Exhibit 4.23


 


INTERCREDITOR AGREEMENT


 


Intercreditor
Agreement (this “Agreement”) dated
as of
             
     , 2004, among BANK OF AMERICA, N.A., in its
capacities as Administrative Agent and Collateral Agent (in such capacities,
with its successors and assigns, the “Collateral
Agent”) for the Lenders (as defined below), Wells Fargo Bank, N.A.,
as trustee (in such capacity, with its successors and assigns, the “Trustee”) for the Noteholders (as defined
below), Foster Wheeler LLC, a Delaware limited liability company (the “Company”), and the subsidiaries of the
Company from time to time parties hereto.


 


WHEREAS, the
Company, the Borrowing Subsidiaries (as defined below), certain other Obligor
Parties (as defined below), the Collateral Agent and the Lenders are parties to
a Third Amended and Restated Credit Agreement dated as of August 2, 2002 (as
amended, supplemented, restated or otherwise modified from time to time, the “Existing Credit Agreement”), pursuant to
which the Lenders have agreed to make loans and extend other financial
accommodations to the Company and the Borrowing Subsidiaries; and


 


WHEREAS, the
Company and certain Guarantors will enter into an indenture (as the same may be
amended, supplemented, restated or otherwise modified from time to time, the “Existing New Indenture”) with the Trustee
pursuant to which Senior Secured Notes due 2011, Series A and Series B
(collectively, the “Notes”),
consisting of $150,000,000 of rollover notes and $120,000,000 of upsized notes,
will be issued to certain holders (together with their respective successors
and assigns, the “Noteholders”,
and, together with the Trustee, the “Note
Parties”); and


 


WHEREAS, the
Company, the Borrowing Subsidiaries and the other Obligor Parties have granted
to the Collateral Agent security interests in the Common Collateral (as defined
below) as security for payment and performance of the Lender Obligations;


 


WHEREAS,
pursuant to the terms of the Existing Credit Agreement the Company, the
Borrowing Subsidiaries and the other Obligor Parties may not grant additional
security interests in the Common Collateral without the requisite consent of
the Lenders thereunder; and


 


WHEREAS, the
parties hereto wish to provide, inter alia,
for (i) the consent of the Collateral Agent and the Lenders to the grant of the
Liens on the Common Collateral to the Trustee as collateral security for the
obligations of the Company, the Borrowing Subsidiaries and the other Obligor
Parties under the Existing New Indenture and the Notes and (ii) certain intercreditor
arrangements (including with respect to the relative priority of their Liens on
the Common Collateral) between the Collateral Agent and the Lenders, on the one
hand, and


 

















 


the Trustee and the Noteholders, on the other
hand, in each case on the terms and conditions set forth herein; and


 


NOW THEREFORE,
in consideration of the foregoing and the mutual covenants herein contained and
other good and valuable consideration, the existence and sufficiency of which
is expressly recognized by all of the parties hereto, the parties agree as
follows:


 


ARTICLE 1


DEFINITIONS


 


Section 1.01. 
Definitions.  The
following terms, as used herein, have the following meanings:


 


“Adequate Protection Payment” means any cash
payment constituting “adequate protection” within the meaning of section 361 of
the Bankruptcy Code but excluding (i) the accrual and payment of Post-Petition
Interest and (ii) fees and expenses of advisers, in the case of each of the
foregoing clauses (i) and (ii) owing to either the Lender Parties or the Note
Parties.  For avoidance of doubt, such
adequate protection payments may be calculated at a rate per annum that may or
may not be equal to the contractual rate of interest applicable to the relevant
secured obligations, but, in such circumstances, shall nonetheless constitute
an Adequate Protection Payment and not a current Post-Petition Interest payment
unless and until the court shall have determined by final non-appealable order
that the recipient of such payments is entitled to the payment of Post-Petition
Interest pursuant to section 506(b) of the Bankruptcy Code (it being understood
that an appeal solely of other findings and rulings also contained in any order
ruling that any Note Party is entitled to Post-Petition Interest shall not
prevent such order from being deemed final and non-appealable as to
Post-Petition Interest).


 


“Applicable Indenture” means the Existing
New Indenture, as in effect on the date hereof and without giving effect to any
modifications or supplements thereto after the date hereof unless expressly
consented to in writing by the Collateral Agent (in its discretion) for
purposes of this definition.


 


“Bankruptcy Code” means the United States
Bankruptcy Code (11 U.S.C. §101 et seq.), as amended from time to time.


 


“Borrowing Subsidiaries” means Foster
Wheeler USA Corporation, a Delaware corporation, Foster Wheeler North America
Corp., a Delaware corporation (formerly known as Foster Wheeler Power Group,
Inc.), and Foster Wheeler Energy Corporation, a Delaware corporation, in each
case for so long as


 


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such Persons are Subsidiaries of the Company,
and their respective successors and assigns.


 


“Cash Collateralize” means to pledge and
deposit with or deliver to the Collateral Agent, for the benefit of the Lender
Parties, as collateral for the applicable Letter of Credit Obligations, cash or
deposit account balances pursuant to documentation in form and substance
reasonably satisfactory to the Collateral Agent.  Derivatives of such term shall have corresponding meaning.  Each Obligor Party hereby grants the
Collateral Agent, for the benefit of the Lender Parties, a security interest in
all such cash and deposit account balances.


 


“Collateral Agent” has the meaning set forth
in the introductory paragraph hereof.


 


“Common Collateral” means all assets that
are both Lender Collateral and Noteholder Collateral.


 


“Company” has the meaning set forth in the
introductory paragraph hereof.


 


“Comparable New Indenture Document” means,
in relation to any Common Collateral subject to any Credit Agreement Document,
that New Indenture Document that creates a security interest in the same Common
Collateral, granted by the same Obligor Party, as applicable.


 


“Credit Agreement” means (i) the Existing Credit
Agreement and (ii) any other credit agreement, loan agreement, note agreement,
promissory note, indenture or other agreement or instrument evidencing or
governing the terms of any indebtedness or other financial accommodation that
has been incurred to extend, replace, refinance or refund in whole or in part
the indebtedness and other obligations outstanding under the Existing Credit
Agreement or any other agreement or instrument referred to in this clause (ii)
so long as such agreement or instrument (x) expressly provides that it is
intended to be and is a Credit Agreement hereunder, (y) expressly provides that
the Lender Parties thereunder shall be bound by the provisions of this
Agreement that purport to be binding on them and (z) is a permitted “Credit
Facility” under Section 4.05(b)(1) of the Applicable  Indenture.  Any reference
to the Credit Agreement hereunder shall be deemed a reference to any Credit
Agreement then extant.


 


“Credit Agreement Documents” means the “Loan
Documents” as defined in the Credit Agreement, and any other documents that
are, at any time, designated under the Credit Agreement as “Credit Agreement
Documents” for purposes of this Agreement, excluding, however, this Agreement.


 


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“Enforcement Action” means, with respect to
the Lender Obligations or the Note Obligations, the exercise of any rights and
remedies with respect to any Common Collateral securing such obligations or the
commencement or prosecution of enforcement of any of the rights and remedies
with respect to the Liens granted under, as applicable, the Credit Agreement
Documents or the New Indenture Documents, or applicable law, including without
limitation the exercise of any rights or remedies of a secured creditor under
the UCC of any applicable jurisdiction or under the Bankruptcy Code.  Notwithstanding the foregoing, it is
understood and agreed that the term “Enforcement Action” shall not include any
demand for payment or acceleration of any of the Lender Obligations or Note
Obligations, the commencement or prosecution of enforcement of any of the
rights and remedies under, as applicable, the Credit Agreement Documents or the
new Indenture Documents, or applicable law, including without limitation the
exercise of any rights of set-off or recoupment, the filing of any bankruptcy
or insolvency proceeding, or the imposition of interest at a post-default rate,
in each case to the extent that the foregoing do not constitute an exercise of
rights or remedies with respect to the Liens created in the Common Collateral.


