subleases as licensor, lessor or sublessor of any of its property,
including intellectual property, in the ordinary course of business;


 


(12)         customary
Liens in favor of trustees and escrow agents, and netting and setoff rights,
banker’s liens and the like in favor of financial institutions and counterparties
to financial obligations and instruments, excluding Hedging Agreements, in each
case, arising in the ordinary course of business;


 


(13)         restrictions
on the transfer of assets to be sold pursuant to merger agreements, stock or
asset purchase agreements and similar agreements so long as such transfer is
otherwise permitted under this Indenture and such restriction is imposed only
during the period pending such disposition (so long as such restrictions do not
continue for more than a customary period for transactions of such type);


 


(14)         options,
put and call arrangements, rights of first refusal and similar rights relating
to Investments in Joint Ventures, partnerships and the like that are not
Subsidiaries;


 


23

















 


(15)         judgment
liens, and Liens securing appeal bonds or letters of credit issued in support
of or in lieu of appeal bonds, so long as (i) no Event of Default then exists
under paragraph six of Section 6.01 and (ii) the Company or the respective
Restricted Subsidiary is contesting such judgment in good faith and is
maintaining adequate services in accordance with GAAP;


 


(16)         Liens
upon the property or assets of any Restricted Subsidiary (other than a
Guarantor) securing Performance Obligations otherwise permitted under Section
4.05(b)(14) and/or (b)(15);


 


(17)         Liens
(including the interest of a lessor under a Capital Lease, but excluding any
Liens arising pursuant to a Sale and Leaseback Transaction) on property that
secures Debt Incurred for the purpose of financing all or any part of the
purchase price or cost of engineering of, procurement for, or construction or
improvement of such property and which attach within 365 days after the date of
such purchase or the completion of construction or improvement to the extent
such Debt is Incurred under Section 4.05(b)(7);


 


(18)         Liens
on property of a Person at the time such Person becomes a Restricted Subsidiary
of the Company, provided such
Liens were not created in contemplation thereof and do not extend to any other
property of the Company or any Restricted Subsidiary;


 


(19)         Liens
on property at the time the Company or any of the Restricted Subsidiaries
acquires such property, including any acquisition by means of a merger or
consolidation with or into the Company or a Restricted Subsidiary of such
Person, provided such Liens were
not created in contemplation thereof and do not extend to any other property of
the Company or any Restricted Subsidiary;


 


(20)         Liens
securing Hedging Agreements so long as such Hedging Agreements relate to Debt
that is, and is permitted to be under this Indenture, secured by a Lien on the
same property securing such Hedging Agreements;


 


(21)         any
pledge of the Capital Stock of an Unrestricted Subsidiary, Non-Wholly Owned
Subsidiary or Joint Venture to secure Debt of such Unrestricted Subsidiary,
Non-Wholly Owned Subsidiary or Joint Venture, to the extent such pledge
constitutes an Investment permitted under Section 4.06;


 


(22)         extensions,
renewals or replacements of any Liens referred to in clauses (1), (2), (16),
(17), (18) or (19) in connection with the refinancing of the obligations
secured thereby, provided that such Lien does not extend to any other property
and, except as contemplated by the definition of “Permitted Refinancing Debt”,
the amount secured by such Lien is not increased;


 


(23)         Liens
with respect to Joint Ventures or Non-Wholly Owned Subsidiaries or other
similar arrangements to secure the obligations of one joint venture party to
another, provided that such Liens
do not secure Debt;


 


24

















 


(24)         Liens
on accounts receivable and related assets and proceeds thereof arising in
connection with a Permitted Receivables Financing;


 


(25)         Liens
resulting from the deposit of funds or evidences of Debt in trust for the
purpose of defeasing Debt of the Company or any Restricted Subsidiary, which
defeasance is otherwise permitted under this Indenture;


 


(26)         Liens
securing Debt of any Foreign Restricted Subsidiary or Martinez Cogen Limited
Partnership otherwise permitted to be incurred under this Indenture; and


 


(27)         other
Liens (including any Liens arising in connection with any Sale and Leaseback
Transaction) not permitted by the foregoing securing obligations in an
aggregate amount not exceeding $10,000,000 at any time outstanding.


 


For
purposes hereof, any Liens Incurred by the Company or any of its Restricted
Subsidiaries subsequent to March 26, 2004 shall be deemed to have been Incurred
on the Issue Date (and, to the extent that such Liens would not have been
permitted to have been Incurred at such time, the Company shall be deemed to be
in breach of Section 4.07).


 


“Permitted Receivables Financing” means any
receivables financing facility or arrangement pursuant to which a Securitization
Subsidiary purchases or otherwise acquires accounts receivable of the Company
or any Restricted Subsidiaries and enters into a third party financing thereof
on terms that the Board of Directors has concluded are customary and market
terms fair to the Company and its Restricted Subsidiaries.


 


“Permitted Refinancing Debt” has the meaning
set forth in Section 4.05(b)(5) of this Indenture.


 


“Permitted Senior Liens” means Permitted
Liens other than Liens of the type referred to in clauses (2), (3), (15), (16),
(21) or (22) of the definition of “Permitted Liens” in this Section 1.01.


 


“Person” means an individual, a corporation,
a partnership, a limited liability company, an association, a trust or any
other entity, including a government or political subdivision or an agency or
instrumentality thereof.


 


“Post-Petition Interest” means any interest
that accrues after the commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency or reorganization of the Company or any
Guarantor (or would accrue but for the operation of applicable bankruptcy or
insolvency laws), whether or not such interest is allowed or allowable as a
claim in any such proceeding.


 


“Preferred Stock” means, with respect to any
Person, any and all Capital Stock which is preferred as to the payment of
dividends or distributions, upon liquidation or otherwise, over another class
of Capital Stock of such Person.


 


“principal” of any Debt means the principal
amount of such Debt (or if such Debt was issued with original issue discount,
the face amount of such Debt less the remaining unamortized


 


25

















 


portion of the original issue discount of
such Debt), together with, unless the context otherwise indicates, any premium
then payable on such Debt.


 


“Private Exchange” has the meaning set forth
in Section 2.02(e).


 


“Private Exchange Note” has the meaning set
forth in Section 2.02(e).


 


“Purchaser” means the purchaser party to a
purchase agreement with the Company relating to the sale of the Series B Notes
by the Company.


 


 “Qualified
Equity Interests” means all Equity Interests of a Person other than
Disqualified Equity Interests.


 


“Qualified Stock” means all Capital Stock of
a Person other than Disqualified Stock.


 


“Qualified Term Loans” means term loans
incurred under a Credit Facility (i) the proceeds of which are applied to the
redemption of all or a portion of the principal of the Notes and (ii) that have
a Stated Maturity no earlier than the Notes, and the Average Life of which is
at least equal to the remaining Average Life of the Notes.


 


“refinance” has the meaning assigned to such
term in Section 4.05(b)(5).


 


“Register” has the meaning assigned to such
term in Section 2.09(a).


 


“Registrar” means a Person, appointed by the
Company pursuant to Section 2.03(a), engaged to maintain the Register.


 


“Registration Rights Agreement” means the
Registration Rights Agreement dated on or about the Issue Date between the
Company and the Purchasers with respect to the Series B Notes.


 


“Regular Record Date” means, for the
interest payable on any Interest Payment Date, the
[                 ]
or [                 ]
(whether or not a Business Day) next preceding such Interest Payment Date.


 


“Regulation S” means Regulation S under the
Securities Act.


 


“Regulation S Certificate” means a
certificate substantially in the form of Exhibit F hereto.


 


“Restricted Legend” means the legend set
forth in Exhibit D.


 


“Restricted Payment” has the meaning
assigned to such term in Section 4.06(a).


 


“Restricted Period” means the relevant
40-day distribution compliance period as defined in Regulation S.


 


“Restricted Subsidiary” means any Subsidiary
of the Company other than an Unrestricted Subsidiary.


 


26

















 


“Rule 144A” means Rule 144A under the
Securities Act.


 


“Rule 144A Certificate” means a certificate
substantially in the form of Exhibit G hereto.


 


“S&P” means Standard & Poor’s
Ratings Group, a division of McGraw Hill, Inc. and its successors.


 


“Sale and Leaseback Transaction” means, with
respect to any Person, an arrangement whereby such Person enters into a Capital
Lease of property sold by such Person to the lessor in contemplation of such
lease (other than a lease entered into solely for the purpose of permitting such
Person to complete its commitments under any contractual arrangement with a
customer of such Person in existence at the time of the sale to the lessor).


 


 “Secured
Obligations” means all indebtedness, obligations and liabilities of
the Company and the Guarantors to the Holders from time to time arising under
or in connection with or related to (including under any guarantee of) or
evidenced by the Notes, the Note Guarantees or this Indenture, and all
extensions or renewals thereof, whether such indebtedness, obligations or
liabilities are direct or indirect, otherwise secured or unsecured, joint or
several, absolute or contingent, due or to become due, whether for payment or
performance, now, existing or hereafter arising.  Without limitation of the foregoing, such indebtedness,
obligations and liabilities include the principal amount of the Notes, premium,
interest (including Post-Petition Interest), fees, indemnities or expenses
under or in connection with (including all guaranties of) the Notes, the Note
Guarantees or this Indenture, and all extensions and renewals thereof, whether
or not such indebtedness, obligations or liabilities were made in compliance
with the terms and conditions of this Indenture or in excess of the obligation
of the Holders to lend.  Secured
Obligations shall remain Secured Obligations notwithstanding any assignment or
transfer or any subsequent assignment or transfer of any of the Secured
Obligations or any interest therein.


 


“Secured Party” means the Trustee, each
Holder, the beneficiaries of each indemnification obligation undertaken by the
Company or any Guarantor hereunder or under any Collateral Document and the
successors and assigns of each of the foregoing.


 


“Securities Act” means the Securities Act of
1933, as amended.


 


“Securitization Subsidiary” means a
Subsidiary of the Company:


 


(1)           that
is designated a “Securitization Subsidiary” by the board of directors,


 


(2)           that
does not engage in, and whose charter prohibits it from engaging in, any
activities other than Permitted Receivables Financings and any activity
necessary, incidental or related thereto,


 


(3)           no
portion of the Debt or any other obligation, contingent or otherwise, of which


 


27

















 


(A)          is
Guaranteed by the Company or any Restricted Subsidiary of Foster Wheeler, LLC,


 


(B)           is
recourse to or obligates the Company or any Restricted Subsidiary of the
Company in any way, or


 


(C)           subjects
any property or asset of the Company or any Restricted Subsidiary of the
Company, directly or indirectly, contingently or otherwise, to the satisfaction
thereof,


 


(4)           with
respect to which neither the Company nor any Restricted Subsidiary of the
Company (other than an Unrestricted Subsidiary) has any obligation to maintain
or preserve its financial condition or cause it to achieve certain levels of
operating results other than, in respect of clauses (3) and (4), pursuant to
customary representations, warranties, covenants and indemnities entered into
in connection with a Permitted Receivables Financing.


 


“Security Agreement” means the Security
Agreement dated as of the Issue Date by the Company and the Guarantors to the
Trustee.


 


“Senior Debt” means, on any date,
collectively (i) all Debt outstanding under Credit Facilities incurred pursuant
to Section 4.05(b)(1) but excluding any issued but undrawn letters of credit
issued under the Credit Agreement or any other Credit Facility, (ii) any
outstanding Notes, the Company’s 6.75% Senior Notes due 2005 or any other Debt
Incurred after the issue date that ranks pari
passu with the Notes, (iii) any Debt (other than Trade Obligations)
that is entitled to the benefits of any Lien upon any property of the Company
or any Restricted Subsidiary, (iv) any Debt, other than Debt that is expressly
subordinated to the Notes, in respect of which any Restricted Subsidiary that
is not a Guarantor is directly or indirectly obligated and (v) any Encumbered
Performance Obligations.


 


“Senior Debt to Consolidated Cash Flow Ratio”
means, on any date, the ratio of (a) the sum of all Senior Debt on such date to
(b) the aggregate amount of Consolidated Cash Flow for the four most recent
full fiscal quarters for which internal financial statements are available
immediately preceding the date of the transaction giving rise to the need to
calculate the ratio.


 


“Shelf Registration Statement” means the
Shelf Registration Statement as defined in the Registration Rights Agreement.


 


“Significant Restricted Subsidiary” means
any Restricted Subsidiary that would be a “significant subsidiary” as defined
in Article 1, Rule 1-02 of Regulation S-X promulgated under the Securities Act,
as such regulation is in effect on the Issue Date.


 


“Stated Maturity” means (i) with respect to
any Debt, the date specified as the fixed date on which the final installment
of principal of such Debt is due and payable, (ii) with respect to any
scheduled installment of principal of or interest on any Debt, the date
specified as the fixed date on which such installment is due and payable as set
forth in the documentation governing such Debt, not including any contingent
obligation to repay, redeem or repurchase


 


28

















 


prior to the regularly scheduled date for
payment or (iii) with respect to any Debt payable “on demand”, the date on
which such demand is made or exercised in accordance with its terms.


 


“Subordinated Debt” means any Debt of the
Company or any Guarantor which is subordinated in right of payment to the Notes
or the Note Guarantee, as applicable, pursuant to a written agreement to that
effect.


 


“Subsidiary” means with respect to any
Person, any corporation, association or other business entity of which more
than 50% of the outstanding Voting Stock is owned, directly or indirectly, by,
or, in the case of a partnership, the sole general partner or the managing
partner or the only general partners of which are, such Person and one or more
Subsidiaries of such Person (or a combination thereof). Unless otherwise
specified, “Subsidiary” means a Subsidiary of the Company.


 


“Subsidiary Guarantor” means a Guarantor
that is a Subsidiary of the Company.


 


“Temporary Offshore Global Note” means an
Offshore Global Note that bears the Temporary Offshore Global Note Legend.


 


“Temporary Offshore Global Note Legend” means
the legend set forth in Exhibit L.


 


“Trade Obligations” means all letters of
credit, bank guarantees, bankers’ acceptances or other similar instruments
issued in respect of trade payables or similar obligations but in any event
excluding Performance Obligations.


 


“Trustee” means the party named as such in
the first paragraph of this Indenture or any successor trustee under this
Indenture pursuant to Article 7.


 


“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939.


 


“U.K. Credit Facility” means the Financing
Agreement dated as of January 26, 2004, by and among Foster Wheeler Limited,
Foster Wheeler Energy Limited, Process Industries Agency Limited, Foster
Wheeler South Africa (Pty) Limited, Foster Wheeler Properties (Pty) Limited,
the guarantors signatory thereto, the lenders signatory thereto and Saberasu
Japan Investments II B.V as Collateral Agent and as Administrative Agent, as
amended from time to time.


 


“U.S. Global Note” means a Global Note that
bears the Restricted Legend representing Series B Notes issued and sold
pursuant to Rule 144A, or Private Exchange Notes.


 


“U.S. Government Obligations” means
obligations issued or directly and fully guaranteed or insured by the United
States of America or by any agency or instrumentality thereof, provided that the full faith and credit of
the United States of America is pledged in support thereof.


 


“Unrestricted Subsidiary” means (1) any
Securitization Subsidiary or (2) any Subsidiary of the Company that at the time
of determination has previously been designated, and continues to be, an
Unrestricted Subsidiary in accordance with Section 4.14.  As of the Issue Date the following
Subsidiaries will be designated as Unrestricted Subsidiaries: 4900 Singleton


 


29

















 


L.P.; 8925 Rehco, Inc.; Adirondack Resource
Recovery Associates, L.P.; Barsotti’s Inc.; BOC/FW Canoas Hidrogenio Ltda.;
Chirliu, Inc.; Foster Wheeler Adibi Engineering; Foster Wheeler Adirondack,
Inc.; Foster Wheeler America Latina, Ltda.; Foster Wheeler Andina S.A.; Foster
Wheeler Architectural Services Corporation; Foster Wheeler Australia
Proprietary Limited; Foster Wheeler Bridgewater, Inc.; Foster Wheeler Canadian
Resources, Ltd.; Foster Wheeler Canoas Inc.; Foster Wheeler China, Inc.; Foster
Wheeler Constructors de Mexico S. de R.I. de C.V.; Foster Wheeler Energy China,
Inc.; Foster Wheeler Energy India, Inc.; Foster Wheeler Environmental Services,
Inc.; Foster Wheeler Foundation; Foster Wheeler Funding II LLC; Foster Wheeler
Global Pharmaceuticals, LLC; Foster Wheeler Hudson Falls, Inc.; Foster Wheeler
Hydrobras, Inc.; Foster Wheeler Hydroven, Inc.; Foster Wheeler Hydrox, Inc.;
Foster Wheeler Ingenieros Y Constructores, S.A. de C.V.; Foster Wheeler K.K.;
Foster Wheeler (London) Limited; Foster Wheeler Maintenance, Inc.; Foster
Wheeler Penn Resources, Inc.; Foster Wheeler (Philippines) Corporation; Foster
Wheeler Rio Grande, L.P.; Foster Wheeler Saudi Arabia Company Limited; Foster
Wheeler Somerset Limited Partnership; Foster Wheeler (Thailand) Limited; Foster
Wheeler Trading Company A.G., S.A.; Foster Wheeler Trading Company, Ltd.;
Foster Wheeler Vietnam Private LTD.; Foster Wheeler World Services Corporation;
FW European E&C Ltd.; FWPI Ltd.; FWPS Specialty Products, Inc.; Hartman
Consulting Corporation; HFM Field Services, Inc.; HFM Tray Canada, Ltd.; New
Ashford, Inc.; Oy Bioflow A.B.; Perryville Corporate Park Condominium
Association, Inc.; Somerset Corporate Center Associates; Thelco Co.; Tray,
Inc.; Tray Special Products, Inc.; Tray (UK) Limited.


 


“Voting Stock” means, with respect to any
Person, Capital Stock of any class or kind ordinarily having the power to vote
for the election of directors, managers or other voting members of the
governing body of such Person.


 


“Wholly Owned” means, with respect to and
Restricted Subsidiary, a Restricted Subsidiary all of the outstanding capital
stock of which (other than any director’s qualifying shares) is owned by the
Company and/or one or more of its Wholly Owned Restricted Subsidiaries (or a combination
thereof).


 


Section 1.02. 
Trust Indenture
Act Provisions.  Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture.  All other terms used in this Indenture that are defined by the
TIA, defined by reference to another statute or defined by SEC rule under the
TIA have the meanings so assigned to them.


 


Section 1.03.  Rules of Construction.  Unless the context otherwise requires or
except as otherwise expressly provided,


 


(1)           an accounting term not otherwise
defined has the meaning assigned to it in accordance with GAAP;


 


(2)           “herein,” “hereof” and other words of
similar import refer to this Indenture as a whole and not to any particular
Section, Article or other subdivision;


 


30

















 


(3)           all references to Sections or
Articles or Exhibits refer to Sections or Articles or Exhibits of or to this
Indenture unless otherwise indicated;


 


(4)           words in the singular include the
plural, and in the plural include the singular;


 


(5)           references to a Person shall include
such Person’s permitted successors and assigns;


 


(6)           references to agreements or
instruments, or to statutes or regulations (or sections thereunder), are to
such agreements or instruments, or statutes or regulations, as amended from
time to time (or to successor statutes and regulations)(or sections
thereunder); and


 


(7)           in the event that a transaction meets
the criteria of more than one category of permitted transactions or listed
exceptions the Company may classify such transaction as it, in its sole
discretion, determines.


 


ARTICLE 2

THE NOTES


 


Section 2.01. 
Form, Dating and
Denominations; Legends. 
(a)  The Series A Notes and the
related Trustee’s certificate of authentication will be substantially in the
form attached as Exhibit A.  The Series
B Notes and the related Trustee’s certificate of authentication will be
substantially in the form attached as Exhibit B.  The terms and provisions contained in the forms of the Notes annexed
as Exhibits A and B constitute, and are hereby expressly made, a part of this
Indenture.  The Notes may have
notations, legends or endorsements required by law, rules of or agreements with
national securities exchanges to which the Company is subject, or usage.  Each Note will be dated the date of its
authentication.  The Notes will be
issuable in denominations of $1.00 in principal amount and any multiple of
$1.00 in excess thereof.


 


(b)           (1)           Except
as otherwise provided in paragraph (c) of this Section 2.01, Sections
2.10(b)(3), (b)(5), or (c) or Section 2.09(b)(4), each Initial Series B Note
and each Private Exchange Note will bear the Restricted Legend.


 


(2)           Each
Global Note, whether or not an Initial Series B Note, will bear the DTC Legend.


 


(3)           Initial
Series B Notes offered and sold in reliance on any exception under the
Securities Act other than Regulation S or Rule 144A will be issued, and upon
the request of the Company to the Trustee, Initial Series B Notes offered and
sold in reliance on Rule 144A may be issued, in the form of Certificated Notes.


 


(4)           Exchange
Notes will be issued, subject to Section 2.09(b), in the form of one or more
Global Notes.


 


(c)           (1)           If
the Company determines (upon the advice of counsel and such other
certifications and evidence as the Company may reasonably require) that an
Initial Series B Note


 


31

















 


or a Private Exchange Note is
eligible for resale pursuant to Rule 144(k) under the Securities Act (or a
successor provision) and that the Restricted Legend is no longer necessary or
appropriate in order to ensure that subsequent transfers of the Note (or a
beneficial interest therein) are effected in compliance with the Securities
Act, or


 


(2)           after
an Initial Series B Note or a Private Exchange Note is


 


(x)            sold
pursuant to an effective registration statement under the Securities Act,
pursuant to the Registration Rights Agreement, the Additional Registration
Rights Agreement or otherwise, or (y) is validly tendered for exchange into an
Exchange Note pursuant to an Exchange Offer


 


the Company may instruct the Trustee to cancel the Initial Series B
Note or Private Exchange Note, as the case may be, and issue to the Holder
thereof (or to its transferee) a new Note of like series (in the case of
Private Exchange Notes), tenor and amount, registered in the name of the Holder
thereof (or its transferee), that does not bear the Restricted Legend, and the
Trustee will comply with such instruction.


 


(d)           By its acceptance of any Note bearing
the Restricted Legend (or any beneficial interest in such a Note), each Holder
thereof and each owner of a beneficial interest therein acknowledges the
restrictions on transfer of such Note (and any such beneficial interest) set
forth in this Indenture and in the Restricted Legend and agrees that it will
transfer such Note (and any such beneficial interest) only in accordance with
this Indenture and the Restricted Legend.


 


Section 2.02. 
Execution and
Authentication; Exchange Notes. 
(a)  An Officer shall execute the
Notes for the Company by facsimile or manual signature in the name and on
behalf of the Company.  If an Officer
whose signature is on a Note no longer holds that office at the time the Note
is authenticated, the Note will still be valid.


 


(b)           A Note shall not be valid until the
Trustee manually signs the certificate of authentication on the Note, with the
signature conclusive evidence that the Note has been authenticated under this
Indenture.


 


(c)           At any time and from time to time
after the execution and delivery of this Indenture, the Company may deliver
Notes executed by the Company to the Trustee for authentication.  The Trustee shall authenticate and deliver:


 


(i)            Initial Series A Notes for original
issue in the aggregate principal amount not to exceed $150,000,000,


 


(ii)           Initial Series B Notes for original
issue in the aggregate principal amount not to exceed $120,000,000, and


 


(iii)          Exchange Notes and Private Exchange
Notes from time to time for issue in exchange for a like aggregate principal
amount of Initial Series B Notes,


 


in each case, after the following conditions have been met:


 


(1)           Receipt by the Trustee of an
Officers’ Certificate specifying:


 


32

















 


(A)          the amount of Notes
to be authenticated and the date on which the Notes are to be authenticated,


 


(B)           whether the Notes
are to be Initial Series A Notes, Initial Series B Notes, Exchange Notes or
Private Exchange Notes,


 


(C)           whether the Notes
are to be issued as one or more Global Notes or Certificated Notes, and


 


(D)          other information the
Company may determine to include or the Trustee may reasonably request.


 


(2)           In the case of Exchange Notes,
effectiveness of an Exchange Offer Registration Statement, or a shelf
registration statement pursuant to the Additional Registration Rights
Agreement, and consummation of the exchange offer or resale, as the case may
be, thereunder (and receipt by the Trustee of an Officers’ Certificate to that
effect).  Initial Series B Notes
exchanged for Exchange Notes will be cancelled by the Trustee.


 


(d)           If Series B Notes are sold by a
Holder pursuant to a resale shelf registration statement required by the
Additional Registration Rights Agreement, then such sale will be effected by
the cancellation of such Series B Notes, and the issuance of a like principal
amount of Series A Notes to the purchaser thereof.


 


(e)           Upon the request of a Holder of
Series B Notes, the Company shall issue and deliver to such Holder, in exchange
(a “Private Exchange”) for such
Series B Notes a like principal amount of Series A Notes that are identical in
all material respects to the Series A Notes (the “Private Exchange Notes”) and which are issued pursuant to this
Indenture; provided that (i) such
Private Exchange Securities shall bear the Restrictive Legend and (ii) the
Company shall have received satisfactory opinions and certificates from such
Holder with respect to the Private Exchange.


 


Section 2.03. 
Registrar, Paying
Agent and Authenticating Agent; Paying Agent to Hold Money in Trust.  (a) 
The Company may appoint one or more Registrars and one or more Paying
Agents, and the Trustee may appoint an Authenticating Agent, in which case each
reference in this Indenture to the Trustee in respect of the obligations of the
Trustee to be performed by that Agent will be deemed to be references to the
Agent.  The Company may act as Registrar
or (except for purposes of Article 8) Paying Agent.  In each case an Agent is appointed pursuant to this Section
2.03(a), the Company and the Trustee will enter into an appropriate agreement
with such Agent implementing the provisions of this Indenture relating to the
obligations of the Trustee to be performed by such Agent and the parties’
related rights.  The Company initially
appoints the Trustee as Registrar and Paying Agent and the Trustee hereby
accepts such appointments.


 


(b)           The Company will require each Paying
Agent other than the Trustee to agree in writing that such Paying Agent will
hold in trust for the benefit of the Holders or the Trustee all money held by
such Paying Agent for the payment of principal of and interest on the Notes and
will promptly notify the Trustee of any default by the Company in making any
such payment.


 


33

















 


The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed, and the Trustee may at any time during the continuance
of any payment default, upon written request to a Paying Agent, require the Paying
Agent to pay all money held by it to the Trustee and to account for any funds
disbursed.  Upon doing so, the Paying
Agent will have no further liability for the money so paid over to the Trustee.


 


Section 2.04. 
Replacement
Notes.  If any mutilated Note
is surrendered to the Trustee, the Company shall execute and, upon the
Company’s written request, the Trustee shall authenticate and deliver a new
definitive Note, of like series, tenor and aggregate principal amount and equal
face amount of principal, registered in the same manner, dated the date of its
authentication and bearing interest from the date to which interest has been
paid on such Note, in exchange and substitution for such Note (upon surrender
and cancellation thereof); provided, that the applicant for such new Note shall
furnish to the Company and to the Trustee such reasonable bond or indemnity as
may be required by them to save each of them harmless.


 


If
there shall be delivered to the Company and the Trustee (a) evidence to their
satisfaction of the destruction, loss or theft of any Note and (b) such bond or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Note has been acquired by a bona fide purchaser, the Company
shall execute and, upon the Company’s request, the Trustee shall authenticate
and deliver a new definitive Note, of like tenor and aggregate principal amount
and equal face amount of principal registered in the same manner, dated the
date of its authentication and bearing interest from the date to which interest
has been paid on such Note, in lieu of and substitution for such Note.


 


Upon
the issuance of any new Note under this Section 2.04, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.


 


Every
new Note issued pursuant to this Section 2.04 in lieu of any destroyed, lost or
stolen Note shall constitute an original additional contractual obligation of
the Company.


 


The
provisions of this Section 2.04 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.


 


Section 2.05. 
Outstanding Notes.  (a) 
Notes outstanding at any time shall be all Notes that have been
authenticated by the Trustee except for:


 


(1)           Notes cancelled by the Trustee or
delivered to it for cancellation;


 


(2)           any Note which has been replaced
pursuant to Section 2.04 unless and until the Trustee and the Company receive
proof satisfactory to them that the replaced Note is held by a bona fide
purchaser; and


 


(3)           on or after the maturity date or any
redemption date or date for purchase of the Notes pursuant to an Offer to
Purchase, those Notes payable or to be redeemed or


 


34

















 


purchased
on that date for which the Trustee (or Paying Agent, other than the Company or
an Affiliate of the Company) holds money sufficient to pay all amounts then
due.


