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Exhibit 4.2  


EXECUTION COPY 


 
 

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 September 24, 2004    
    
    10.359%
  Senior Secured Notes
  Due 2011, Series A    
    
    10.359%
  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    
    



	 
	 	 
	 
	 	Page
 

	ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE	 	1
	

 	
 	

Section 1.01.	

Definitions	
 	

1
	 	 	Section 1.02.	Trust Indenture Act Provisions	 	23
	 	 	Section 1.03.	Rules of Construction	 	23
	

ARTICLE 2 THE NOTES	
 	

24
	

 	
 	

Section 2.01.	

Form, Dating and Denominations; Legends	
 	

24
	 	 	Section 2.02.	Execution and Authentication; Exchange Notes	 	24
	 	 	Section 2.03.	Registrar, Paying Agent and Authenticating Agent; Paying Agent to Hold Money in Trust	 	25
	 	 	Section 2.04.	Replacement Notes	 	26
	 	 	Section 2.05.	Outstanding Notes	 	26
	 	 	Section 2.06.	Temporary Notes	 	27
	 	 	Section 2.07.	Cancellation	 	27
	 	 	Section 2.08.	CUSIP and CINS Numbers	 	27
	 	 	Section 2.09.	Registration, Transfer and Exchange	 	27
	 	 	Section 2.10.	Restrictions on Transfer and Exchange	 	30
	 	 	Section 2.11.	Temporary Offshore Global Notes	 	31
	

ARTICLE 3 REDEMPTION; OFFER TO PURCHASE	
 	
32
	

 	
 	

Section 3.01.	

Optional Redemption	
 	

32
	 	 	Section 3.02.	Optional Redemption; Make Whole	 	32
	 	 	Section 3.03.	Method and Effect of Redemption	 	32
	 	 	Section 3.04.	Offer to Purchase	 	33
	

ARTICLE 4 COVENANTS	
 	

34
	

 	
 	

Section 4.01.	

Payment Of Notes	
 	

34
	 	 	Section 4.02.	Maintenance of Office or Agency	 	35
	 	 	Section 4.03.	Existence	 	35
	 	 	Section 4.04.	Payment of Taxes and other Claims	 	35
	 	 	Section 4.05.	Limitation on Debt and Disqualified or Preferred Stock	 	35
	 	 	Section 4.06.	Limitation on Restricted Payments	 	40
	 	 	Section 4.07.	Limitation on Liens	 	43
	 	 	Section 4.08.	Limitation on Sale and Leaseback Transactions	 	43
	 	 	Section 4.09.	Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries	 	43
	 	 	Section 4.10.	Repurchase of Notes upon a Change of Control	 	44
	 	 	Section 4.11.	Limitation on Asset Sales	 	45
	 	 	Section 4.12.	Limitation on Transactions with Affiliates	 	46
	 	 	Section 4.13.	Additional Note Guarantees and Collateral After the Issue Date	 	47
	 	 	Section 4.14.	Designation of Restricted and Unrestricted Subsidiaries	 	48
	 	 	Section 4.15.	Financial Reports	 	49
	 	 	Section 4.16.	Reports to Trustee	 	50
	 	 	Section 4.17.	Impairment of Security Interest; Security Document Covenants	 	50
	 	 	 	 	 	 





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ARTICLE 5 CONSOLIDATION, MERGER OF SALE OF ASSETS	
 	

50
	

 	
 	

Section 5.01.	

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

50
	 	 	Section 5.02.	Merger by Subsidiary Guarantors	 	51
	

ARTICLE 6 DEFAULT AND REMEDIES	
 	

52
	

 	
 	

Section 6.01.	

Events of Default	
 	

52
	 	 	Section 6.02.	Consequences of an Event of Default	 	53
	 	 	Section 6.03.	Other Remedies	 	53
	 	 	Section 6.04.	Waiver of Past Defaults	 	54
	 	 	Section 6.05.	Control by Majority	 	54
	 	 	Section 6.06.	Limitation on Suits	 	54
	 	 	Section 6.07.	Rights of Holders to Receive Payment	 	54
	 	 	Section 6.08.	Collection Suit by Trustee	 	54
	 	 	Section 6.09.	Trustee May File Proofs of Claim	 	54
	 	 	Section 6.10.	Priorities	 	55
	 	 	Section 6.11.	Restoration of Rights and Remedies	 	55
	 	 	Section 6.12.	Undertaking for Costs	 	55
	 	 	Section 6.13.	Rights and Remedies Cumulative	 	55
	

ARTICLE 7 THE TRUSTEE	
 	

56
	

 	
 	

Section 7.01.	