 


“Existing Credit Agreement” has the meaning
set forth in the first WHEREAS clause of this Agreement.


 


“Existing New Indenture” has the meaning set
forth in the second WHEREAS clause of this Agreement.


 


“Insolvency Proceeding” means any proceeding
in respect of bankruptcy, insolvency, winding up, receivership, dissolution or
assignment for the benefit of creditors, in each of the foregoing events
whether under the Bankruptcy Code or any similar federal, state or foreign
bankruptcy, insolvency, reorganization, receivership or similar law.


 


“Lenders” means the “Lenders” as defined in
the Credit Agreement, or any Persons that are, at any time, designated under
the Credit Agreement as the “Lenders” for purposes of this Agreement.


 


“Lender Collateral” means all assets,
whether now owned or hereafter acquired by the Company or any other Obligor
Party, in which a Lien is granted or purported to be granted to any Lender
Party as security for any Lender Obligation.


 


“Lender Misconduct” means bad acts or
willful misconduct on the part of the Collateral Agent or any Lender Party
that, in either of the foregoing events, result in the avoidance or
subordination of a Lender Obligation (i) pursuant to section 510(c) of the
Bankruptcy Code or (ii) pursuant to any other rule of law to the extent in the
case of this clause (ii) that such bad acts or willful misconduct


 


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would also have satisfied the standard for
avoidance or subordination pursuant to section 510(c) of the Bankruptcy Code.


 


“Lender Obligations” means (i) all principal
of and interest (including without limitation any Post-Petition Interest) and
premium (if any) on all loans made pursuant to the Credit Agreement, (ii) all
reimbursement obligations (if any) and interest thereon (including without
limitation any Post-Petition Interest) with respect to any letter of credit or
similar instruments issued pursuant to the Credit Agreement, (iii) all other
obligations arising under the Wachovia Cash Management Agreement and (iv) all
fees, expenses, indemnities and similar amounts payable from time to time
pursuant to the Credit Agreement Documents, in each case whether or not allowed
or allowable as a claim against any Obligor Party or its estate in an
Insolvency Proceeding, but only so long as any of the foregoing constituting
“Indebtedness” under and as defined in the Applicable Indenture do not exceed
the amount thereof permitted under Section 4.05(b)(1) of the Applicable Indenture.
To the extent any payment with respect to any Lender Obligation (whether by or
on behalf of any Obligor Party, as proceeds of security, enforcement of any
right of setoff or otherwise) is declared to be a fraudulent conveyance or a
preference in any respect, set aside or required to be paid to a debtor in
possession, any Note Party, receiver or similar Person, then the obligation or
part thereof originally intended to be satisfied shall, for the purposes of
this Agreement and the rights and obligations of the Lender Parties and the
Note Parties, be deemed to be reinstated and outstanding as if such payment had
not occurred.  Notwithstanding the
foregoing, in no event shall “Lender Obligations” include any Indebtedness in
respect of Qualified Term Loans.


 


“Lender Obligations Payment Date” means the
first date on which (i) the Lender Obligations have been indefeasibly paid in
cash in full (or cash collateralized or defeased in accordance with the terms
of the Credit Agreement Documents), (ii) all commitments to extend credit under
the Credit Agreement Documents have been terminated, and (iii) there are no
outstanding letters of credit or similar instruments issued under the Credit
Agreement Documents (other than such as have been cash collateralized or defeased
in accordance with the terms of the Credit Agreement Documents).


 


“Lender Parties” means the holders of the
Lender Obligations.


 


“Lender  Security
Agreement” means the security agreement dated as of August 16, 2002
(as amended, supplemented, restated or otherwise modified from time to time)
among the Company, certain Grantors (as defined in the Lender Security
Agreement) and Bank of America, N.A., as collateral agent.


 


“Letter of Credit” means “Letter of Credit”
as defined in the Credit Agreement.


 


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“Letter of Credit Obligations” means the sum
of (i) the aggregate undrawn amount of all outstanding Letters of Credit and
(ii) the aggregate amount of all unreimbursed drawings under all Letters of
Credit.


 


“Lien” means, with respect to any asset, (i)
any mortgage, deed of trust, deed to secure debt, lien, pledge, hypothecation,
assignment, encumbrance, charge or security interest in, on or of such asset,
(ii) the interest of a vendor or a lessor under any conditional sale agreement,
capital lease or title retention agreement (or any financing lease having
substantially the same economic effect as any of the foregoing) relating to
such asset and (iii) in the case of securities, any purchase option, call or similar
right of a third party with respect to such securities.


 


“New Indenture” means (i) the Existing New
Indenture and (ii) any other credit agreement, loan agreement, note agreement,
promissory note, indenture, or other agreement or instrument evidencing or
governing the terms of any indebtedness or other financial accommodation that
has been incurred to extend, replace, refinance or refund in whole or in part
the indebtedness and other obligations outstanding under the Existing New
Indenture or other agreement or instrument referred to in this clause
(ii).  Unless otherwise specified
herein, any reference to the New Indenture hereunder shall be deemed a
reference to any New Indenture then extant.


 


“New Indenture Documents” means the New
Indenture and the “Collateral Documents” under and as defined in the New
Indenture and any documents that are designated under the New Indenture as “New
Indenture Documents” for purposes of this Agreement, excluding, however, this
Agreement.


 


“Noteholder Collateral” means all assets,
whether now owned or hereafter acquired by the Company or any other Obligor
Party, in which a Lien is granted or purported to be granted to any Note Party
as security for any Note Obligation.


 


“Noteholders” has the meaning set forth in
the second WHEREAS clause of this Agreement.


 


“Note Obligations” means (i) all principal
of and interest (including without limitation any Post-Petition Interest) and
premium (if any) on all indebtedness under the New Indenture, (ii) all other
obligations secured pursuant to the New Indenture Documents and (iii) all fees,
expenses and other amounts payable from time to time pursuant to the New
Indenture Documents, in each case whether or not allowed or allowable as a
claim against any Obligor Party in an Insolvency Proceeding.  To the extent any payment with respect to
any Note Obligation (whether by or on behalf of any Obligor Party, as proceeds
of security, enforcement of any right of setoff or otherwise) is declared to be
a fraudulent


 


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conveyance or a preference in any respect,
set aside or required to be paid to a debtor in possession, any Lender Party,
receiver or similar Person, then the obligation or part thereof originally
intended to be satisfied shall, for the purposes of this Agreement and the
rights and obligations of the Lender Parties and the Note Parties, be deemed to
be reinstated and outstanding as if such payment had not occurred.


 


“Note Party” means the Trustee and any
holders of the Note Obligations.


 


“Notes” has the meaning set forth in the
second WHEREAS clause of this Agreement.


 


“Obligor Party” means the Company and each
direct or indirect affiliate or shareholder (or equivalent) of the Company or
any of its affiliates that is now or hereafter becomes a party to the Credit
Agreement or the New Indenture, or to any documents relating to either.


 


“Person” means any person, individual, sole
proprietorship, partnership, joint venture, corporation, limited liability
company, unincorporated organization, association, institution, entity, party,
including any government and any political subdivision, agency or
instrumentality thereof.


 


“Post-Petition Interest” means any interest,
fees, expenses or other amounts that accrue or would have accrued after the
commencement of any Insolvency Proceeding, whether or not allowed or allowable
as a claim in any such Insolvency Proceeding.


 


“Proceeds” means “proceeds” as defined in
Article 9 of the UCC.  Proceeds of
Common Collateral shall in any event include any Adequate Protection Payment in
respect of Common Collateral.


 


“Secured Parties” means the Lender Parties
and the Note Parties.