 


(b)           A Note shall not cease to be
outstanding because the Company or one of its Affiliates holds the Note, provided
that in determining whether the Holders of the requisite principal amount of
the outstanding Notes have given or taken any request, demand, authorization,
direction, notice, consent, waiver or other action hereunder, Notes owned by
the Company or any Affiliate of the Company shall be disregarded and deemed not
to be outstanding, (it being understood that in determining whether the Trustee
is protected in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only Notes which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded).  Notes so owned which have
been pledged in good faith may be regarded as outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee’s right to act with respect to
such Notes and that the pledgee is not the Company or any Affiliate of the
Company.


 


Section 2.06. 
Temporary Notes. 
Until definitive Notes are ready for delivery, the Company may prepare
and execute and the Trustee will authenticate and deliver temporary Notes.  Temporary Notes will be substantially in the
form of definitive Notes but may have insertions, substitutions, omissions and
other variations determined to be appropriate by the Officer executing the
temporary Notes, as evidenced by the execution of the temporary Notes.  If temporary Notes are issued, the Company
shall cause definitive Notes to be prepared without unreasonable delay.  After the preparation of definitive Notes,
the temporary Notes will be exchangeable for definitive Notes upon surrender of
the temporary Notes at the office or agency of the Company designated for such
purpose pursuant to Section 4.02, without charge to the Holder.  Upon surrender for cancellation of any
temporary Notes, the Company will execute and the Trustee will authenticate and
deliver in exchange therefor a like principal amount of definitive Notes of
authorized denominations.  Until so
exchanged, the temporary Notes will be entitled to the same benefits under this
Indenture as definitive Notes.


 


Section 2.07. 
Cancellation.  All Notes surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by it.  The Company at any time may deliver to the
Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Notes previously authenticated
hereunder which the Company has not issued and sold.  Any Registrar or the Paying Agent will forward to the Trustee any
Notes surrendered to it for transfer, exchange or payment.  The Trustee will cancel all Notes surrendered
for transfer, exchange, payment or cancellation and dispose of them in
accordance with its normal procedures. 
The Company may not issue new Notes to replace Notes it has paid in full
or delivered to the Trustee for cancellation.


 


Section 2.08. 
CUSIP and CINS
Numbers.  The Company in issuing the Notes shall use
“CUSIP” and “CINS” numbers, and the Trustee will use CUSIP or CINS numbers in
notices of redemption or exchange or in Offers to Purchase as a convenience to
Holders, any such notice shall state that no representation is made as to the
correctness of such numbers either as printed


 


35

















 


on the Notes or as contained in
any notice of redemption or exchange or Offer to Purchase.  The Company will promptly notify the Trustee
of any change in the CUSIP or CINS numbers.


 


Section 2.09. 
Registration,
Transfer and Exchange. 
(a)  The Notes will be issued in
registered form only, without coupons, and the Company shall cause the Trustee
to maintain a register (the “Register”) of the Notes, for registering the record
ownership of the Notes by the Holders and transfers and exchanges of the Notes.


 


(b)  (1) 
Each Global Note will be registered in the name of the Depositary or its
nominee and, so long as DTC is serving as the Depositary thereof, will bear the
DTC Legend.


 


(2)           Each
Global Note will be delivered to the Trustee as custodian for the
Depositary.  Transfers of a Global Note
(but not a beneficial interest therein) will be limited to transfers thereof in
whole, but not in part, to the Depositary, its successors or their respective
nominees, except (1) as set forth in Section 2.09(b)(4) and (2) transfers of
portions thereof in the form of Certificated Notes may be made upon request of
an Agent Member (for itself or on behalf of a beneficial owner) by written
notice given to the Trustee by or on behalf of the Depositary in accordance
with customary procedures of the Depositary and in compliance with this Section
2.09 and Section 2.10.


 


(3)           Agent
Members will have no rights under this Indenture with respect to any Global
Note held on their behalf by the Depositary, and the Depositary may be treated
by the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner and Holder of such Global Note for all purposes whatsoever.  Notwithstanding the foregoing, the
Depositary or its nominee may grant proxies and otherwise authorize any Person
(including any Agent Member and any Person that holds a beneficial interest in
a Global Note through an Agent Member) to take any action which a Holder is
entitled to take under this Indenture or the Notes, and nothing herein will
impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a holder of any
security.


 


(4)           If
(x) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for a Global Note and a successor depositary is not
appointed by the Company within 90 days of such notice or (y) an Event of
Default has occurred and is continuing and the Trustee has received a written
request from the Depositary, the Trustee will promptly exchange each beneficial
interest in the Global Note for one or more Certificated Notes in authorized
denominations having an equal aggregate principal amount registered in the name
of the owner of such beneficial interest, as identified to the Trustee by the
Depositary in writing, and thereupon the Global Note will be deemed
canceled.  If such Note does not bear
the Restricted Legend, then the Certificated Notes issued in exchange therefor
will not bear the Restricted Legend.  If
such Note bears the Restricted Legend, then the Certificated Notes issued in
exchange therefor will bear the Restricted Legend, provided that any Holder of
any such Certificated Note issued in exchange for a beneficial interest in an
Offshore Global Note will have the right upon presentation to the Trustee of a
duly completed Certificate of Beneficial Ownership after the Restricted Period
to exchange such Certificated Note for a Certificated Note of like


 


36

















 


tenor
and amount that does not bear the Restricted Legend, registered in the name of
such Holder.


 


(c)           Each
Certificated Note will be registered in the name of the Holder thereof or its
nominee.


 


(d)           A
Holder may transfer a Note (or a beneficial interest therein) to another Person
or exchange a Note (or a beneficial interest therein) for another Note or Notes
of any authorized denomination by presenting to the Trustee a written request
therefor stating the name of the proposed transferee or requesting such an
exchange, accompanied by any certification, opinion or other document required
by Section 2.10.  The Trustee will
promptly register any transfer or exchange that meets the requirements of this
Section 2.09 by noting the same in the register maintained by the Trustee for
the purpose; provided that:


 


(x)            no
transfer or exchange will be effective until it is registered in such register;
and


 


(y)           the
Trustee will not be required (i) to issue, register the transfer of or exchange
any Note for a period of 15 days before a selection of Notes to be redeemed or
purchased pursuant to an Offer to Purchase, (ii) to register the transfer of or
exchange any Note so selected for redemption or purchase in whole or in part,
except, in the case of a partial redemption or purchase, that portion of any
Note not being redeemed or purchased, or (iii) if a redemption or a purchase
pursuant to an Offer to Purchase is to occur after a Regular Record Date but on
or before the corresponding Interest Payment Date, to register the transfer of
or exchange any Note on or after the Regular Record Date and before the date of
redemption or purchase.  Prior to the
registration of any transfer, the Company, the Trustee and their agents will
treat the Person in whose name the Note is registered as the owner and Holder
thereof for all purposes (whether or not the Note is overdue), and will not be
affected by notice to the contrary.


 


From time to time the Company will execute and the
Trustee will authenticate and deliver additional Notes as necessary in order to
permit the registration of a transfer or exchange in accordance with this
Section 2.09.


 


No service charge will be imposed in connection with
any transfer or exchange of any Note, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than a transfer tax or other similar
governmental charge payable upon exchange pursuant to subsection (b)(4) of this
Section 2.09).


 


(e) (1)  Global
Note to Global Note.  If a
beneficial interest in a Global Note is transferred or exchanged, in accordance
with Section 2.10, for a beneficial interest in another Global Note, the
Trustee will (x) record a decrease in the principal amount of the Global Note
being transferred or exchanged equal to the principal amount of such transfer
or exchange and (y) record a like increase in the principal amount of the other


 


37

















 


Global
Note.  Any beneficial interest in one
Global Note that is transferred to a Person who takes delivery in the form of
an interest in another Global Note, or exchanged for an interest in another Global
Note, will, upon transfer or exchange, cease to be a beneficial interest in
such Global Note and become a beneficial interest in the other Global Note and,
accordingly, will thereafter be subject to all transfer and exchange
restrictions, if any, and other procedures applicable to beneficial interests
in such other Global Note for as long as it remains such an interest.


 


(2)           Global
Note to Certificated Note.  If a
beneficial interest in a Global Note is transferred or exchanged, in accordance
with Section 2.10, for a Certificated Note, the Trustee will (x) record a
decrease in the principal amount of such Global Note equal to the principal
amount of such transfer or exchange and (y) deliver one or more new
Certificated Notes in authorized denominations having an equal aggregate
principal amount to the transferee (in the case of a transfer) or the owner of
such beneficial interest (in the case of an exchange), registered in the name
of such transferee or owner, as applicable.


 


(3)           Certificated
Note to Global Note.  If a
Certificated Note is transferred or exchanged, in accordance with Section 2.10,
for a beneficial interest in a Global Note, the Trustee will (x) cancel such
Certificated Note, (y) record an increase in the principal amount of such
Global Note equal to the principal amount of such transfer or exchange and (z)
in the event that such transfer or exchange involves less than the entire
principal amount of the canceled Certificated Note, deliver to the Holder
thereof one or more new Certificated Notes in authorized denominations having
an aggregate principal amount equal to the untransferred or unexchanged portion
of the canceled Certificated Note, registered in the name of the Holder
thereof.


 


(4)           Certificated
Note to Certificated Note.  If a Certificated
Note is transferred or exchanged, in accordance with Section 2.10, for another
Certificated Note, the Trustee will (x) cancel the Certificated Note being
transferred or exchanged, (y) deliver one or more new Certificated Notes in
authorized denominations having an aggregate principal amount equal to the
principal amount of such transfer or exchange to the transferee (in the case of
a transfer) or the Holder of the canceled Certificated Note (in the case of an
exchange), registered in the name of such transferee or Holder, as applicable,
and (z) if such transfer or exchange involves less than the entire principal
amount of the canceled Certificated Note, deliver to the Holder thereof one or
more Certificated Notes in authorized denominations having an aggregate
principal amount equal to the untransferred or unexchanged portion of the
canceled Certificated Note, registered in the name of the Holder thereof.


 


Section 2.10. 
Restrictions on
Transfer and Exchange. 
(a) The transfer or exchange of any Note (or a beneficial interest
therein) may only be made in accordance with this Section 2.10, Section 2.02
and Section 2.09 and, in the case of a Global Note (or a beneficial interest
therein), the applicable rules and procedures of the Depositary.  The Trustee shall refuse to register any
requested transfer or exchange that does not comply with the preceding
sentence.


 


38

















 


(b)           Subject to paragraph (c), the
transfer or exchange of any Series B Note (or a beneficial interest therein) of
the type set forth in column A below for a Series B Note (or a beneficial
interest therein) of the type set forth opposite in column B below may only be
made in compliance with the certification requirements (if any) described in the
clause of this paragraph set forth opposite in column C below.


 


	
  A

  	
   

  	
  B

  	
   

  	
  C

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  U.S. Global Note

  	
   

  	
  U.S. Global Note

  	
   

  	
  (1)

  
	
  U.S. Global Note

  	
   

  	
  Offshore Global Note

  	
   

  	
  (2)

  
	
  U.S. Global Note

  	
   

  	
  Certificated Note

  	
   

  	
  (3)

  
	
  Offshore Global Note

  	
   

  	
  U.S. Global Note

  	
   

  	
  (4)

  
	
  Offshore Global Note

  	
   

  	
  Offshore Global Note

  	
   

  	
  (1)

  
	
  Offshore Global Note

  	
   

  	
  Certificated Note

  	
   

  	
  (5)

  
	
  Certificated Note

  	
   

  	
  U.S. Global Note

  	
   

  	
  (4)

  
	
  Certificated Note

  	
   

  	
  Offshore Global Note

  	
   

  	
  (2)

  
	
  Certificated Note

  	
   

  	
  Certificated Note

  	
   

  	
  (3)

  



 


(1)           No certification is required.


 


(2)           The Person requesting the transfer or
exchange must deliver or cause to be delivered to the Trustee a duly completed
Regulation S Certificate; provided
that if the requested transfer or exchange is made by the Holder of a
Certificated Note that does not bear the Restricted Legend, then no
certification is required.


 


(3)           The Person requesting the transfer or
exchange must deliver or cause to be delivered to the Trustee (x) a duly
completed Rule 144A Certificate, (y) a duly completed Regulation S Certificate
or (z) a duly completed Institutional Accredited Investor Certificate, and/or
an Opinion of Counsel and such other certifications and evidence as the Company
may reasonably require in order to determine that the proposed transfer or
exchange is being made in compliance with the Securities Act and any applicable
securities laws of any state of the United States; provided that if the
requested transfer or exchange is made by the Holder of a Certificated Note
that does not bear the Restricted Legend, then no certification is
required.  In the event that (i) the
requested transfer or exchange takes place after the Restricted Period and a
duly completed Regulation S Certificate is delivered to the Trustee or (ii) a
Certificated Note that does not bear the Restricted Legend is surrendered for
transfer or exchange, upon such transfer or exchange the Trustee will deliver a
Certificated Note that does not bear the Restricted Legend.


 


(4)           The Person requesting the transfer or
exchange must deliver or cause to be delivered to the Trustee a duly completed
Rule 144A Certificate.


 


(5)           Notwithstanding anything to the
contrary contained herein, if the requested transfer involves a beneficial
interest in an Offshore Global Note during the Restricted Period, the Person
requesting the transfer must deliver or cause to be delivered to the Trustee
(x) a duly completed Rule 144A Certificate or (y) a duly completed


 


39

















 


Institutional
Accredited Investor Certificate and/or an Opinion of Counsel and such other
certifications and evidence as the Company may reasonably require in order to
determine that the proposed transfer is being made in compliance with the
Securities Act and any applicable securities laws of any state of the United
States.  If the requested transfer or
exchange involves a beneficial interest in an Offshore Global Note following
expiration of the Restricted Period, no certification is required and the
Trustee will deliver a Certificated Note that does not bear the Restricted
Legend.


 


(c)           No certification is required in
connection with any transfer or exchange of any Series B Note or Private
Exchange Note (or a beneficial interest therein):


 


(1)           after such Series B Note is eligible
for resale pursuant to Rule 144(k) under the Securities Act (or a successor
provision); provided that the Company has provided the Trustee with an
Officer’s Certificate to that effect, and the Company may require from any
Person requesting a transfer or exchange in reliance upon this clause (1) an
opinion of counsel in customary form and containing customary qualifications
for resales of such type, and any other reasonable certifications and evidence
in order to support such certificate; or


 


(2)(x)       sold
pursuant to an effective registration statement, including a resale shelf
registration statement, pursuant to the Registration Rights Agreement, the
Additional Registration Rights Agreement or otherwise or (y) which is validly
tendered for exchange into an Exchange Note pursuant to an Exchange Offer for
an Exchange Note.


 


Any Certificated Note delivered in reliance upon
this paragraph will not bear the Restricted Legend.


 


(d)           The Trustee will retain copies of all
certificates, opinions and other documents received in connection with the transfer
or exchange of a Note (or a beneficial interest therein), and the Company will
have the right to inspect and make copies thereof at any reasonable time upon
reasonable written notice to the Trustee delivered a reasonable time prior to
such inspection.


 


(e)           No certification is required in
connection with any transfer or exchange of any Series A Note that is not a
Private Exchange Note (or a beneficial interest therein).


 


Section 2.11. 
Temporary
Offshore Global Notes. 
(a) Each Initial Series B Note originally sold by the Purchasers in
reliance upon Regulation S will be evidenced by one or more Offshore Global
Notes that bear the Temporary Offshore Global Note Legend.


 


(b)           An owner of a beneficial interest in
a Temporary Offshore Global Note (or a Person acting on behalf of such an
owner) may provide to the Trustee (and the Trustee will accept) a duly
completed Certificate of Beneficial Ownership at any time after the Restricted
Period (it being understood that the Trustee will not accept any such certificate
during the Restricted Period).  Promptly
after acceptance of a Certificate of Beneficial Ownership with respect to such
a beneficial interest, the Trustee will cause such beneficial interest to be
exchanged for an equivalent beneficial interest in a Permanent Offshore Global
Note, and will (x) permanently reduce the principal amount of such Temporary
Offshore Global Note by the


 


40

















 


amount of such beneficial
interest and (y) increase the principal amount of such Permanent Offshore
Global Note by the amount of such beneficial interest.


 


(c)           Notwithstanding anything to the
contrary contained herein, beneficial interests in a Temporary Offshore Global
Note may be held through the Depositary only through Euroclear and Clearstream
and their respective direct and indirect participants.


 


(d)           Notwithstanding paragraph (b), if
after the Restricted Period any Purchaser owns a beneficial interest in a
Temporary Offshore Global Note, such Purchaser may, upon written request to the
Trustee accompanied by a certification as to its status as an Purchaser,
exchange such beneficial interest for an equivalent beneficial interest in a
Permanent Offshore Global Note, and the Trustee will comply with such request
and will (x) permanently reduce the principal amount of such Temporary Offshore
Global Note by the amount of such beneficial interest and (y) increase the
principal amount of such Permanent Offshore Global Note by the amount of such
beneficial interest.


 


ARTICLE 3

REDEMPTION; OFFER TO PURCHASE


 


Section 3.01.  Optional Redemption.  At any time and from time to time on or
after [     ], 2006, the Company may redeem the Notes,
in whole or in part, upon not less than 30 nor more than 60 days’ prior notice,
at a redemption price equal to the percentage of principal amount set forth
below plus accrued and unpaid interest to the redemption date if redeemed
during the twelve-month period beginning on [                 ]
of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2006

  	
   

  	
  [                ]

  	
   

  
	
  2007

  	
   

  	
  [                ]

  	
   

  
	
  2008

  	
   

  	
  [                ]

  	
  %

  
	
  2009

  	
   

  	
  [                ]

  	
  %

  
	
  2010

  	
   

  	
  100.000

  	
  %

  



 


Section 3.02. 
Optional
Redemption; Make Whole. 
At any time prior to [        ],
2006, the Company may, on any one or more occasions, redeem all or a part of
the Notes, upon not less than 30 nor more than 60 days’ prior notice, at a
redemption price equal to the greater of (i) 101% of the principal amount of
the Notes to be redeemed and (ii) 100% of the principal amount of the Notes to
be redeemed plus the Applicable Premium as of the date of redemption, and in
each case plus accrued and unpaid interest to, the date of redemption, subject
to the rights of Holders of the Notes on the relevant record date to receive
interest due on the relevant Interest Payment Date.


 


Section 3.03. 
Method and Effect
of Redemption.  (a) If
the Company elects to redeem Notes, it must notify the Trustee in writing of
the redemption date and the principal amount of Notes to be redeemed by
delivering an Officers’ Certificate at least 45 days before the redemption date
(unless a shorter period is satisfactory to the Trustee).  If fewer than all of the Notes are being
redeemed, the Officers’ Certificate must also specify a record date not less
than 10 days after the date of the notice of redemption is given to the
Trustee, and the Trustee will select the Notes to be redeemed as follows: (1)
if the Notes are listed on any national securities exchange, in compliance with
the requirements of the principal national securities exchange on


 


41

















 


which the Notes are listed; or
(2) if the Notes are not listed on a national securities exchange, on a pro
rata basis (based on amounts tendered), by lot or by any other method the Trustee
deems fair and appropriate, in denominations of $1.00 principal amount and
multiples thereof.  The Trustee will
notify the Company promptly of the Notes or portions of Notes to be called for
redemption, Any notice of redemption must be sent by first-class mail by the
Company or at the Company’s request, by the Trustee in the name and at the
expense of the Company, to Holders whose Notes are to be redeemed at least 30
days but not more than 60 days before the redemption date.


 


(b)           The notice of redemption will
identify the Notes to be redeemed and will include or state the following:


 


(1)           the redemption date;


 


(2)           the redemption price, including the
portion thereof representing any accrued interest;


 


(3)           the place or places where Notes are
to be surrendered for redemption and payment of the redemption price;


 


(4)           that Notes called for redemption must
be so surrendered in order to collect the redemption price;


 


(5)           on the redemption date the redemption
price will become due and payable on Notes called for redemption, and interest
on Notes called for redemption will cease to accrue on and after the redemption
date;


 


(6)           if any Note is to be redeemed in
part, the principal amount of such Note to be redeemed and that after the
redemption date, upon surrender of such Note, new Notes of like series equal in
principal amount to the unredeemed portion thereof will be issued;


 


(7)           if any Note contains a CUSIP or CINS
number, the CUSIP or CINS number;


 


(8)           interest on any Note not redeemed
will continue to accrue; and


 


(9)           the paragraph of the Notes and
Section of this Indenture pursuant to which the Notes called for redemption are
being redeemed.


 


(c)           Once a notice of redemption is sent
to the Holders, Notes called for redemption become due and payable at the
redemption price on the redemption date, and upon surrender of any Notes called
for redemption, the Company shall redeem such Notes at the applicable
redemption price. Commencing on the redemption date, Notes redeemed will cease
to accrue interest.  Upon surrender of
any Note redeemed in part, the Holder will receive a new Note of like series
equal in principal amount to the unredeemed portion of the surrendered Note.


 


42

















 


(d)           The Company may acquire Notes by
means other than a redemption, whether by tender offer, open market purchases,
negotiated transactions or otherwise, in accordance with applicable securities
laws, so long as such acquisitions do not otherwise violate the terms of this
Indenture.


 


Section 3.04. 
Offer to Purchase.  (a) An “Offer to Purchase” means an offer by
the Company to purchase Notes as required by this Indenture.  An Offer to Purchase must be made by written
offer (the “offer”) sent to the Holders. 
The Company will notify the Trustee in writing at least 15 days (or such
shorter period as is acceptable to the Trustee) prior to sending the offer to
Holders of its obligation to make an Offer to Purchase, and the offer will be
sent by the Company or, at the Company’s request, by the Trustee in the name
and at the expense of the Company.


 


(b)           The offer must include or state the
following as to the terms of the Offer to Purchase:


 


(1)           the provision of this Indenture
pursuant to which the Offer to Purchase is being made;


 


(2)           the aggregate principal amount of the
outstanding Notes offered to be purchased by the Company pursuant to the Offer
to Purchase (including, if less than 100% of the Notes, the manner by which
such amount has been determined pursuant to this Indenture) (the “purchase amount”);


 


(3)           the purchase price, including the
portion thereof representing accrued interest;


 


(4)           an expiration date (the “expiration date”) not less than 30 Business
Days or more than 60 days after the date of the offer, and a settlement date
for purchase (the “purchase date”)
not more than five Business Days after the expiration date;


 


(5)           a Holder may tender all or any
portion of its Notes, subject to the requirement that any portion of a Note
tendered must be in a multiple of $1.00 principal amount;


 


(6)           the place or places where Notes are
to be surrendered for tender pursuant to the Offer to Purchase;


 


(7)           each Holder electing to tender a Note
pursuant to the offer will be required to surrender such Note at the place or
places specified in the offer prior to the close of business on the expiration
date (such Note being, if the Company or the Trustee so requires, duly endorsed
or accompanied by a duly executed written instrument of transfer);


 


(8)           interest on any Note not tendered, or
tendered but not purchased by the Company pursuant to the Offer to Purchase,
will continue to accrue;


 


43

















 


(9)           on the purchase date the purchase
price will become due and payable on each Note accepted for purchase, and
interest on Notes purchased will cease to accrue on and after the purchase
date;


 


(10)         (i) if Notes in an aggregate principal
amount less than or equal to the purchase amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company will purchase all such
Notes, and (ii) if the Offer to Purchase is for less than all of the
outstanding Notes and Notes in an aggregate principal amount in excess of the
purchase amount are duly tendered and not withdrawn pursuant to the offer, the
Company will purchase Notes having an aggregate principal amount equal to the
purchase amount on a pro rata basis, with adjustments made in the Company’s
discretion so that only Notes in multiples of $1.00 principal amount will be
purchased;


 


(11)         if any Note is purchased in part, new
Notes of like series and equal in principal amount to the unpurchased portion
of the Note will be issued; and


 


(12)         no representation is being made as to
the correctness of the CUSIP or CINS number either as printed on the Notes or
as contained in the offer and that the Holder should rely only on the other
identification numbers printed on the Notes.


 


(c)           Prior to the purchase date, the
Company will accept tendered Notes for purchase as required by the Offer to
Purchase and deliver to the Trustee all Notes so accepted together with an
Officers’ Certificate specifying which Notes have been accepted for
purchase.  On the purchase date the
purchase price will become due and payable on each Note accepted for purchase,
and interest on Notes purchased will cease to accrue on and after the purchase
date.  The Trustee will promptly return
to Holders any Notes not accepted for purchase and send to Holders new Notes of
like series and equal in principal amount to any unpurchased portion of any
Notes accepted for purchase in part.


 


(d)           The Company will comply with Rule
14e-1 under the Exchange Act and all other applicable laws in making any Offer
to Purchase, and the above procedures will be deemed modified as necessary to
permit such compliance.


 


ARTICLE 4

COVENANTS


 


Section 4.01. 
Payment Of Notes.  (a) 
The Company agrees to pay the principal of, premium, if any, and
interest on the Notes on the dates and in the manner provided in the Notes and
this Indenture.  Not later than 9:00
A.M. (New York City time) on the due date of any principal of, premium, if any,
or interest on any Notes, or any redemption or purchase price of the Notes, the
Company will deposit with the Trustee (or Paying Agent) money in immediately
available funds sufficient to pay such amounts, provided that if the Company or
any Affiliate of the Company is acting as Paying Agent, it will, on or before
each due date, segregate and hold in a separate trust fund for the benefit of
the Holders a sum of money sufficient to pay such amounts until paid to such
Holders or otherwise disposed of as provided in this Indenture.  In each case the Company will promptly
notify the Trustee in writing of its compliance with this paragraph.


 


44

















 


(b)           An installment of principal or
interest will be considered paid on the date due if the Trustee (or Paying
Agent, other than the Company or any Affiliate of the Company) holds on that
date money designated for and sufficient to pay the installment.  If the Company or any Affiliate of the
Company acts as Paying Agent, an installment of principal or interest will be
considered paid on the due date only if paid to the Holders.


 


(c)           The Company agrees to pay interest on
overdue principal, and overdue installments of interest at the rate per annum
specified in the Notes.


 


(d)           Payments in respect of the Notes
represented by the Global Notes are to be made by wire transfer of immediately
available funds to the accounts specified by the Holders of the Global Notes.
With respect to Certificated Notes, the Company will make all payments by wire
transfer of immediately available funds to the accounts specified by the
Holders thereof or, if no such account is specified, by mailing a check to each
Holder’s registered address by first-class mail.


 


Section 4.02. 
Maintenance of
Office or Agency.  The
Company will maintain in the Borough of Manhattan, the City of New York, an
office or agency where Notes may be surrendered for registration of transfer or
exchange or for presentation for payment and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served.  The Company hereby initially designates the
Corporate Trust Office of the Trustee as such office of the Company.  The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency.  If at any time the Company
fails to maintain any such required office or agency or fails to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served to the Trustee.


 


The
Company may also from time to time designate one or more other offices or
agencies where the Notes may be surrendered or presented for any of such
purposes and may from time to time rescind such designations.  The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.


 


Section 4.03. 
Existence.  The Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its existence
and the existence of each of its Restricted Subsidiaries in accordance with
their respective organizational documents, and the material rights, licenses and
franchises of the Company and each Restricted Subsidiary; provided that the
Company is not required to preserve any such right, license or franchise, or
the existence of any Restricted Subsidiary (including any Guarantor, subject to
any applicable provisions of Article 5), if the maintenance or preservation
thereof is no longer desirable in the conduct of the business of the Company
and its Restricted Subsidiaries taken as a whole; and provided further that
this Section 4.03 does not prohibit any transaction otherwise permitted by
Sections 4.12, 5.01 or 5.02.


 


Section 4.04. 
Payment of Taxes
and other Claims.  The
Company shall pay or discharge, and cause each of its Subsidiaries to pay or
discharge before the same become delinquent (i) all material taxes, assessments
and governmental charges levied or imposed upon


 


45

















 


the Company or any Subsidiary
or its income or profits or property, and (ii) all material lawful claims for
labor, materials and supplies that, if unpaid, might by law become a Lien
(other than a Permitted Lien) upon the property of the Company or any
Subsidiary, other than any such tax, assessment, charge or claim the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate reserves (to the extent required
in accordance with GAAP) have been established.


 


Section 4.05. 
Limitation on Debt and
Disqualified or Preferred Stock.  (a)  The Company:


 


(1)           will not, and will not permit any of
its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt); and


 


(2)           will not, and will not permit any
Restricted Subsidiary to, Incur any Disqualified Stock and will not permit any
of its Restricted Subsidiaries that are not Guarantors to Incur any Preferred
Stock (other than Disqualified or Preferred Stock of Restricted Subsidiaries
held by the Company and/or a Restricted Subsidiary that is a Guarantor, so long
as it is held);


 


provided that the Company may Incur, and may permit any Guarantor to Incur,
Debt (including Acquired Debt) or Disqualified Stock, if, on the date of the
Incurrence, after giving effect to the Incurrence and the receipt and
application of the proceeds therefrom, (x) the Fixed Charge Coverage Ratio is
not less than 2.25 to 1.0 and (y) the Senior Debt to Consolidated Cash Flow
Ratio does not exceed 3.50 to 1.0.