General	
 	

56
	 	 	Section 7.02.	Certain Rights of Trustee	 	56
	 	 	Section 7.03.	Trustee May Hold Notes	 	57
	 	 	Section 7.04.	Trustee's Disclaimer	 	57
	 	 	Section 7.05.	Notice of Default	 	58
	 	 	Section 7.06.	Reports by Trustee to Holders	 	58
	 	 	Section 7.07.	Compensation and Indemnity	 	58
	 	 	Section 7.08.	Replacement of Trustee	 	58
	 	 	Section 7.09.	Successor Trustee by Merger	 	59
	 	 	Section 7.10.	Eligibility	 	59
	 	 	Section 7.11.	Money Held in Trust	 	59
	 	 	Section 7.12.	Appointment of Co-Trustee	 	60
	

ARTICLE 8 DEFEASANCE AND DISCHARGE	
 	

61
	

 	
 	

Section 8.01.	

Discharge of Company's Obligations	
 	

61
	 	 	Section 8.02.	Legal Defeasance	 	61
	 	 	Section 8.03.	Covenant Defeasance	 	62
	 	 	Section 8.04.	Application of Trust Money	 	62
	 	 	Section 8.05.	Repayment to Company	 	63
	 	 	Section 8.06.	Reinstatement	 	63
	

ARTICLE 9 AMENDMENTS, SUPPLEMENTS AND WAIVERS	
 	

63
	

 	
 	

Section 9.01.	

Amendments Without Consent of Holders	
 	

63
	 	 	Section 9.02.	Amendments With Consent of Holders	 	64
	 	 	Section 9.03.	Effect of Consent	 	65
	 	 	Section 9.04.	Trustee's Rights and Obligations	 	65
	 	 	Section 9.05.	Conformity With Trust Indenture Act	 	65
	 	 	 	 	 	 



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ARTICLE 10 COLLATERAL ARRANGEMENTS	
 	

65
	

 	
 	

Section 10.01.	

Collateral Documents	
 	

65
	 	 	Section 10.02.	Recordings and Opinions	 	66
	 	 	Section 10.03.	Release of Collateral	 	66
	 	 	Section 10.04.	Permitted Releases Not To Impair Lien; Trust Indenture Act Requirements	 	67
	 	 	Section 10.05.	Suits To Protect the Collateral	 	67
	 	 	Section 10.06.	Purchaser Protected	 	68
	 	 	Section 10.07.	Powers Exercisable by Receiver or Trustee	 	68
	 	 	Section 10.08.	Disposition of Obligations Received	 	68
	 	 	Section 10.09.	Determinations Relating to Collateral	 	68
	 	 	Section 10.10.	Release upon Termination of the Company's Obligations	 	69
	 	 	Section 10.11.	Notes Collateral Agent's Duties	 	69
	 	 	Section 10.12.	Additional Secured Obligations	 	69
	 	 	Section 10.13.	Designation of New Indenture Documents	 	69
	 	 	Section 10.14.	Parallel Debt	 	69
	

ARTICLE 11 GUARANTEES	
 	

70
	

 	
 	

Section 11.01.	

The Guarantees	
 	

70
	 	 	Section 11.02.	Guarantee Unconditional	 	70
	 	 	Section 11.03.	Discharge; Reinstatement	 	71
	 	 	Section 11.04.	Waiver by the Guarantors	 	71
	 	 	Section 11.05.	Subrogation and Contribution	 	71
	 	 	Section 11.06.	Stay of Acceleration	 	71
	 	 	Section 11.07.	Limitation on Amount of Guarantee	 	71
	 	 	Section 11.08.	Execution and Delivery of Guarantee	 	72
	 	 	Section 11.09.	Release of Guarantee	 	72
	 	 	Section 11.10.	No Suspension of Remedies	 	72
	

ARTICLE 12 MISCELLANEOUS	
 	

72
	

 	
 	

Section 12.01.	

Trust Indenture Act of 1939	
 	

72
	 	 	Section 12.02.	Noteholder Communications; Noteholder Actions	 	72
	 	 	Section 12.03.	Notices	 	73
	 	 	Section 12.04.	Certificate and Opinion as to Conditions Precedent	 	74
	 	 	Section 12.05.	Statements Required in Certificate or Opinion	 	74
	 	 	Section 12.06.	Payment Date Other Than a Business Day	 	74
	 	 	Section 12.07.	Governing Law	 	74
	 	 	Section 12.08.	No Adverse Interpretation of Other Agreements	 	74
	 	 	Section 12.09.	Successors	 	74
	 	 	Section 12.10.	Duplicate Originals	 	74
	 	 	Section 12.11.	Separability	 	74
	 	 	Section 12.12.	Table of Contents and Headings	 	74
	 	 	Section 12.13.	No Liability of Directors, Officers, Employees, Incorporators, Members and Stockholders	 	75
	 	 	Section 12.14.	Submission to Jurisdiction	 	75
	 	 	Section 12.15.	Appointment of Agent	 	75
	 	 	Section 12.16.	Judgment Currency	 	75




iii







 


	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
	EXHIBIT M	Form of Parallel Debt Agreement




iv









  





        INDENTURE, dated as of September 24, 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 10.359% 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 10.359% 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: 


 
 

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 


1







 



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 September 15, 2006 (such redemption price being set forth in
Section 3.01), plus (ii) all required interest payments due on the Note through September 15, 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 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; 



2







 




        (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 


        (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; 



        (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 



3







 




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 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 



4







 




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. 