 


“Standstill Period” means, with respect to
any Obligor Party and the Common Collateral pledged by it, the period from and
including the date hereof to and including the earliest of (i) the Lender
Obligations Payment Date, (ii) the continuance for 90 or more days of an “event
of default” under the New Indenture Documents, but only so long as the Lender
Parties shall not be actively and diligently exercising remedies with respect
to a material portion of the Common Collateral (unless the Lender Parties shall
have been stayed from the commencement or prosecution of such exercise) and
(iii) the commencement of an Insolvency Proceeding against such Obligor Party.


 


“Trustee” has the meaning set forth in the
introductory paragraph hereof.


 


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“UCC” means the Uniform Commercial Code as
in effect from time to time in the State of New York.


 


“Wachovia Cash Management Agreement”  means the Amended and Restated Account
Control Agreement dated as of October 30, 2003 by and among Wachovia Bank,
National Association, the Company and Bank of America, N.A., as collateral
agent, or any successor, replacement, renewal or extension thereof on terms
substantially similar to such agreement (a copy of which is delivered to the
Trustee and which is certified pursuant to an Officers’ Certificate under the
Indenture as being on terms substantially similar to the Wachovia Cash
Management Agreement).


 


ARTICLE 2


LIEN
PRIORITIES


 


Section 2.01. 
Subordination of Liens.  (a)
Subject to Section 2.01(c), any and all Liens now existing or hereafter created
or arising in favor of any Note Party securing the Note Obligations, regardless
of how acquired, whether by grant, statute, operation of law, subrogation or
otherwise are expressly junior in priority, operation and effect to any and all
Liens now existing or hereafter created or arising in favor of the Lender
Parties securing the Lender Obligations, notwithstanding (i) anything to the
contrary contained in any agreement or filing to which any Note Party may now
or hereafter be a party, and regardless of the time, order or method of grant,
attachment, recording or perfection of any financing statements or other
security interests, assignments, pledges, deeds, mortgages and other liens,
charges or encumbrances or any defect or deficiency or alleged defect or
deficiency in any of the foregoing, (ii) any provision of the UCC or any
applicable law or any Credit Agreement Document or New Indenture Document or
any other circumstance whatsoever and (iii) the fact that any such Liens in
favor of any Lender Party securing any of the Lender Obligations are (x)
subordinated to any Lien securing any obligation of any Obligor Party other
than the Note Obligations or (y) otherwise subordinated, voided, avoided,
invalidated or lapsed.


 


(b)           No Lender Party or Note Party shall
object to or contest, or support any other Person in contesting or objecting
to, in any proceeding (including without limitation, any Insolvency
Proceeding), the validity, extent, perfection, priority or enforceability of
any security interest in the Common Collateral granted to the other.


 


(c)           If and to the extent that any Lender
Obligation is avoided or subordinated to the Note Obligations or to unsecured
creditors generally (and the Note Obligations are not similarly subordinated)
by reason of Lender Misconduct, the rights and obligations under this Agreement
of the Collateral Agent and the


 


8

















 


Loan Parties, on the one hand, and the
Trustee and the Note Parties, on the other hand, with respect to such Lender
Obligation shall no longer be applicable.


 


Section 2.02.  Nature of
Lender Obligations.  The
Trustee on behalf of itself and the other Note Parties acknowledges that the
Lender Obligations are revolving in nature and that the amount thereof that may
be outstanding at any time or from time to time may be increased or reduced and
subsequently reborrowed, and that the terms of the Lender Obligations may be
modified, extended or amended from time to time, and that the aggregate amount
of the Lender Obligations may be increased, replaced or refinanced, in each
event, without notice to or consent by the Note Parties and without affecting
the provisions hereof (it being understood that in no event shall the aggregate
amount of the Lender Obligations constituting Indebtedness under the New
Indenture exceed the amount thereof permitted under Section 4.05(b)(1) of the
Applicable Indenture).  Subject to the
foregoing, neither the lien priorities provided in Section 2.01 nor the other
rights of the Secured Parties hereunder shall be altered or otherwise affected
by any such amendment, modification, supplement, extension, repayment,
reborrowing, increase, replacement, renewal, restatement or refinancing of
either the Lender Obligations or the Note Obligations, or any portion thereof.


 


Section 2.03.  Agreements
Regarding Actions to Perfect Liens.  (a)
The Trustee on behalf of itself and the other Note Parties agrees that UCC-1
financing statements, patent, trademark or copyright filings or other filings
or recordings filed or recorded by or on behalf of the Trustee shall be in form
satisfactory to the Collateral Agent. 
Notwithstanding the foregoing, any such financing statement, filing or
recording that is either (i) in the form approved by the Collateral Agent to be
filed in favor of the Trustee concurrently with the execution and delivery of
this Agreement or (ii) in the form filed by the Collateral Agent (and which
contains a statement that the Lien of such filing or recording is junior and
subordinate to the Lien in favor of the Collateral Agent), and in the case of
either of the foregoing clauses (i) and (ii) which are certified to the Trustee
and the Collateral Agent in an Officers’ Certificate as satisfying the
requirements of said clauses, shall not require the approval of the Collateral
Agent hereunder.


 


(b)           The Trustee agrees on behalf of
itself and the other Note Parties that all mortgages, deeds of trust, deeds and
similar instruments (collectively, “mortgages”)
now or thereafter filed against real property in favor of or for the benefit of
the Trustee shall be in form satisfactory to the Collateral Agent and shall
contain the following notation:


 


“The lien
created by this mortgage on the property described herein is junior and
subordinate to the lien on such property created by any mortgage, deed of trust
or similar instrument now or hereafter granted to Bank of America, N.A., and
its successors and assigns, in such property,


 


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and securing
“Lender Obligations” under and as defined in the Intercreditor Agreement dated
as of            
     , 2004 among the Obligor Parties, Bank of
America, N.A., as Administrative Agent and Collateral Agent for the Lenders,
and Wells Fargo Bank, N.A., as trustee for the Noteholders (in each case as
defined in the Intercreditor Agreement).”


 


Notwithstanding the foregoing, any such
mortgage, deed of trust or similar instrument that is either (i) in the form
approved by the Collateral Agent to be filed in favor of the Trustee
concurrently with the execution and delivery of this Agreement or (ii) in the form
filed by the Collateral Agent (and which contains the foregoing statement that
the Lien of such filing or recording is junior and subordinate to the Lien in
favor of the Collateral Agent), and in the case of either of the foregoing
clauses (i) and (ii) which are certified to the Trustee and the Collateral
Agent in an Officers’ Certificate as satisfying the requirements of said
clauses shall not require the approval of the Collateral Agent hereunder.


 


(c)           The Collateral Agent hereby
acknowledges on behalf of itself and each of the Lenders (which acknowledgment
shall be binding upon the Lenders) that, to the extent that it holds, or a
third party holds on its behalf, physical possession of or “control” (as
defined in the UCC) over Common Collateral pursuant to the Credit Agreement
Documents, such possession or control is also for the benefit of the Trustee
and the other Note Parties solely to the extent required to perfect their
security interest in such Common Collateral. 
Nothing in the preceding sentence shall be construed to impose any duty
on the Collateral Agent (or any third party acting on its behalf) with respect
to such Common Collateral or provide a Noteholder or any other Note Party with
any rights with respect to such Common Collateral beyond those specified in
this Agreement and the New Indenture Documents, provided that promptly following the occurrence of the
Lender Obligations Payment Date, the Collateral Agent shall (x) deliver to the
Trustee, at the Company’s sole cost and expense, the Common Collateral in its
possession or control together with any necessary endorsements to the extent
required by the New Indenture Documents or (y) direct and deliver such Common
Collateral as a court of competent jurisdiction otherwise directs, and provided further that the provisions of
this Agreement are intended solely to govern the respective Lien priorities as
between the Lender Parties and the Note Parties and shall not impose on the
Lender Parties any obligations in respect of the disposition of any Common
Collateral (or any Proceeds thereof) that would conflict with prior perfected
Liens or any claims thereon in favor of any other Person that is not a Secured
Party.