 


(b)           Notwithstanding the foregoing, the
Company and, to the extent provided below, any Restricted Subsidiary may Incur
any of the following (“Permitted
Debt”):


 


(1)           Debt (including Debt under the Credit
Agreement and in respect of Trade Obligations or Performance Obligations) of
the Company or any Guarantor pursuant to Credit Facilities (and of Restricted
Subsidiaries pursuant to Guarantees of such Credit Facilities) so long as the
aggregate amount of such Credit Facilities, including the Existing Letter of
Credit Facility, does not exceed $250,000,000 (subject to reduction as provided
in clause (z) below) at any one time outstanding, provided that:


 


(v)           the
amount permitted by this paragraph (1) shall be $325,000,000 (subject to
reduction as provided in clause (z) below) if the Senior Debt to Consolidated
Cash Flow Ratio on the date of Incurrence of such Debt and on each day during
the 90-day period most recently ended prior to the date of such incurrence
(giving pro forma effect to such Incurrence as if such Incurrence had occurred
on the first day of such period) is less than or equal to 3.50 to 1.0,


 


(w)          the
amount of revolving loans permitted by this paragraph (1) shall not exceed
$75,000,000 at any one time outstanding,


 


(x)            such
Credit Facilities may in addition at any time after
[        ], 2008 be increased by
$120,000,000 to $370,000,000 (or, if the conditions referred to in the
foregoing clause (v) have been satisfied, to $445,000,000), in each case


 


46

















 


subject
to reduction as provided in clause (z) below, to permit the Incurrence of
Qualified Term Loans,


 


(y)           no
Restricted Subsidiary may be obligated (whether as borrower or a guarantor
thereof) in respect of any Debt under any Credit Facility (including any
increase thereof pursuant to the foregoing clauses (v) or (x)), unless such
Restricted Subsidiary is a Guarantor under this Indenture, except that Excepted
Non-Guarantor Subsidiaries may remain obligated in respect of a Guarantee of
the Existing Letter of Credit Facility (but not any increase thereof) to the
extent such Guarantee is in effect on the Issue Date and


 


(z)            the
permitted amounts of Debt described above (i.e. $250,000,000, $325,000,000,
$370,000,000 and $445,000,000) shall be automatically reduced by the amount of
the Net Cash Proceeds of Asset Sales applied to the permanent reduction of any
Credit Facility pursuant to Section 4.11(a)(3)(A);


 


(2)           (i) Debt of an
Obligor, owing to an Obligor; provided that (x) any such Debt is Incurred (A)
pursuant to an Intercompany Note that is subordinated in right of payment to
the payment in full in cash of such Obligor’s obligations under the Notes or
its Note Guarantee thereof in the form attached as Exhibit J to this Indenture
and pledged in accordance with the Collateral Documents in favor of the Trustee
or the Notes Collateral Agent or (B) pursuant to the Intercompany Cash
Management Agreement provided that the obligations under the Intercompany Cash
Management Agreement are subordinated in right of payment to the payment in
full in cash of such Obligor’s obligation under the Notes or its Note
Guarantee, and (y) any disposition, pledge or transfer of any such Debt to a
Person (other than a disposition, pledge or transfer to an Obligor) shall be
deemed to be an Incurrence of such Indebtedness by such Obligor not permitted
by this clause (b)(2)(i);


 


(ii)           Debt
of any Obligor owing to any Restricted Subsidiary that is not a Guarantor;
provided that such Debt is Incurred (A) pursuant to an Intercompany Note in the
form attached as Exhibit J to this Indenture or (B) pursuant to the
Intercompany Cash Management Agreement provided that the obligations under the
Intercompany Cash Management Agreement are subordinated in right of payment to
the payment in full in cash of such Obligor’s obligation under the Notes or its
Note Guarantee; provided, further that any disposition, pledge or transfer of
any such Debt to a Person (other than a disposition pledge or transfer to the
Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such
Indebtedness by such Obligor not permitted by this clause (b)(2)(ii);


 


(iii)          Debt
of a Restricted Subsidiary that is not a Guarantor owing to another Restricted
Subsidiary that is not a Guarantor; provided
that any disposition, pledge or transfer of any such Debt to a Person (other
than a disposition, pledge or transfer to the Company or a Restricted
Subsidiary) shall be deemed to be an incurrence of such Debt by the obligor not
permitted by this clause (b)(2)(iii); and


 


47

















 


(iv)          Debt
of any Restricted Subsidiary that is not a Guarantor owing to an Obligor;
provided that such Debt is Incurred (A) pursuant to an Intercompany Note in the
form attached as Exhibit K to this Indenture or (B) pursuant to the
Intercompany Cash Management Agreement; provided,
further, that any disposition,
pledge or transfer of any such Debt to a Person (other than a disposition,
pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed
to be an Incurrence of such Indebtedness by the Restricted Subsidiary not
permitted by this clause (b)(2)(iv).


 


Notwithstanding the foregoing, any transaction
pursuant to which any Restricted Subsidiary, which holds debt owing by the
Company or any Restricted Subsidiary, ceases to be a Restricted Subsidiary
shall be deemed to be the Incurrence of Debt of such Restricted Subsidiary that
is not permitted by this clause (b)(2).


 


(3)           Debt of the Company pursuant to the
Notes and Debt of any Guarantor pursuant to a Note Guarantee of the Notes, in
any case not to exceed $270,000,000 in aggregate principal amount;


 


(4)           any other Debt of the Company or any
Restricted Subsidiary outstanding on March 26, 2004 (other than (x) Debt
outstanding under the Credit Agreement, as to which the provisions of clause
(b)(1) above shall be applicable or (y) Debt outstanding under the U.K. Credit
Facility, as to which the provisions of clause (b)(10) below shall be
applicable); provided, that the amount of such Debt (excluding intercompany
Debt and Trade Obligations) shall not exceed $1,527,780,000 in the aggregate
and the amount of such Debt outstanding at Restricted Subsidiaries that are not
Guarantors shall not exceed $624,596,000 in the aggregate, in each case
excluding amounts exchanged for Capital Stock in the Exchange Offer
contemplated by the Form S-4;


 


(5)           Debt (“Permitted Refinancing Debt”) of the
Company or any Restricted Subsidiary constituting an extension or renewal of,
replacement of, or substitution for, or issued in exchange for, or the net
proceeds of which are used to repay, redeem, repurchase, refinance or refund,
including by way of defeasance (all of the above, for purposes of this clause,
“refinance”) then outstanding Debt in an amount not to exceed the principal
amount of the Debt so refinanced, plus any associated premiums and reasonable
fees and expenses; provided that


 


(A)          in case the Debt to
be refinanced is subordinated in right of payment to the Notes, the new Debt,
by its terms or by the terms of any agreement or instrument pursuant to which
it is outstanding, is expressly made subordinate in right of payment to the
Notes at least to the extent that the Debt to be refinanced is subordinated to
the Notes,


 


(B)           the new Debt does
not have a Stated Maturity prior to the Stated Maturity of the Debt to be
refinanced, and the Average Life of the new Debt is at least equal to the
remaining Average Life of the Debt to be refinanced,


 


(C)           the new Debt is
incurred by the obligor on the Debt being refinanced; provided, however, if the
Debt being refinanced is Debt of a


 


48

















 


Restricted
Subsidiary that is not a Guarantor, such Debt may be refinanced by the Company
or a Restricted Subsidiary that is a Guarantor, and


 


(D)          Debt Incurred
pursuant to clauses (1), (2), (6), (8), (9), (10), (11), (13), (14) and (15) of
this Section 4.05(b) may not be refinanced pursuant to this clause (5), and no
amount of Debt outstanding on March 26, 2004 that is exchanged for Capital
Stock in the proposed exchange offer contemplated by the Form S-4 may be
refinanced pursuant to this clause (5).


 


(6)           Hedging Agreements of the Company or
any Restricted Subsidiary entered into in the ordinary course of business for
the purpose of limiting risks associated with the business of the Company and
its Restricted Subsidiaries and not for speculation;


 


(7)           Debt of the Company or any Restricted
Subsidiary, which may include Capital Leases, Incurred after March 26, 2004 no
later than 180 days after the date of purchase or completion of construction or
improvement of property for the purpose of financing all or any part of the
purchase price or cost of construction or improvement; provided that the aggregate principal
amount of any Debt Incurred pursuant to this clause (b)(7), including all
Permitted Refinancing Debt Incurred to refinance Debt Incurred pursuant to this
clause (b)(7), may not exceed $60,000,000 at any one time outstanding;


 


(8)           Debt of the Company and/or any
Restricted Subsidiary consisting of a Guarantee of Debt of a Joint Venture not
to exceed $75,000,000 in aggregate principal amount at any one time outstanding
(the amount of Debt arising from any such Guarantee to be determined as
provided in clause (F) of the definition of “Debt”);


 


(9)           Debt of any Obligor, consisting of a
Guarantee of Debt of any other Obligor, and Debt of any Restricted Subsidiary
that is not a Guarantor, consisting of a Guarantee of Debt of the Company or
any Restricted Subsidiary, in each case Incurred under any other clause of this
Section 4.05;


 


(10)         Debt (including Debt in respect of the
U.K. Credit Facility) of any Foreign Restricted Subsidiary that is not a
Guarantor Incurred after March 26, 2004 in an aggregate principal amount not to
exceed $50,000,000 at any one time outstanding;


 


(11)         Debt in an aggregate amount up to
$35,000,000 Incurred by Martinez Cogen Limited Partnership (“Martinez”) to finance
the repurchase or redemption of all of the Equity Interests in such entity held
by Persons other than the Company or any Subsidiary; provided that the Fixed
Charge Coverage Ratio immediately after giving effect to Incurrence of such
Debt and the acquisition of the Equity Interests of Martinez exceeds the Fixed
Charge Coverage Ratio immediately prior to the Incurrence of such Debt; provided further that following any
Incurrence of Debt made in reliance of this clause (11), no Restricted
Subsidiary other than a Guarantor shall be permitted to make loans to Martinez,
unless and until Martinez becomes a Guarantor of the Notes, regardless of
paragraph (b)(2) of this Section 4.05;


 


(12)         Guarantees by the Company or any
Restricted Subsidiary of Debt of a customer or a third-party guarantor of such
customer’s Debt to a governmental export


 


49

















 


credit
agency, to the extent that such Guarantee obligation is conditioned on a
failure to perform by the Company, any Restricted Subsidiary or a Controlled
Joint Venture under an engineering procurement or construction contract entered
into with such customer or third-party guarantor; provided that any payments
made pursuant to such Guarantee shall be deemed to be the Incurrence of Debt by
the Company or such Restricted Subsidiary that is not permitted pursuant to
this clause (b)(12);


 


(13)         Trade Obligations of the Company or any
of its Restricted Subsidiaries, until such time as any amounts are drawn
thereunder (with such draw constituting an Incurrence of Debt not permitted by
this clause (13) on the date of such draw with the amount of the Incurrence
being equal to the amount of such draw); provided
that Trade Obligations issued under the Credit Agreement or any Credit Facility
must be permitted under clause (b)(1) of this Section 4.05;


 


(14)         Performance Obligations of any Obligor
constituting letters of credit issued under the Credit Agreement or any
replacement Credit Facility in compliance with the requirements of clause
(b)(1) of this Section 4.05;


 


(15)         Performance Obligations of the Company
or any Restricted Subsidiary; provided that the aggregate amount of Encumbered
Performance Obligations of the Company or such Restricted Subsidiaries shall
not exceed $275,000,000 at any one time outstanding; and


 


(16)         Debt of the Company or any Restricted
Subsidiary Incurred after March 26, 2004 not otherwise permitted hereunder in
an aggregate principal amount at any time outstanding not to exceed $30,000,000
(which may include any Debt incurred for any purpose, including but not limited
to the purposes referred to in clauses (1) through (15) of this Section
4.05(b)); provided, however, not more than $10,000,000 in aggregate principal
amount at any one time outstanding pursuant to this clause (b)(16) may be
incurred by Restricted Subsidiaries that are not also Guarantors.


 


For
purposes of determining compliance with this Section 4.05:


 


(1)           in
the event that an item of proposed Debt (including Acquired Debt) meets the
criteria of more than one of the categories of Permitted Debt described in
clauses (1) through (16) of this Section 4.05(b), or is entitled to be Incurred
pursuant to Section 4.05(a), the Company will be permitted to classify (or
later reclassify in whole or in part) such item of Debt in any manner that
complies with this Section 4.05(b); and


 


(2)           the
accrual of interest, the accretion or amortization of original issue discount
and the payment of interest on any Debt in the form of additional Debt with the
same terms will not be deemed to be an incurrence of Debt for purposes of this
Section 4.05(b).


 


(c)           The Company shall terminate and cause
its Restricted Subsidiaries to terminate the Foothill Facility on October 1,
2004, if it has not earlier been terminated. 
The Company shall not Incur any Debt thereunder prior to such
termination.


 


50

















 


(d)           For purposes hereof, any Indebtedness
Incurred by the Company or any of its Restricted Subsidiaries subsequent to
March 26, 2004 and still outstanding on the Issue Date shall be deemed to have
been Incurred on the Issue Date (and, to the extent that such Indebtedness
would not have been permitted to be Incurred at such time under this Section
4.05, the Company shall be deemed to be in breach of this Section 4.05).


 


Section 4.06. 
Limitation on
Restricted Payments.


 


(a)           the Company will not, and will not
permit any Restricted Subsidiary to, directly or indirectly (the payments and
other actions described in the following clauses of this Section 4.06(a) being
collectively called “Restricted
Payments”):


 


(i)            declare
or pay any dividend or make any distribution on its Equity Interests (other
than dividends or distributions paid in the Company’s Qualified Equity
Interests) held by Persons other than the Company or any of its Restricted
Subsidiaries;


 


(ii)           purchase,
redeem or otherwise acquire or retire for value any Equity Interests of the
Company or any Restricted Subsidiary held by Persons other than the Company or
any of its Restricted Subsidiaries;


 


(iii)          repay,
redeem, repurchase, defease or otherwise acquire or retire for value, or make
any payment on or with respect to Subordinated Debt (other than among the
Company and any of its Restricted Subsidiaries or any Restricted Subsidiary and
any other Restricted Subsidiaries) except payments of interest and principal at
Stated Maturity; or


 


(iv)          make
any Investment other than a Permitted Investment;


 


unless,
at the time of, and after giving effect to, the proposed Restricted Payment:


 


(1)           no Default or Event of Default has
occurred and is continuing or would occur as a consequence of such Restricted
Payment,


 


(2)           the Company at the time of such
Restricted Payment and after giving pro forma effect thereto as if such
Restricted Payment had been made at the beginning of the applicable period
could Incur at least $1.00 of Debt under Section 4.05(a), and


 


(3)           the aggregate amount expended by the
Company and its Restricted Subsidiaries for all Restricted Payments made after
March 26, 2004 would not, subject to paragraph (c), exceed the sum of:


 


(A)          50% of the aggregate
amount of the Consolidated Net Income (or, if the Consolidated Net Income is a
loss, minus 100% of the amount of the loss) accrued on a cumulative basis
during the period, taken as one accounting period, beginning on the first day
of the fiscal quarter in which the Issue Date occurs and ending on the last day
of the Company’s most recently completed fiscal quarter for which internal
financial statements are available; plus


 


51

















 


(B)           subject to paragraph
(c), the aggregate net cash proceeds received by the Company (other than from a
Subsidiary) after the Issue Date:


 


(i)            from the issuance
and sale of its Qualified Equity Interests, including by way of issuance of its
Disqualified Equity Interests or Debt to the extent since converted into
Qualified Equity Interests of the Company (but excluding any Qualified Equity
Interests to the extent issued in or in connection with the proposed exchange
offer or offering described in the Form S-4), or


 


(ii)           as a contribution
to its common equity; plus


 


(C)           an amount equal to
the sum, for all Unrestricted Subsidiaries, of the following:


 


(x)            the
cash return, after March 26, 2004, on Investments in any Unrestricted
Subsidiary made after March 26, 2004 pursuant to this paragraph (a) as a result
of any sale for cash, repayment, redemption, liquidating distribution or other
cash realization (including any dividends or other distributions paid in cash
to the Company or any Restricted Subsidiary), plus


 


(y)           the
portion (proportionate to the Company’s equity interest in such Subsidiary) of
the Fair Market Value of the assets less liabilities of an Unrestricted
Subsidiary at the time such Unrestricted Subsidiary is designated a Restricted
Subsidiary,


 


not
to exceed, in the case of any Unrestricted Subsidiary, the amount of
Investments made after March 26, 2004 by the Company and its Restricted
Subsidiaries in such Unrestricted Subsidiary pursuant to paragraph (a) of this
Section 4.06; plus


 


(D)          to the extent not
already included in clause (3)(A) above, the cash return on any other
Investment made after March 26, 2004 pursuant to paragraph (a) of this Section
4.06, as a result of any sale for cash, repayment, redemption, liquidating
distribution or other cash realization (including any dividends or other
distributions paid in cash to the Company or any Restricted Subsidiary), in an
amount equal to the lesser of (x) the initial amount of such Investment so made
and (y) the cash return of capital with respect to such Investment less the
cost of disposition, if any.


 


The
amount expended in any Restricted Payment, if other than in cash, will be
deemed to be the Fair Market Value of the relevant non-cash assets.


 


(b)           The foregoing will not prohibit:


 


52

















 


(1)           the payment of any dividend within 60
days after the date of declaration thereof if, at the date of declaration, such
payment would comply with paragraph (a) of this Section 4.06;


 


(2)           dividends or distributions by a
Restricted Subsidiary (A) payable, on a pro rata basis or on a basis more
favorable to the Company, to all holders of any class of Capital Stock of such
Restricted Subsidiary a majority of which is held, directly or indirectly through
Restricted Subsidiaries, by the Company or (B) required to be paid by Martinez
Cogen Limited Partnership in accordance with the terms of its partnership
agreement as in effect on the Issue Date;


 


(3)           the repayment, redemption,
repurchase, defeasance or other acquisition or retirement of Subordinated Debt
with the proceeds of, or in exchange for, Permitted Refinancing Debt;


 


(4)           the purchase, redemption or other
acquisition or retirement for value of Equity Interests of a Controlled Joint
Venture (but only if it has continuing operations and is not winding down) or a
Joint Venture (or the acquisition of all the outstanding Equity Interests of
any person that conducts no material operations and has no material assets or
liabilities other than the ownership of Equity Interests in a Joint Venture) in
exchange for, or out of the proceeds of a substantially concurrent offering of,
Qualified Equity Interests of the Company or of a cash contribution to the
common equity of the Company;


 


(5)           the repayment, redemption,
repurchase, defeasance or other acquisition or retirement of Subordinated Debt
of the Company in exchange for, or out of the proceeds of, a substantially
concurrent offering of, Qualified Equity Interests of the Company or of a cash
contribution to the common equity of the Company;


 


(6)           any Investment consisting of
Guarantees permitted to be incurred pursuant to Section 4.05(b)(8);


 


(7)           the purchase, redemption or other
acquisition or retirement for value of Equity Interests of the Company or
Parent held by officers, directors or employees or former officers, directors
or employees (or their estates or beneficiaries under their estates), upon
death, disability, retirement, severance or termination of employment or
pursuant to any agreement or employee benefit or welfare plan under which the
Equity Interests were issued; provided that the aggregate cash consideration
paid therefor in any fiscal year after March 26, 2004 does not exceed an
aggregate amount of $2,500,000;


 


(8)           Payments to, or for the account of,
any Parent Guarantor (to the extent such payment constitutes a Restricted
Payment) of (i) amounts to be used solely to pay Federal, state and local
(including any foreign) taxes during any period, in an amount not to exceed the
amount of taxes the Company and its Restricted Subsidiaries would pay on a
stand alone basis with respect to such period (had it been treated during such
period and all prior periods, together with its Restricted Subsidiaries, as a
separate taxpayer); provided that such amounts shall be used within 90 days of
the payment to Parent


 


53

















 


Guarantor
to pay such taxes, (ii) amounts to be used within 90 days of the payment solely
to pay reasonable corporate overhead and management expenses in the ordinary
course of business, relating to the management of the Company and its
Restricted Subsidiaries, pursuant to a management agreement or otherwise, (iii)
up to $2,000,000 per fiscal year to be used to pay corporate overhead and
management expenses not in the ordinary course of business relating to the
management of the Company and its Restricted Subsidiaries pursuant to a
management agreement or otherwise, and (iv) the amount necessary to pay
principal and any interest, when due, on the Convertible Notes that remain
outstanding after the Issue Date;


 


(9)           the payment of cash dividends on any
Disqualified Stock of the Company or a Restricted Subsidiary or Preferred Stock
of a Restricted Subsidiary existing on March 26, 2004 or Incurred after March
26, 2004 in compliance with paragraph (a) of Section 4.05;


 


(10)         the repurchase of any Subordinated Debt
for a purchase price not greater than 101% of the principal amount thereof in
the event of (x) a change of control pursuant to a provision no more favorable
to the holders thereof than that contained in Section 4.10 or (y) any Asset
Sale pursuant to a provision no more favorable to the holders thereof than that
contained in Section 4.11; provided
that, in each case, prior to the repurchase the Company has made an Offer to
Purchase and has repurchased all Notes issued under this Indenture that were
validly tendered for payment in connection with the offer to purchase;


 


(11)         other Restricted Payments in an
aggregate principal amount not to exceed $25,000,000 after March 31, 2004;


 


(12)         any Investment made in exchange for, or
out of the net cash proceeds of, a substantially concurrent offering of
Qualified Equity Interests of the Company or a cash contribution to the common
equity of the Company; and


 


(13)         any Investment in an Unrestricted
Subsidiary in an aggregate amount not to exceed $8,000,000;


 


(14)         any purchase by the Company or a
Restricted Subsidiary from Parent of Common Stock of Parent; provided that the full consideration paid
or delivered for such Common Stock is immediately reinvested in the Company; provided further that such amount may be
further reinvested by the Company and thereafter may be reinvested by each
Subsidiary of the Company until it has been reinvested in the Restricted
Subsidiary that originally purchased such shares; and


 


(15)         the proposed exchange offer and the
transactions described in the Form S-4.


 


provided that, in the case of clauses (4), (5), (6), (7), (8)(iii) and (iv), (9),
(10), (11), (12) and (13) of this Section 4.06(b), no Default has occurred and
is continuing or would occur as a result thereof.


 


54

















 


(c)           Proceeds of the issuance of Qualified
Equity Interests will be included under clause (3)(B) of Section 4.06(a) only to
the extent they are not applied as described in clause (4), (5), (12), (14) or
(15) of Section 4.06(b). Restricted Payments permitted pursuant to clause (2),
(3), (4), (5), (6), (8)(i), 8(ii) or (9) of Section 4.06(b) will not be
included in making the calculations under clause (3) of Section 4.06(a).


 


(d)           For purposes hereof, any Investments
made by the Company or any of its Restricted Subsidiaries subsequent to March
26, 2004 shall be deemed to have been made on the Issue Date (and, to the
extent that such Investments would not have been permitted to be made at such
time under this Section 4.06, the Company shall be deemed to be in breach of
this Section 4.06).


 


Section 4.07. 
Limitation on
Liens.  The Company will
not, and will not permit any Restricted Subsidiary to, directly or indirectly,
incur or permit to exist any Lien of any nature whatsoever on any of its
properties or assets, whether owned at the Issue Date or thereafter acquired,
or any proceeds, income or profits therefrom or assign or convey any right to
receive income therefrom, other than Permitted Liens, provided that the
foregoing shall not apply, with respect to any such property or assets (other
than the Collateral), to the extent that the Company or such Restricted
Subsidiary effectively provides that the Notes are secured equally and ratably
with (or, if the obligation to be secured by the Lien is subordinated in right
of payment to the Notes or any Note Guarantee, prior to) the obligations so
secured for so long as such obligations are so secured.


 


Section 4.08. 
Limitation on Sale and
Leaseback Transactions.


 


The
Company will not, and will not permit any Restricted Subsidiary to, enter into
any Sale and Leaseback Transaction with respect to any property or asset,
unless:


 


(A)          the
Company or the Restricted Subsidiary would be permitted to Incur Debt in an
amount equal to the Attributable Debt with respect to such Sale and Leaseback
Transaction pursuant to Section 4.05;


 


(B)           the
Company or the Restricted Subsidiary would be permitted to create a Lien on
such property or asset securing such Attributable Debt pursuant to Section
4.07; and


 


(C)           the
transfer of assets in the Sale and Leaseback Transaction is made in accordance
with Section 4.11.


 


Section 4.09. 
Limitation on Dividend
and Other Payment Restrictions Affecting Restricted Subsidiaries.


 


(a)           Except as provided in Section
4.09(b), the Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, create or otherwise cause or permit to exist or
become effective any consensual restriction of any kind on the ability of any
Restricted Subsidiary to:


 


55

















 


(1)           pay dividends or make any other
distributions on any Equity Interests of such Restricted Subsidiary owned by
the Company or any other Restricted Subsidiary,


 


(2)           make loans or advances to the Company
or any other Restricted Subsidiary, or


 


(3)           transfer any of its property or
assets to the Company or any other Restricted Subsidiary.


 


(b)           The provisions of Section 4.09(a) do
not apply to any encumbrances or restrictions:


 


(1)           existing on the Issue Date in this
Indenture, the Guarantees, the Collateral Documents or any other agreements in
effect on the Issue Date, and any extensions, renewals, replacements or refinancings
of any of the foregoing; provided
that the encumbrances and restrictions in the extension, renewal, replacement
or refinancing, taken as a whole, are not materially less favorable to the
Noteholders (as determined in the reasonable judgment of the Company) than the
encumbrances or restrictions being extended, renewed, replaced or refinanced;


 


(2)           existing in the Credit Facilities;


 


(3)           existing under or by reason of
applicable law or governmental regulation;


 


(4)           existing (A) with respect to any Person,
or to the property or assets of any Person, at the time the Person is acquired
by the Company or any Restricted Subsidiary (except to the extent such
encumbrance was incurred in connection with or in contemplation of such
acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it
is designated or is deemed to become a Restricted Subsidiary, and, in each
case, any extensions, renewals, replacements or refinancings of any of the
foregoing, provided the
encumbrances and restrictions in the extension, renewal, replacement or
refinancing are, taken as a whole, no less favorable in any material respect to
the Noteholders (as determined in the reasonable judgment of the Company) than
the encumbrances or restrictions being extended, renewed, replaced or
refinanced;


 


(5)           of the type described in clause
(a)(3) of this Section 4.09 arising or agreed to in the ordinary course of
business (i) that restrict in a customary manner the chartering, subletting,
assignment or transfer of any property or asset that is subject to a lease or
license (but only to the extent that such restriction is imposed by the
instruments pursuant to which such lease or license is created), (ii) that
restrict the transfer of property or assets of the Company or any Restricted
Subsidiary subject to a Lien permitted under this Indenture (but only to the
extent that such restriction is imposed by the instruments pursuant to which
such Lien, or the obligation secured thereby, is created) or (iii) that
restrict the transfer of property or assets of the Company or any Restricted
Subsidiary that is subject to a merger agreement, stock or asset purchase
agreement or similar agreement, so long as any such transfer is otherwise
permitted under this Indenture and such restriction is imposed only during the
period pending such disposition (so long as such


 


56

















 


restriction
does not continue for more than a customary period for transactions of such
type);


 


(6)           contained in the terms governing any
Debt (other than Trade Obligations) otherwise permitted under this Indenture,
if (as determined in the reasonable judgment of the Company) the encumbrances
or restrictions are necessary or required to enable the Company or such
Restricted Subsidiary to obtain or maintain a financing of that type; or


 


(7)           set forth in this Indenture, the
Guarantees or any Collateral Document.


 


Section 4.10. 
Repurchase of
Notes upon a Change of Control 
(a)  Not later than 30 days
following a Change of Control, the Company will make an Offer to Purchase all
outstanding Notes at a purchase price equal to 101% of the principal amount
plus accrued and unpaid interest to the date of purchase.


 


(b)           The Company will not be required to
make an Offer to Purchase upon a Change of Control if a third party makes the
Offer to Purchase at the same time, at the same premium and otherwise in
compliance with the requirements applicable to an Offer to Purchase made by the
Company and purchases the Notes validly tendered and not withdrawn under such
Offer to Purchase.  The provisions of
this Section 4.10 shall be applicable regardless of whether the provisions of
Article V are also applicable.