        "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 



5







 




        (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 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, or total members' equity (deficit), 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. 



6









   
        "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 Bank, National Association, Corporate Trust, Sixth and Marquette, MAC N9303-120, Minneapolis, MN 55479. 


        "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, 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 (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; 



7







 

        (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; 


        (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. 


8







 



        "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 


        (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. 


9







 



        "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 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, 



        (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 



10







 




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 



        (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, including the documents incorporated by reference therein, as declared effective with the Commission on
August 16, 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. 


11







 



        "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 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. 


12







 



        "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 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 March 15 and September 15 of each year, commencing March 15, 2005. 


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


13









   
        "Issue Date" means September 24, 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 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. 


14







 



        "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. 



        "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. 


15







 



        "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, 



        (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 



16







 

evidences
of indebtedness, securities or other property of such Person held by the Company or any Restricted Subsidiary, or for other liabilities or 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, 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 



17







 




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; 


        (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; 



18







 




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


19









  





        "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 February 28 or August 31 (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. 


        "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 


20







 



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 



        (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. 


21







 



        "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 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 L.P.; 8925 Rehco, Inc.; Adirondack 


22







 



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 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; 



        (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. 



23







 




 
 

ARTICLE 2
THE NOTES    
    


        Section 2.01.    Form, Dating and Denominations; Legends(a).    (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 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).    (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. 


24









   
        (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: 




        (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).    (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 


25







 



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. 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).    (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
purchased on that 



26







 




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 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).    (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. 


27







 



        (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 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 




28







 





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 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 



29







 




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).    (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. 


        (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 Institutional
Accredited Investor Certificate and/or an Opinion of Counsel and such other certifications and evidence as the Company may reasonably 



30







 




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


31









  





        (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 September 15,
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 September 15 of the years indicated below: 



	Year
 
	 	Percentage

	2006	 	107.769%
	2007	 	106.474%
	2008	 	105.180%
	2009	 	102.590%
	2010	 	100.000%





        Section 3.02.    Optional Redemption; Make Whole.    At any time prior to September 15, 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).    (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 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. 


32







 



        (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. 



        (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).    (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; 



33







 




        (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; 


        (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).    (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 


34







 

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. 


        (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 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).    (a) The Company: 


35







 



        (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, exclusive of reimbursement obligations in respect of letters of credit issued under such Credit Facilities, 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 September 15, 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 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 



36







 

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 


        (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 



37









  




        (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 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; 



38







 




        (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 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. 


        (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). 


39







 

        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 


        (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; provided that amounts received by Parent as payment of the applicable exercise price of any warrants or options issued in connection with the proposed exchange offer shall
be included), 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 





40







 



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: 



        (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 



41







 




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 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; 



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


        (16) the
repurchase, or payments to, or for the account of, any Parent Guarantor for the repurchase, from time to time, of debt securities or trust securities of Foster
Wheeler LLC, its subsidiaries or any Parent Guarantor having a purchase price in an amount not to exceed $50,000,000 in the aggregate. 



42







 





provided that, in the case of clauses (4), (5), (6), (7), (8)(iii) and (iv), (9), (10), (11), (12), (13) and (16) of this
Section 4.06(b), no Default has occurred and is continuing or would occur as a result thereof. 


        (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). 50% of all Restricted Payments made pursuant to
clause (16) of Section 4.06(b) will not be included in making the calculations under clause (3) of this Section 4.06. 


        (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: 



        (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. 



43









   
        (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 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).    (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. 


44







 

        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 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. 



45







 

        (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. 


        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; 



46







 




        (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; 


        (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 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. 


47







 



        (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 to 11.359% 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 to 10.359%. 


        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: 



        (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. 



48









  





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 


        (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 



49







 

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. 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 



50







 




result
in the sale, assignment, 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. 


        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 



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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; 


        (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 



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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 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. 


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        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 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 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 


54







 



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 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. 


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ARTICLE 7
THE TRUSTEE


        Section 7.01.    General(a).    (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 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. 



56







 




        (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, 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 


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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 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 September 15,
beginning with September 15, 2005, the Trustee will mail to each Holder, as provided in TIA Section 313(c), a brief report dated as of such September 15, 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).    (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 this Indenture, the Notes or 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 this Indenture, the Notes or 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 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. 



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        (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). 


        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. 


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        Section 7.12.    Appointment of Co-Trustee(a).    (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; 


        (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. 


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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 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. 



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        (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 



        (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 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 


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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; 


        (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 



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




        Section 9.02.    Amendments With Consent of Holders(a).    (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 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 


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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. 



        Section 9.03.    Effect of Consent(a).    (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).    (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 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 


65







 



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 September 15 in each year beginning with September 15, 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). 


