AMENDED AND RESTATED FIRST SUPPLEMENTAL INDENTURE dated as
of the 10th day of August, 2001, originally called
the First Supplemental Indenture dated as of the 25th day of May, 2001, among
(i) FOSTER WHEELER LLC, a limited liability company duly organized and existing
under the laws of the State of Delaware (the "COMPANY") and successor by merger
to the obligations of Foster Wheeler Corporation, a corporation organized and
existing under the laws of the State of New York ("FWC"); (ii) FOSTER WHEELER
USA CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware ("USA CORP."); (iii) FOSTER WHEELER ENERGY INTERNATIONAL,
INC., a corporation duly organized and existing under the laws of the State of
Delaware; ("ENERGY INTERNATIONAL"); (iv) FOSTER WHEELER ENERGY CORPORATION, a
corporation duly organized and existing under the laws of the State of Delaware
("ENERGY CORP." and together with USA Corp. and Energy International, the
"CO-OBLIGORS" and each a "CO-OBLIGOR"); (v) FOSTER WHEELER INC., a corporation
duly organized and existing under the laws of the State of Delaware, formerly
known as Foster Wheeler US Holdings, Inc. ("FW INC."); (vi) FOSTER WHEELER
INTERNATIONAL HOLDINGS, INC., a company duly organized and existing under the
laws of the State of Delaware ("INTERNATIONAL HOLDINGS"); (vii) FOSTER WHEELER
LTD., a corporation duly organized and existing under the laws of Bermuda ("FW
LTD."); (viii) FOREIGN HOLDINGS LTD., a company duly organized and existing
under the laws of Bermuda ("FH LTD." and together with FW Inc., International
Holdings and FW Ltd. the "NEW GUARANTORS" and each, a "NEW GUARANTOR"); and (ix)
BNY MIDWEST TRUST COMPANY, an Illinois banking corporation, as Trustee (the
"TRUSTEE") and successor to the obligations of Harris Trust and Savings Bank, an
Illinois banking corporation ("Harris Trust").
WHEREAS, FWC and Harris Trust, have entered into an
Indenture dated as of November 15, 1995 (the "Indenture") to
provide for the issuance from time to time of FWC's unsecured debentures, notes
or other evidences of indebtedness, which may be convertible into shares of
Capital Stock (as such term is defined in the Indenture) of FWC to be issued in
one or more series.
WHEREAS, Section 801 of the Indenture provides that the
Company shall expressly assume, by supplemental indenture satisfactory in form
to the Trustee, the due and punctual payment of the principal of and any premium
and interest on all of the Securities, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
the Indenture to be performed and observed by FWC.
WHEREAS, Section 901 of the Indenture provides that FWC may
enter into one or more supplemental indentures
without the written consent of any Holders (as such term is defined in the
Indenture), when authorized by Board Resolutions (as such term is defined in the
Indenture) and in form satisfactory to the Trustee, to add to the covenants of
FWC for the benefit of the Holders of all or any Series of Securities or to
surrender any right or power herein conferred upon FWC.
WHEREAS, all acts and things prescribed by the Indenture,
by law and by the Certificate of Incorporation and the by-laws of the Company,
the Co-obligors, the New Guarantors and of the Trustee necessary to make this
Amended and Restated First Supplemental Indenture a valid instrument legally
binding on the Company, the Co-obligors, the New Guarantors and the Trustee, in
accordance with its terms, have been duly done and performed.
WHEREAS, FWC on November 15, 1995 issued $200 million in
aggregate principal amount of its 6 3/4% Notes due
November 15, 2005 (the "NOTES") pursuant to the Indenture on behalf of the
holders from time to time of the Notes (the "Noteholders"); and
WHEREAS, USA Corp., Energy International and Energy Corp.
issued a Guaranty dated February 12, 1999 (the "Guaranty") to guaranty as
primary obligor the full and prompt payment when due (whether at the stated
maturity, by acceleration of otherwise) of the principal of, premium, if any,
and interest on, the Notes, together with all the other obligations and
liabilities of FWC to the Noteholders in respect of the Notes and to Harris
Trust in its capacity as such under the Indenture (including, in each case,
without limitation, indemnities, fees and interest thereon), whether now
existing or hereafter incurred, and the due performance and compliance by FWC
with all of the terms, conditions and agreements contained in the Notes and the
Indenture to Harris Trust and the Noteholders.
WHEREAS, all conditions precedent to supplement the
Indenture have been met.
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company, the Co-obligors, the New Guarantors and the
Trustee agree as follows for the benefit of each other and for the equal and
proportionate benefit of the Noteholders or of series thereof.
1. SECTION 101. DEFINITIONS.
1.1 The definition of "PAYING AGENT" set forth in Section
101 of the Indenture is hereby amended to read in its entirety as follows:
"PAYING AGENT" means any Person authorized by the Company,
any Co-obligor or any New Guarantor to pay the principal of or any premium or
interest on any Securities on behalf of the Company, a Co-obligor or a New
Guarantor.