 


Section 4.11. 
Limitation on Asset
Sales


 


(a)           The Company will not, and will not
permit any Restricted Subsidiary to, make any Asset Sale unless the following
conditions are met:


 


(1)           The Asset Sale is for Fair Market
Value.


 


(2)           At least 75% of the consideration for
such Asset Sale consists of cash or Cash Equivalents received at closing. (For
purposes of this clause (2), (x) the assumption by the purchaser of (i) Debt or
other obligations (other than contingent liabilities and Subordinated Debt) of
the Company or a Restricted Subsidiary pursuant to a customary novation
agreement that releases the Company or such Restricted Subsidiary from any
further liability, and (ii) instruments or securities received from the
purchaser that are promptly, but in any event within 90 days of the closing,
converted by the Company or such Restricted Subsidiary to cash or Cash
Equivalents, to the extent of the cash or Cash Equivalents actually so
received, and (y) stock or assets of the kind referred to in clause (3)(B) of
this Section 4.11, shall each be considered cash received at closing.)


 


(3)           Within 12 months of the receipt of
any Net Cash Proceeds from an Asset Sale, the Net Cash Proceeds may be used


 


(A)          to permanently repay
(i) senior secured Debt of the Company or any Restricted Subsidiary (and in the
case of a revolving credit, permanently reduce the commitment thereunder by
such amount), that is senior in respect of liens to the Notes, (ii) Debt of any
Restricted Subsidiary that is not a Guarantor that makes an Asset Sale with the
proceeds of such Asset Sale, in each case owing


 


57

















 


to
a Person other than the Company or any Restricted Subsidiary and required to be
prepaid from such Net Cash Proceeds, provided,
that the Net Cash Proceeds from an Asset Sale by the Company or any Restricted
Subsidiary that is a Guarantor shall be applied only to repay Debt of the
Company or another Restricted Subsidiary that is a Guarantor and (iii) Debt of
the Company or any Restricted Subsidiary ranking pari passu in respect of liens
with the Notes so long as a ratable repayment offer shall be made to the
holders of the Notes, or


 


(B)           to acquire all or
substantially all of the assets of, or a majority of the Voting Stock of
another Person that thereupon becomes a Restricted Subsidiary, to make capital
expenditures or otherwise acquire assets to be used or useful in the business
of the Company or any Restricted Subsidiary; provided
that if the Company or any Restricted Subsidiary contracts to acquire assets to
make capital expenditures with Net Cash Proceeds within the applicable 12-month
period it shall be deemed to have so applied such Net Cash Proceeds in
accordance with this subclause (B) if such Net Cash Proceeds are so applied
within 24 months of the applicable Asset Sale.


 


(4)           The Net Cash Proceeds of an Asset
Sale under this Section 4.11(a) not applied pursuant to clause (3) of this
Section 4.11(a) within the periods specified constitute “Excess Proceeds”.
Excess Proceeds of less than $15,000,000 will be carried forward and
accumulated. When accumulated Excess Proceeds equals or exceeds $15,000,000,
the Company must, within 30 days thereafter, make an Offer to Purchase to all
Holders of Notes and all holders of other Debt that ranks pari passu with, or senior to, the Notes
containing provisions similar to those set forth in this Indenture with respect
to offers to purchase or redemption with the proceeds of sales of assets to
purchase the maximum principal amount of Notes and such other Debt that may be
purchased out of the Excess Proceeds on a pro rata basis. Upon completion of
the Offer to Purchase under this Section 4.11(a), Excess Proceeds will be reset
at zero, and any Excess Proceeds remaining after consummation of the Offer to
Purchase may be used for any purpose not otherwise prohibited by this
Indenture.


 


(b)           The purchase price for the Notes for
any offer under Section 4.11(a) will be 100% of the principal amount plus
accrued interest to the date of purchase. If the Offer to Purchase is for less
than all of the outstanding Notes and Notes in an aggregate principal amount in
excess of the purchase amount are tendered and not withdrawn pursuant to the
offer, the Company will purchase Notes having an aggregate principal amount
equal to the purchase amount on a pro rata basis along with such other pari passu Debt with similar terms, with
adjustments so that only Notes in multiples of $1.00 principal amount will be
purchased.


 


(c)           Pending the final application of any
Net Cash Proceeds, the Company and any Restricted Subsidiary may temporarily
reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in
any manner that is not prohibited by this Indenture.


 


(d)           All Net Cash Proceeds from an Event
of Loss shall be invested as set forth in Section 4.11(a)(3) and treated as
Excess Proceeds under Section 4.11(a)(4) and applied as set forth therein, all
within the periods and as otherwise provided in such clauses.


 


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The
Company will comply with Rule 14e-1 under the Exchange Act and all other
applicable laws in making any Offer to Purchase, and the above procedures will
be deemed modified as necessary to permit such compliance.


 


Section 4.12. 
Limitation on
Transactions with Affiliates


 


(a)           The Company will not, and will not
permit any Restricted Subsidiary to, directly or indirectly, enter into, renew
or extend any transaction or arrangement including the purchase, sale, lease or
exchange of property or assets, or the rendering of any service with (x) any
holder, or any Affiliate of any holder, of 10% or more of the Voting Stock of
Parent or (y) any Affiliate of either the Company or any Restricted Subsidiary
(a “Related Party
Transaction”), except upon fair and reasonable terms that are no
less favorable to the Company or the Restricted Subsidiary than could
reasonably be obtained in a comparable arm’s-length transaction with a Person
that is not an Affiliate of the Company or any of its Subsidiaries.


 


(b)           Prior to entering into any Related
Party Transaction or series of related Related Party Transactions with an
aggregate value in excess of $10,000,000, the Company must deliver to the
Trustee a resolution certifying that such Related Party Transaction complies
with clause (a) of this Section 4.12 and that such Related Party Transaction
has been approved by resolution of not less than a majority of the Board of
Directors of Parent who are disinterested in the subject matter of the
transaction. Prior to entering into any Related Party Transaction or series of
Related Party Transactions with an aggregate value in excess of $15,000,000,
the Company must in addition to the requirements of the immediately preceding
sentence obtain and deliver to the Trustee a favorable written opinion from a
nationally recognized investment banking firm as to the fairness of the
transaction to the Company and its Restricted Subsidiaries from a financial
point of view.


 


(c)           The foregoing paragraphs (a) and (b)
of this Section 4.12 do not apply to


 


(1)           any transaction between the Company
and any of its Restricted Subsidiaries or between Restricted Subsidiaries of
the Company;


 


(2)           the payment of reasonable and
customary regular fees to directors of the Company who are not employees of the
Company;


 


(3)           any Restricted Payments and any
contracts relating thereto of a type described in one of paragraphs (i), (ii)
or (iii) of Section 4.06(a) if permitted by said Section 4.06(a), and any
Permitted Investment; provided that any such Permitted Investment described in
clauses (3), (4), (5), (7), (8), (9), (12) or (14) of the definition of
Permitted Investments is made upon fair and reasonable terms that are no less
favorable to the Company or the Restricted Subsidiary than could reasonably be
obtained in a comparable arm’s length transaction;


 


(4)           transactions or payments pursuant to
any employee, officer or director compensation or benefit plans or arrangements
entered into in the ordinary course of business, and loans and advances to
employees or consultants and Guarantees that constitute Permitted Investments
pursuant to clause (11) of the definition of that term;


 


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(5)           transactions entered into as part of
a Permitted Receivables Financing;


 


(6)           transactions pursuant to any contract
or agreement in effect on the Issue Date, as any such contract or agreement may
be amended, modified or replaced (including successive replacements) from time
to time, so long as the amended, modified or new contract or agreement, taken
as a whole, is no less favorable to the Company and its Restricted Subsidiaries
than the contract or agreement being amended, modified or replaced, as in
effect on the Issue Date;


 


(7)           transactions with customers, clients,
suppliers or purchasers or sellers of goods or services, in each case in the
ordinary course of business and otherwise in compliance with this Indenture,
which are fair to the Company or its Restricted Subsidiaries, or are on terms,
taken as a whole, at least as favorable as could reasonably have been obtained
in a comparable arm’s length transaction; or


 


(8)           Performance guarantees (including
under engineering, procurement or construction contracts or otherwise) entered
into in the ordinary course of business with respect to Unrestricted
Subsidiaries and Joint Ventures.


 


Section 4.13. 
Additional Note
Guarantees and Collateral After the Issue Date


 


(a)           If any Domestic Subsidiary (other
than a Subsidiary that is designated an Unrestricted Subsidiary) is formed or
acquired or any Subsidiary becomes a Domestic Subsidiary (other than a
Subsidiary that is designated an Unrestricted Subsidiary), in each case after
the Issue Date, the Company will as promptly as practicable (but in no event
later than 10 Business Days after such formation or acquisition) cause the
Subsidiary to deliver a Note Guarantee by executing a supplemental indenture in
the form of Exhibit C to this Indenture and to pledge its assets as required by
the Collateral Documents and this Indenture; provided
that no Non-Wholly Owned Subsidiary shall be required to execute a Note
Guarantee or pledge its assets to the extent it is prevented from doing so
under the terms of its organizational documents.


 


(b)           If the Company or any Guarantor shall
acquire after the Issue Date any real or personal property that is required to
become Collateral under the terms of the Collateral Documents, the Company or
such Guarantor shall, as promptly as practicable (but in no event later than 10
Business Days after such acquisition, in the case of domestic Collateral, or 60
days after such acquisition, in the case of foreign Collateral, and in any event
no later than the date on which the actions described in clauses (i) and (ii)
of this paragraph are completed to secure any Credit Facility) (i) execute and
deliver such mortgages, pledge agreements, other security instruments and
financing statements as shall be necessary to cause such property to become
Collateral subject to the Lien of the Collateral Documents for the benefit of
the Noteholders, subject to Permitted Liens and other exceptions applicable to
the Collateral on the Issue Date and (ii) cause to be delivered one or more
Opinions of Counsel substantially to the effect of the matters referred to in
clause (i), provided that the
foregoing shall not apply as to any property having a fair market value of less
than $1,000,000.


 


(c)           Notwithstanding clauses (a) and (b)
above, after the Issue Date, (i) if any Restricted Subsidiary, other than an
Excepted Non-Guarantor Subsidiary, concurrently provides


 


60

















 


a guarantee under the Credit
Agreement or any Credit Facility permitted under Section 4.05(b)(1) such
Restricted Subsidiary shall be required to execute a Note Guarantee or (ii) if
the Company or any of its Restricted Subsidiaries grants a Lien upon any of its
property or assets to secure any Credit Facility permitted under Section
4.05(b)(1) the respective grantor shall concurrently grant a Lien equivalent in
scope as collateral security for the Notes.


 


(d)           No Excepted Non-Guarantor Subsidiary:


 


(1)           may Incur any Debt (other than
refinancing of Debt outstanding on March 26, 2004) except intercompany Debt as
permitted below in Section 4.13(e);


 


(2)           may engage in any line of business
other than that in which it was engaged on March 26, 2004; or


 


(3)           sell any of its assets (other than to
the Company or any Guarantor), or acquire any assets from any other Person,
other than in the ordinary course of its business,


 


unless and until such Excepted Non-Guarantor Subsidiary executes a Note
Guarantee, after which time it will no longer be considered an Excepted
Non-Guarantor Subsidiary. In addition, neither the Company nor any of its
Restricted Subsidiaries shall make any Investment (including in the form of
loans) in Excepted Non-Guarantor Subsidiaries after March 26, 2004 other than
Investments that, in the aggregate as to all Excepted Non-Guarantor
Subsidiaries, do not exceed $2,000,000.


 


(e)           After the Issue Date, Foster Wheeler
Europe Limited shall (i) continue to hold 100% of the Capital Stock of Foster
Wheeler Limited (England) and Foster Wheeler Continental Europe S.r.l.; provided that Foster Wheeler Continental
Europe S.r.l. shall be permitted to merge into one of its Subsidiaries so long
as following such merger, Foster Wheeler Europe Limited directly holds 100% of
the surviving entity and (ii) not Incur any additional Debt (other than
intercompany Debt owed to either of the Subsidiaries listed in clause (i) of
this paragraph) or Liens, make any Investments, transfer any assets (other than
to the Company or any Guarantor) or otherwise engage in any activity other than
(A) the ownership of the two Subsidiaries listed in clause (i) of this
paragraph, or (B) the ownership of Capital Stock of any other Subsidiaries
distributed to it by its Subsidiaries.


 


(f)            In the event that the Excepted
Non-Guarantor Subsidiaries do not execute all Note Guarantees and pledge their
assets in accordance with the Collateral Documents to secure their Note
Guarantees within 90 days of the Issue Date, the interest rate on the Notes
shall increase          % per
annum, commencing on the 91st day following the Issue Date through
and until the date on which all such Note Guarantees have been executed and
pledges documented in accordance with the Collateral Documents, after which the
interest rate shall decrease         %.


 


Section 4.14. 
Designation of
Restricted and Unrestricted Subsidiaries


 


(a)           By resolution of the board of
directors of the Company, the Company may designate any Subsidiary, including a
newly acquired or created Subsidiary, to be an Unrestricted Subsidiary if it
meets the following qualifications and the designation would not cause a
Default:


 


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(1)           (A) The Subsidiary does not own any
Disqualified Stock or Debt of the Company or Disqualified, Debt or Preferred
Stock of a Restricted Subsidiary or hold any Lien on any property of, the
Company or any Restricted Subsidiary, if such Disqualified or Preferred Stock
or Debt could not be Incurred under Section 4.05 or such Lien would violate
Section 4.07; and


 


(B)           the Subsidiary does
not own any Voting Stock of a Restricted Subsidiary, and all of its
Subsidiaries are Unrestricted Subsidiaries.


 


(2)           At the time of the designation, the
Company would be permitted to make a Restricted Payment under Section 4.06 in
an amount equal to the Fair Market Value of the Investment in such Subsidiary.


 


(3)           Such Subsidiary has no Debt
outstanding other than Non-Recourse Debt.


 


(4)           The Subsidiary is not party to any
ongoing transaction or arrangement with the Company or any Restricted
Subsidiary that would not be permitted under Section 4.12.


 


Once so designated the Subsidiary will remain an Unrestricted
Subsidiary, subject to paragraph (b) of this Section 4.14.


 


(b)           (1)           A
Subsidiary previously designated an Unrestricted Subsidiary which fails at any
time to meet the qualifications set forth in Section 4.14(a) will be deemed to
become at that time a Restricted Subsidiary, subject to the consequences set
forth in Section 4.14(d).


 


(2)           The Board of Directors of the Company
may designate an Unrestricted Subsidiary to be a Restricted Subsidiary if the
designation would not cause a Default or Event of Default.


 


(c)           Upon a Restricted Subsidiary becoming
an Unrestricted Subsidiary:


 


(1)           all existing Investments of the
Company and the Restricted Subsidiaries therein (valued at the Company’s
proportional share of the Fair Market Value of its assets less liabilities)
will be deemed made at that time;


 


(2)           all existing Capital Stock or Debt of
the Company or a Restricted Subsidiary held by such Unrestricted Subsidiary
will be deemed Incurred at that time, and all Liens on property of the Company
or a Restricted Subsidiary held by such Unrestricted Subsidiary will be deemed
Incurred at that time;


 


(3)           all existing transactions between
such Unrestricted Subsidiary and the Company or any Restricted Subsidiary will
be deemed entered into at that time;


 


(4)           such Unrestricted Subsidiary will be
released at that time from its Note Guarantee, if any; and


 


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(5)           such Unrestricted Subsidiary will
cease to be subject to the provisions of this Indenture as a Restricted
Subsidiary.


 


(d)           Upon an Unrestricted Subsidiary
becoming, or being deemed to become, a Restricted Subsidiary:


 


(1)           all of its Debt and Disqualified or
Preferred Stock will be deemed Incurred at that time for purposes of Section
4.05, but will not be considered the sale or issuance of Equity Interests for
purposes of Section 4.11;


 


(2)           Investments therein previously
charged under the Section 4.06 will be credited thereunder;


 


(3)           it may be required to issue a Note
Guarantee pursuant to Section 4.13; and


 


(4)           it will become subject to the
provisions of this Indenture as a Restricted Subsidiary.


 


(e)           Any designation by the Board of
Directors of the Company of a Subsidiary as a Restricted Subsidiary or
Unrestricted Subsidiary will be evidenced to the Trustee by promptly filing
with the Trustee a copy of the Board Resolution giving effect to the
designation and an Officers’ Certificate certifying that the designation complied
with the foregoing provisions.


 


Section 4.15. 
Financial Reports


 


(a)           Whether or not the Company is subject
to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the
Company must provide the Trustee and Holders of the Notes within the time
periods specified in those sections with:


 


(1)           all quarterly and annual financial
information that would be required to be contained in a filing with the
Commission on Forms 10-Q and 10-K if the Company were required to file such
forms, including a “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” and, with respect to annual information only, a
report thereon by the Company’s certified independent accountants, provided that the Company shall not be
required to provide separate audited financials of the Guarantors under this or
any other provision of this Indenture, provided
that, for so long as the Company is a consolidated subsidiary of Parent, Foster
Wheeler may satisfy this obligation by delivering such information with respect
to Parent; and


 


(2)           all current reports that would be
required to be filed with the Commission on Form 8-K if the Company were
required to file such reports, provided
that, for so long as the Company is a consolidated subsidiary of Parent, the
Company may satisfy this obligation by delivering all such current reports of
Parent.


 


(b)           In addition, whether or not required
by the Commission, the Company will file a copy of all of the information and
reports referred to in Sections 4.15(a)(1) and (2) (and subject to the provisos
contained in such clauses) with the Commission (to the extent permitted by the
Commission) within the applicable time periods had such information been
required to be filed.


 


63

















 


the Company will make such
information available to the Trustee and the holders of the Notes within such
time periods.


 


(c)           If the Company has designated any of
its Subsidiaries as Unrestricted Subsidiaries, then it shall deliver to the
Trustee, on or before the 10th Business Day following each of the dates on
which quarterly or annual financial information is required to be filed with
the Commission under Section 4.15(a)(1), a certificate setting forth a balance
sheet and a statement of operations and comprehensive loss of the Company and
its Restricted Subsidiaries separate from the Unrestricted Subsidiaries for the
same periods covered by the reports required to be filed under Section
4.15(a)(1).


 


Section 4.16. 
Reports to Trustee


 


The
Company will deliver to the Trustee:


 


(1)           within 90 days after the end of each
fiscal year a certificate stating that the Company has fulfilled in all
material respects its obligations under this Indenture or, if there has been a
Default during such fiscal year, specifying the Default and its nature and
status; and


 


(2)           as soon as possible and in any event
within 30 days after responsible officers of the Company become aware of the
occurrence of a Default, an Officers’ Certificate setting forth the details of
the Default, and the action which the Company proposes to take with respect
thereto.


 


Section 4.17. 
Impairment of
Security Interest; Security Document Covenants.  The Company and the Parent Guarantors will
not, and will not permit any of its Subsidiary Guarantors to, take any action,
or knowingly or negligently omit to take any action, which action or omission
might or would have the result of materially impairing the security interest
with respect to the Collateral for the benefit of the Noteholders.  Any release of Collateral in accordance with
the provisions of this Indenture and the Collateral Documents will not be
deemed to impair the security under this Indenture.


 


ARTICLE 5

CONSOLIDATION, MERGER OF SALE OF ASSETS


 


Section 5.01.  Consolidation, Merger or Sale of Assets by the Company; No Lease of All
or Substantially All Assets.


 


(a)           The Company will not, in a single
transaction or a series of related transactions:


 


(i)            consolidate, amalgamate with or
merge with or into any Person or group of Affiliated Persons,


 


(ii)           sell, assign, convey, transfer, or
otherwise dispose of all or substantially all of its assets as an entirety or
substantially an entirety, in one transaction or a series of related
transactions, to any Person or group of Affiliated Persons, or permit any of
its Restricted Subsidiaries to enter into any such transaction or related
transactions if such transaction or transactions, in the aggregate, would
result in the sale, assignment,


 


64

















 


conveyance,
transfer or disposition of all or substantially all of the assets of the
Company and its Restricted Subsidiaries, taken as a whole, to any Person or
group of Affiliated Persons, or


 


(iii)          permit any Person to merge with or
into the Company, unless:


 


(1)           either (x) the Company is the
continuing Person or (y) the resulting, surviving or transferee Person is a
corporation or limited liability company organized and validly existing under
the laws of the United States of America, any State of the United States of
America or the District of Columbia or Bermuda and expressly assumes by
supplemental indenture all of the obligations of the Company under this
Indenture, the Notes and the Collateral Documents;


 


(2)           immediately before and immediately
after giving pro forma effect to the transaction or series of transactions, no
Default or Event of Default has occurred and is continuing;


 


(3)           immediately after giving effect to
the transaction on a pro forma basis, (a) the Company or the resulting
surviving Person or transferee on a consolidated basis has a Consolidated Net
Worth immediately after the transaction equal to or greater than the
Consolidated Net Worth of the Company on a consolidated basis immediately prior
to such transaction and (b) the Company or the resulting surviving or
transferee Person could Incur at least $1.00 of Debt under Section 4.05(a); and


 


(4)           the Company delivers to the Trustee
an Officers’ Certificate and an Opinion of Counsel, each stating that the
consolidation, merger or transfer and the supplemental indenture (if any)
comply with this Indenture;


 


provided, that Sections 5.01(2) through (4) do not apply (i) to the
consolidation or merger of the Company with or into a Restricted Subsidiary or
the consolidation or merger of a Restricted Subsidiary with or into the Company
or (ii) if, in the good faith determination of the board of directors of the
Company, whose determination is evidenced by a Board Resolution, the purpose of
the transaction is to change the jurisdiction of incorporation of the Company.


 


(b)           Neither the Company nor any
Restricted Subsidiary shall lease all or substantially all of the assets of the
Company and its Restricted Subsidiaries taken as a whole, whether in one
transaction or a series of related transactions, to one or more other Persons.


 


(c)           Upon the consummation of any
transaction effected in accordance with these provisions, if the Company is not
the continuing Person, the resulting, surviving or transferee Person will
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture, the Registration Rights Agreement and the
Notes with the same effect as if such successor Person had been named as the
Company in such documents. Upon such substitution, and except in the case of a
sale, conveyance, transfer or disposition of less than all its assets to one or
more Persons, the Company will be released from its obligations under this
Indenture, Collateral Documents, the Registration Rights Agreement, and the
Notes.


 


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Section 5.02. 
Merger by Subsidiary
Guarantors.


 


No Subsidiary Guarantor may merge with or into any
Person unless:


 


(x)            the
merger constitutes a sale or other disposition (including by way of merger or
consolidation) of the Guarantor and is made in accordance with Section 4.11, or


 


(y)           either
(i) such Guarantor is the continuing Person or (ii) (A) the resulting or
surviving Person is organized and validly existing under the laws of the United
States of America, any state of the United States of America or the District of
Columbia, Bermuda or the jurisdiction of organization of such Guarantor prior
to the merger and expressly assumes by supplemental indenture all of the
obligations of such Guarantor under this Indenture, the Note Guarantee and the
Collateral Documents; and (B) the Guarantor delivers to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that the
consolidation or merger and the supplemental indenture comply with this Indenture;
provided that no such certificate or opinion shall be required for a
consolidation or merger of a Guarantor with or into another Guarantor).


 


ARTICLE 6

DEFAULT AND REMEDIES


 


Section 6.01. 
Events of Default.  An “Event of Default” occurs if


 


(1)           the Company defaults in the payment
of the principal of or premium, if any, on any Note when the same becomes due
and payable at its Stated Maturity, upon acceleration or redemption, or
otherwise;


 


(2)           the Company defaults in the payment
of interest on any Note when the same becomes due and payable, and the default
continues for a period of 30 days;


 


(3)           the Company fails to make an Offer to
Purchase and thereafter accept and pay for Notes tendered when and as required
pursuant to Sections 4.10 or 4.11, or the Company fails to comply with the
provisions of Section 5.01;


 


(4)           the Company or any of its Restricted
Subsidiaries defaults in the performance of or breaches any other covenant or
agreement in this Indenture or under the Notes or the Collateral Documents, and
the default or breach continues for a period of 60 consecutive days after
delivery of written notice to the Company by the Trustee or to the Company and
the Trustee by the holders of 25% or more in aggregate principal amount of the
Notes;


 


(5)           there occurs with respect to any Debt
of the Company or any of its Significant Restricted Subsidiaries having an
outstanding principal amount of $15,000,000 or more in the aggregate for all
such Debt of all such Persons (i) an event of default that results in such Debt
being due and payable prior to its scheduled maturity or (ii) failure to make a
principal payment when due and such defaulted payment is not made, waived or
extended within the applicable grace period;


 


66

















 


(6)           one or more final judgments or orders
of any court or courts for the payment of money are rendered against the
Company or any of its Significant Restricted Subsidiaries and are not paid or
discharged, settled or fully bonded and there is a period of 60 consecutive
days following entry of the final judgment or order that causes the aggregate
amount for all such final judgments or orders outstanding and not paid or
discharged against all such Persons to exceed $15,000,000 (in excess of amounts
which the Company’s insurance carriers have agreed to pay under applicable
policies) during which a stay of enforcement, by reason of a pending appeal or
otherwise, is not in effect;


 


(7)           an involuntary case or other
proceeding is commenced against the Company, Parent, any Significant Restricted
Subsidiary or any group of Restricted Subsidiaries that taken together would
constitute a Significant Restricted Subsidiary, with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and such
involuntary case or other proceeding remains undismissed and unstayed for a
period of 60 days; or an order for relief is entered against the Company,
Parent, any Significant Restricted Subsidiary or any group of Restricted
Subsidiaries that taken together would constitute a Significant Restricted
Subsidiary under the U.S. federal bankruptcy laws as now or hereafter in
effect;


 


(8)           the Company, Parent, any Significant
Restricted Subsidiary or any group of Restricted Subsidiaries that taken
together would constitute a Significant Restricted Subsidiary (i) commences a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consents to the entry of an order for relief in
an involuntary case under any such law, (ii) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company, Parent, any Significant
Restricted Subsidiary or any group of Restricted Subsidiaries that taken
together would constitute a Significant Restricted Subsidiary, or for all or substantially
all of the property and assets of the Company, Parent, any Significant
Restricted Subsidiary or any group of Restricted Subsidiaries that taken
together would constitute a Significant Restricted Subsidiary or (iii) effects
any general assignment for the benefit of creditors;


 


(9)           any Note Guarantee ceases to be in
full force and effect, other than in accordance with the terms of this
Indenture or a Guarantor denies or disaffirms its obligations under its Note
Guarantee; or


 


(10)         with respect to any Collateral having
an aggregate fair market value of $15,000,000 or more, (A) the security
interest under the Collateral Documents, at any time, ceases to be in full
force and effect or is unenforceable for any reason other than in accordance
with the terms of this Indenture or the Collateral Documents and other than in
satisfaction in full of the obligations under this Indenture and discharge of
this Indenture, and such ineffectiveness continues for a period of 30
consecutive days after delivery of written notice to the Company by the Trustee
or to the Company and the Trustee by the holders of 25% or more in aggregate
principal amount of the Notes, or (B) the Company


 


67

















 


or
any Restricted Subsidiary asserts in writing that any such security interest is
invalid or unenforceable.


 


Section 6.02. 
Consequences of an
Event of Default.


 


(a)           If an Event of Default, other than a
bankruptcy default described in Sections 6.01(7) or (8) with respect to the
Company, Parent, any Significant Restricted Subsidiary or group of Restricted
Subsidiaries that taken together would constitute a Significant Restricted
Subsidiary, occurs and is continuing under this Indenture, the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding, by written notice to the Company (and to the Trustee if the notice
is given by the Holders), may, and the Trustee at the request of such Holders
shall, declare the principal of premium, if any, and accrued interest on the
Notes to be immediately due and payable. Upon a declaration of acceleration,
such principal of, premium, if any, and interest will become immediately due
and payable. If a bankruptcy default described in Sections 6.01(7) or (8)
occurs with respect to the Company, Parent, any Significant Restricted
Subsidiary or any group of Restricted Subsidiaries that taken together would
constitute a Significant Restricted Subsidiary, the principal premium, if any,
of and accrued interest on the Notes then outstanding will become immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder.


 


(b)           The Holders of a majority in
principal amount of the outstanding Notes by written notice to the Company and
to the Trustee may waive all existing and past Defaults and Events of Default
and rescind and annul a declaration of acceleration and its consequences if


 


(1)           all existing Defaults and Events of
Default, other than the nonpayment of the principal of, premium, if any, and
interest on the Notes other than any such Defaults or Events of Default that
have become due solely by the declaration of acceleration, have been cured or
waived, and


 


(2)           the rescission would not conflict
with any judgment or decree of a court of competent jurisdiction.