        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: 


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        (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 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 


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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, 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. 


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        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. 


        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. 


        Section 10.14.    Parallel Debt.    (a) Under the laws of the Netherlands, the vesting of a right of
pledge for the benefit of the Trustee requires a written agreement and the issuance of Parallel Debt (as defined in the Parallel Debt Agreement, the form of which is attached hereto as
Exhibit M (the "Parallel Debt Agreement)). By accepting any Notes hereunder, the Holders agree to the Parallel Debt and the terms of the Parallel Debt Agreement, including the execution thereof
by the Trustee on behalf of the holders. 


        (b)   Each
of the parties to this Indenture agrees that each and every obligation of the Company and the Guarantors under the Notes and the Note Guarantees shall also be owing
in full, to the Trustee (and each of its successors under this Indenture), and that accordingly the Trustee will have its own independent right to demand performance by the Company and the Guarantors
of those obligations. The Trustee agrees with the Company and the Guarantors that in case of any discharge of any such obligation owing to the Holders by the Company and the Guarantors, it will, to
the same extent, not make a claim against the Company and the Guarantors under the aforesaid agreement at any time, provided that any such claims can be made against the Company and the Guarantors if
such discharge is made by virtue of any set off, counterclaim or similar defense invoked by the Company and the Guarantors, vis-á-vis the Trustee. 



        (c)   Without
limiting or affecting the Trustee's rights against the Company and the Guarantors, the Trustee agrees that, except as set out in the next sentence, it will not
exercise its rights under the 


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aforesaid
acknowledgement except with the consent of the Holders. However, for the avoidance of doubt, nothing in the previous sentence shall in any way limit the Trustee's right to act in the
protection or preservation of rights under or to enforce the Notes and the Note Guarantees as contemplated by this Indenture and/or the Parallel Debt Agreement (or to do any act reasonably incidental
to the foregoing). 


 
 

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; 


        (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; 



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        (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, 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 


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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: 



        (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. 



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        (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
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. 


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        (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. 


        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 


74







 



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 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. 


        Section 12.16.    Judgment Currency.    The Obligors shall jointly and severally indemnify each Holder against
any loss incurred by such Holder as a result of any judgment or order being given or made for any amount due under this Indenture or the Notes and such judgment or order being expressed and paid in a
currency (the "Judgment Currency") other than U.S. Dollars and as a result of any variation as between the rate of exchange at which the U.S. Dollar
amount is converted into the Judgment Currency for the purpose of such judgment or order and the spot rate of exchange in The City of New York at which such Holders on the date of payment of such
judgment or order is able to purchase U.S. Dollars with the amount of the Judgment Currency actually received by such Holder. The foregoing indemnity shall constitute a separate and independent
obligation of the Obligors and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. 



        For
purposes of this Section 12.16, the term "spot rate of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, U.S. Dollars. In addition, "U.S. Dollar" shall refer to the currency of the United States of
America as at the time of payment shall be legal tender for the payment of public and private debts. 


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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:	

/s/  THIERRY DESMARIS      
 Name: Thierry Desmaris

Title: Vice President and Treasurer




76







 


	 	 	WELLS FARGO BANK, NATIONAL

ASSOCIATION

not in its individual capacity but solely as Trustee
	

 	
 	

By:	

/s/  JANE Y. SCHWEIGER      
 Name: Jane Y. Schweiger

Title: Vice President




77







 


	 	 	FOSTER WHEELER LTD.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Vice President and Treasurer
	

 	
 	

CONTINENTAL FINANCE

COMPANY LTD.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Vice President, Treasurer and Director
	

 	
 	

ENERGY HOLDINGS, INC.

as Guarantor
	

 	
 	

By:	

/s/  ANTHONY SCERBO      

	 	 	Name:	Anthony Scerbo
	 	 	Title:	Vice President, Treasurer and Director
	

 	
 	

EQUIPMENT CONSULTANTS, INC.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	

 	
 	

FINANCIAL SERVICES, S.À RL

as Guarantor
	

 	
 	

By:	

/s/  RAKESH K. JINDAL      

	 	 	Name:	Rakesh K. Jindal
	 	 	Title:	Manager
	

 	
 	

FOSTER WHEELER HOLDINGS LTD.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	 	 	 	 



78







 

	

 	
 	

FOSTER WHEELER ASIA LIMITED

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	

 	
 	

FOSTER WHEELER CAPITAL &

FINANCE CORPORATION

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	President and Treasurer
	

 	
 	

FOSTER WHEELER CONSTRUCTORS, INC.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	

 	
 	

FOSTER WHEELER DEVELOPMENT CORPORATION

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	

 	
 	

FW ENERGIE B.V.

as Guarantor
	

 	
 	

By:	

/s/  ANTHONY SCERBO      

	 	 	Name:	Anthony Scerbo
	 	 	Title:	Director
	

 	
 	

FOSTER WHEELER ENERGY CORPORATION

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	 	 	 	 





79







 