 


Section 2.04.  No New
Liens.  So long as the Lender
Obligations Payment Date has not occurred, the parties hereto agree that (a) if
any Note Party shall acquire or hold any Lien on any assets of any Obligor
Party securing any Note Obligation which assets are not also subject to the
first priority Lien of the Collateral Agent under the Credit Agreement
Documents, then the Trustee (or the


 


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relevant Note Party) shall, without the need
for any further consent of any other Note Party, and notwithstanding anything
to the contrary in any other New Indenture Document (i) be deemed to hold and
have held such Lien for the benefit of the Collateral Agent as security for the
Lender Obligations and shall assign such Lien to the Collateral Agent as
security for the Lender Obligations (in which case the Trustee may retain a
junior Lien on such assets subject to the terms hereof) or (ii) if so requested
by the Collateral Agent, release such Lien and (b) if any Lender Party shall
acquire or hold any Lien on any assets of any Obligor Party securing any Lender
Obligation which assets are not also subject to the second-priority Lien of the
Trustee under the New Indenture Documents, then the Collateral Agent (or the
relevant Lender Party) shall, without the need for any further consent of any
other Lender Party, and notwithstanding anything to the contrary in any other
Credit Agreement Document, be deemed to hold and have held a junior Lien on
such assets for the benefit of the Trustee as security for the Note Obligations
subject to the terms of this Agreement. 
Each Obligor Party hereby consents to and confirms its grant of a Lien
for the benefit of all Secured Parties on the terms set forth above.


 


ARTICLE 3


ENFORCEMENT
RIGHTS


 


Section 3.01.  Exclusive
Enforcement.  During the
Standstill Period, the Lender Parties shall have the exclusive right to take
and continue any Enforcement Action with respect to the Common Collateral,
without any consultation with or consent of any Note Party.  Upon the occurrence and during the continuance
of a default or an event of default under the Credit Agreement Documents, the
Collateral Agent and the other Lender Parties may take and continue any
Enforcement Action with respect to the Lender Obligations and the Common
Collateral in such order and manner as they may determine in their sole
discretion.


 


Section 3.02.  Standstill
Period Waivers.  (a) The
Trustee, on behalf of itself and the other Note Parties, agrees that, during
the Standstill Period:


 


(i)            subject to Section 3.02(b), they
will not oppose, object to, interfere with, hinder or delay, in any manner,
whether by judicial proceedings or otherwise, any foreclosure, sale, lease,
exchange, transfer or other disposition of the Common Collateral by the
Collateral Agent or any other Lender Party or any other Enforcement Action taken
by or on behalf of the Collateral Agent or any other Lender Party;


 


(ii)           they have no right to (x) direct
either the Collateral Agent or any other Lender Party to exercise any right,
remedy or power with respect to the Common Collateral or pursuant to the Credit
Agreement


 


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Documents or
(y) subject to Section 3.02(b), consent or object to the exercise by the
Collateral Agent or any other Lender Party of any right, remedy or power with
respect to the Common Collateral or pursuant to the Lender Collateral Documents
or to the timing or manner in which any such right is exercised or not
exercised (or, to the extent they may have any such right described in this
clause (ii), whether as a junior lien creditor or otherwise, they hereby
irrevocably waive such right);


 


(iii)          they will not exercise any right,
remedy or power under or with respect to, or otherwise take any action to
enforce, any Noteholder Collateral Document;


 


(iv)          they will not commence judicial or
nonjudicial foreclosure proceedings with respect to, seek to have a trustee,
receiver, liquidator or similar official appointed for or over any Common
Collateral, attempt any action to take possession of any Common Collateral,
exercise any right, remedy or power with respect to, or otherwise take any
action to enforce their interest in or realize upon, any Common Collateral; or


 


(v)           they will not seek, and hereby waive
any right, to have the Common Collateral or any part thereof marshaled upon any
foreclosure or other disposition of the Common Collateral.


 


(b)           The Note Parties do not hereby waive
any rights they may have under Part 6 of Article 9 of the UCC (or comparable
provisions of other law with respect to Common Collateral not governed by
Article 9 of the UCC) in connection with an Enforcement Action by the Lender
Parties with respect to Common Collateral; provided
that such rights are asserted within 20 days of receipt of written notice from
the Collateral Agent of the commencement of any Enforcement Action with respect
to the Common Collateral, in a notice from the Trustee to the Collateral Agent
indicating whether the Note Parties make any objection thereto, and if any such
objection is made, the basis therefor. 
Unless such notice is given and the relevant basis therefor is specified
in such notice, the Note Parties will not institute any suit or other
proceeding or assert in any suit, Insolvency Proceeding or other proceeding any
claim against the Collateral Agent or any other Lender Party seeking damages
from or other relief by way of specific performance, instructions or otherwise,
with respect to, and neither the Collateral Agent nor any other Lender Party
shall be liable for, any action taken or omitted to be taken by the Collateral
Agent or any other Lender Party in connection with any Enforcement Action with
respect to the Common Collateral.


 


Section 3.03.  Judgment
Creditors.  In the event that
any Note Party becomes a judgment lien creditor in respect of Common Collateral
as a result of its enforcement of its rights as an unsecured creditor, such
judgment lien shall be subject to the terms of this Agreement for all purposes
(including in relation to the


 


12

















 


Lender Liens and the Lender Obligations) as
the other Liens securing the Note Obligations (created pursuant to the
Noteholder Collateral Documents) subject to this Agreement.


 


Section 3.04.  No
Additional Rights for the Company Hereunder. 
Except as provided in Section 3.05, if any Secured Party
shall enforce its rights or remedies in violation of the terms of this
Agreement, the Company shall not be entitled to use such violation as a defense
to any action by any Secured Party, nor to assert such violation as a
counterclaim or basis for set off or recoupment against any Secured Party.


 


Section 3.05.  Actions
Upon Breach.  (a) If any Note
Party, contrary to this Agreement, commences or participates in any action or
proceeding against the Company or the Common Collateral, the Company may, with
the prior written consent of the Collateral Agent,  interpose as a defense or dilatory plea the making of this
Agreement, and any Lender Party may intervene and interpose such defense or
plea in its or their name or in the name of the Company.


 


(b)           Should any Note Party, contrary to
this Agreement, in any way take, attempt to or threaten to take any action with
respect to the Common Collateral (including, without limitation, any attempt to
realize upon or enforce any remedy with respect to this Agreement), or fail to
take any action required by this Agreement, any Lender Party (in its or their
own name or in the name of the Company) or the Company may obtain relief
against such Note Party by injunction, specific performance and/or other
appropriate equitable relief, it being understood and agreed by the Trustee on
behalf of each Note Party that (i) the Lender Parties’ damages from its actions
may at that time be difficult to ascertain and may be irreparable, and (ii)
each Note Party waives any defense that the Company and/or the Lender Parties
cannot demonstrate damage and/or be made whole by the awarding of damages.