 


Section 6.03. 
Other Remedies.  If an Event of Default occurs and is
continuing, the Trustee may pursue, in its own name or as Trustee of an express
trust, any available remedy by proceeding at law or in equity to collect the
payment of principal of, premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture.  The Trustee may maintain a proceeding even
if it does not possess any of the Notes or does not produce any of them in the
proceeding.  A delay or omission by the
Trustee or any Holder of a Note in exercising any right or remedy accruing upon
an Event of Default shall not impair the right or remedy or constitute a waiver
of or acquiescence in the Event of Default. 
All remedies are cumulative to the extent permitted by law.


 


Section 6.04. 
Waiver of Past
Defaults.  Except as
otherwise provided in Sections 6.02, 6.07, and 9.02 the Holders of a majority
in principal amount of the outstanding Notes may, by notice to the Trustee,
waive an existing Default and its consequences. Upon such waiver, the Default
will cease to exist, and any Event of Default arising therefrom will be deemed
to have


 


68

















 


been cured, but no such waiver
will extend to any subsequent or other Default or impair any right consequent
thereon.


 


Section 6.05. 
Control by
Majority.  The Holders of
a majority in principal amount of the outstanding Notes may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability, and may take any
other action it deems proper that is not inconsistent with any such direction
received from Holders of Notes.


 


Section 6.06. 
Limitation on
Suits.  A Holder may not
institute any proceeding, judicial or otherwise, with respect to this Indenture
or the Notes, or for the appointment of a receiver or trustee, or for any other
remedy under this Indenture or the Notes, unless:


 


(1)           the Holder has previously given to
the Trustee written notice of a continuing Event of Default;


 


(2)           Holders of at least 25% in aggregate
principal amount of outstanding Notes have made written request to the Trustee
to institute proceedings in respect of the Event of Default in its own name as
Trustee under this Indenture;


 


(3)           such Holder or Holders have offered
to the Trustee indemnity reasonably satisfactory to the Trustee against any
costs, liabilities or expenses to be Incurred in compliance with such request;


 


(4)           the Trustee, for 60 days after its
receipt of such notice, request and offer of indemnity has failed to institute
any such proceeding; and


 


(5)           during such 60-day period, the
Holders of a majority in aggregate principal amount of the outstanding Notes
have not given the Trustee a direction that is inconsistent with such written
request.


 


A
Holder of a Note may not use this Indenture to prejudice the rights of another
Holder of a Note or to obtain a preference or priority over another Holder of a
Note.


 


Section 6.07. 
Rights of Holders
to Receive Payment. 
Notwithstanding anything to the contrary, the right of a Holder of a
Note to receive payment of principal of, premium, if any, or interest on its
Note on or after the Stated Maturities thereof, or to bring suit for the
enforcement of any such payment on or after such dates, may not be impaired or
affected without the consent of that Holder.


 


Section 6.08. 
Collection Suit
by Trustee.  If an Event
of Default in payment of principal or interest specified in clause (1) or (2)
of Section 6.01 occurs and is continuing, the Trustee may recover judgment in
its own name and as trustee of an express trust for the whole amount of
principal and accrued interest remaining unpaid, together with interest on
overdue principal and overdue installments of interest, in each case at the
rate specified in the Notes, and such further amount as is sufficient to cover
the costs and expenses of collection, including the reasonable


 


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compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee hereunder.


 


Section 6.09. 
Trustee May File
Proofs of Claim.  The
Trustee may file proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for the compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
hereunder) and the Holders allowed in any judicial proceedings relating to the
Company or any Guarantor or their respective creditors or property, and is
entitled and empowered to collect, receive and distribute any money, securities
or other property payable or deliverable upon conversion or exchange of the
Notes or upon any such claims.  Any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, if the Trustee consents to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent and counsel, and any other amounts due the
Trustee hereunder.  Nothing in this Indenture
will be deemed to empower the Trustee to authorize or consent to, or accept or
adopt on behalf of any Holder, any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.


 


Section 6.10.  Priorities.  If the Trustee collects any
money or property pursuant to this Article VI, or the Trustee or the Notes
Collateral Agent collects any amounts pursuant to any Collateral Document, then,
subject to the Intercreditor Agreement with respect to proceeds of any
Collateral at any time received or held by the Trustee or the Notes Collateral
Agent, such amounts shall be paid in the following order:


 


First:  to the Trustee, its agents
and attorneys for amounts due and payable under Section 7.07, including payment
of all compensation, expense and liabilities incurred, and all advances made,
by the Trustee and the costs and expenses of collection;


 


Second:  to pay the principal of, and
interest and premium, if any, on the Notes, in each case ratably, without
preference or priority of any kind; and


 


Third:  to the Obligors or to such
party as a court of competent jurisdiction shall direct.


 


The
Trustee, upon written notice to the Company, may fix a record date and payment
date for any payment to Holders pursuant to this Section.


 


Section 6.11.  Restoration of Rights and Remedies.  If
the Trustee or any Holder has instituted a proceeding to enforce any right or
remedy under this Indenture and the proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
the Holder, then, subject to any determination in the proceeding, the Company,
any Guarantors, the Trustee and the Holders will be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Company, any


 


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Guarantors, the Trustee and the Holders will
continue as though no such proceeding had been instituted.


 


Section 6.12.  Undertaking for Costs.  In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it not in its individual
capacity but solely as Trustee, a court may require any party litigant in such
suit (other than the Trustee) to file an undertaking to pay the costs of the
suit, and the court may assess reasonable costs, including reasonable attorneys
fees and expenses, against any party litigant (other than the Trustee) in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant.  This
Section 6.12 does not apply to a suit by a Holder to enforce payment of
principal of or interest on any Note on the respective due dates, or a suit by
Holders of more than 10% in principal amount of the outstanding Notes.


 


Section 6.13.  Rights and Remedies Cumulative.  No right or remedy conferred
or reserved to the Trustee or to the Holders under this Indenture is intended
to be exclusive of any other right or remedy, and all such rights and remedies
are, to the extent permitted by law, cumulative and in addition to every other
right and remedy hereunder or now or hereafter existing at law or in equity or
otherwise.  The assertion or exercise of
any right or remedy hereunder, or otherwise, will not prevent the concurrent
assertion or exercise of any other appropriate right or remedy.


 


ARTICLE 7

THE TRUSTEE


 


Section 7.01.  General  (a)
The duties and responsibilities of the Trustee are as provided by the TIA and
as set forth herein.  Whether or not
expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee is
subject to this Article 7.


 


(b)           Except during the continuance of an
Event of Default, the Trustee and Notes Collateral Agent need perform only
those duties that are specifically set forth in this Indenture or the
Collateral Documents and no others, and no implied covenants or obligations
will be read into this Indenture or the Collateral Documents against the
Trustee and Notes Collateral Agent.  In
case an Event of Default has occurred and is continuing, the Trustee or Notes
Collateral Agent shall exercise those rights and powers vested in it by this
Indenture or the Collateral Documents, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.


 


(c)           No provision of this Indenture shall
be construed to relieve the Trustee from liability for its own gross negligent
action, its own negligent failure to act or its own willful misconduct.


 


Section 7.02.  Certain Rights of Trustee.  Subject to Trust Indenture
Act Sections 315(a) through (d):


 


(1)           The Trustee may conclusively rely,
and will be protected in acting or refraining from acting, upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of


 


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indebtedness
or other paper or document believed by it to be genuine and to have been signed
or presented by the proper Person.  The
Trustee need not investigate any fact or matter stated in the document, but, in
the case of any document which is specifically required to be furnished to the
Trustee pursuant to any provision hereof, the Trustee shall examine the
document to determine whether it conforms to the requirements of this Indenture
(but need not confirm or investigate the accuracy of mathematical calculations
or other facts stated therein).  The
Trustee, in its discretion, may make further inquiry or investigation into such
facts or matters as it sees fit.


 


(2)           Before the Trustee acts or refrains
from acting on a request or direction from the Company, it may require an
Officers’ Certificate or an Opinion of Counsel conforming to Section 12.05 and
the Trustee will not be liable for any action it takes or omits to take in good
faith in reliance on the certificate or opinion.


 


(3)           The Trustee may act through its
attorneys and agents and will not be responsible for the willful misconduct or
negligence of any agent appointed with due care.


 


(4)           Notwithstanding any other provision
of this Indenture, the Trustee will be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders, unless such Holders have offered to the Trustee
reasonable security or indemnity satisfactory to it against the costs, expenses
and liabilities that might be incurred by it in compliance with such request or
direction.


 


(5)           The Trustee will not be liable for
any action it takes or omits to take in good faith that it believes to be
authorized or within its rights or powers or for any action it takes or omits
to take in accordance with the direction of the Holders in accordance with
Section 6.05 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture.


 


(6)           The Trustee may consult with counsel,
and the advice of such counsel or any Opinion of Counsel will be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon.


 


(7)           No provision of this Indenture will
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of its duties hereunder, or in the
exercise of its rights or powers, unless it receives indemnity satisfactory to
it against any loss, liability or expense.


 


(8)           The Trustee shall not be liable for
any action taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture.


 


(9)           In no event shall the Trustee be
responsible or liable for special, indirect, or consequential loss or damage of
any kind whatsoever (including, but not limited to,


 


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loss
of profit), irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.


 


(10)         The Trustee shall not be deemed to have
notice of any Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the Corporate
Trust Office, and such notice references the Notes and this Indenture.


 


(11)         The rights, privileges, protections,
immunities and benefits given to the Trustee, including, without limitation,
its right to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder (including, for the avoidance of
doubt, its capacity as Notes Collateral Agent, if applicable), and each agent,
custodian and other Person employed to act hereunder.


 


(12)         The Trustee may request that the
Company deliver an Officers’ Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers’ Certificate may be signed by any
Person authorized to sign an Officers’ Certificate, including any Person
specified as so authorized in any such certificate previously delivered and not
superseded.


 


Section 7.03.  Trustee May Hold Notes.  The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Notes and
may otherwise deal with the Company or its Affiliates with the same rights it
would have if it were not the Trustee. 
Any Agent may do the same with like rights.  However, the Trustee is subject to TIA Sections 310(b) and
311.  For purposes of TIA Section
311(b)(4) and (6):


 


(a)           “cash
transaction” means any transaction in which full payment for goods
or securities sold is made within seven days after delivery of the goods or
securities in currency or in checks or other orders drawn upon banks or bankers
and payable upon demand; and


 


(b)           “self-liquidating
paper” means any draft, bill of exchange, acceptance or obligation
which is made, drawn, negotiated or incurred for the purpose of financing the
purchase, processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship arising from the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation.


 


Section 7.04.  Trustee’s Disclaimer.  The Trustee (i) makes no
representation as to the validity or adequacy of this Indenture, the Notes or
the Collateral Documents, (ii) is not accountable for the Company’s use or
application of the proceeds from the Notes and (iii) is not responsible for any
statement in a Note other than its certificate of authentication.


 


Section 7.05.  Notice of Default.  If any Default occurs and is continuing and
is known to the Trustee, the Trustee will send notice of the Default to each
Holder within 60 days after obtaining knowledge thereof, unless the Default has
been cured or waived; provided that, except


 


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in the case of a default in the payment of
the principal of or interest on any Note, the Trustee may withhold the notice
if and so long as the Trustee in good faith determines that withholding the
notice is in the interest of the Holders. 
Notice to Holders under this Section 7.05 will be given in the manner
and to the extent provided in the TIA Section 313(c).


 


Section 7.06.  Reports by Trustee to Holders.  Within 60 days after each
[         ], beginning with
[            ], the
Trustee will mail to each Holder, as provided in TIA Section 313(c), a brief
report dated as of such
[               ],
if required by TIA Section 313(a), and file such reports with each stock
exchange upon which the Notes are listed and with the Commission as required by
TIA Section 313(d).  The Trustee shall
also comply with Section 313(b) of the TIA.


 


Section 7.07.  Compensation and Indemnity.  (a)  The Company will pay
the Trustee compensation as agreed upon in writing for its services.  The compensation of the Trustee is not
limited by any law on compensation of a Trustee of an express trust.  The Company will reimburse the Trustee upon
request for all reasonable out-of-pocket expenses, disbursements and advances
incurred or made by the Trustee, whether hereunder, under the Notes or under
the Collateral Documents, including:


 


(i)            the reasonable compensation and
expenses of the Trustee’s agents and counsel, except for any such expense,
disbursement or advances as may be attributable to its negligence or bad faith;


 


(ii)           the amount of any taxes that the Trustee
or the Notes Collateral Agent may have been required to pay by reason of the
Liens granted pursuant to the Collateral Documents or to free any Collateral
from any Lien thereon; and


 


(iii)          transfer taxes and fees and expenses
of counsel and other experts that the Trustee or the Notes Collateral Agent may
reasonably incur in connection with (x) the administration or enforcement of
the Collateral Documents, including such expenses as are incurred to preserve
the value of the Collateral or any validity, perfection, rank or value of any
Lien granted pursuant to the Collateral Documents, (y) the collection, sale or
other disposition of any Collateral or (z) the exercise by the Trustee or the
Notes Collateral Agent of any of its rights or powers under the Collateral
Documents.


 


(b)           The Company and the Guarantors,
jointly and severally, will indemnify the Trustee for, and hold it harmless
against, any loss or liability or expense incurred by it without negligence or
bad faith on its part arising out of or in connection with the acceptance or
administration of this Indenture and the Collateral Documents and its duties
under this Indenture, the Notes and the Collateral Documents, including the
costs and expenses of defending itself against any claim or liability and of
complying with any process served upon it or any of its officers in connection
with the exercise or performance of any of its powers or duties under this
Indenture, the Notes and the Collateral Documents.


 


(c)           To secure the Company’s payment
obligations in this Section 7.07, the Trustee will have a lien prior to the
Notes on all money or property held or collected by the Trustee, not


 


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in its individual capacity but
solely as Trustee, except money or property held in trust to pay principal of,
and interest on particular Notes.


 


Section 7.08.  Replacement of Trustee.  (a) (1) The Trustee
may resign at any time by written notice to the Company.


 


(2)           The Holders of a majority in
principal amount of the outstanding Notes may remove the Trustee by written
notice to the Trustee and the Company.


 


(3)           If the Trustee is no longer eligible
under Section 7.10 or in the circumstances described in TIA Section 310(b), any
Holder that satisfies the requirements of TIA Section 310(b) may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.


 


(4)           The Company may remove the Trustee
if: (i) the Trustee is no longer eligible under Section 7.10; (ii) the Trustee
is adjudged a bankrupt or an insolvent; (iii) a receiver or other public
officer takes charge of the Trustee or its property; or (iv) the Trustee
becomes incapable of acting.


 


A resignation or removal of the Trustee and appointment of a successor
Trustee will become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section 7.08.


 


(b)           If the Trustee resigns or is removed,
or if a vacancy exists in the office of Trustee for any reason, the Company
will promptly appoint a successor Trustee. 
If the successor Trustee does not deliver its written acceptance within
30 days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company or the Holders of a majority in principal amount of the outstanding
Notes may petition at the expense of the Company any court of competent
jurisdiction for the appointment of a successor Trustee.


 


(c)           Upon delivery by the successor
Trustee of a written acceptance of its appointment to the retiring Trustee and
to the Company, (i) the retiring Trustee will transfer all property held by it
as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.07, (ii) the resignation or removal of the retiring Trustee will
become effective, and (iii) the successor Trustee will have all the rights,
powers and duties of the Trustee under this Indenture.  Upon request of any successor Trustee, the
Company will execute any and all instruments for fully and vesting in and
confirming to the successor Trustee all such rights, powers and trusts.  The Company will give notice of any
resignation and any removal of the Trustee and each appointment of a successor
Trustee to all Holders, and include in the notice the name of the successor
Trustee and the address of its Corporate Trust Office.


 


(d)           Notwithstanding replacement of the
Trustee pursuant to this Section, the Company’s obligations under Section 7.07
will continue for the benefit of the retiring Trustee.


 


(e)           The Trustee agrees to give the
notices provided for in, and otherwise comply with, TIA Section 310(b).


 


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Section 7.09.  Successor Trustee by Merger.  If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its
corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act will be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee in
this Indenture, provided, however, that in the case of a corporation succeeding
to all or substantially all the corporate trust business of the Trustee, such
successor corporation shall expressly assume all of the Trustee’s liabilities
hereunder.  In case any Notes shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Notes.


 


Section 7.10.  Eligibility.  This Indenture must always
have a Trustee that satisfies the requirements of TIA Section 310(a) and has a
combined capital and surplus of at least $100,000,000 as set forth in its most
recent published annual report of condition.


 


Section 7.11.  Money Held in Trust.  The Trustee will not be liable for interest
on any money received by it except as it may agree with the Company.  Money held in trust by the Trustee need not
be segregated from other funds except to the extent required by law and except
for money held in trust under Article 8.


 


Section 7.12.  Appointment of Co-Trustee.  (a)  Notwithstanding any
other provisions of this Indenture, at any time, for the purpose of meeting any
legal requirement of any jurisdiction in which any part of the Collateral may
at the time be located, the Trustee shall have the power and may execute and
deliver all instruments necessary to appoint one or more Persons to act as a
co-trustee or co-trustees, or separate trustee or separate trustees, of all or
any part of the Collateral, and to vest in such Person or Persons, in such
capacity and for the benefit of the Holders, such title to the Collateral, or
any part hereof, and subject to the other provisions of this Section, such
powers, duties, obligations, rights and trusts as the Trustee may consider
necessary or desirable.  No co-trustee
or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 7.08 and no notice to Holders
of the appointment of any co-trustee or separate trustee shall be required
under that section.


 


(b)           Every separate trustee and co-trustee
shall, to the extent permitted by law, be appointed and act subject to the
following provisions and conditions:


 


(1)           all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee joining in
such act), except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Collateral or any
portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction of
the Trustee;


 


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(2)           no trustee hereunder shall be
personally liable by reason of any act or omission of any other trustee
hereunder; and


 


(3)           the Trustee may at any time accept
the resignation of or remove any separate trustee or co-trustee.


 


(c)           Any notice, request or other writing
given to the Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to each of
them.  Every instrument appointing any
separate trustee or co-trustee shall refer to this Indenture and the conditions
of this Section 7.12.  Each separate
trustee and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of appointment,
either jointly with the Trustee or separately, as may be provided therein,
subject to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the liability
of, or affording protection or rights (including the rights to compensation,
reimbursement and indemnification hereunder) to, the Trustee.  Every such instrument shall be filed with
the Trustee.


 


(d)           Any separate trustee or co-trustee
may at any time constitute the Trustee its agent or attorney-in-fact with full
power and authority, to the extent not prohibited by law, to do any lawful act
under or in respect of this Indenture on its behalf and in its name.  If any separate trustee or co-trustee shall
die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.


 


ARTICLE 8

DEFEASANCE AND DISCHARGE


 


Section 8.01.  Discharge of Company’s Obligations.  (a) Subject to Section 8.01(b), the
Company’s obligations under the Notes and this Indenture, and each Guarantor’s
obligations under its Note Guarantee, will terminate if:


 


(1)           all Notes previously authenticated
and delivered (other than (i) destroyed, lost or stolen Notes that have been
replaced or (ii) Notes that are paid pursuant to Section 4.01 or (iii) Notes
for whose payment money or U.S. Government Obligations have been held in trust
and then repaid to the Company pursuant to Section 8.05) have been delivered to
the Trustee for cancellation and the Company has paid all sums payable by it
hereunder; or


 


(2)           (A)          the
Notes mature within one year, or all of them are to be called for redemption
within one year under arrangements satisfactory to the Trustee for giving the
notice of redemption,


 


(B)           the
Company irrevocably deposits in trust with the Trustee, as trust funds solely
for the benefit of the Holders, money or U.S. Government Obligations or a
combination thereof sufficient, in the opinion of a nationally recognized firm
of independent public accountants or a nationally recognized investment banking
or appraisal firm, expressed in a written certificate delivered to the Trustee,
without consideration of any reinvestment, to pay principal of, premium, if
any, and interest on


 


77

















 


the
Notes to maturity or redemption, as the case may be, and to pay all other sums
payable by it hereunder,


 


(C)           no
Default has occurred and is continuing on the date of the deposit pursuant to
(B) above,


 


(D)          the
deposit will not result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to which the Company
is a party or by which it is bound, and


 


(E)           the
Company delivers to the Trustee an Officers’ Certificate and an Opinion of
Counsel, in each case stating that all conditions precedent provided for herein
relating to the satisfaction and discharge of this Indenture have been complied
with; provided that, such Opinion of Counsel may rely on an Officers’
Certificate or certificates of public officials with respect to matters of
fact.


 


(b)           After satisfying the conditions in
clause (a)(1), only the Company’s obligations under Section 7.07 will
survive.  After satisfying the
conditions in clause (a)(2), only the Company’s obligations in Sections 2.02,
2.03, 2.04, 2.06, 2.08, 2.09, 2.10, 4.01, 4.02, 4.03, [5.01(c),] 7.07,
7.08, 8.05 and 8.06 will survive.  In
either case, the Trustee upon request will acknowledge in writing the discharge
of the Company’s obligations under the Notes and this Indenture other than the
surviving obligations.


 


Section 8.02.  Legal Defeasance.  Following the deposit referred to in clause
(1) below, the Company will be deemed to have paid and will be discharged from
its obligations in respect of the Notes and this Indenture, other than its
obligations in Sections 2.02, 2.03, 2.04, 2.06, 2.08, 2.09, 2.10, 4.01, 4.02,
4.03, [5.01(c),] 7.07, 7.08, 8.05 and 8.06 and each Guarantor’s obligations
under its Note Guarantee will terminate, provided the following conditions have
been satisfied:


 


(1)           The Company has irrevocably deposited
in trust with the Trustee, as trust funds solely for the benefit of the
Holders, money or U.S. Government Obligations, or a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants or a nationally recognized investment banking or appraisal
firm, expressed in a written certificate delivered to the Trustee, without
consideration of any reinvestment, to pay principal of, premium, if any, and
interest on the Notes to maturity or redemption, as the case may be, and to pay
all other sums payable by it hereunder, provided that any redemption before
maturity has been irrevocably provided for under arrangements satisfactory to
the Trustee.


 


(2)           No Default has occurred and is
continuing on the date of the deposit.


 


(3)           The deposit and such defeasance will
not result in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound.


 


(4)           The Company has delivered to the
Trustee


 


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(A)          either (x) a ruling
received from the Internal Revenue Service to the effect that the Holders will
not recognize income, gain or loss for U.S. federal income tax purposes as a
result of the defeasance and will be subject to U.S. federal income tax on the
same amount and in the same manner and at the same times as would otherwise
have been the case had such defeasance not occurred and/or (y) an Opinion of
Counsel, based on a change in law after the date of this Indenture, to the same
effect as the ruling described in clause (x), and


 


(B)           an Opinion of
Counsel to the effect that (i) the creation of the defeasance trust does not
violate the Investment Company Act of 1940 and (ii) the Holders have a valid
first priority Note interest in the trust funds (subject to customary
exceptions).


 


(5)           The Company has delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel, in each case
stating that all conditions precedent provided for herein relating to the
defeasance have been complied with; provided that any such Opinion of Counsel
may rely on an Officers’ Certificate or certificates of public officials with
respect to matters of fact.


 


(6)           The Company shall have delivered to
the Trustee an Officers’ Certificate stating that the deposit referred to in
clause (1) was not made by the Company with the intent of preferring the
Holders over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the
Company.


 


The
Trustee upon request will acknowledge in writing the discharge of the Company’s
obligations under the Notes and this Indenture except for the surviving
obligations specified above.


 


Section 8.03.  Covenant Defeasance.  The Company’s obligations set forth in
Section 4.04 through 4.17, inclusive, and Article 5, [other than 5.01(c),] and
each Guarantor’s obligations under its Note Guarantee, will terminate, and
clauses (3), (4), (5), (6), (9) and (10) of Section 6.01 will no longer
constitute Events of Default, provided the following conditions have been
satisfied:


 


(1)           The Company has complied with clauses
(1), (2), (3), 4(B), (5) and (6) of Section 8.02; and


 


(2)           the Company has delivered to the
Trustee an Opinion of Counsel to the effect that the Holders will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of the
defeasance and will be subject to U.S. federal income tax on the same amount
and in the same manner and at the same times as would otherwise have been the
case.


 


Except
as specifically stated above, none of the Company’s obligations under this
Indenture will be discharged.


 


Section 8.04.  Application of Trust Money.  Subject to Section 8.05, the
Trustee will hold in trust the money or U.S. Government Obligations deposited
with it pursuant to Sections 8.01, 8.02 or 8.03, and apply the deposited money
and the proceeds from deposited U.S. Government


 


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Obligations to the payment (either directly
or through any Paying Agent, other than the Company or any Affiliate of the
Company) the Holders of such Notes of principal of premium, if any, all other
sums payable and interest on the Notes in accordance with the Notes and this
Indenture.  Such money and U.S.
Government Obligations need not be segregated from other funds except to the
extent required by law.


 


The
Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the cash or non-callable U.S. Government
Obligations deposited pursuant to Sections 8.01, 8.02 or 8.03 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Notes.


 


Section 8.05.  Repayment to Company.  Subject to Sections 7.07,
8.01, 8.02 and 8.03, the Trustee will promptly pay to the Company upon request
any excess money held by the Trustee at any time and thereupon be relieved from
all liability with respect to such money. 
The Trustee will pay to the Company upon request any money held for
payment with respect to the Notes that remains unclaimed for two years after it
has become due and payable;  provided,
however, that the Trustee, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in the New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining shall be repaid to the
Company.  After payment to the Company,
Holders entitled to such money must look solely to the Company for payment,
unless applicable law designates another Person, and all liability of the
Trustee with respect to such money will cease.


 


Section 8.06.
 Reinstatement.  If and for so long as the
Trustee is unable to apply any money or U.S. Government Obligations held in
trust pursuant to Section 8.01, 8.02 or 8.03 by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company’s
obligations under this Indenture and the Notes will be reinstated as though no
such deposit in trust had been made.  If
the Company makes any payment of principal of or interest on any Notes because
of the reinstatement of its obligations, it will be subrogated to the rights of
the Holders of such Notes to receive such payment from the money or U.S.
Government Obligations held in trust.


 


ARTICLE 9

AMENDMENTS, SUPPLEMENTS AND WAIVERS


 


Section 9.01.  Amendments Without Consent of Holders.  The
Company and the Trustee may amend or supplement this Indenture, the Notes and
the Collateral Documents, without notice to or the consent of any Noteholder:


 


(1)           to cure any ambiguity, defect or
inconsistency;


 


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(2)           provide for the assumption of the
Company’s obligation in the case of a transaction subject to the provisions of
Section 5.01;


 


(3)           to comply with any requirements for
qualification of this Indenture under the TIA;


 


(4)           to evidence and provide for the
acceptance of an appointment by a successor Trustee;


 


(5)           to provide for uncertificated Notes
in addition to or in place of Certificated Notes, provided that the uncertificated
Notes are issued in registered form for purposes of Section 163(f) of the Code,
or in a manner such that the uncertificated Notes are described in Section
163(f)(2)(B) of the Code;


 


(6)           to provide for any Guarantee of the
Notes, to secure the Notes or to confirm and evidence the release, termination
or discharge of any Guarantee of or Lien securing the Notes when such release,
termination or discharge is permitted by this Indenture;


 


(7)           to add additional covenants of the
Company or its Subsidiaries, to surrender rights conferred upon the Company or
its subsidiaries, or to confer additional benefits upon the Holders;


 


(8)           to make any other change that does
not materially and adversely affect the rights of any Holder; and


 


(9)           to enter into additional or
supplemental Collateral Documents.


 


Section 9.02.  Amendments With Consent of Holders.  (a) 
Except as otherwise provided in Sections 6.02, 6.04 and 6.07 or
paragraphs (b) or (c) below, the Company and the Trustee may amend or
supplement this Indenture, the Notes and the Collateral Documents, with the
written consent of the Holders of a majority in principal amount of the
outstanding Notes and the Holders of a majority in principal amount of the
outstanding Notes may waive future compliance by the Company and its Restricted
Subsidiaries with any provision of this Indenture or the Notes.