	

 	
 	

FOSTER WHEELER ENERGY MANUFACTURING, INC.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	

 	
 	

FOSTER WHEELER ENERGY SERVICES, INC.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	

 	
 	

FOSTER WHEELER EUROPE LIMITED

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Director
	

 	
 	

FOSTER WHEELER ENVIRESPONSE, INC.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	

 	
 	

FOSTER WHEELER ENVIRONMENTAL CORPORATION

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	

 	
 	

FOSTER WHEELER FACILITIES MANAGEMENT, INC.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	 	 	 	 



80







 

	

 	
 	

FOSTER WHEELER INC.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	

 	
 	

FOSTER WHEELER INTERCONTINENTAL CORPORATION

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	

 	
 	

FOSTER WHEELER INTERNATIONAL CORPORATION

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	

 	
 	

FOSTER WHEELER INTERNATIONAL HOLDINGS, INC.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	

 	
 	

FOSTER WHEELER NORTH AMERICA CORP.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	

 	
 	

FOSTER WHEELER POWER SYSTEMS, INC.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	 	 	 	 





81







 

	

 	
 	

FOSTER WHEELER PYROPOWER, INC.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	

 	
 	

FOSTER WHEELER REAL ESTATE DEVELOPMENT CORP.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	President and Treasurer
	

 	
 	

FOSTER WHEELER REALTY SERVICES, INC.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer and Director
	

 	
 	

FOSTER WHEELER USA CORPORATION

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	

 	
 	

FOSTER WHEELER VIRGIN ISLANDS, INC.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	

 	
 	

FOSTER WHEELER ZACK, INC.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	 	 	 	 



82







 

	

 	
 	

FW HUNGARY LICENSING LIMITED

LIABILITY COMPANY

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Managing Director
	

 	
 	

FW MORTSHAL, INC.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	

 	
 	

HFM INTERNATIONAL, INC.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	President, Treasurer and Director
	

 	
 	

PGI HOLDINGS, INC.

as Guarantor
	

 	
 	

By:	

/s/  ANTHONY SCERBO      

	 	 	Name:	Anthony Scerbo
	 	 	Title:	Vice President, Treasurer and Director
	

 	
 	

PROCESS CONSULTANTS, INC.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	

 	
 	

PYROPOWER OPERATING SERVICES COMPANY, INC.

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	 	 	 	 





83







 

	

 	
 	

FOSTER WHEELER POWER CORPORATION

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	

 	
 	

FOSTER WHEELER MIDDLE EAST CORPORATION

as Guarantor
	

 	
 	

By:	

/s/  THIERRY DESMARIS      

	 	 	Name:	Thierry Desmaris
	 	 	Title:	Treasurer
	

 	
 	

PERRYVILLE III TRUST

as Guarantor
	

 	
 	

By:	

/s/  KALLIOPE E. KATERIS      

	 	 	Name:	Kalliope E. Kateris
	 	 	Title:	Owner Trustee




84








   EXHIBIT A  


[INSERT
DTC LEGEND IF REQUIRED] 


[INSERT
RESTRICTED LEGEND IF REQUIRED] 


[FACE
OF NOTE] 


FOSTER
WHEELER LLC 


        10.359%
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 September 15,
 2011. 



        Interest
Rate: 10.359% per annum. 


        Interest
Payment Dates: March 15 and September 15, commencing March 15, 2005. 


        Regular
Record Dates: February 28 and August 31. 


        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 10.359% 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 


        10.359%
Senior Secured Note Due 2011, Series A 


1.    Principal and Interest. 


        The
Company promises to pay the principal of this Note on September 15, 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 10.359% 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 March 15 and September 15 immediately preceding the interest
payment date) on each interest payment date, commencing March 15, 2005. 


        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, from time to time on demand, interest 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 to 11.359% 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 to
10.359% per annum. 


2.    Indentures; Note Guarantee. 


        This
is one of the Notes issued under an Indenture dated as of September 24, 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. 


A-4







 



        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. 


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-5







 
[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-6







 
 
 

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-7







 
 
 

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-8








EXHIBIT B  


[INSERT
DTC LEGEND IF REQUIRED] 


[INSERT
RESTRICTED LEGEND IF REQUIRED] 


[FACE
OF NOTE] 


FOSTER
WHEELER LLC 


10.359%
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 September 15,
 2011. 



        Interest
Rate: 10.359% per annum. 


        Interest
Payment Dates: March 15 and September 15, commencing September 15, 2005. 


        Regular
Record Dates: February 28 and August 31. 


        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. 







 

        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 10.359% 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 


        10.359%
Senior Secured Note Due 2011, Series B 


1.    Principal and Interest. 


        The
Company promises to pay the principal of this Note on September 15, 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 10.359% 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 March 15 or September 15 immediately preceding the interest
payment date) on each interest payment date, commencing March 15, 2005. 