 


ARTICLE 4


APPLICATION OF
PROCEEDS OF COMMON COLLATERAL; DISPOSITIONS AND

RELEASES OF COMMON COLLATERAL; INSPECTION AND INSURANCE


 


Section 4.01.  Application
of Proceeds; Turnover Provisions.  (a)
Subject to the further provisions of this Section 4.01, Proceeds of Common
Collateral will be used to pay the Lender Obligations and the Note Obligations
in the following order of priority:


 


(i)            To pay the fees and expenses of such
sale or disposition, including reasonable compensation to agents of and counsel
for the Collateral Agent, and all reasonable fees, expenses, liabilities and
advances incurred or made by the Collateral Agent in connection with the


 


13

















 


Loan
Documents, and any other amounts then due and payable to the Collateral Agent
pursuant to Section 21 of the Lender Security Agreement or Section 10.06 of the
Credit Agreement, (as each of said Sections, and related definitions, is in
effect on the date hereof), until payment in full of such fees, expenses,
liabilities, advances and other amounts shall have been made;


 


(ii)           To pay ratably any Lender Obligations
constituting unreimbursed amounts, interest and fees due to the Lenders in
respect of Letters of Credit outstanding under the Credit Agreement until
payment in full of such unreimbursed amounts, interest and fees shall have been
made;


 


(iii)          To Cash Collateralize ratably any
Lender Obligations in respect of undrawn Letters of Credit outstanding under
the Credit Agreement, until all such Lender Obligations then outstanding shall
have been fully Cash Collateralized;


 


(iv)          To pay any Lender Obligations in
respect of principal, interest or fees due under any revolving credit facility
included in any new Credit Agreement until payment in full of such principal,
interest or fees shall have been made;


 


(v)           To pay ratably any other Lender
Obligations until payment in full of such Lender Obligations shall have been
made;


 


(vi)          To pay any principal, interest or fees
due to the Noteholders and any Qualified Term Loans under and as defined in the
New Indenture, until payment in full of such principal, interest or fees shall
have been made; and


 


(vii)         Any remaining amounts shall be remitted
to the Company or the applicable obligor.


 


(b)           To the extent that the court in an
Insolvency Proceeding authorizes current payments by any Obligor Party of
either the fees and expenses of advisors to the Collateral Agent or the Trustee
or of Post-Petition Interest in respect of the Lender Obligations or the Note
Obligations, such payments may be made to and retained by the Lender Parties
and the Note Parties, respectively, and shall not be required to be applied in
accordance with the order of priorities reflected in Section 4.01(a).  For avoidance of doubt, however, the
priorities as between the Lender Obligations and the Note Obligations
established under Section 4.01(a) and the other provisions of this Agreement
shall be taken into account in determining the entitlement of either the Lender
Parties or the Note Parties to obtain such current payments.


 


14

















 


(c)           To the extent any Adequate Protection
Payment payable to the Note Parties results in a reduction of the Note
Obligations, the Note Parties shall, upon the turnover of such payment to the
Lender Parties as provided above, be subrogated to the rights of the Lender
Parties in respect of the Lender Obligations so paid from the proceeds of such
Adequate Protection Payment; provided
that no such right of subrogation shall be enforced until the Lender Obligation
Payment Date (assuming for these purposes that Lender Obligations to which the
Note Parties are subrogated do not constitute “Lender Obligations”).


 


(d)           Until the occurrence of the Lender
Obligations Payment Date, any Common Collateral, including without limitation
any such Common Collateral constituting Proceeds, that may be received by any
Note Party in violation of this Agreement shall be segregated and held in trust
and promptly paid over to the Collateral Agent, for the benefit of the Lender
Parties, in the same form as received, with any necessary endorsements, and
each Note Party hereby authorizes the Collateral Agent to make any such
endorsements as agent for the Trustee (which authorization, being coupled with
an interest, is irrevocable).


 


Section 4.02.  Releases of
Noteholder Liens.  (a) Upon
any sale or disposition of Common Collateral permitted pursuant to the terms of
the Credit Agreement Documents and the New Indenture that results in the
release of the Lender Lien on any Common Collateral (excluding any sale or
other disposition pursuant to any Enforcement Action), the Noteholder Lien on
such Common Collateral (but not on any Proceeds of such Common Collateral not
required to be paid to the Lender Parties) shall be automatically and
unconditionally released with no further consent or action of any Person.  Upon any sale or disposition of Common
Collateral pursuant to any Enforcement Action by the Lender Parties, the
Noteholder Lien on such Common Collateral (but not on any Proceeds of such
Common Collateral not required to be paid to the Lender Parties) shall be
automatically and unconditionally released with no further consent or action of
any Person.


 


(b)           The Trustee shall promptly execute
and deliver such release documents and instruments and shall take such further
actions as the Collateral Agent shall request to evidence any release of the
Noteholder Lien described in Section 4.02(a).


 


(c)           In the event the Trustee fails to
comply with its obligations under subsection (b) within 20 days of delivery of
a written request therefor by the Collateral Agent in connection with an
Enforcement Action, the Trustee hereby appoints the Collateral Agent and any
officer or duly authorized person of the Collateral Agent, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power of attorney in the place and stead of the Trustee and in the name of the
Trustee or in the Collateral Agent’s own name, from time to time, in the
Collateral Agent’s sole discretion, for the purposes of


 


15

















 


carrying out the terms of this paragraph, to
execute and deliver any and all documents and instruments, and take such
further actions, as may be necessary or desirable to evidence any release of
the Noteholder Lien described in Section 4.02(a), in connection with such
Enforcement Action, including, without limitation, executing and delivering any
amendments or terminations of financing statements, endorsements, assignments,
releases or other documents or instruments of transfer (which appointment,
being coupled with an interest, is irrevocable).


 


Section 4.03.  Inspection
Rights and Insurance.  (a)
Subject to Section 3.02(b), any Lender Party and its representatives and
invitees may at any time inspect, repossess, remove and otherwise deal with the
Common Collateral, and the Collateral Agent may advertise and conduct public
auctions or private sales of the Common Collateral, in each case without notice
to, the involvement of or interference by any Note Party or liability to any
Note Party.


 


(b)           Until the Lender Obligations Payment
Date has occurred, the Collateral Agent will have the sole and exclusive right
(i) to be named as loss payee (and, to the extent only one party is permitted
by any insurance company to be so named, additional insured) under any
insurance policies maintained from time to time by any Obligor Party; (ii) to
adjust or settle any insurance policy or claim covering the Common Collateral
in the event of any loss thereunder and (iii) to approve any award granted in
any condemnation or similar proceeding affecting the Common Collateral.  If any insurance company permits two
additional insureds to be named under an insurance policy, the Trustee may be
named as the second additional insured, provided
that the priority of such designation is clearly reflected in the applicable
documentation.


 


ARTICLE 5


INSOLVENCY
PROCEEDINGS


 


Section 5.01.  Relief from
the Automatic Stay.  The
Trustee agrees, on behalf of itself and the other Note Parties, that none of
them will oppose the granting of relief from the automatic stay or from any
other stay in any Insolvency Proceeding to permit the Lender Parties to apply
any Cash Collateral held in accordance with the terms of the Credit Agreement
Documents to Lender Obligations then due in respect of Letters of Credit.


 


Section 5.02.  Adequate
Protection.  The Trustee, on
behalf of itself and the other Note Parties, agrees that none of them shall
object, contest, or support any other Person objecting to or contesting, (a)
any request by the Collateral Agent or the Lender Parties for adequate
protection consisting of senior replacement liens and senior superpriority
claims or cash payments (b) any objection by the Collateral Agent or any other
Lender Parties to any motion,


 


16

















 


relief, action or proceeding which objection
is based on a claim of a lack of such adequate protection (provided that if any
Note Party moves for adequate protection and any Lender Party objects thereto,
this subsection (b) shall not preclude any Note Party from responding to such
objection) or (c) the payment of interest, fees, expenses or other amounts to
the Collateral Agent or any other Lender Party under section 506(b) or 506(c)
of the Bankruptcy Code or otherwise.  In
any Insolvency Proceeding, the Trustee and the Note Parties may request, accept
or retain adequate protection only in the form of (i) a replacement Lien on
additional collateral, subordinated to the Liens thereon (if any) securing the
Lender Obligations on the same basis as the other Liens securing the Note
Obligations are so subordinated to the Lender Obligations under this Agreement
and (ii) superpriority claims junior in all respects to the superpriority
claims (if any) granted to the Lender Parties and (iii) subject to Section
4.01(a) and the application of all such payments in accordance therewith,
Adequate Protection Payments.  In the
event the Trustee or any other Note Party receives adequate protection in the
form of a replacement Lien on additional collateral as to which there is no
Lien securing the Lender Obligations and/or adequate protection in the form of
a superpriority claim which is not junior to a superpriority claim in favor of
the Lender Parties, then any Proceeds of or other realization upon any such
Lien or claim shall be applied in accordance with Section 4.01 as if Proceeds
of Common Collateral.