1.2 The definitions of "CO-OBLIGOR" and of "CO-OBLIGOR
REQUEST" are hereby added after the definition of "Convertible Holder" to read
in its entirety as follows:
"CO-OBLIGOR" means each of USA Corp., Energy International,
Energy Corp. until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Co-obligor" shall mean
such successor Person.
"CO-OBLIGOR REQUEST" means a written request signed in the
name of any Co-obligor by both (i) its Chairman of the Board of Directors, its
Vice Chairman of the Board of Directors, its President or a Vice President, and
(ii) its Treasurer, an Assistance Treasurer, its Controller, an Assistant
Controller, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
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1.3 The definitions of "NEW GUARANTOR" and of "NEW
GUARANTOR REQUEST" are hereby added after the definition of "NASDAQ" to read in
its entirety as follows:
"NEW GUARANTOR" means each of FW Inc., International
Holdings, FW Ltd. and FH Ltd. until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter "New
Guarantor" shall mean such successor Person.
"NEW GUARANTOR REQUEST" means a written request signed in
the name of any New Guarantor by both (i) its Chairman of the Board of
Directors, its Vice Chairman of the Board of Directors, its President or a Vice
President, and (ii) its Treasurer, an Assistance Treasurer, its Controller, an
Assistant Controller, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
2. SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST
2.1 Section 1001 is hereby amended to read in its entirety
as follows:
The Company, each Co-obligor and each New Guarantor,
jointly and severally, covenant and agree for the benefit
of each series of Securities that they will duly and punctually pay or cause to
be paid the principal of, and any premium and interest on, the Securities of
that series and all amounts due to the Trustee in accordance with the terms of
the Securities and this Indenture.
3. SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST
3.1 Any reference made in Section 1003 to the "Company" is
hereby amended to include the "Company" and/or a "Co-obligor" and/or a "New
Guarantor".
3.2 Any reference made in Section 1003 to the "Company
Request" is hereby amended to include "the Company Request and/or the Co-obligor
Request and/or the New Guarantor Request".
4. SECTION 1006. CERTIFICATE OF COMPLIANCE
4.1 The language in Section 1006 is hereby amended to read
in its entirety as follows:
The Company, each Co-obligor and each New Guarantor shall
deliver a certificate of its compliance to the Trustee
on or before April 30 of each year pursuant to section 314(a)(4) of the Trust
Indenture Act.
5. MISCELLANEOUS
5.1 Pursuant to Section 801 of the Indenture, the Company
hereby expressly assumes the due and punctual payment of the principal of and
any premium and interest on all of the Securities, according to their tenor, and
the due and punctual performance and observance of all of the covenants and
conditions of the Indenture to be performed and observed by FWC.
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5.2 The Guarantors (as defined in the Guaranty) shall
become co-obligors under the Guaranty.
5.3 The New Guarantors will become guarantors under the
Guaranty.
5.4 The New Guarantors agree to be bound by the Guaranty.
6. FINAL PROVISIONS
Except as amended and supplemented hereby, the Indenture is
hereby ratified and confirmed in all respects and shall remain in full force and
effect.
This Amended and Restated First Supplemental Indenture
shall be governed by, and construed in accordance with, the laws of the State of
New York but without giving effect to applicable principles of conflicts of law
to the extent that the application of the laws of another jurisdiction would be
required thereby.
The parties may sign any number of copies of this Amended
and Restated First Supplemental Indenture and may sign such in counterparts.
Each signed counterpart copy shall be an original, but all of them together
represent the signed agreement. One signed copy is enough to prove this Amended
and Restated First Supplemental Indenture.
This Amended and Restated First Supplemental Indenture
shall become effective on August 10, 2001, and shall relate back to the
obligations of the Co-Obligors and the New Guarantors as if it had been entered
into as of May 25, 2001.
* * *
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IN WITNESS WHEREOF, the parties have caused this Amended
and Restated First Supplemental Indenture to be duly
executed as of the date first above written.
FOSTER WHEELER LLC
By______________________________
Name: Gilles A. Renaud
Title: Managing Director
FOSTER WHEELER USA CORPORATION
By______________________________
Name: Robert A. Koeckert
Title: Treasurer
FOSTER WHEELER ENERGY INTERNATIONAL, INC.
By______________________________
Name: Henry E. Bartoli
Title: President
FOSTER WHEELER ENERGY CORPORATION
By______________________________
Name: Robert A. Koeckert
Title: Treasurer
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FOSTER WHEELER INC.
By:
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Name: Steven I. Weinstein
Title: Vice President & Deputy General Counsel
FOSTER WHEELER INERNATIONAL
HOLDINGS, INC.
By:
--------------------------------------------------
Name: Steven I. Weinstein
Title: Vice President & Deputy General Counsel
FOSTER WHEELER LTD.
By:
--------------------------------------------------
Name: Gilles A. Renaud
Title: President
FOREIGN HOLDINGS LTD.
By:
--------------------------------------------------
Name: Gilles A. Renaud
Title: President
BNY MIDWEST TRUST COMPANY
By______________________________
Name:
Title:
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