        The
Holder of this Note is entitled to the benefits of the Registration Rights Agreement, dated September 21, 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 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 to 11.359% per annum, commencing on the 91st day following the Issue Date
through and until the date on which all such Note 


B-4







 



Guarantees
have been executed and pledges documented in accordance with the Collateral Documents, after which the interest rate shall decrease to 10.359% per annum. 


2.    Indentures; Note Guarantee. 


        This
is one of the Notes issued under an Indenture dated as of September 24, 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
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. 


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 


B-5







 



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.
	


	

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-8








  



 
 

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-9







 
 
 

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-10








   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 


10.359%

Senior Secured Notes due

2011, Series A 


10.359%

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 September 24, 2004 (the
"Indenture"), relating to the Company's 10.359% Senior Secured Notes Due 2011, Series A and the Company's 10.359% 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 EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. 


D-1








   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

10.359% Senior Secured

Notes due 2011, Series B (the "Notes")

Issued under the Indenture (the "Indenture") dated as

as of September 24, 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. 


        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 



F-1







 

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

10.359% Senior Secured

Notes due 2011, Series B (the "Notes")

Issued under the Indenture (the "Indenture") dated as

as of September 24, 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. 


        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-1








  



EXHIBIT H  


 
  Institutional Accredited Investor Certificate    



Wells
Fargo Bank, National Association

                       

                       

Attention: Corporate Trust Administration 



	Re:
	Foster
Wheeler LLC

10.359% Senior Secured

Notes due 2011, Series B (the "Notes")

Issued under the Indenture (the "Indenture") dated as

as of September 24, 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. 


        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. 


H-1







 



        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. 


        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-2








  



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

10.359% Senior Secured

Notes due 2011, Series B (the "Notes")

Issued under the Indenture (the "Indenture") dated as

as of September 24, 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. 


        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:



I-1







 
 
 

[FORM II]    
    
    Certificate of Beneficial Ownership    



	To:
	Wells
Fargo Bank, National Association

                      

                       
Attention:
Corporate Trust Administration 


	Re:
	Foster
Wheeler LLC

10.359% Senior Secured

Notes due 2011, Series B (the "Notes")

Issued under the Indenture (the "Indenture") dated as

as of September 24, 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 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:



I-2








  



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 September 24, 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 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; 



J-1







 

        (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 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:




J-2








  



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. 


K-1







 

        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. 


L-1








   EXHIBIT M


PARALLEL DEBT AGREEMENT  


 among  


 Foster Wheeler LLC  


 as the Issuer,  


 and  


 Wells Fargo Bank, National Association  


 as the Trustee,  


 and  


 Foster Wheeler International Corporation  


 Foster Wheeler Intercontinental Corporation  


 FW Energie B.V.  


 and  


 Foster Wheeler Inc.  


 as Guarantors  


Dated [            ] 2004
 NautaDutilh N.V.

Amsterdam 


M-1









   THE UNDERSIGNED  


	1.
	Foster Wheeler LLC, a limited liability company formed under the laws of the State of Delaware, United States of America and having its
office address at Perryville Corporate Park, Clinton, New Jersey, USA 08809, United States of America;



	2.
	Wells Fargo Bank, National Association, a national banking association organised under the banking laws of the United States of America,
having an office address at Sixth and Marquette, MAC N9303-120, Minneapolis, Minnesota, 55479, United States of America (the "Trustee");



	3.
	Foster Wheeler International Corporation, a corporation formed under the laws of the state of Delaware, United States of America, having
its registered office at Perryville Corporate Park, Clinton NJ 08809, United States of America;



	4.
	Foster Wheeler Intercontinental Corporation, a corporation formed under the laws of the state of Delaware, United States of America,
having its registered office and address at Perryville Corporate Park, Clinton NJ 08809, United States of America



	5.
	Foster Wheeler Inc., a corporation formed under the laws of the State of Delaware, United States of America and having its office
address at Perryville Corporate Park, Clinton, New Jersey, USA 08809, United States of America; 



AND


	6.
	FW ENERGIE B.V., a company incorporated under the laws of the Netherlands, with corporate seat at Amsterdam and its office address at
Naritaweg 165 Telestone 8, 1043 BW Amsterdam, the Netherlands. 



WHEREAS  


	(A)
	The
parties to this Agreement, among other parties, have entered into the Indenture dated as of [            ], 2004 as may be amended, restated,
supplemented or otherwise modified from time to time (the "Indenture");



	(B)
	The
parties to this Agreement, among other parties, have entered into the Security Agreement dated as of [            ], 2004 in favor of the Trustee and
certain other secured parties, including the Holders of the Notes (each as defined in the Indenture) (the "Secured Parties") (as heretofore amended and
as may be further amended, restated, supplemented or otherwise modified from time to time, the "Security Agreement").



	(C)
	Pursuant
to Section 2 of the Security Agreement, the Guarantors and the Company (each as defined in the Security Agreement) have granted to the Trustee for the benefit of the
Secured Parties a security interest in the Collateral (as defined in the Security Agreement).