 


Section 5.03.  Avoidance
Issues.  If any Lender Party
is required in any Insolvency Proceeding or otherwise to disgorge, turn over or
otherwise pay to the estate of any Obligor Party, because such amount was
avoided or ordered to be paid or disgorged for any reason, including without
limitation because it was found to be a fraudulent or preferential transfer,
any amount (a “Recovery”), whether
received as proceeds of security, enforcement of any right of set-off or
otherwise, then the Lender Obligations shall be reinstated to the extent of
such Recovery and deemed to be outstanding as if such payment had not occurred
and the Lender Obligations Payment Date shall be deemed not to have occurred.  If this Agreement shall have been terminated
prior to such Recovery, this Agreement shall be reinstated in full force and
effect, and such prior termination shall not diminish, release, discharge,
impair or otherwise affect the obligations of the parties hereto.


 


Section 5.04.  Separate Grants
of Security and Separate Classification. 
Each Note Party acknowledges and agrees that (a) the grants
of Liens pursuant to the Credit Agreement Documents and the New Indenture
Documents constitute two separate and distinct grants of Liens and (b) because
of, among other things, their differing rights in the Common Collateral, the
Note Obligations are fundamentally different from the Lender Obligations and
must be separately classified in any plan of reorganization proposed or adopted
in an Insolvency Proceeding.


 


17

















 


Section 5.05.  No Waivers
of Rights of Parties.  (a)
Nothing contained herein shall prohibit or in any way limit the Collateral
Agent or any other Lender Party from objecting in any Insolvency Proceeding or
otherwise to any action taken or proposed to be taken by any Note Party.   (b) Except as otherwise expressly provided
in this Agreement, nothing contained herein shall prohibit or in any way limit the
Trustee or any other Note Party from objecting in any Insolvency Proceeding or
otherwise to any action taken or proposed to be taken by any Lender Party.


 


Section 5.06. 
Effectiveness in Insolvency Proceedings.  This Agreement, which the parties hereto expressly
acknowledge is a “subordination agreement” under section 510(a) of the
Bankruptcy Code, shall be effective both before and after the commencement of
an Insolvency Proceeding.  All
references in this Agreement to any Obligor Party shall include such Obligor
Party as a debtor-in-possession and any receiver or trustee for such Obligor
Party in any Insolvency Proceeding.


 


ARTICLE 6


NEW INDENTURE
DOCUMENTS AND CREDIT AGREEMENT DOCUMENTS


 


Section 6.01. Amendment and Modification.  (a) Each Obligor Party and the
Trustee, on behalf of itself and the Note Parties, agrees that it shall not at
any time execute or deliver any amendment or other modification to any of the
New Indenture Documents inconsistent with or in violation of this Agreement.


 


(b)           Each Obligor Party and the Collateral
Agent, on behalf of itself and the Lender Parties, agrees that it shall not at
any time execute or deliver any amendment or other modification to any of the
Credit Agreement Documents inconsistent with or in violation of this Agreement.


 


(c)           The Collateral Agent, on behalf of
itself and the Lender Parties, hereby consents, on the terms and conditions set
forth herein, to the grant of the security interests in the Common Collateral
to the Trustee as collateral security for the obligations of the Company, the
Borrowing Subsidiaries and the other Obligor Parties under the Existing New
Indenture (as in effect on the date hereof) and the Notes.


 


ARTICLE 7


RELIANCE;
WAIVERS; ETC.


 


Section 7.01. 
Reliance.  The Credit
Agreement Documents are deemed to have been executed and delivered, and all
extensions of credit thereunder are deemed to have been made or incurred, in
reliance upon this Agreement.  The


 


18

















 


Trustee, on behalf of it itself and the Note
Parties, expressly waives all notice of the acceptance of and reliance on this
Agreement by the Lender Parties.  The
New Indenture Documents are deemed to have been executed and delivered and all
extensions of credit thereunder are deemed to have been made or incurred, in
reliance upon this Agreement.  The
Collateral Agent expressly waives all notices of the acceptance of and reliance
by the Trustee and the Note Parties.


 


Section 7.02.  No
Warranties or Liability.  The
Trustee and the Collateral Agent acknowledge and agree that neither has made
any representation or warranty with respect to the execution, validity,
legality, completeness, collectibility or enforceability of any Credit
Agreement Document or any New Indenture Document.  Except as otherwise provided in this Agreement, the Trustee and
the Collateral Agent will be entitled to manage and supervise their respective
extensions of credit to any Obligor Party in accordance with law and their
usual practices, modified from time to time as they deem appropriate.


 


Section 7.03.  No
Waivers.  No right or benefit
of any party hereunder shall at any time in any way be prejudiced or impaired
by any act or failure to act on the part of such party or any other party
hereto or by any noncompliance by any Obligor Party with the terms and conditions
of any of the Credit Agreement Documents or the New Indenture Documents.


 


ARTICLE 8


OBLIGATIONS
UNCONDITIONAL


 


Section 8.01. 
Modifications to Lender Obligations. 
All rights of the Collateral Agent hereunder, and all
agreements and obligations of the Trustee, the Company and the other Obligor
Parties (to the extent applicable) hereunder, shall remain in full force and
effect irrespective of:


 


(i)            any change in the time, place or
manner of payment of, or in any other term of, all or any portion of the Lender
Obligations, or any amendment, waiver or other modification, whether by course
of conduct or otherwise, or any refinancing, replacement, refunding or
restatement of any Credit Agreement Document;


 


(ii)           prior to the Lender Obligations
Payment Date, any exchange, release, lapse, non-perfection or (except as a
result of Lender Misconduct as set forth in Section 2.01(c) above) avoidance or
subordination of any security interest in any Common Collateral or any other
collateral, or any release, amendment, waiver or other modification, whether by
course of conduct or otherwise, or any refinancing, replacement, refunding or
restatement of all or any portion of the Lender Obligations or any guarantee or
guaranty thereof; or


 


19

















 


(iii)          any other circumstances that otherwise
might constitute a defense available to, or a discharge of, any Obligor Party
in respect of the Lender Obligations, or of any of the Trustee, or any Obligor
Party, to the extent applicable, in respect of this Agreement;


 


in each case to the extent that the same does
not result in the Indebtedness under the Credit Agreement Documents exceeding
the amount permitted under Section 4.05(b)(1) of the Applicable Indenture.


 


Section 8.02.  Modifications
to Note Obligations.  All
rights and interests of the Trustee under this Agreement, and all agreements
and obligations of the Collateral Agent, the Obligor Parties, to the extent
applicable, hereunder, shall remain in full force and effect irrespective of:


 


(i)            any change in the time, place or
manner of payment of, or in any other term of, all or any portion of the Note
Obligations, or any amendment, waiver or other modification, whether by course
of conduct or otherwise, or any refinancing, replacement, refunding or
restatement of any New Indenture Document;


 


(ii)           any exchange, release, voiding,
avoidance (other than pursuant to section 510(c) of the Bankruptcy Code as a
result of bad acts or willful misconduct by the Trustee or any Note Party) or
non-perfection of any security interest in any Common Collateral, or any
release, amendment, waiver or other modification, whether by course of conduct
or otherwise, or any refinancing, replacement, refunding or restatement of all
or any portion of the Note Obligations or any guarantee or guaranty thereof; or


 


(iii)          any other circumstances that otherwise
might constitute a defense available to, or a discharge of, any Obligor Party
in respect of the Note Obligations, or of any of the Collateral Agent or other
Obligor Party, to the extent applicable, in respect of this Agreement.


 


ARTICLE 9


MISCELLANEOUS


 


Section 9.01. 
Conflicts.  In the
event of any conflict between the provisions of this Agreement and the
provisions of any Credit Agreement Document or any New Indenture Document, the
provisions of this Agreement shall govern.