 


(b)           Notwithstanding the provisions of
Section 9.01(a), without the consent of each Holder affected, an amendment or
waiver may not:


 


(1)           reduce the principal amount of or
change the Stated Maturity of any installment of principal of any Note,


 


(2)           reduce the rate of or change the
Stated Maturity of any interest payment on any Note,


 


(3)           reduce the amount payable upon the
redemption of any Note or change the time of any mandatory redemption or, in
respect of an optional redemption, the times at


 


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which
any Note may be redeemed or, once notice of redemption has been given, the time
at which it must thereupon be redeemed,


 


(4)           after the time an Offer to Purchase
is required to have been made, reduce the purchase amount or purchase price, or
extend the latest expiration date or purchase date thereunder,


 


(5)           make any Note payable in money other
than that stated in the Note,


 


(6)           impair the right of any Holder of
Notes to receive any principal payment or interest payment on such Holder’s
Notes, on or after the Stated Maturity thereof, or to institute suit for the
enforcement of any such payment,


 


(7)           make any change in the percentage of
the principal amount of the Notes required for amendments or waivers,


 


(8)           modify or change any provision of
this Indenture affecting the ranking of the Notes or any Note Guarantee in a
manner material and adverse to the Holders of the Notes,


 


(9)           except as otherwise provided in
Section 9.02(c), make any change to provisions of the Collateral Documents that
would effect a release (other than releases effected in accordance with the
terms in effect on the Issue Date of this Indenture and Collateral Documents)
of all or any substantial part of the Collateral or


 


(10)         make any change in any Note Guarantee
that would materially and adversely affect the Noteholders or effect a release
of all or any substantial portion of the Note Guarantees (in either case, other
than releases effected in accordance with the existing terms of this
Indenture).


 


(c)           Notwithstanding the provisions of
Section 9.02(a), without the consent of the holders of 662/3%
in principal amount of the outstanding Notes, an amendment or waiver may not
effect a release (other than releases effected in accordance with the existing
terms of this Indenture and Collateral Documents) of any Collateral.


 


(d)           It is not necessary for Holders to
approve the particular form of any proposed amendment, supplement or waiver,
but is sufficient if their consent approves the substance thereof.


 


(e)           An amendment, supplement or waiver
under this Section 9.02 will become effective on receipt by the Trustee of
written consents from the Holders of the affected series of the requisite
percentage in principal amount of the outstanding Notes of that series.  After an amendment, supplement or waiver
under this Section 9.02 becomes effective, the Company will send to the Holders
affected thereby a written notice briefly describing the amendment, supplement
or waiver.  The Company will promptly
send supplemental indentures to affected Holders upon request.  Any failure of the Company to send such
notice, or any defect therein, will not, however, in any way impair or affect
the validity of any such amendment, supplemental indenture or waiver.


 


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Section 9.03.  Effect of Consent. 
(a)  After an amendment,
supplement or waiver becomes effective, it will bind every Holder unless it is
of the type requiring the consent of each Holder affected pursuant to the
provisions of this Indenture.  If the
amendment, supplement or waiver is of the type requiring the consent of each
Holder affected, the amendment, supplement or waiver will bind each Holder that
has consented to it and every subsequent Holder of a Note that evidences the
same debt as the Note of the consenting Holder.


 


(b)           If an amendment, supplement or waiver
changes the terms of a Note, the Trustee may require the Holder to deliver it
to the Trustee so that the Trustee may place an appropriate notation of the
changed terms on the Note and return it to the Holder, or exchange it for a new
Note that reflects the changed terms. 
The Trustee may also place an appropriate notation on any Note
thereafter authenticated.  However, the
effectiveness of the amendment, supplement or waiver is not affected by any
failure to annotate or exchange Notes in this fashion.


 


Section 9.04.  Trustee’s Rights and Obligations.  The Trustee is entitled to
receive (and shall receive upon request), and will be fully protected in
relying upon, an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article 9 is
authorized or permitted by this Indenture. 
If the Trustee has received such an Opinion of Counsel, it shall sign
the amendment, supplement or waiver so long as the same does not adversely
affect the rights of the Trustee.  The
Trustee may, but is not obligated to, execute any amendment, supplement or
waiver that affects the Trustee’s own rights, duties or immunities under this
Indenture.


 


Section 9.05.  Conformity With Trust Indenture Act. 
Every supplemental indenture executed pursuant to this Article 9 shall
conform to the applicable requirements of the TIA.


 


ARTICLE 10

COLLATERAL ARRANGEMENTS


 


Section 10.01.  Collateral Documents. 
(a)  The due and punctual payment
of inter alia the principal,
interest and premium, if any, and any other amounts due on the Notes when and
as the same shall be due and payable, whether on an Interest Payment Date, at
maturity, by acceleration, repurchase, redemption or otherwise, and interest on
the overdue principal of and interest on the Notes and performance of all other
Secured Obligations of the Company and the Guarantors to the Holders or the
Trustee under this Indenture, the Notes, the Note Guarantees and the Collateral
Documents, according to the terms hereunder or thereunder, are secured as
provided in the Collateral Documents. 
The Trustee and the Company hereby acknowledge and agree that the
Trustee or the Notes Collateral Agent, as the case may be, holds the Collateral
in trust for the benefit of (i) the Trustee and the Holders, in each case
pursuant to the terms of the Collateral Documents, and (ii) if so required to
give effect to any provisions of the Intercreditor Agreement, the Collateral
Agent under the Credit Agreement and the other Lender Parties thereto. Each
Holder, by accepting a Note (or a beneficial interest therein), consents and agrees
to the terms of the Collateral Documents (including the provisions providing
for foreclosure and release of Collateral) as the same may be in effect or may
be amended from time to time in accordance with its terms and authorizes and
directs the Trustee and the Notes Collateral Agent to enter into the Collateral
Documents and to perform its obligations and exercise its rights thereunder in
accordance therewith. The Company shall deliver to the Trustee (if it is not
then


 


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the Notes Collateral Agent)
copies of all documents delivered to the Notes Collateral Agent pursuant to the
Collateral Documents and will do or cause to be done all such acts and things
as may be required by the next sentence of this Section 10.01, to assure and
confirm to the Trustee and the Notes Collateral Agent the security interest in
the Collateral contemplated hereby and by the Collateral Documents or any part
thereof, as from time to time constituted, so as to render the same available
for the security and benefit of this Indenture and of the Notes secured hereby,
according to the intent and purposes herein expressed. The Company shall take,
and shall cause its Subsidiaries to take, any and all actions reasonably
required to cause the Collateral Documents to create and maintain (to the
extent contemplated hereunder or thereunder), as security for the Secured
Obligations of the Company and the Guarantors, a valid and enforceable
perfected Lien and security interest (subject to Permitted Senior Liens) in and
on all the Collateral, in favor of the Trustee or the Notes Collateral Agent
for the benefit of the Holders; it being understood that the Trustee and Notes
Collateral Agent shall have no duty with respect to such actions.


 


(b)           The Trustee hereby appoints the Notes
Collateral Agent as its agent under the Collateral Documents, and the Notes
Collateral Agent is hereby authorized to act on behalf of the Trustee, with
full authority and powers of the Trustee hereunder, solely with respect to its
role as Notes Collateral Agent.


 


Section 10.02.  Recordings and Opinions.  (a)  Promptly following
the Issue Date, the Company shall furnish to the Trustee an Opinion of Counsel
to the effect that (i) in the opinion of such counsel, such action has been
taken with respect to the recording, registering and filing of or with respect
to this Indenture and the Collateral Documents and all other instruments of
further assurance as is necessary to make effective the Lien of the Collateral
Documents in the Collateral and referencing the details of such action; or (ii)
in the opinion of such counsel, no such action is necessary to make such Lien
effective provided that any such Opinion of Counsel may rely on an Officers’
Certificate or certificates of public officials with respect to matters of
fact.


 


(b)           The Company shall furnish to the
Trustee on or before
[                     ]
in each year beginning with [          ],
2005, an Opinion of Counsel dated as of such date, either:  (i) to the effect that, in the opinion of
such counsel, such action has been taken with respect to the recordings,
registerings, filings, re-recordings, re-registerings and re-filings of or with
respect to this Indenture and the Collateral Documents as is necessary to
maintain and perfect the Lien under this Indenture or any the Collateral
Documents in the Collateral and reciting the details of such action or
referencing to prior Opinions of Counsel in which such details are given; or
(ii) to the effect that, in the opinion of such counsel, no such action is
necessary to maintain and perfect such Lien under this Indenture and the
Collateral Documents.


 


(c)           All Opinions of Counsel delivered
pursuant to this Section 10.02 shall be in form and substance satisfactory to
the Trustee and may contain assumptions, qualifications, exceptions and
limitations as are appropriate and customary for similar opinions relating to
the nature of the Collateral.


 


(d)           The Company shall otherwise comply
with the provisions of TIA 314(b).


 


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Section 10.03.  Release of Collateral. 
(a)  Subject to subsection (b) of
this Section 10.03, Collateral may be released from the Lien created by this
Indenture and the Collateral Documents at any time or from time to time in
accordance with the provisions of the Collateral Documents and as provided by
this Indenture.  Upon the written
request of the Company to the Trustee pursuant to an Officers’ Certificate
certifying that all conditions precedent hereunder and under the Collateral
Documents have been met and that no Event of Default has occurred and is
continuing, the Company and the Guarantors will be entitled, without the
consent of the Holders, to the release of any Collateral from the Liens
securing the Notes and the Subsidiary Guarantees:


 


(1)           to enable the Company or any
Restricted Subsidiary to consummate any sale, conveyance or other disposition
of any assets in compliance with Section 4.11 (or in a transaction not subject
to Section 4.11) to any Person other than the Company or a Restricted
Subsidiary; provided, however, that the Lien of this Indenture and the
Collateral Documents will not be released pursuant to this Section 10.03(a) if
such sale, conveyance or disposition is made as part of a transaction governed
by Section 5.01;


 


(2)           pursuant to an amendment, waiver or
supplement effected in accordance with Article 9.


 


(b)           Any Officers’ Certificate requesting
a release of Collateral under Section 10.03(a) shall (i) describe with
particularity the items of property proposed to be covered by the release, (ii)
state that such release is in compliance with the terms of this Indenture and
the Collateral Documents and (iii) be accompanied by an Opinion of Counsel,
which may be rendered by internal counsel to the Company, to the effect that,
in the opinion of such counsel, the Company has complied with the requirements
of TIA Section 314(d); provided that
any such Opinion of Counsel may rely on an Officers’ Certificate or
certificates of public officials with respect to matters of fact. In the event
of any release of any Collateral from Liens securing the Notes pursuant to
Section 10.03(a), promptly after the receipt of such Officers’ Certificate and
accompanying Opinion of Counsel, the Trustee and the Notes Collateral Agent
shall execute and deliver such documents as the Company shall reasonably
request to effectuate the release of such Liens and to evidence such release.


 


(c)           Without limiting the foregoing
provisions of this Section 10.03, at any time when a Default has occurred and
is continuing and the maturity of Notes has been accelerated (whether by
declaration or otherwise) and the Trustee has delivered a notice of
acceleration to the Notes Collateral Agent, no release of Collateral pursuant
to the provisions of the Collateral Documents will be effective as against the
Holders, except to the extent provided in the Intercreditor Agreement.


 


Section 10.04.  Permitted Releases Not To Impair Lien; Trust Indenture Act Requirements.  The
release of any Collateral from the terms hereof and of the Collateral Documents
or the release of, in whole or in part, the Liens created by the Collateral
Documents, will not be deemed to impair the Lien on the Collateral in
contravention of the provisions hereof if and to the extent the Collateral or
Liens are released pursuant to the applicable Collateral Documents and pursuant
to the terms of this Article 10. The Trustee and each of the Holders
acknowledge that a release of Collateral or a Lien strictly in accordance with
the terms of the Collateral Documents and of this Article 10 will not be deemed
for any purpose to be an


 


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impairment of the Lien on the Collateral in
contravention of the terms of this Indenture. To the extent applicable, the
Company shall cause Section 314(d) of the TIA (as modified by exemptive relief
and no-action positions issued by the Staff of the Commission from time to
time, including, without limitation, the positions set forth in Arch Wireless
Holdings, Inc. dated May 24, 2002 and Algoma Steel Inc. dated December 23,
2002) relating to the release of property or securities from the Lien hereof
and of the Collateral Documents to be complied with. Any certificate or opinion
required by Section 314(d) of the TIA may be made by an officer of the Company,
except in cases which Section 314(d) of the TIA requires that such certificate
or opinion be made by an independent person.


 


Section 10.05.  Suits To Protect the Collateral.  Subject to the provisions of
the Collateral Documents, the Trustee shall have the power (but not the
obligation) to institute and to maintain such suits and proceedings as it may
deem expedient to prevent any impairment of the Collateral by any acts which
may be unlawful or in violation of any of the Collateral Documents or this
Indenture, and such suits and proceedings as the Trustee, in its sole
discretion, may deem expedient to preserve or protect its interests and the
interests of the Holders in the Collateral (including power to institute and
maintain suits or proceedings to restrain the enforcement of or compliance with
any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance
with, such enactment, rule or order would impair the Lien on the Collateral or
be prejudicial to the interests of the Holders or the Trustee).


 


Section 10.06.  Purchaser Protected.  In no event shall any purchaser in good
faith of any property purported to be released hereunder be bound to ascertain
the authority of the Trustee to execute the release or to inquire as to the
satisfaction of any conditions required by the provisions hereof for the
exercise of such authority or to see to the application of any consideration
given by such purchaser or other transferee; nor shall any purchaser or other
transferee of any property or rights permitted by this Article 10 to be sold be
under obligation to ascertain or inquire into the authority of the Company or
the applicable Guarantor to make any such sale or other transfer.


 


Section 10.07.  Powers Exercisable by Receiver or Trustee.  In
case the Collateral shall be in the possession of a receiver or trustee,
lawfully appointed, the powers conferred in this Article 10 upon the Company or
a Guarantor with respect to the release, sale or other disposition of such
property may be exercised by such receiver or trustee, and an instrument signed
by such receiver or trustee shall be deemed the equivalent of any similar
instrument of the Company or a Guarantor or of any officer or officers thereof
required by the provisions of this Article 10, and any such instrument need not
state that no Event of Default has occurred and is continuing; and if the
Trustee shall be in the possession of the Collateral under any provision of
this Indenture, then such powers may be exercised by the Trustee.


 


Section 10.08.  Disposition of Obligations Received.  All
purchase money and other obligations received by the Trustee or the Notes
Collateral Agent under this Article 10 shall be held by the Trustee or the
Notes Collateral Agent, as the case may be, and shall be added to the
Collateral. Upon payment in cash or Cash Equivalents by or on behalf of the
Company to the Trustee or the Notes Collateral Agent of an amount equal to the
entire unpaid principal amount of any such obligation, to the extent not
constituting Net Cash Proceeds which may be required,


 


86

















 


through the passage of time or otherwise, to
be used to redeem or repurchase or to make an Offer to Purchase Notes, the
Trustee or the Notes Collateral Agent, as appropriate, shall release and
transfer such obligation and any mortgage securing the same upon receipt of any
documentation that the Trustee or the Notes Collateral Agent, as appropriate,
may reasonably require. If the Notes have been accelerated pursuant to Section
6.02, any such interest or other income not theretofore paid, when collected by
the Trustee, shall be applied by the Trustee in accordance with Section 6.10.


 


Section 10.09.  Determinations Relating to Collateral.  In
the event (a) the Trustee shall receive any written request from the Company, a
Guarantor or the Notes Collateral Agent under any Collateral Document for
consent or approval with respect to any matter or thing relating to any
Collateral or the Company’s or a Guarantor’s obligations with respect thereto
or (b) there shall be due to or from the Trustee or the Notes Collateral Agent
under the provisions of any Collateral Document any material performance or the
delivery of any material instrument or (c) the Trustee shall become aware of
any material nonperformance by the Company or a Guarantor of any covenant or
any material breach of any representation or warranty of the Company or a Guarantor
set forth in any Collateral Document, then, in each such event, the Trustee
shall be entitled to hire, at the sole reasonable cost and expense of the
Company, experts, consultants, agents and attorneys to advise the Trustee on
the manner in which the Trustee should respond, or direct the Notes Collateral
Agent to respond, to such request or render any requested performance or
response to such nonperformance or breach. The Trustee shall be fully protected
in accordance with Article 7 hereof in the taking of any action recommended or
approved by any such expert, consultant, agent or attorney and by
indemnification provided in accordance with Section 6.05 and other sections of
this Indenture if such action is agreed to by Holders of a majority in principal
amount of the Notes pursuant to Section 6.05 and, the Trustee may, in its sole
discretion, prior to taking such action if such action could subject it to
environmental liabilities or taxation, require (1) direction from the Holders
of a majority in principal amount of the Notes in accordance with Section 6.05
hereof and (2) indemnification in accordance with Section 6.05.


 


Section 10.10.  Release upon Termination of the Company’s Obligations.  In
the event that the Company delivers to the Trustee, in form and substance
reasonably acceptable to it, an Officers’ Certificate certifying that either
(1) all the obligations under this Indenture, the Notes and the Collateral
Documents have been satisfied and discharged by complying with the provisions
of Article 8 and Section 7.07 (except for unmatured or unasserted indemnity
claims pursuant to Section 7.07) or by the payment in full of the Company’s
obligations under the Notes, this Indenture and the Collateral Documents, and
all such obligations have been so satisfied, or (2) the Notes have been
defeased pursuant to Article 8, in either case the Trustee shall deliver to the
Company and the Notes Collateral Agent a notice stating that the Trustee, on
behalf of the Holders, disclaims and gives up any and all rights it has in or
to the Collateral (other than with respect to funds held by the Trustee
pursuant to Article 8), and any rights it has under the Collateral Documents,
and upon receipt by the Notes Collateral Agent of such notice, the Notes
Collateral Agent shall be deemed not to hold a Lien in the Collateral on behalf
of the Trustee and the Trustee and Notes Collateral Agent shall release the
Collateral (other than funds held by the Trustee pursuant to Article 8) from
such Liens at the Company’s sole cost and expense and, upon written request by
the Company, shall promptly execute and deliver such documents as the Company
shall reasonably request to effectuate the release of such Liens.


 


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Section 10.11.  Notes Collateral Agent’s Duties.  The Notes Collateral Agent,
acting in its capacity as such, shall have only such duties with respect to the
Collateral as are set forth herein and in the Collateral Documents.


 


Section 10.12.  Additional Secured Obligations.  If the Company at any time
Incurs any Indebtedness secured by a Lien on the Collateral, the Trustee and
the Notes Collateral Agent are empowered to enter into such security,
collateral, intercreditor and other similar agreements as are necessary to set
forth the relative rights and obligations of the Trustee and the Notes
Collateral Agent, on the one hand, and the agent or representative for the
lenders of such Indebtedness, on the other hand, in the Collateral.


 


Section 10.13.  Designation of New Indenture Documents.  The
Company may, from time to time, by delivering a written notice to the Trustee,
designate one or more agreements, instruments or other documents to be “New
Indenture Documents”, which notice shall attach an executed copy of the
relevant agreement, instrument or document.


 


ARTICLE 11

GUARANTEES


 


Section 11.01.  The Guarantees.  Subject to the provisions of
this Article 11, each Guarantor hereby irrevocably and unconditionally
guarantees, jointly and severally, the full and punctual payment (whether at
Stated Maturity, upon redemption, purchase pursuant to an Offer to Purchase or
acceleration, or otherwise) of the principal of, premium, if any, and interest
(including Post Petition Interest) on, and all other amounts payable under,
each Note, and the full and punctual payment of all other amounts payable by
the Company under this Indenture.  Upon
failure by the Company to pay punctually any such amount, each Guarantor shall
forthwith on demand pay the amount not so paid at the place and in the manner
specified in this Indenture.


 


Section 11.02.  Guarantee Unconditional.  Subject to the provisions of
Section 11.09, the obligations of each Guarantor hereunder are unconditional
and absolute and, without limiting the generality of the foregoing, will not be
released, discharged or otherwise affected by:


 


(1)           any grants of time, extension,
renewal, settlement, compromise, indulgence, discharge, waiver or release in
respect of any obligation of the Company under this Indenture or any Note, by
operation of law or otherwise;


 


(2)           any modification or amendment of or
supplement to this Indenture or any Note;


 


(3)           any change in the corporate
existence, structure or ownership of the Company, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting the Company or
its assets or any resulting release or discharge of any obligation of the
Company contained in this Indenture or any Note;


 


(4)           the existence of any claim, set-off
or other rights which any Guarantor may have at any time against the Company,
the Trustee or any other Person, whether in connection with this Indenture or
any unrelated transactions, provided that nothing herein prevents the assertion
of any such claim by separate suit or compulsory counterclaim;


 


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(5)           the taking of Collateral from the
Company, any Guarantor or any other Person, and the release, discharge or
alteration of, or other dealing with, such security;


 


(6)           the abstention from taking Collateral
from the Company, any Guarantor or any other Person or from perfecting,
continuing to keep perfected or taking advantage of any security;


 


(7)           any loss, diminution of value or lack
of enforceability of any security received from the Company, any Guarantor or
any other Person, and including any other guarantees received by the Trustee or
the Notes Collateral Agent;


 


(8)           the application by the Holders, the
Trustee or the Notes Collateral Agent of all monies at any time and from time
to time received from the Company, any Guarantor or any other Person on account
of any indebtedness and liabilities owing by the Company or any Guarantor to
the Trustee, the Notes Collateral Agent or the Holders, in such manner as the
Trustee, the Notes Collateral Agent or the Holders deems best and the changing
of such application in whole or in part and at any time or from time to time,
or any manner of application of collateral, or proceeds thereof, to all or any
of the obligations under this Indenture or any Note;


 


(9)           the release or discharge of the
Company or any Guarantor of the Notes or of any Person liable directly as
surety or otherwise by operation of law or otherwise for the Securities, other
than an express release in writing given by the Trustee or the Notes Collateral
Agent, on behalf of the Holders, of the liability and obligations of any
Guarantor hereunder;


 


(10)         any modification, compromise,
settlement or release by the Trustee, or by operation of law or otherwise, of
the obligations under this Indenture or the liability of the Company or any
other obligor under the Notes, in whole or in part, and any refusal of payment
by the Trustee, in whole or in part, from any other obligor or other guarantor
in connection with any of the obligations under this Indenture, whether or not with
notice to, or further assent by, or any reservation of rights against, each of
the Guarantors;


 


(11)         any invalidity or unenforceability
relating to or against the Company for any reason of this Indenture or any
Note, or any provision of applicable law or regulation purporting to prohibit
the payment by the Company of the principal of, premium, if any, or interest on
any Note or any other amount payable by the Company under this Indenture; or


 


(12)         any other act or omission to act or
delay of any kind by the Company, the Trustee or any other Person or any other
circumstance whatsoever which might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of or defense to such Guarantor’s
obligations hereunder.


 


Section 11.03.  Discharge; Reinstatement.  Subject to the provisions of
Section 11.09, (i) each Guarantor’s obligations hereunder will remain in full
force and effect until the principal of, premium, if any, and interest on the
Notes and all other amounts payable by the Company under this Indenture have
been paid in full and (ii) if at any time any payment of the principal of,


 


89

















 


premium,
if any, or interest on any Note or any other amount payable by the Company
under this Indenture is rescinded or must be otherwise restored or returned
upon the insolvency, bankruptcy or reorganization of the Company or otherwise,
each Guarantor’s obligations hereunder with respect to such payment will be
reinstated as though such payment had been due but not made at such time.


 


Section 11.04.  Waiver by the Guarantors.  Each Guarantor irrevocably waives acceptance
hereof, presentment, demand, protest and any notice not provided for herein, as
well as any requirement that at any time any action be taken by any Person
against the Company or any other Person.


 


Section 11.05.  Subrogation and Contribution.  Upon making any payment with respect to any
obligation of the Company under this Article 11, the Guarantor making such
payment will be subrogated to the rights of the payee against the Company with
respect to such obligation, provided that the Guarantor may not enforce either
any right of subrogation, or any right to receive payment in the nature of
contribution, or otherwise, from any other Guarantor, with respect to such
payment so long as any amount payable by the Company hereunder or under the
Notes remains unpaid.


 


Section 11.06.  Stay of Acceleration.  If acceleration of the time for payment of
any amount payable by the Company under this Indenture or the Notes is stayed
upon the insolvency, bankruptcy or reorganization of the Company, all such
amounts otherwise subject to acceleration under the terms of this Indenture are
nonetheless payable by the Guarantors hereunder forthwith on demand by the
Trustee or the Holders.


 


Section 11.07.  Limitation on Amount of Guarantee.  Notwithstanding anything to the contrary in
this Article 11, each Guarantor, and by its acceptance of Notes, each
Holder, hereby confirms that it is the intention of all such parties that the
Note Guarantee of such Guarantor not constitute a fraudulent conveyance or
transfer under applicable fraudulent conveyance or transfer provisions of the
United States Bankruptcy Code or any comparable provision of foreign or state
law.  To effectuate that intention, the
Trustee, the Holders and the Guarantors hereby irrevocably agree that the
obligations of each Guarantor under its Note Guarantee are limited to the
maximum amount that would not render the Guarantor’s obligations subject to
avoidance under applicable fraudulent conveyance provisions of the United
States Bankruptcy Code or any comparable provision of applicable law.


 


Section 11.08.  Execution and Delivery of Guarantee.  The execution by each Guarantor of this
Indenture (or a supplemental indenture in the form of Exhibit C) evidences the
Note Guarantee of such Guarantor, whether or not the person signing as an
officer of the Guarantor still holds that office at the time of authentication
of any Note.  The delivery of any Note by
the Trustee after authentication constitutes due delivery of the Note Guarantee
set forth in this Indenture on behalf of each Guarantor.


 


Section 11.09.  Release of Guarantee.  The Note Guarantee of a Guarantor will
terminate upon:


 


90

















 


(1)                                  a sale or other disposition (including by way
of consolidation, amalgamation or merger) of the Guarantor or the sale or
disposition of substantially all the assets of the Guarantor otherwise
permitted by this Indenture unless the continuing or surviving entity in any
such consolidation, amalgamation or merger, or the entity that acquires such
assets, is the Company or a Restricted Subsidiary and the conditions set forth
in Section 4.12 apply to such continuing or surviving entity,


 


(2)                                  the designation in accordance with this
Indenture of the Guarantor as an Unrestricted Subsidiary,


 


(3)                                  defeasance or discharge of the Notes, as
provided in Article 8, or


 


(4)                                  the dissolution of the Guarantor.


 


Upon
delivery by the Company to the Trustee of an Officers’ Certificate and an
Opinion of Counsel to the foregoing effect, the Trustee will execute any
documents reasonably required in order to evidence the release of the Guarantor
from its obligations under its Note Guarantee.


 


Section 11.10.  No Suspension of Remedies.  Nothing contained in this Article shall
limit the right of the Trustee, the Notes Collateral Agent or the Holders of
Notes to take any action to accelerate the maturity of the Notes pursuant to
the provisions described under Article 6 and as otherwise set forth in
this Indenture or to pursue any rights or remedies hereunder or under
applicable law.


 


ARTICLE 12

MISCELLANEOUS


 


Section 12.01.  Trust Indenture Act of 1939.  This Indenture shall incorporate and be
governed by the provisions of the TIA that are required to be part of and to
govern indentures qualified under the TIA.


 


Section 12.02.  Noteholder Communications; Noteholder Actions.  (a) 
The rights of Holders to communicate with other Holders with respect to
this Indenture or the Notes are as provided by the TIA, and the Company and the
Trustee shall comply with the requirements of TIA Sections 312(a) and
312(b).  Neither the Company nor the
Trustee will be held accountable by reason of any disclosure of information as
to names and addresses of Holders made pursuant to the TIA.


 


(b)                                 (1)                                  Any request, demand, authorization,
direction, notice, consent to amendment, supplement or waiver or other action
provided by this Indenture to be given or taken by a Holder (an “act”) may be
evidenced by an instrument signed by the Holder delivered to the Trustee.  The fact and date of the execution of the
instrument, or the authority of the person executing it, may be proved in any
manner that the Trustee deems sufficient.


 


(2)                                  The Trustee may make reasonable rules for
action by or at a meeting of Holders, which will be binding on all the Holders.


 


91

















 


(c)                                  Any act by the Holder of any Note binds that
Holder and every subsequent Holder of a Note that evidences the same debt as
the Note of the acting Holder, even if no notation thereof appears on the
Note.  Subject to paragraph (d), a
Holder may revoke an act as to its Notes, but only if the Trustee receives the
notice of revocation before the date the amendment or waiver or other
consequence of the act becomes effective.