	(D)
	Under
Netherlands law, the vesting of a right of pledge for the benefit of the Trustee for obligations towards other parties than the Trustee, requires separate private and notarial
deeds and a Parallel Debt (as defined herein).



	(E)
	Therefore,
the parties hereto wish to create a Parallel Debt, and wish to vest a right of pledge by separate private and notarial deeds. 





THEREFORE,
the parties hereto agree as follows: 


1.    Definitions


	

	For
the purpose of this Agreement, including the preceding recitals, capitalized terms used herein and not otherwise defined herein shall have the meanings
ascribed to such terms in the Indenture 


M-2







 

and
the Security Agreement or shall have the respective meanings indicated below (such meanings to be equally applicable to both the singular and plural forms of the terms defined): 





	 	 	"NCC":	 	Netherlands Civil Code
	 	 	"Parallel Debtor":	 	the Company and the Guarantors collectively





2.    Parallel Debt


	2.1
	Each
Parallel Debtor hereby agrees and covenants with the Trustee that it shall pay to the Trustee on demand amounts equal to all amounts which may be due at any time and from time to
time under the Secured Obligations, if and when such amounts become due and payable (such agreement and covenant of any Parallel Debtor is hereafter referred to as the
"Parallel Debt" of such Parallel Debtor).



	2.2
	If,
after foreclosure of all Collateral in which a security right is granted by any Parallel Debtor, the proceeds of the Collateral are not sufficient to satisfy and discharge such
Parallel Debtor's Parallel Debt, the remainder of such Parallel Debt shall then cease to exist, it being understood that such cessation shall be without prejudice to any other obligations which such
Parallel Debtor may have pursuant to the Indenture, the Security Agreement or any other instrument, agreement or document evidencing or executed or to be executed in connection therewith or with any
of the Secured Obligations (the Indenture, the Security Agreement and such other instruments, agreement and documents, collectively, the "Financing
Documents") and without prejudice to any other remedies which the Secured Parties may have under any Financing Document.



	2.3
	Without
prejudice to the provisions of the Financing Documents, each of the Parallel Debtors and the Trustee agree and acknowledge that (i) each Parallel Debtor's Parallel Debt
consists of obligations and liabilities of such Parallel Debtor to Wells Fargo Bank, National Association, as Trustee hereunder, separate and independent from and without prejudice to the other
obligations which such Parallel Debtor has or may have at any time to the Secured Parties (including Wells Fargo Bank, National Association in any other capacity including as trustee under the
Financing Documents or otherwise), and (ii) each Parallel Debtor's Parallel Debt represents the Trustee's own claim (vordering op naam) to
receive payment of such Parallel Debtor's Parallel Debt, separate and independent from any claims of the Secured Parties (including Wells Fargo Bank, National Association in any other capacity
including as trustee under the Financing Documents) on such Parallel Debtor, provided that the total liability of each Parallel Debtor under its
Parallel Debt shall be decreased from time to time—conditionally upon the permanent payment referred to below not subsequently being avoided or reduced by virtue of any provisions or
enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application—to the extent that such Parallel Debtor, or any other party on behalf of such
Parallel Debtor, shall have permanently paid to the Secured Parties any amounts due under the Indenture or the Security Agreement with respect to its Secured Obligations, and (iii) each
Parallel Debtor's Parallel Debt is not a claim of the Trustee which is held jointly with the Secured Parties. Netherlands law governing the joint holding
(gemeenschap) of claims is not applicable to the Parallel Debt or the claims of the Secured Parties pursuant to the Secured Obligations. To the extent
that Netherlands law governing the joint holding of claims or any of the provisions of Netherlands law governing the joint holding of claims would otherwise apply to the Parallel Debt or to any claims
of the Secured Parties in respect of the Secured Obligations, the applicability of such provisions is hereby expressly waived to the extent possible and permitted under laws and regulations applicable
hereto.



	3.
	The
Trustee agrees with the Company and the Guarantors that in case of any discharge of any such obligation owing to the Holders by the Company and the Guarantors, it will, to the same
extent, not make a claim against the Company and the Guarantors under this Agreement at any time, provided that any such claims can be made against the Company and the Guarantors if such 


M-3







 

discharge
is made by virtue of any set off, counterclaim or similar defence invoked by the Company and the Guarantors, vis-á-vis the Trustee. 



	

	Without
limiting or affecting the Trustee's rights against the Company and the Guarantors, the Trustee agrees that, except as set out in the next sentence,
it will not exercise its rights under this Agreement except with the consent of the Holders. However, for the avoidance of doubt, nothing in the previous sentence shall in any way limit the Trustee's
right to act in the protection or preservation of rights under or to enforce the Notes and the Note Guarantees as contemplated by this agreement and/or the Indenture (or to do any act reasonably
incidental to the foregoing). 