 


Section 9.02.  Continuing
Nature of Provisions.  This
Agreement shall continue to be effective, and shall not be revocable by any
party hereto, until the


 


20

















 


Lender Obligation Payment Date shall have
occurred.  This is a continuing
agreement and the Lender Parties and the Note Parties may continue, at any time
and without notice to the other parties hereto, to extend credit and other
financial accommodations, lend monies and provide indebtedness to, or for the
benefit of, Company or any other Obligor Party on the faith hereof.


 


Section 9.03.  Amendments;
Waivers.  No amendment or
modification of any of the provisions of this Agreement shall be effective
unless the same shall be in writing and signed by the Collateral Agent, the
Trustee and, only if the rights or duties of any Obligor Party are directly
affected thereby, such Obligor Party. 
The approval of any such amendment or modification by the Collateral
Agent shall be subject to (i) any requirement of consent of the Lenders
expressly provided for in the applicable Credit Agreement with reference to
this Agreement, or (ii) if no such express provision is contained therein, then
with such consent of the Lenders as may be generally applicable to
modifications of documents in respect of the Common Collateral; provided
that (in the case of clause (ii)) any such amendment which alters the
respective priorities of the Lender Obligations, on the one hand, and the Note
Obligations, on the other hand, as set forth in Section 4.01 shall be subject
to such requirement of Lender consent as would be applicable to a release of
all Common Collateral.


 


Section 9.04.  Information
Concerning Financial Condition of the Company and the Other Obligor
Parties.  Each of the Trustee
and the Collateral Agent hereby assume responsibility for keeping itself
informed of  the financial condition of
the Company and each of the other Obligor Parties and all other circumstances
bearing upon the risk of nonpayment of the Lender Obligations or the Note
Obligations.  The Trustee and the
Collateral Agent hereby agree that no party shall have any duty to advise any
other party of information known to it regarding such condition or any such
circumstances.  In the event the Trustee
or the Collateral Agent, in its sole discretion, undertakes at any time or from
time to time to provide any information to any other party to this Agreement,
it shall be under no obligation (a) to provide any such information to such
other party or any other party on any subsequent occasion, (b) to undertake any
investigation not a part of its regular business routine, or (c) to disclose
any other information.


 


Section 9.05.  Governing
Law.  This Agreement shall be
construed in accordance with and governed by the law of the State of New York,
except as otherwise required by mandatory provisions of law and except to the
extent that remedies provided by the laws of any jurisdiction other than the
State of New York are governed by the laws of such jurisdiction.


 


Section 9.06.  Submission
to Jurisdiction.   (a) Each party hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern


 


21

















 


District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to
this Agreement, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court.  Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall 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 Agreement shall affect any right that any Lender Party
may otherwise have to bring any action or proceeding relating to this Agreement
or any Credit Agreement Documents against the Company or any other Obligor
Party or its properties in the courts of any jurisdiction.


 


(b)           The Company, each other Obligor Party
and the Note Parties hereby irrevocably and unconditionally waive, to the
fullest extent they may legally and effectively do so (x) any objection they
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred
to in paragraph (a) of this Section and (y) the defense of an inconvenient
forum to the maintenance of such action or proceeding.


 


(c)           Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices
in Section 9.07.  Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.


 


Section 9.07. 
Notices.  Unless
otherwise specifically provided herein, any notice or other communication
herein required or permitted to be given shall be in writing and may be
personally served, telecopied, or sent by overnight express courier service or
United States mail and shall be deemed to have been given when delivered in
person or by courier service, upon receipt of a telecopy or five (5) days after
deposit in the United States mail (certified, with postage prepaid and properly
addressed).  For the purposes hereof,
the addresses of the parties hereto (until notice of a change thereof is
delivered as provided in this Section) shall be as set forth below each party’s
name on the signature pages hereof, or, as to each party, at such other address
as may be designated by such party in a written notice to all of the other
parties.


 


Section 9.08.  Successors
and Assigns.  (a) This
Agreement shall be binding upon and inure to the benefit of each of the parties
hereto and each of the Lender Parties and Note Parties and their respective
successors and assigns, and nothing herein is intended, or shall be construed
to give, any other Person any right, remedy or claim under, to or in respect of
this Agreement or any Common Collateral. 
All references to any Obligor Party shall include any Obligor Party as
debtor-in-possession and any receiver or trustee for such Obligor Party in any
Insolvency Proceeding.


 


22

















 


(b)           Upon the refinancing or replacement
of the Existing Credit Agreement, Bank of America, N.A. shall be succeeded as
Collateral Agent hereunder by the administrative agent or similar
representative of the Lenders under the Credit Agreement then in effect that
executes and delivers to the Trustee a counterpart hereof agreeing to be a
party hereto and be bound by the provisions hereof applicable to the Collateral
Agent.  Such successor Collateral Agent
shall thereupon succeed to all the rights and powers of the Collateral Agent
hereunder, and the predecessor Collateral Agent shall be discharged from any
further obligation hereunder; provided
that the provisions of this Agreement, including without limitation Section
4.01(a)(i), shall continue to enure to the benefit of such predecessor
Collateral Agent.


 


Section 9.09. 
Headings.  Section
headings used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.


 


Section 9.10. 
Severability.  Any
provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.


 


Section 9.11. 
Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract.  Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
This Agreement shall become effective when it shall have been executed by each
party hereto.


 


ARTICLE 10


CONCERNING THE
COLLATERAL AGENT


 


Section 10.01. 
Authorization.  Notwithstanding
any provision to the contrary contained elsewhere herein or in any Credit
Agreement Document or any New Indenture Document, the Collateral Agent shall
not have any duties or responsibilities, except those expressly set forth
herein (or, with respect to the Lender Parties, in any Credit Agreement
Document), nor shall the Collateral Agent have or be deemed to have any
fiduciary relationship with any Lender Party or any Note Party or participant,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against the
Collateral Agent.


 


23

















 


Section 10.02.  Delegation
of Duties.  The Collateral
Agent may execute any of its duties under this Agreement by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such
duties.  The Collateral Agent shall not
be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.


 


Section 10.03.  Liability
of Agents.  Neither the
Collateral Agent nor any of its Affiliates (any such person, an “Agent-Related Person”) shall (a) be liable
for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or the transactions contemplated hereby (except
for its own gross negligence or willful misconduct in connection with its
duties expressly set forth herein), or (b) be responsible in any manner to any
Lender Party or any Note Party or participant for any recital, statement,
representation or warranty made by any Obligor Party or any officer thereof,
contained herein or in any Credit Agreement Document or any New Indenture
Document, or in any certificate, report, statement or other document referred
to or provided for in, or received by the Collateral Agent under or in
connection with, this Agreement or any Credit Agreement Document or any New
Indenture Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any Credit Agreement Document or any New
Indenture Document, or for any failure of any Obligor Party or any other party
to any Credit Agreement Document or any New Indenture Document to perform its
obligations hereunder or thereunder.  No
Agent-Related Person shall be under any obligation to any Lender Party or any
Note Party or participant to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any Credit Agreement Document or any New Indenture Document, or to
inspect the properties, books or records of any Obligor Party or any Affiliate
thereof.


 


Section 10.04.  Reliance by
Collateral Agent.  The
Collateral Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, electronic mail message, statement or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to any Obligor Party),
independent accountants and other experts selected by the Collateral Agent.  The Collateral Agent shall be fully
justified in failing or refusing to take any action hereunder unless it shall
first receive such advice or concurrence of the number or percentage of Lender
Parties and/or Note Parties as it deems appropriate and, if it so requests, it
shall first be indemnified to its satisfaction by the Lender Parties and the
Note Parties against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action.  The Collateral Agent shall in all cases be
fully protected in


 


24

















 


acting, or in refraining from acting, under
this Agreement in accordance with a request or consent of a majority of the
Lender Parties and/or Note Parties, voting as separate classes (or such greater
number of Lender Parties and/or Note Parties as may be expressly required
hereby in any instance) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lender Parties and all the Note
Parties.