 


(d)                                 The Company may, but is not obligated to, fix
a record date (which need not be within the time limits otherwise prescribed by
TIA Section 316(c)) for the purpose of determining the Holders entitled to
act with respect to any amendment or waiver or in any other regard, except that
during the continuance of an Event of Default, only the Trustee may set a
record date as to notices of default, any declaration or acceleration or any
other remedies or other consequences of the Event of Default.  If a record date is fixed, those Persons
that were Holders at such record date and only those Persons will be entitled
to act, or to revoke any previous act, whether or not those Persons continue to
be Holders after the record date.  No
act will be valid or effective if such act is taken more than 90 days after the
record date, if any, set for that act pursuant to this Section 12.02(d).


 


Section 12.03.  Notices. 
(a)  Any notice or communication
to the Company will be deemed given if in writing (i) when delivered in person
or (ii) five days after mailing when mailed by first class mail, or (iii) when
sent by facsimile transmission, with transmission confirmed.  Notices or communications to a Guarantor
will be deemed given if given to the Company. 
Any notice to the Trustee will be effective only upon receipt.  In each case the notice or communication should
be addressed as follows:


 


if to the Company or the Guarantors:


 


Foster
Wheeler LLC

c/o Foster Wheeler Inc.

Perryville Corporate Park

Clinton, NJ  08809-4000

Telecopier No.: 908-730-5315
Attention: Steven I. Weinstein


 


if to the Trustee or the Notes Collateral Agent:


 


Wells
Fargo Bank, National
Association

Corporate Trust

Sixth and Marquette

MAC N9303-120

Minneapolis, MN  55479

Telecopier No.: 612-667-9825

Attention: Foster Wheeler Administrator


 


The
Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.


 


(b)                                 Except as otherwise expressly provided with
respect to published notices, any notice or communication to a Holder will be
deemed given when mailed to the Holder at its


 


92

















 


address as it appears on the
Register by first class mail or, as to any Global Note registered in the name
of DTC or its nominee, as agreed by the Company, the Trustee and DTC.  Copies of any notice or communication to a
Holder, if given by the Company, will be mailed to the Trustee at the same
time.  Defect in mailing a notice or
communication to any particular Holder will not affect its sufficiency with
respect to other Holders.  If the
Company mails a notice or communication to Holders, it shall mail a copy to the
Trustee at the same time.


 


(c)                                  Where this Indenture provides for notice, the
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and the waiver will be the equivalent of the
notice.  Waivers of notice by Holders
must be filed with the Trustee, but such filing is not a condition precedent to
the validity of any action taken in reliance upon such waivers.


 


Section 12.04.  Certificate and Opinion as to Conditions Precedent.  Upon any request or application by the Company
to the Trustee to take any action under this Indenture, the Company will
furnish to the Trustee such certificates and opinions as may be required under
the TIA.  Each such certificate or
opinion shall be given in the form of an Officers’ Certificate, if to be given
by an Officer of the Company, or an Opinion of Counsel, if to be given by
counsel, and shall comply with the requirements of the TIA and any applicable
requirements set forth in this Indenture.


 


Section 12.05.  Statements Required in Certificate or Opinion.  Each certificate or opinion with respect to
compliance by the Company with a condition or covenant provided for in this
Indenture must include:


 


(1)                                  a statement that each Person signing the
certificate or opinion has read the covenant or condition and the related
definitions;


 


(2)                                  a brief statement as to the nature and scope
of the examination or investigation upon which the statement or opinion
contained in the certificate or opinion is based;


 


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


 


(4)                                  a statement as to whether or not, in the
opinion of each such Person, such condition or covenant has been complied with,
provided that an Opinion of Counsel may rely on an Officers’ Certificate or
certificates of public officials with respect to matters of fact.


 


Section 12.06.  Payment Date Other Than a Business Day.  If any payment with respect to a payment of
any principal of, premium, if any, or interest on any Note (including any
payment to be made on any date fixed for redemption or purchase of any Note) is
due on a day which is not a Business Day, then the payment need not be made on
such date, but may be made on the next Business Day with the same force and
effect as if made on such date, and no interest will accrue for the intervening
period.


 


93

















 


Section 12.07.  Governing Law.  This Indenture, including any Note Guarantees, and the Notes
shall be governed by, and construed in accordance with, the laws of the State
of New York.


 


Section 12.08.  No Adverse Interpretation of Other Agreements.  This Indenture may not be used to interpret
another indenture or loan or debt agreement of the Company or any Subsidiary of
the Company, and no such indenture or loan or debt agreement may be used to
interpret this Indenture.


 


Section 12.09.  Successors. 
All agreements of the Company or any Guarantor in this Indenture and the
Notes will bind its successors.  All
agreements of the Trustee in this Indenture will bind its successor.


 


Section 12.10.  Duplicate Originals.  The parties may sign any number of copies of
this Indenture.  Each signed copy shall
be an original, but all of them together represent the same agreement.


 


Section 12.11.  Separability.  In case any provision in this Indenture or in the Notes is
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions will not in any way be affected or impaired thereby.


 


Section 12.12.  Table of Contents and Headings.  The Table of Contents, Cross-Reference Table
and headings of the Articles and Sections of this Indenture have been inserted
for convenience of reference only, are not to be considered a part of this
Indenture and in no way modify or restrict any of the terms and provisions of
this Indenture.


 


Section 12.13.  No Liability of Directors, Officers, Employees,
Incorporators, Members and Stockholders.  No director, officer, employee,
incorporator, member or stockholder of the Company or any Guarantor, as such,
will have any liability for any obligations of the Company or such Guarantor
under the Notes, any Note Guarantee or this Indenture or for any claim based
on, in respect of, or by reason of, such obligations.  Each Holder of Notes by accepting a Note waives and releases all
such liability. This waiver and release are part of the consideration for issuance
of the Notes.


 


Section 12.14.  Submission to Jurisdiction.  To the fullest extent permitted by
applicable law, each Obligor hereby irrevocably and unconditionally submits to
the jurisdiction of any New York State or United States Federal court sitting
in New York City over any suit, action or proceeding arising out of or relating
to this Indenture or any Note.  Each
Obligor irrevocably and unconditionally waives, to the fullest extent permitted
by applicable law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding brought in such a
court and any claim that any such suit, action or proceeding brought in such a
court has been brought in an inconvenient forum. To the extent that an Obligor
has or hereafter may acquire any immunity from jurisdiction of any court or
from any legal process with respect to itself or its property, such Obligor
irrevocably waives, to the fullest extent permitted by applicable law, such
immunity in respect of its obligations hereunder or under any Note.  Each Obligor agrees that final judgment in
any such suit, action or proceeding brought in such a court shall be conclusive
and binding upon such Obligor and, to the extent permitted by applicable


 


94

















 


law, may be
enforced in any court to the jurisdiction of which such Obligor is subject by a
suit upon such judgment or in any manner provided by applicable law; provided
that service of process is effected upon such Obligor in the manner specified
in the following subsection or as otherwise permitted by applicable law.


 


Section 12.15.  Appointment of Agent.  As long as any of the Notes remain
outstanding, each Obligor will at all times have an authorized agent in the
State of New York, upon whom process may be served in any legal action or
proceeding arising out of or relating to this Indenture or any Note. Service of
process upon such agent and written notice of such service mailed or delivered
to such Obligor shall, to the fullest extent permitted by applicable law, be
deemed in every respect effective service of process upon such Obligor in any
such legal action or proceeding. Each Obligor hereby irrevocably appoints CT
Corporation System as its agent for such purpose, and covenants and agrees that
service of process in any suit, action or proceeding may be made upon it at the
office of such agent at 111 Eighth Avenue, 13th Floor, New York, New York
10011. Notwithstanding the foregoing, the Obligors may, with prior written notice
to the Trustee, terminate the appointment of CT Corporation System and appoint
another agent for the above purposes so that each Obligor shall at all times
have an agent for the above purposes in the State of New York.


 


95

















 


SIGNATURES


 


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


 


	
   

  	
  FOSTER
  WHEELER LLC

  
	
   

  	
  as
  Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


96

















 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL

  ASSOCIATION

  
	
   

  	
  not
  in its individual capacity but solely as

  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


97

















 


	
   

  	
  FOSTER
  WHEELER LTD.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CONTINENTAL
  FINANCE COMPANY

  LTD.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ENERGY
  HOLDINGS, INC.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EQUIPMENT
  CONSULTANTS, INC.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FINANCIAL
  SERVICES, S.A.R.L.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


98

















 


	
   

  	
  FOSTER
  WHEELER HOLDINGS LTD.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER ASIA LIMITED

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER CAPITAL &

  FINANCE CORPORATION

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER CONSTRUCTORS,

  INC.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER DEVELOPMENT

  CORPORATION

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


99

















 


	
   

  	
  FW
  ENERGIE B.V.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER ENERGY

  CORPORATION

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER ENERGY

  MANUFACTURING, INC.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER ENERGY

  SERVICES, INC.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER EUROPE LIMITED

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


100

















 


	
   

  	
  FOSTER
  WHEELER ENVIRESPONSE,

  INC.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER ENVIRONMENTAL

  CORPORATION

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER FACILITIES

  MANAGEMENT, INC.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER INC.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER

  INTERCONTINENTAL CORPORATION

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


101

















 


	
   

  	
  FOSTER
  WHEELER INTERNATIONAL CORPORATION

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER INTERNATIONAL

  HOLDINGS, INC.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER NORTH AMERICA

  CORP.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER POWER SYSTEMS,

  INC.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


102

















 


	
   

  	
  FOSTER
  WHEELER PYROPOWER, INC.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER REAL ESTATE

  DEVELOPMENT CORP.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER REALTY

  SERVICES, INC.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER USA

  CORPORATION

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


103

















 


	
   

  	
  FOSTER
  WHEELER VIRGIN ISLANDS,

  INC.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER ZACK, INC.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FW
  HUNGARY LICENSING LIMITED

  LIABILITY COMPANY

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FW
  MORTSHAL, INC.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HFM
  INTERNATIONAL, INC.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


104

















 


	
   

  	
  PGI
  HOLDINGS, INC.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PROCESS
  CONSULTANTS, INC.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PYROPOWER
  OPERATING SERVICES

  COMPANY, INC.

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PERRYVILLE
  III TRUST

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER POWER

  CORPORATION

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


105

















 


	
   

  	
  FOSTER
  WHEELER MIDDLE EAST

  CORPORATION

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


106

















 


EXHIBIT A


 


[INSERT DTC LEGEND IF REQUIRED]


 


[INSERT RESTRICTED LEGEND IF REQUIRED]


 


[FACE OF NOTE]


 


FOSTER WHEELER LLC


 


     %
Senior Secured Note Due 2011, Series A


 


	
   

  	
   

  	
  [CUSIP]  [CINS]

  
	
   

  	
   

  	
   

  
	
  No.

  	
   

  	
  $

  



 


Foster
Wheeler LLC, a Delaware limited liability company (the “Company”, which term
includes any successor under the Indenture hereinafter referred to), for value
received, promises to pay to                                         , or its registered assigns,
the principal sum of                          DOLLARS ($            ) on [   ],
2011.


 


Interest
Rate:                              % per annum.


 


Interest
Payment Dates:  [     ] and [   ], commencing
[        ], 2004.


 


Regular
Record Dates:  [     ] and
[      ].


 


Reference
is hereby made to the further provisions of this Note set forth on the reverse
hereof, which will for all purposes have the same effect as if set forth at
this place.


 


A-1

















 


IN
WITNESS WHEREOF, the Company has caused this Note to be signed manually or by
facsimile by its duly authorized officers.


 


	
  Date:

  	
  FOSTER
  WHEELER LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


A-2

















 


(Form of Trustee’s Certificate of Authentication)


 


This
is one of the      % Senior Secured Notes Due 2011,
Series A, described in the Indenture referred to in this Note.


 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL

  ASSOCIATION, not in its individual capacity but

  solely as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


A-3

















 


[REVERSE SIDE OF NOTE]


 


FOSTER WHEELER LLC


 


     %
Senior Secured Note Due 2011, Series A


 


1.                                       Principal and Interest.


 


The
Company promises to pay the principal of this Note on
[        ], 2011.


 


The
Company promises to pay interest on the principal amount of this Note on each
interest payment date, as set forth on the face of this Note, at the rate of
     % per annum (subject to adjustment as provided
below).


 


Interest
will be payable semiannually (to the holders of record of the Notes at the close
of business on the [     ] and
[      ] immediately preceding the interest
payment date) on each interest payment date, commencing
[       ], 2004.


 


Interest
on this Note will accrue from the most recent date to which interest has been
paid on this Note (or, if there is no existing default in the payment of
interest and if this Note is authenticated between a regular record date and
the next interest payment date, from such interest payment date) or, if no
interest has been paid, from the date of issuance.  Interest will be computed in the basis of a 360-day year of
twelve 30-day months.


 


The
Company will pay interest, from time to time on demand, on overdue principal,
premium, if any, and interest at a rate per annum that is 2% in excess of the
rate of interest that is applicable to the Notes.  Interest not paid when due (including any thereof that becomes
due on demand) and any interest on principal, premium or interest not paid when
due (including any thereof that becomes due on demand) will be paid to the
Persons that are Holders on a special record date, which will be the 15th day
preceding the date fixed by the Trustee for the payment of such interest,
whether or not such day is a Business Day. 
At least 15 days before a special record date, the Company will send to
each Holder and to the Trustee a notice that sets forth the special record
date, the payment date and the amount of interest to be paid.


 


In
the event that the Excepted Non-Guarantor Subsidiaries do not execute all Note
Guarantees and pledge their assets in accordance with the Collateral Documents
to secure their Note Guarantees within 90 days of the Issue Date, the interest
rate on the Notes shall increase by 1.0% per annum, commencing on the 91st
day following the Issue Date through and until the date on which all such Note
Guarantees have been executed and pledges documented in accordance with the
Collateral Documents, after which the interest rate shall decrease by 1.0% per
annum.


 


2.                                       Indentures; Note Guarantee.


 


This
is one of the Notes issued under an Indenture dated as of
[        ], 2004 (as amended from time
to time, the “Indenture”), among the Company, the Guarantors party thereto and
Wells Fargo Bank, National Association, not in its individual capacity but
solely as Trustee.  Capitalized terms
used herein are used as defined in the Indenture unless otherwise indicated.


 


A-4

















 


The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the TIA. 
The Notes are subject to all such terms and to the terms of the
Intercreditor Agreement, and Holders are referred to the Indenture, the TIA and
the Intercreditor Agreement for a statement of all such terms.  To the extent permitted by applicable law,
(i) in the event of any inconsistency between the terms of this Note and the
terms of the Indenture, the terms of the Indenture will control, and (ii) in
the event of any inconsistency between the terms of this Note or the terms of
the Indenture, on the one hand, and the terms of the Intercreditor Agreement on
the other hand, the terms of the Intercreditor Agreement will control.


 


The
Notes are general unsecured obligations of the Company.  The Indenture limits the original aggregate
principal amount of the Notes to $270,000,000. 
This Note is guaranteed, as set forth in the Indenture.


 


3.                                       Redemption and Repurchase;
Discharge Prior to Redemption or Maturity.


 


This
Note is subject to optional redemption, and may be the subject of an Offer to
Purchase, as further described in the Indenture.  There is no sinking fund or mandatory redemption applicable to
this Note.


 


If
the Company deposits with the Trustee money or U.S. Government Obligations
sufficient to pay the then outstanding principal of, premium, if any, and
accrued interest on the Notes to redemption or maturity, the Company may in
certain circumstances be discharged from the Indenture and the Notes or may be
discharged from certain of its obligations under certain provisions of the
Indenture.


 


4.                                       Registered Form;
Denominations; Transfer; Exchange.


 


The
Notes are in registered form without coupons in denominations of $1.00
principal amount and any multiple of $1.00 in excess thereof.  A Holder may register the transfer or
exchange of Notes in accordance with the Indenture.  The Trustee may require a Holder to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. 
Pursuant to the Indenture, there are certain periods during which the
Trustee will not be required to issue, register the transfer of or exchange any
Note or certain portions of a Note.


 


5.                                       Defaults and Remedies.


 


If
an Event of Default, as defined in the Indenture, occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding may declare all the Notes to be due and payable.  If a bankruptcy or insolvency default with
respect to the Company, Parent, any Significant Restricted Subsidiary or any
group of Restricted Subsidiaries that taken together would constitute a
Significant Restricted Subsidiary occurs and is continuing, the Notes
automatically become due and payable. 
Holders may not enforce the Indenture or the Notes except as provided in
the Indenture.  The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the
Notes.  Subject to certain limitations,
Holders of a majority in aggregate principal amount of the Notes then
outstanding may direct the Trustee in its exercise of remedies.


 


A-5

















 


6.                                       Amendment and Waiver.


 


Subject
to certain exceptions, the Indenture and the Notes may be amended, or default
may be waived, with the consent of the Holders of a majority in aggregate
principal amount of the Notes then outstanding.  Without notice to or the consent of any Holder, the Company and
the Trustee may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency.


 


7.                                       Authentication.


 


This
Note is not valid until the Trustee (or Authenticating Agent) signs the
certificate of authentication on the other side of this Note.


 


8.                                       Governing Law.


 


This
Note shall be governed by, and construed in accordance with, the laws of the
State of New York.


 


9.                                       Abbreviations.


 


Customary
abbreviations may be used in the name of a Holder or an assignee, such as:  TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian) and U/G/M/A/ (= Uniform Gifts
to Minors Act).


 


The
Company will furnish a copy of the Indenture to any Holder upon written request
and without charge.


 


A-6

















 


[FORM OF TRANSFER NOTICE]


 


FOR
VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and
transfer(s) unto


 


	
  Insert
  Taxpayer Identification No.  

  
	
   

  
	
   

  
	
   

  Please print or typewrite name and address including zip code of
  assignee

  
	
   

  
	
   

  
	
  The within Note and all rights thereunder, hereby irrevocably
  constituting and appointing

  
	
   

  



 


attorney
to transfer said Note on the books of the Company with full power of
substitution in the premises.


 


A-7

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If
you wish to have all of this Note purchased by the Company pursuant to  Section 4.10 or Section 4.11 of
the Indenture, check the box: o


 


If
you wish to have a portion of this Note purchased by the Company pursuant
to  Section 4.10 or
Section 4.11 of the Indenture, state the amount (in original principal
amount) below:


 


$                                        .


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
  Your
  Signature:

  	
   

  	
   

  
	
  (Sign
  exactly as your name appears on the other side of this Note)

  
	
   

  
	
  Signature
  Guarantee:(1)

  	
   

  	
   

  
							



 












(1)   Signatures must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Trustee, which requirements include membership or
participation in the Securities Transfer Association Medallion Program (“STAMP”) or such other “signature guarantee program” as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.


 


A-8

















 


SCHEDULE OF EXCHANGES OF NOTES


 


The
following exchanges of a part of this Global Note for Physical Notes or a part
of another Global Note have been made:


 


	
  Date of
  Exchange

  	
   

  	
  Amount of
  decrease

  in principal amount

  of this Global Note

  	
   

  	
  Amount of
  increase

  in principal amount

  of this Global Note

  	
   

  	
  Principal
  Amount of

  this Global Note

  following such decrease

  (or increase)

  	
   

  	
  Signature
  of

  authorized officer of

  Trustee

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-9

















 


EXHIBIT B


 


[INSERT DTC LEGEND IF REQUIRED]


 


[INSERT RESTRICTED LEGEND IF REQUIRED]


 


[FACE OF NOTE]


 


FOSTER WHEELER LLC


 


     %
Senior Secured Note Due 2011, Series B


 


	
   

  	
   

  	
  [CUSIP] 
  [CINS]                  

  
	
   

  	
   

  	
   

  
	
  No.

  	
   

  	
  $                  

  



 


Foster
Wheeler LLC, a Delaware limited liability company (the “Company”, which term
includes any successor under the Indenture hereinafter referred to), for value
received, promises to pay
to                                             ,
or its registered assigns, the principal sum
of                      DOLLARS
($               )
on
[                       ,]
2011.


 


Interest
Rate:          % per annum.


 


Interest
Payment
Dates:                  and                  ,
commencing                  ,
2004.


 


Regular
Record
Dates:                  and                  .


 


Reference
is hereby made to the further provisions of this Note set forth on the reverse
hereof, which will for all purposes have the same effect as if set forth at
this place.


 


B-1

















 


IN
WITNESS WHEREOF, the Company has caused this Note to be signed manually or by
facsimile by its duly authorized officers.


 


	
  Date:

  	
  FOSTER
  WHEELER LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


B-2

















 


(Form of Trustee’s Certificate of Authentication)


 


This
is one of the      % Senior Secured Notes Due 2011,
Series B described in the Indenture referred to in this Note.


 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL

  ASSOCIATION, not in its individual capacity but

  solely as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


B-3

















 


[REVERSE SIDE OF NOTE]


 


FOSTER WHEELER LLC


 


     %
Senior Secured Note Due 2011, Series B


 


1.                                       Principal and Interest.


 


The
Company promises to pay the principal of this Note on
[                      ],
2011.


 


The
Company promises to pay interest on the principal amount of this Note on each
interest payment date, as set forth on the face of this Note, at the rate of
     % per annum (subject to adjustment as provided
below).


 


Interest
will be payable semiannually (to the holders of record of the Notes at the
close of business on
the                      or                      immediately
preceding the interest payment date) on each interest payment date,
commencing                      ,
2004.


 


The
Holder of this Note is entitled to the benefits of the Registration Rights
Agreement,
dated                 ,
2004, between the Company and the Purchasers named therein (the “Registration
Rights Agreement”).  The interest rate
on this Note will increase by a rate of 0.5% per annum in the event that (i)
the Exchange Offer Registration Statement (as defined in the Registration
Rights Agreement) is not filed by 30th day following the Issue Date, until it
is filed (ii) the Exchange Offer Registration Statement is not declared
effective by the Commission by the 90th day following Issue Date, until the
Exchange Offer Registration Statement is declared effective and (iii) the
Exchange Offer (as defined in the Registration Rights Agreement) is not
consummated pursuant to the Exchange Offer Registration Statement by the 120th
day following the Issue Date, until it is consummated.  After 120 days following an increase in the
interest rate as described in the preceding sentence, the interest rate on this
Note shall increase by a further 0.25% per annum, and shall increase by 0.25%
per annum for each 120-day period thereafter to a maximum increase in interest
of 1.00% per annum.  If the Exchange
Offer does not allow this Note to be exchanged for freely tradable senior
secured notes, the Company will file a shelf registration statement (the “Shelf
Registration Statement”) covering the resale of this Note by the holder and use
its commercially reasonable best efforts to have the Shelf Registration
Statement declared effective as soon as practicable.  Upon the effectiveness of the Shelf Registration Statement, any
such increased interest shall cease to accrue.


 


Interest
on this Note will accrue from the most recent date to which interest has been
paid on this Note (or, if there is no existing default in the payment of
interest and if this Note is authenticated between a regular record date and
the next interest payment date, from such interest payment date) or, if no
interest has been paid, from the date of issuance.  Interest will be computed in the basis of a 360-day year of
twelve 30-day months.


 


The
Company will pay interest, from time to time on demand, on overdue principal,
premium, if any, and interest at a rate per annum that is 2% in excess of the
rate of interest that is applicable to the Notes.  Interest not paid when due (including any thereof that becomes
due on demand) and any interest on principal, premium or interest not paid when
due (including any thereof that becomes due on demand) will be


 


B-4

















 


paid
to the Persons that are Holders on a special record date, which will be the
15th day preceding the date fixed by the Trustee for the payment of such
interest, whether or not such day is a Business Day.  At least 15 days before a special record date, the Company will
send to each Holder and to the Trustee a notice that sets forth the special
record date, the payment date and the amount of interest to be paid.


 


In
the event that the Excepted Non-Guarantor Subsidiaries do not execute all Note
Guarantees and pledge their assets in accordance with the Collateral Documents
to secure their Note Guarantees within 90 days of the Issue Date, the interest
rate on the Notes shall increase       % per
annum, commencing on the 91st day following the Issue Date through
and until the date on which all such Note Guarantees have been executed and
pledges documented in accordance with the Collateral Documents, after which the
interest rate shall decrease       % per annum.


 


2.                                       Indentures; Note Guarantee.


 


This
is one of the Notes issued under an Indenture dated as
of                      ,
2004 (as amended from time to time, the “Indenture”), among the Company, the
Guarantors party thereto and Wells Fargo Bank, National Association, not in its
individual capacity but solely as Trustee. 
Capitalized terms used herein are used as defined in the Indenture
unless otherwise indicated.  The terms
of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the TIA.  The
Notes are subject to all such terms and to the terms of the Intercreditor
Agreement, and Holders are referred to the Indenture, the TIA and the
Intercreditor Agreement for a statement of all such terms.  To the extent permitted by applicable law,
(i) in the event of any inconsistency between the terms of this Note and the
terms of the Indenture, the terms of the Indenture will control, and (ii) in
the event of any inconsistency between the terms of this Note or the terms of
the Indenture, on the one hand, and the terms of the Intercreditor Agreement on
the other hand, the terms of the Intercreditor Agreement will control.


 


The
Notes are general unsecured obligations of the Company.  The Indenture limits the original aggregate
principal amount of the Notes to $120,000,000. 
This Note is guaranteed, as set forth in the Indenture.


 


3.                                       Redemption and Repurchase;
Discharge Prior to Redemption or Maturity.


 


This
Note is subject to optional redemption, and may be the subject of an Offer to
Purchase, as further described in the Indenture.  There is no sinking fund or mandatory redemption applicable to
this Note.


 


If
the Company deposits with the Trustee money or U.S. Government Obligations
sufficient to pay the then outstanding principal of, premium, if any, and
accrued interest on the Notes to redemption or maturity, the Company may in
certain circumstances be discharged from the Indenture and the Notes or may be
discharged from certain of its obligations under certain provisions of the
Indenture.


 


B-5

















 


4.                                       Registered Form;
Denominations; Transfer; Exchange.


 


The
Notes are in registered form without coupons in denominations of $1.00
principal amount and any multiple of $1.00 in excess thereof.  A Holder may register the transfer or
exchange of Notes in accordance with the Indenture.  The Trustee may require a Holder to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. 
Pursuant to the Indenture, there are certain periods during which the
Trustee will not be required to issue, register the transfer of or exchange any
Note or certain portions of a Note.


 


5.                                       Defaults and Remedies.


 


If
an Event of Default, as defined in the Indenture, occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding may declare all the Notes to be due and payable.  If a bankruptcy or insolvency default with
respect to the Company, Parent, any Significant Restricted Subsidiary or any
group of Restricted Subsidiaries that taken together would constitute a
Significant Restricted Subsidiary occurs and is continuing, the Notes
automatically become due and payable. 
Holders may not enforce the Indenture or the Notes except as provided in
the Indenture.  The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the
Notes.  Subject to certain limitations,
Holders of a majority in aggregate principal amount of the Notes then
outstanding may direct the Trustee in its exercise of remedies.


 


6.                                       Amendment and Waiver.


 


Subject
to certain exceptions, the Indenture and the Notes may be amended, or default
may be waived, with the consent of the Holders of a majority in aggregate
principal amount of the Notes then outstanding.  Without notice to or the consent of any Holder, the Company and
the Trustee may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency.


 


7.                                       Authentication.


 


This
Note is not valid until the Trustee (or Authenticating Agent) signs the
certificate of authentication on the other side of this Note.


 


8.                                       Governing Law.


 


This
Note shall be governed by, and construed in accordance with, the laws of the
State of New York.


 


9.                                       Abbreviations.


 


Customary
abbreviations may be used in the name of a Holder or an assignee, such as:  TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian) and U/G/M/A/ (= Uniform Gifts
to Minors Act).


 


The
Company will furnish a copy of the Indenture to any Holder upon written request
and without charge.


 


B-6

















 


[FORM OF TRANSFER NOTICE]


 


FOR
VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and
transfer(s) unto


 


	
  Insert
  Taxpayer Identification No.  

  
	
   

  
	
   

  
	
   

  Please print or typewrite name and address including zip code of
  assignee

  
	
   

  
	
   

  
	
  The within Note and all rights thereunder, hereby irrevocably
  constituting and appointing

  
	
   

  



 


attorney
to transfer said Note on the books of the Company with full power of
substitution in the premises.


 


B-7

















 


[THE
FOLLOWING PROVISION TO BE INCLUDED ON ALL CERTIFICATES BEARING A RESTRICTED
LEGEND]


 


In
connection with any transfer of this Note occurring prior
to                          ,
the undersigned confirms that such transfer is made without utilizing any
general solicitation or general advertising and further as follows:


 


Check One


 


o                                    (1)                                  This Note is being transferred to a
“qualified institutional buyer” in compliance with Rule 144A under the
Securities Act of 1933, as amended and certification in the form of Exhibit G
to the Indenture is being furnished herewith.


 


o                                    (2)                                  This Note is being transferred to a Non-U.S.
Person in compliance with the exemption from registration under the Securities
Act of 1933, as amended, provided by Regulation S thereunder, and certification
in the form of Exhibit F to the Indenture is being furnished herewith.


 


or


 


o                                    (3)                                  This Note is being transferred other than in
accordance with (1) or (2) above and documents are being furnished which comply
with the conditions of transfer set forth in this Note and the Indenture.


 


If
none of the foregoing boxes is checked, the Trustee is not obligated to
register this Note in the name of any Person other than the Holder hereof
unless and until the conditions to any such transfer of registration set forth
herein and in the Indenture have been satisfied.


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Seller

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
						



 


NOTICE:  The signature to this assignment must
correspond with the name as written upon the face of the within mentioned
instrument in every particular, without alteration or any change whatsoever.


 


B-8

















 


	
  Signature Guarantee:(2)

  	
   

  
	
   

  	
   

  



 


	
   

  	
  By

  	
   

  	
   

  
	
   

  	
  To
  be executed by an executive officer

  



 












(2)   Signatures must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Association Medallion Program (“STAMP”) or such other “signature guarantee program” as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended


 


B-9

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If
you wish to have all of this Note purchased by the Company pursuant to
Section 4.10 or Section 4.11 of the Indenture, check the box: o


 


If
you wish to have a portion of this Note purchased by the Company pursuant to
Section 4.10 or Section 4.11 of the Indenture, state the amount (in
original principal amount) below:


 


$                                          .


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Your Signature:

  	
   

  	
   

  
	
  (Sign exactly as your name appears on the other
  side of this Note)

  
	
   

  	
   

  
	
   

  	
  Signature Guarantee:(3)

  	
   

  	
   

  
										



 












(3)   Signatures must be guaranteed by an “eligible guarantor institution” meeting
the requirements of the Trustee, which requirements include membership or
participation in the Securities Transfer Association Medallion Program (“STAMP”) or such other “signature guarantee program” as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.


 


B-10

















 


SCHEDULE OF EXCHANGES OF NOTES


 


The
following exchanges of a part of this Global Note for Physical Notes or a part
of another Global Note have been made:


 


	
  Date of
  Exchange

  	
   

  	
  Amount of
  decrease

  in principal amount

  of this Global Note

  	
   

  	
  Amount of
  increase

  in principal amount

  of this Global Note

  	
   

  	
  Principal
  Amount of

  this Global Note

  following such decrease

  (or increase)

  	
   

  	
  Signature
  of

  authorized officer of

  Trustee

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


B-11

















 


EXHIBIT C


 


SUPPLEMENTAL INDENTURE


 


dated as
of             ,     


 


among


 


FOSTER WHEELER LLC


 


The Guarantor(s) Party Hereto


 


and


 


WELLS FARGO BANK, NATIONAL ASSOCIATION

not in its individual capacity but solely as Trustee


 


      %

Senior Secured Notes due

2011, Series A


 


      %

Senior Secured Notes due

2011, Series B


 


C-1

















 


THIS
SUPPLEMENTAL INDENTURE (this “Supplemental
Indenture”), entered into as
of                     ,            ,
among Foster Wheeler LLC, a Delaware limited liability company (the “Company”), [insert each Guarantor executing
this Supplemental Indenture and its jurisdiction of incorporation] (each an “Undersigned”) and Wells Fargo Bank,
National Association, not in its individual capacity but solely as trustee (the
“Trustee”).


 


RECITALS


 


WHEREAS,
the Company, the Guarantors party thereto and the Trustee entered into the
Indenture, dated as
of                ,
2004 (the “Indenture”), relating
to the Company’s      % Senior Secured Notes Due 2011,
Series A and the Company’s      % Senior Secured Notes
Due 2011, Series B (the “Notes”);


 


WHEREAS,
as a condition to the Trustee entering into the Indenture and the purchase of
the Notes by the Holders, the Company agreed, under certain circumstances
described in the Indenture, to cause certain newly acquired or created
Restricted Subsidiaries to provide Note Guarantees.


 


AGREEMENT


 


NOW,
THEREFORE, in consideration of the premises and mutual covenants herein
contained and intending to be legally bound, the parties to this Supplemental
Indenture hereby agree as follows:


 


Section 1.  Capitalized terms used herein and not
otherwise defined herein are used as defined in the Indenture.


 


Section 2.  Each Undersigned, by its execution of this
Supplemental Indenture, agrees to be a Guarantor under the Indenture and to be
bound by the terms of the Indenture applicable to Guarantors, including, but
not limited to, Article 11 thereof.


 


Section 3.  This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.


 


Section 4.  This Supplemental Indenture may be signed in
various counterparts which together will constitute one and the same
instrument.


 


Section 5.  This Supplemental Indenture is an amendment
supplemental to the Indenture and the Indenture and this Supplemental Indenture
will henceforth be read together.


 


C-2

















 


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


 


	
   

  	
  FOSTER
  WHEELER LLC as Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [GUARANTOR]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WELLS
  FARGO BANK, NATIONAL

  ASSOCIATION, not in its individual capacity but

  solely as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


C-3

















 


EXHIBIT D


 


RESTRICTED LEGEND


 


THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER (1)
REPRESENTS THAT (A) IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED
INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT)
AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH
ACCOUNT, (B) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL
ACCREDITED INVESTOR”) OR (C) IT IS NOT A U.S. PERSON (WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT) AND (2) AGREES FOR THE BENEFIT OF FOSTER
WHEELER LLC THAT IT WILL NOT OFFER, SELL PLEDGE OR OTHERWISE TRANSFER THIS NOTE
OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT IN ACCORDANCE WITH THE SECURITIES ACT
AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ONLY
(A) TO FOSTER WHEELER LLC, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BECOME EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, (E) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
DELIVERS TO THE TRUSTEE A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF
WHICH MAY BE OBTAINED FROM THE TRUSTEE) RELATING TO THE RESTRICTIONS ON
TRANSFER OF THIS NOTE, OR (F) PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.


 


PRIOR
TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(C) ABOVE OR (2)(D)
ABOVE, A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH MAY BE
OBTAINED FROM THE TRUSTEE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE
REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(E) OR (F) ABOVE, THE
COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS,
CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO
DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE
AS TO THE AVAILABILITY OF ANY RULE 144


 


D-1

















 


EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.


 


D-2

















 


EXHIBIT E


 


DTC LEGEND


 


UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.


 


[TRANSFERS
OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE TRANSFER PROVISIONS OF THE INDENTURE.]


 


E-1

















 


EXHIBIT F


 


Regulation S Certificate


 


                 ,        


 


Wells
Fargo Bank, National Association

                                                   

                                                   

Attention: Corporate Trust Administration


 


Re:                               Foster Wheeler LLC

      % Senior Secured

Notes due 2011, Series B (the “Notes”)

Issued under the Indenture (the “Indenture”) dated as

as of                 ,
2004 relating to the Notes


 


Ladies
and Gentlemen:


 


Terms
are used in this Certificate as used in Regulation S (“Regulation S”) under the
Securities Act of 1933, as amended (the “Securities Act”), except as otherwise
stated herein.


 


[CHECK A OR B AS APPLICABLE.]


 


o                                    A.                                   This Certificate relates to our proposed
transfer of
$              principal
amount of Notes issued under the Indenture. 
We hereby certify as follows:


 


1.                                       The offer and sale of the Notes was not and
will not be made to a person in the United States (unless such person is
excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(vi) or
the account held by it for which it is acting is excluded from the definition
of “U.S. person” pursuant to Rule 902(k)(2)(i) under the circumstances
described in Rule 902(h)(3)) and such offer and sale was not and will not be
specifically targeted at an identifiable group of U.S. citizens abroad.


 


2.                                       Unless the circumstances described in the
parenthetical in paragraph 1 above are applicable, either (a) at the time the
buy order was originated, the buyer was outside the United States or we and any
person acting on our behalf reasonably believed that the buyer was outside the
United States or (b) the transaction was executed in, on or through the
facilities of a designated offshore securities market, and neither we nor any
person acting on our behalf knows that the transaction was pre-arranged with a
buyer in the United States.


 


3.                                       Neither we, any of our affiliates, nor any
person acting on our or their behalf has made any directed selling efforts in
the United States with respect to the Notes.


 


F-1

















 


4.                                       The proposed transfer of Notes is not part of
a plan or scheme to evade the registration requirements of the Securities Act.


 


5.                                       If we are a dealer or a person receiving a
selling concession, fee or other remuneration in respect of the Notes, and the
proposed transfer takes place during the Restricted Period (as defined in the
Indenture), or we are an officer or director of the Company or an Purchaser (as
defined in the Indenture), we certify that the proposed transfer is being made
in accordance with the provisions of Rule 904(b) of Regulation S.


 


o                                    B.                                     This Certificate relates to our proposed
exchange of
$               principal
amount of Notes issued under the Indenture for an equal principal amount of
Notes to be held by us.  We hereby
certify as follows:


 


1.                                       At the time the offer and sale of the Notes
was made to us, either (i) we were not in the United States or (ii) we were
excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(vi) or
the account held by us for which we were acting was excluded from the
definition of “U.S. person” pursuant to Rule 902(k)(2)(i) under the
circumstances described in Rule 902(h)(3); and we were not a member of an
identifiable group of U.S. citizens abroad.


 


2.                                       Unless the circumstances described in
paragraph 1(ii) above are applicable, either (a) at the time our buy order was
originated, we were outside the United States or (b) the transaction was
executed in, on or through the facilities of a designated offshore securities
market and we did not pre-arrange the transaction in the United States.


 


3.                                       The proposed exchange of Notes is not part of
a plan or scheme to evade the registration requirements of the Securities Act.


 


You
and the Company are entitled to rely upon this Certificate and are irrevocably
authorized to produce this Certificate or a copy hereof to any interested party
in any administrative or legal proceeding or official inquiry with respect to
the matters covered hereby.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME
  OF SELLER (FOR TRANSFERS) OR

  OWNER (FOR EXCHANGES)]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
   

  
						



 


F-2

















 


EXHIBIT G


 


Rule 144A Certificate


 


             ,      


 


Wells
Fargo Bank, National Association

                                       

                                       

Attention: Corporate Trust Administration


 


Re:                               Foster Wheeler LLC

     % Senior Secured

Notes due 2011, Series B (the “Notes”)

Issued under the Indenture (the “Indenture”) dated as

as
of             ,
2004 relating to the Notes


 


Ladies
and Gentlemen:


 


TO
BE COMPLETED BY PURCHASER IF (1) ABOVE IS CHECKED.


 


This
Certificate relates to:


 


[CHECK A OR B AS APPLICABLE.]


 


o                                    A.                                   Our proposed purchase of
$             principal
amount of Notes issued under the Indenture.


 


o                                    B.                                     Our proposed exchange of
$             principal
amount of Notes issued under the Indenture for an equal principal amount of
Notes to be held by us.


 


We
and, if applicable, each account for which we are acting in the aggregate owned
and invested more than $100,000,000 in securities of issuers that are not
affiliated with us (or such accounts, if applicable), as
of                 ,
200    , which is a date on or since close of our most
recent fiscal year.  We and, if
applicable, each account for which we are acting, are a qualified institutional
buyer within the meaning of Rule 144A (“Rule 144A”) under the Securities Act of
1933, as amended (the “Securities Act”). 
If we are acting on behalf of an account, we exercise sole investment
discretion with respect to such account. We are aware that the transfer of
Notes to us, or such exchange, as applicable, is being made in reliance upon
the exemption from the provisions of Section 5 of the Securities Act
provided by Rule 144A.  Prior to the
date of this Certificate we have received such information regarding the
Company as we have requested pursuant to Rule 144A(d)(4) or have determined not
to request such information.


 


G-1

















 


You
and the Company are entitled to rely upon this Certificate and are irrevocably
authorized to produce this Certificate or a copy hereof to any interested party
in any administrative or legal proceeding or official inquiry with respect to
the matters covered hereby.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME
  OF PURCHASER (FOR TRANSFERS)

  OR OWNER (FOR EXCHANGES)]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
   

  
						



 


G-2

















 


EXHIBIT H


 


Institutional Accredited Investor Certificate


 


Wells
Fargo Bank, National Association

                                              

                                              

Attention: Corporate Trust Administration


 


Re:                               Foster Wheeler LLC

     % Senior Secured

Notes due 2011, Series B (the “Notes”)

Issued under the Indenture (the “Indenture”) dated as

as
of                    ,
2004 relating to the Notes


 


Ladies
and Gentlemen:


 


This
Certificate relates to:


 


[CHECK A OR B AS APPLICABLE.]


 


o                                    A.                                   Our proposed purchase of
$             principal
amount of Notes issued under the Indenture.


 


o                                    B.                                     Our proposed exchange of
$             principal
amount of Notes issued under the Indenture for an equal principal amount of
Notes to be held by us.


 


We
hereby confirm that:


 


1.                                       We are an institutional “accredited investor”
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act
of 1933, as amended (the “Securities Act”) (an “Institutional Accredited
Investor”).


 


2.                                       Any acquisition of Notes by us will be for
our own account or for the account of one or more other Institutional
Accredited Investors as to which we exercise sole investment discretion.


 


3.                                       We have such knowledge and experience in
financial and business matters that we are capable of evaluating the merits and
risks of an investment in the Notes and we and any accounts for which we are
acting are able to bear the economic risks of and an entire loss of our or
their investment in the Notes.


 


4.                                       We are not acquiring the Notes with a view to
any distribution thereof in a transaction that would violate the Securities Act
or the securities laws of any State of the United States or any other
applicable jurisdiction; provided that the disposition of our property and the
property of any accounts for which we are acting as fiduciary will remain at
all times within our and their control.


 


H-1

















 


5.                                       We acknowledge that the Notes have not been
registered under the Securities Act and that the Notes may not be offered or
sold within the United States or to or for the benefit of U.S. persons except
as set forth below.


 


We
agree for the benefit of the Company, on our own behalf and on behalf of each
account for which we are acting, that such Notes may be offered, sold, pledged
or otherwise transferred only in accordance with the Securities Act and any
applicable securities laws of any State of the United States and only (a) to
the Company, (b) pursuant to a registration statement which has become
effective under the Securities Act, (c) to a qualified institutional buyer in
compliance with Rule 144A under the Securities Act, (d) in an offshore
transaction in compliance with Rule 904 of Regulation S under the Securities
Act, that, prior to such transfer, delivers to the Trustee a duly completed and
signed certificate (the form of which may be obtained from the Trustee)
relating to the restrictions on transfer of the Notes or (f) pursuant to an
exemption from registration provided by Rule 144 under the Securities Act or
any other available exemption from the registration requirements of the
Securities Act.


 


Prior
to the registration of any transfer in accordance with (c) or (d) above, we
acknowledge that a duly completed and signed certificate (the form of which may
be obtained from the Trustee) must be delivered to the Trustee.  Prior to the registration of any transfer in
accordance with (e) or (f) above, we acknowledge that the Company reserves the
right to require the delivery of such legal opinions, certifications or other
evidence as may reasonably be required in order to determine that the proposed
transfer is being made in compliance with the Securities Act and applicable
state securities laws.  We acknowledge
that no representation is made as to the availability of any Rule 144 exemption
from the registration requirements of the Securities Act.


 


We
understand that the Trustee will not be required to accept for registration of
transfer any Notes acquired by us, except upon presentation of evidence
satisfactory to the Company and the Trustee that the foregoing restrictions on
transfer have been complied with.  We
further understand that the Notes acquired by us will be in the form of
definitive physical certificates and that such certificates will bear a legend
reflecting the substance of the preceding paragraph.  We further agree to provide to any person acquiring any of the
Notes from us a notice advising such person that resales of the Notes are
restricted as stated herein and that certificates representing the Notes will
bear a legend to that effect.


 


We
agree to notify you promptly in writing if any of our acknowledgments,
representations or agreements herein ceases to be accurate and complete.


 


We
represent to you that we have full power to make the foregoing acknowledgments,
representations and agreements on our own behalf and on behalf of any account
for which we are acting.


 


H-2

















 


You
and the Company are entitled to rely upon this Certificate and are irrevocably
authorized to produce this Certificate or a copy hereof to any interested party
in any administrative or legal proceeding or official inquiry with respect to
the matters covered hereby.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME
  OF PURCHASER (FOR TRANSFERS)

  OR OWNER (FOR EXCHANGES)]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
   

  
						



 


Upon
transfer, the Notes would be registered in the name of the new beneficial owner
as follows:


 


	
  By:

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
  Taxpayer
  ID number:

  	
   

  	
   

  
					



 


H-3

















 


EXHIBIT I


 


[COMPLETE FORM I OR FORM II AS APPLICABLE.]


 


[FORM I]


 


Certificate of Beneficial Ownership


 


To:                              Wells Fargo Bank, National Association

                                              

                                              

Attention: Corporate Trust Administration OR


 


[Name
of DTC Participant]


 


Re:                               Foster Wheeler LLC

     % Senior Secured

Notes due 2011, Series B (the “Notes”)

Issued under the Indenture (the “Indenture”) dated as

as
of                    ,
2004 relating to the Notes


 


Ladies
and Gentlemen:


 


We
are the beneficial owner of
$         principal amount of
Notes issued under the Indenture and represented by an Offshore Global Note (as
defined in the Indenture).


 


We
hereby certify as follows:


 


[CHECK A OR B AS APPLICABLE.]


 


o                                    A.                                   We are a non-U.S. person (within the meaning
of Regulation S under the Securities Act of 1933, as amended).


 


o                                    B.                                     We are a U.S. person (within the meaning of
Regulation S under the Securities Act of 1933, as amended) that purchased the
Notes in a transaction that did not require registration under the Securities
Act of 1933, as amended.


 


I-1

















 


You
and the Company are entitled to rely upon this Certificate and are irrevocably
authorized to produce this Certificate or a copy hereof to any interested party
in any administrative or legal proceeding or official inquiry with respect to
the matters covered hereby.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME
  OF BENEFICIAL OWNER]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
   

  
						



 


[FORM II]


 


Certificate of Beneficial Ownership


 


To:                              Wells Fargo Bank, National Association

                                                

                                                

Attention: Corporate Trust Administration


 


Re:                               Foster Wheeler LLC

     % Senior Secured

Notes due 2011, Series B (the “Notes”)

Issued under the Indenture (the “Indenture”) dated as

as
of                       ,
2004 relating to the Notes


 


Ladies
and Gentlemen:


 


This
is to certify that based solely on certifications we have received in writing
or by electronic transmission from institutions appearing in our records as
persons being entitled to a portion of the principal amount of Notes
represented by an Offshore Global Note issued under the above-referenced
Indenture, that as of the date hereof,
$           principal
amount of Notes represented by the Offshore Global Note being submitted
herewith for exchange is beneficially owned by persons that are either (i)
non-U.S. persons (within the meaning of Regulation S under the Securities Act
of 1933, as amended) or (ii) U.S. persons that purchased the Notes in a transaction
that did not require registration under the Securities Act of 1933, as amended.


 


We
further certify that (i) we are not submitting herewith for exchange any
portion of such Offshore Global Note excepted in such certifications and (ii)
as of the date hereof we have not received any notification from any
Institution to the effect that the statements made by such


 


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Institution
with respect to any portion of such Offshore Global Note submitted herewith for
exchange are no longer true and cannot be relied upon as of the date hereof.


 


You
and the Company are entitled to rely upon this Certificate and are irrevocably
authorized to produce this Certificate or a copy hereof to any interested party
in any administrative or legal proceeding or official inquiry with respect to
the matters covered hereby.


 


	
   

  	
  Yours
  faithfully,

  
	
   

  	
   

  	
   

  
	
   

  	
  [Name
  of DTC Participant]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
   

  
						



 


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Exhibit J


 


FORM OF SUBORDINATED INTERCOMPANY NOTE


 




	
  U.S.
  $                  

  	
                        ,  20   

  






 


FOR
VALUE RECEIVED, the undersigned, [Name],
a corporation organized under the laws
of                    (the
“Maker”),
hereby promises to pay, subject to the subordination provisions set forth below
(the “Subordination
Provisions”), to the order of
[                  ],
a
[                  ]
organized under the laws
of                  (together
with any subsequent holder hereof, the “Holder”) the principal sum
of                                                      AND
NO/100 [INSERT CURRENCY]
(                  )
[ON DEMAND][not later than [INSERT DATE], unless earlier accelerated], or if
less, the unpaid principal amount of all loans made to the Maker pursuant to
this Intercompany Note.


 


Subject
to the Subordination Provisions, the Maker promises to pay interest on the
unpaid principal amount hereof from the date hereof until such principal amount
is paid in full at the rate of       % per
annum (except as provided below upon the occurrence and during the continuance
of an Event of Default under the Indenture as defined below), payable in the
manner hereinafter provided, provided,
however, that any amount that is not paid when due ([whether at
stated maturity, by acceleration][upon demand] or otherwise) shall (to the
fullest extent permitted by law) bear interest from the date when due until
paid in full at a rate per annum equal at all times
to       % per annum, payable on demand.


 


Subject
to the Subordination Provisions, the Maker may prepay in whole or in part the
outstanding principal amount of this Intercompany Note, provided that the Maker will pay on the
date of such prepayment all accrued and unpaid interest due on such prepaid
principal amount to the date of prepayment. 
The term “Business
Day” means a day of the year on which banks are not required or
authorized to close in New York City.


 


All
computations of interest will be made by the Holder on the basis of a year of
360 days for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest is payable.  Whenever any payment hereunder is stated to
be due on a day other than a Business Day, such payment will be made on the
following Business Day.


 


Anything
in this Intercompany Note to the contrary notwithstanding, the indebtedness
evidenced by this any Intercompany Note shall be subordinate and junior in
right of payment in full in cash, to the extent and in the manner hereinafter
set forth, to all indebtedness or other liabilities of the Maker outstanding
from time to time, arising under (x) that certain Indenture dated as
of                  ,
2004, between Foster Wheeler LLC, a Delaware limited liability company, the
guarantors party thereto and Wells Fargo Bank, National Association, as Trustee
(the “Indenture”), and (y) any Credit Facility under and as defined in the
Indenture, including without limitation, in the case of each of the foregoing
clauses (x) and (y), any interest accruing


 


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after
the commencement of any proceedings referred to in clause (ii) below, whether
or not such interest is an allowed claim in such proceeding (all such
indebtedness or other liabilities and interest being herein called “Senior
Indebtedness”):


 


(i)  The holders of Senior
Indebtedness shall be entitled to receive payment in full in cash of all
amounts constituting Senior Indebtedness before the Holder is entitled to receive
any payment on account of this Intercompany Note, provided that the Maker may
make, and the Holder shall be entitled to receive and retain from time to time,
payments and prepayments in respect of the principal of and interest of this
Intercompany Note at any time except following the occurrence and during the
continuance of an Event of Default under and as defined in the Indenture;


 


(ii)  In the event of any
insolvency or bankruptcy proceedings, and any receivership, liquidation,
reorganization or other similar proceedings in connection therewith, relative
to the Maker or to its creditors, as such, or to its property, and in the event
of any proceedings for voluntary liquidation, dissolution or other winding up
of the Maker, whether or not involving insolvency or bankruptcy, then the
holders of Senior Indebtedness shall be entitled to receive payment in full in
cash of all amounts constituting Senior Indebtedness before the Holder is
entitled to receive, or make any demand for, any payment on account of this
Intercompany Note, and to that end the holders of Senior Indebtedness shall be
entitled to receive for application in payment thereof any payment or
distribution of any kind or character, whether in cash or property or
securities; and


 


(iii)  Following the occurrence
and during the continuance of an Event of Default under and as defined in the
Indenture, if any payment or distribution of any character, whether in cash,
securities or other property, in respect of this Intercompany Note shall
(despite these subordination provisions) be received by the Holder before all
Senior Indebtedness shall have been paid in full in cash, such payment or
distribution shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Senior Indebtedness (or their representatives),
ratably according to the respective aggregate amounts remaining unpaid thereon,
to the extent necessary to pay all Senior Indebtedness in full.


 


No
present or future holder of Senior Indebtedness shall be prejudiced in its
right to enforce subordination of this Intercompany Note by any act or failure
to act on the part of the Maker or by any act or failure to act, in good faith
on the part of such holder or any trustee or agent for such holder.


 


The
Maker hereby irrevocably submits to the non-exclusive jurisdiction of
[                  ],
and of the courts (including any appellate court) of the State of New York, in
any action or proceeding arising out of or relating to this Intercompany Note,
and the Maker hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in such
[                  ][and]
courts.  The Maker hereby irrevocably
waives, to the fullest extent it may effectively do so, the defense of an
inconvenient forum to the maintenance of such action or proceeding.  The Maker agrees that a final judgment in
any such action or proceeding


 


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will be conclusive and may
be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.


 


Nothing
in this Section will affect the right of the Holder to serve legal process
in any other manner permitted by law or affect the right of the Holder to bring
any action or proceeding against the Maker or its property in the courts of any
other jurisdiction.


 


This
Intercompany Note will be governed by, and construed in accordance with, the
laws of State of New York, without reference to conflicts of law principles.


 


IN WITNESS WHEREOF, the Maker has caused this Intercompany Note to be executed and
delivered by its duly authorized officers as of the date first above written.


 


 


	
   

  	
  [MAKER]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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Exhibit K


 


FORM OF UNSUBORDINATED INTERCOMPANY NOTE


 




	
  U.S.
  $                  

  	
                        ,  20   

  






 


FOR
VALUE RECEIVED, the undersigned, [Name],
a corporation organized under the laws
of                      (the
“Maker”),
hereby promises to pay to the order of [                      ],
a
[                      ]
organized under the laws
of                      (together
with any subsequent holder hereof, the “Holder”) the principal sum
of                                            AND
NO/100 [INSERT CURRENCY] (                      )
[ON DEMAND][not later than [INSERT DATE], unless earlier accelerated], or if
less, the unpaid principal amount of all loans made to the Maker pursuant to
this Intercompany Note.


 


The
Maker promises to pay interest on the unpaid principal amount hereof from the
date hereof until such principal amount is paid in full at the rate
of     % per annum (except as provided below upon the
occurrence and during the continuance of an Event of Default under the
Indenture as defined below), payable in the manner hereinafter provided, provided, however, that any amount that is
not paid when due ([whether at stated maturity, by acceleration][upon demand]
or otherwise) shall (to the fullest extent permitted by law) bear interest from
the date when due until paid in full at a rate per annum equal at all times
to     % per annum, payable on demand.


 


The
Maker may prepay in whole or in part the outstanding principal amount of this
Intercompany Note, provided that
the Maker will pay on the date of such prepayment all accrued and unpaid
interest due on such prepaid principal amount to the date of prepayment.  The term “Business Day” means a day of the year on
which banks are not required or authorized to close in New York City.


 


The
Maker hereby irrevocably submits to the non-exclusive jurisdiction of
[                      ],
and of the courts (including any appellate court) of the State of New York, in
any action or proceeding arising out of or relating to this Intercompany Note,
and the Maker hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in such
[                      ][and]
courts.  The Maker hereby irrevocably
waives, to the fullest extent it may effectively do so, the defense of an
inconvenient forum to the maintenance of such action or proceeding.  The Maker agrees that a final judgment in
any such action or proceeding will be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.


 


Nothing
in this Section will affect the right of the Holder to serve legal process
in any other manner permitted by law or affect the right of the Holder to bring
any action or proceeding against the Maker or its property in the courts of any
other jurisdiction.


 


This
Intercompany Note will be governed by, and construed in accordance with, the
laws of the State of New York, without reference to conflicts of law
principles.


 


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IN WITNESS WHEREOF, the Maker has caused this Intercompany Note to be executed and
delivered by its duly authorized officers as of the date first above written.


 


 


	
   

  	
  [MAKER]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


K-2

















 


EXHIBIT L


 


THIS
NOTE IS A TEMPORARY GLOBAL NOTE.  PRIOR
TO THE EXPIRATION OF THE RESTRICTED PERIOD APPLICABLE HERETO, BENEFICIAL
INTERESTS HEREIN MAY NOT BE HELD BY ANY PERSON OTHER THAN (1) A NON-U.S. PERSON
OR (2) A U.S. PERSON THAT PURCHASED SUCH INTEREST IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”).  BENEFICIAL INTERESTS HEREIN ARE NOT EXCHANGEABLE FOR PHYSICAL
NOTES OTHER THAN A PERMANENT GLOBAL NOTE IN ACCORDANCE WITH THE TERMS OF THE
INDENTURE.  TERMS IN THIS LEGEND ARE
USED AS USED IN REGULATION S UNDER THE SECURITIES ACT.


 


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