4.    Other Provisions  


	

	 This Agreement is not intended to increase, diminish or otherwise alter the rights and obligations of the Parallel Debtors, the Trustee or any other person
under the Financing Documents and shall not in any event entitle the Trustee to exercise foreclosure rights (uitwinningsrechten) and collection rights
(inningsbevoegdheid) other than in circumstances where the exercise of any remedy is permitted under the terms of the Financing Documents after the
occurrence and during the continuance of an Event of Default as defined therein. 



5.    Security Rights


	

	Each
of the Guarantors and the Company agrees that it will provide the security interests as referred to in the Security Agreement in order to secure the
proper performance and prompt payment in full of its obligations under the Parallel Debt. 




6.    No Liability


	

	The
Trustee shall not be liable for any shortfall in the proceeds of sale and/or any loss or damage resulting from any sale or disposal of the Collateral,
or any interest therein, or arising out of the exercise of or failure to exercise any of its powers under this Agreement or for any other loss of any nature whatsoever in connection with the
Collateral. 



7.    Set-Off and Waiver of Suspension


	

	The
Parallel Debtors' claims, if any, against the Trustee under or in connection with this Agreement and/or any Financing Document may not be
set-off against the Parallel Debt. The Parallel Debtors hereby waive (in relation to any breach by the Trustee of any obligation to the Parallel Debtors hereunder) their right of
suspension under Articles 6:52 through 6:57 NCC. 



8.    Approval of Parallel Debt


	

	By
accepting any Notes under the Indenture, the Holders agree to the Parallel Debt and the terms of the Parallel Debt Agreement, including the execution
thereof by the Trustee on behalf of the Holders. 



9.    Application of Indenture


	

	The
provisions of the Indenture relating to the Trustee and application of payments received by the Trustee shall apply mutatis
mutandisto any payments received by the Trustee in respect of the Parallel Debt. 



10.    Governing Law; Jurisdiction


	

	This
Agreement shall in all respects be governed by, and construed in accordance with, Netherlands law. Each Parallel Debtor irrevocably submits to the
non-exclusive jurisdiction of the competent courts in Amsterdam, the Netherlands. 


M-4







 

        IN
WITNESS WHEREOF the parties hereto have executed this Parallel Debt Agreement on the day and year first above written. 



	Foster Wheeler LLC
 As Company	 	 
	

 by: Foster Wheeler LLC

title: [-]

by: [-]

title:[-]	
 	

 
	
Wells Fargo Bank, National Association
 Individually and as Trustee	
 	

 
	

 by: Wells Fargo Bank, National Association

title: [-]

by: [-]

title: [-]	
 	

 
	
Foster Wheeler International Corporation
 As Guarantor	
 	

 
	

 by: Foster Wheeler International Corporation

title: [-]

by: [-]

title: [-]	
 	

 
	
Foster Wheeler Intercontinental Corporation
 As Guarantor	
 	

 
	

 by: Foster Wheeler Intercontinental Corporation

title: [-]

by: [-]

title: z	
 	

 
	
FW Energie B.V.
 As Guarantor	
 	

 
	

 by: FW Energie B.V.

title: [-]

by: [-]

title: [-]	
 	

 
	
Foster Wheeler Inc.
 As Guarantor	
 	

 
	 	 	 





M-5







 

	

 by: Foster Wheeler Inc.

title: [-]

by: [-]

title: [-]	
 	

 




M-6











QuickLinks


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 September 24, 2004 10.359% Senior
Secured Notes Due 2011, Series A 10.359% Senior Secured Notes Due 2011, Series B



CROSS-REFERENCE TABLE


RECITALS


RECITALS

THIS INDENTURE WITNESSETH

ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE


ARTICLE 2 THE NOTES


ARTICLE 3 REDEMPTION; OFFER TO PURCHASE

ARTICLE 4 COVENANTS


ARTICLE 5 CONSOLIDATION, MERGER OF SALE OF ASSETS

ARTICLE 6 DEFAULT AND REMEDIES


ARTICLE 7 THE TRUSTEE


ARTICLE 8 DEFEASANCE AND DISCHARGE

ARTICLE 9 AMENDMENTS, SUPPLEMENTS AND WAIVERS

ARTICLE 10 COLLATERAL ARRANGEMENTS



ARTICLE 11 GUARANTEES

ARTICLE 12 MISCELLANEOUS


SIGNATURES


OPTION OF HOLDER TO ELECT PURCHASE

SCHEDULE OF EXCHANGES OF NOTES


OPTION OF HOLDER TO ELECT PURCHASE

SCHEDULE OF EXCHANGES OF NOTES


RECITALS

AGREEMENT


Regulation S Certificate


Rule 144A Certificate


Institutional Accredited Investor Certificate


[COMPLETE FORM I OR FORM II AS APPLICABLE.] [FORM I] Certificate of Beneficial Ownership

[FORM II] Certificate of Beneficial Ownership


FORM OF SUBORDINATED INTERCOMPANY NOTE


FORM OF UNSUBORDINATED INTERCOMPANY NOTE