 


25

















 


IN WITNESS
WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.


 


	
  ATTEST:

  	
  FOSTER WHEELER LLC

  
	
   

  	
  By:

  	
  Foster Wheeler Holdings Ltd.

  (formerly known as Foreign Holdings

  Ltd.), its sole member

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Name:

  
	
   

  	
  Title:

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER USA

  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER NORTH

  AMERICA CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FOSTER
  WHEELER ENERGY

  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
							



 

















 


	
   

  	
  FOSTER WHEELER LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	 
	
   

  	
  FOSTER
  WHEELER HOLDINGS LTD.

  (formerly known as Foreign Holdings

  Ltd.)

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
  By:

  	
   

  	
   

  	 

	 
	
   

  	
   

  	
  Name:

  	 

	 
	
   

  	
   

  	
  Title:

  	 

	 
	
   

  	
   

  	
   

  	 

	 
	
   

  	
   

  	
   

  	 

	 
	
   

  	
  FOSTER WHEELER INC.

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
  By:

  	
   

  	
   

  	 

	 
	
   

  	
   

  	
  Name:

  	 

	 
	
   

  	
   

  	
  Title:

  	 

	 
	
   

  	
   

  	
   

  	 

	 
	
   

  	
   

  	
   

  	 

	 
	
   

  	
  FOSTER
  WHEELER

  INTERNATIONAL HOLDINGS,

  INC.

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
  By:

  	
   

  	
   

  	 

	 
	
   

  	
   

  	
  Name:

  	 

	 
	
   

  	
   

  	
  Title:

  	 

								



 

















 


 


	
   

  	
  EQUIPMENT CONSULTANTS, INC.

  
	
   

  	
  FOSTER WHEELER ASIA LIMITED

  
	
   

  	
  FOSTER
  WHEELER CAPITAL & 

  FINANCE CORPORATION

  
	
   

  	
  FOSTER
  WHEELER CONSTRUCTORS,

  INC.

  
	
   

  	
  FOSTER
  WHEELER DEVELOPMENT

  CORPORATION

  
	
   

  	
  FOSTER
  WHEELER ENERGY

  MANUFACTURING, INC. 

  
	
   

  	
  FOSTER
  WHEELER ENERGY

  SERVICES, INC.

  
	
   

  	
  FOSTER
  WHEELER ENVIRESPONSE,

  INC.

  
	
   

  	
  FOSTER
  WHEELER

  ENVIRONMENTAL CORPORATION 

  
	
   

  	
  FOSTER
  WHEELER FACILITIES

  MANAGEMENT, INC. 

  
	
   

  	
  FOSTER
  WHEELER INTERNATIONAL

  CORPORATION 

  
	
   

  	
  FOSTER
  WHEELER POWER SYSTEMS,

  INC.

  
	
   

  	
  FOSTER
  WHEELER PYROPOWER,

  INC. 

  
	
   

  	
  FOSTER
  WHEELER REAL ESTATE

  DEVELOPMENT CORP. 

  
	
   

  	
  FOSTER
  WHEELER REALTY

  SERVICES, INC.

  
	
   

  	
  FOSTER
  WHEELER VIRGIN ISLANDS,

  INC. 

  
	
   

  	
  FOSTER WHEELER ZACK, INC.

  
	
   

  	
  FW MORTSHAL, INC.

  
	
   

  	
  FW TECHNOLOGIES HOLDING, LLC

  
	
   

  	
  HFM INTERNATIONAL, INC.

  
	
   

  	
  PROCESS CONSULTANTS, INC.

  
	
   

  	
  PYROPOWER
  OPERATING SERVICES

  COMPANY, INC.

  
	
   

  	
  FWPI LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


 


	
   

  	
  ENERGY HOLDINGS, INC. 

  
	
   

  	
  FOSTER
  WHEELER

  INTERNATIONAL CORPORATION

  
	
   

  	
  FOSTER
  WHEELER MIDDLE EAST

  CORPORATION

  
	
   

  	
  FOSTER
  WHEELER POWER

  CORPORATION

  
	
   

  	
  PGI HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  FW EUROPEAN E & C LTD.

  
	
   

  	
  CONTINENTAL FINANCE COMPANY LTD.

  
	
   

  	
  FINANCIAL SERVICES S.A.R.L.

  
	
   

  	
  FOSTER
  WHEELER TRADING COMPANY,

  LTD.

  
	
   

  	
  PERRYVILLE SERVICE COMPANY LTD.

  
	
   

  	
  FW HUNGARY
  LICENSING LIMITED

  LIABILITY COMPANY

  
	
   

  	
  FW OVERSEAS OPERATIONS LIMITED

  
	
   

  	
  FW MANAGEMENT OPERATIONS, LTD.

  
	
   

  	
  MANOPS LIMITED 

  
	
   

  	
  FOSTER
  WHEELER PETROLEUM

  SERVICES S.A.E.

  
	
   

  	
  FW ENERGIE B.V.

  
	
   

  	
  FOSTER WHEELER EUROPE LIMITED

  
	
   

  	
  F.W.-GESTAO E SERVICOS, S.A.

  
	
   

  	
  FOSTER
  WHEELER CANADIAN

  RESOURCES, LTD.

  
	
   

  	
  LA SOCIETE
  D’ENERGIE FOSTER

  WHEELER LTEE.

  
	
   

  	
  SINGLETON PROCESS SYSTEMS GmbH

  
	
   

  	
  HFM TRAY CANADA LTD.

  
	
   

  	
  FOSTER
  WHEELER INGENIEROS Y

  CONSTRUCTORES, S.A. de C.V.

  
	
   

  	
  FOSTER
  WHEELER AMERICA LATINA,

  LTDA.

  
	
   

  	
  P.E. CONSULTANTS, INC.

  
	
   

  	
  FOSTER
  WHEELER CARIBE

  CORPORATION, C.A.

  
	
   

  	
  FOSTER
  WHEELER AUSTRALIA

  PROPRIETARY LIMITED

  
	
   

  	
  FOSTER WHEELER CONTINENTAL B.V.

  
	
   

  	
  FOSTER WHEELER EUROPE B.V.

  
	
   

  	
  FOSTER
  WHEELER VIETNAM PRIVATE

  LTD.

  
	
   

  	
  FOSTER WHEELER ANDINA S.A.

  
	
   

  	
  FOSTER WHEELER (THAILAND) LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  FOSTER WHEELER (MALAYSIA) Sdn.

  
	
   

  	
     Bhd.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
  Keith Batchelor

  
	
   

  	
   

  	
  Title:

  	
   

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  FOSTER WHEELER CONSTRUCTORES

  
	
   

  	
     de MEXICO S. de R.L. de
  C.V.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
  Paul Mannion

  
	
   

  	
   

  	
  Title:

  	
   

  	
  General Manager

  



 

















 


 


	
   

  	
  PERRYVILLE III TRUST 

  
	
   

  	
   

  
	
   

  	
  By:

  	
  THE BANK OF NEW YORK, not in

  its individual capacity but solely in

  its capacity as the Owner Trustee of

  the Perryville III Trust

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  BANK OF AMERICA, N.A., as

  Collateral Agent for and on behalf of the

  Lender Parties

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  
	
   

  	
   

  	
  Telecopy No.:

  
	
   

  	
  With a copy to:

  
	
   

  	
  Attention:

  
	
   

  	
  Telecopy No.:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, N.A., as Trustee

  for and on behalf of the Note Parties

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  
	
   

  	
   

  	
  Telecopy No.:

  
	
   

  	
  With a copy to:

  
	
   

  	
  Attention:

  
	
   

  	
   

  	
  Telecopy No.: