-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RQLyDyy7+GswEeaJHVhFs7e3oaZN7RASXyp4L1+aLCEzPgquvhTV/1vxyFBYiuQZ YPNTo1PnDgVC0BZbqIO/EQ== 0000950123-98-006206.txt : 19980625 0000950123-98-006206.hdr.sgml : 19980625 ACCESSION NUMBER: 0000950123-98-006206 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 16 REFERENCES 429: 033-61809 FILED AS OF DATE: 19980624 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: FOSTER WHEELER CORP CENTRAL INDEX KEY: 0000038321 STANDARD INDUSTRIAL CLASSIFICATION: HEAVY CONSTRUCTION OTHER THAN BUILDING CONST - CONTRACTORS [1600] IRS NUMBER: 131855904 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-52369 FILM NUMBER: 98653328 BUSINESS ADDRESS: STREET 1: PERRYVILLE CORPORATE PARK CITY: CLINTON STATE: NJ ZIP: 08809 BUSINESS PHONE: 9087304090 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FW PREFERRED CAPITAL TRUST II CENTRAL INDEX KEY: 0001061412 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-52369-01 FILM NUMBER: 98653329 BUSINESS ADDRESS: STREET 1: C/O FOSTER WHEELER CORP STREET 2: PERRYVILLE CORPORATE PARK CITY: CLINTO STATE: NJ ZIP: 08809 BUSINESS PHONE: 9087304000 MAIL ADDRESS: STREET 1: C/O FOSTER WHEELER CORP STREET 2: PERRYVILLE CORPORATE PARK CITY: CLINTON STATE: NJ ZIP: 08809 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FW PREFERRED CAPITAL TRUST I CENTRAL INDEX KEY: 0001061413 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-52369-02 FILM NUMBER: 98653330 BUSINESS ADDRESS: STREET 1: C/O FOSTER WHEELER CORP STREET 2: PERRYVILLE CORPORATE PARK CITY: CLINTO STATE: NJ ZIP: 08809 BUSINESS PHONE: 9087304000 MAIL ADDRESS: STREET 1: C/O FOSTER WHEELER CORP STREET 2: PERRYVILLE CORPORATE PARK CITY: CLINTON STATE: NJ ZIP: 08809 S-3/A 1 PRE-EFFECTIVE AMENDMENT NO. 1 TO FORM S-3 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 24, 1998 REGISTRATION NO. 333-52369 POST-EFFECTIVE AMENDMENT NO. 2 TO REGISTRATION NO. 33-61809 AND 333-52369-01 THROUGH -02 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ PRE-EFFECTIVE AMENDMENT NO. 1 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ FOSTER WHEELER CORPORATION FW PREFERRED CAPITAL TRUST I (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS FW PREFERRED CAPITAL TRUST II CHARTER) (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) NEW YORK DELAWARE (STATE OR OTHER JURISDICTION (STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION) OF INCORPORATION OR ORGANIZATION) 13-1855904 NOT APPLICABLE (I.R.S. EMPLOYER IDENTIFICATION NUMBER) (I.R.S. EMPLOYER IDENTIFICATION NUMBER) PERRYVILLE CORPORATE PARK C/O FOSTER WHEELER CORPORATION CLINTON, NEW JERSEY 08809 PERRYVILLE CORPORATE PARK (908) 730-4000 CLINTON, NEW JERSEY 08809 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, (908) 730-4000 INCLUDING (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE INCLUDING OFFICES) AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) THOMAS R. O'BRIEN, ESQ. TIMOTHY B. GOODELL, ESQ. STACY J. KANTER, ESQ. FOSTER WHEELER CORPORATION WHITE & CASE LLP SKADDEN, ARPS, SLATE, PERRYVILLE CORPORATE PARK 1155 AVENUE OF THE AMERICAS MEAGHER & FLOM LLP CLINTON, NEW JERSEY 08809 NEW YORK, NEW YORK 10036 919 THIRD AVENUE (908) 730-4000 (212) 819-8200 NEW YORK, NEW YORK 10022 (212) 735-3000 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this Registration Statement as determined by market conditions. ------------------------ If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]__________ If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]__________ If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] ------------------------ THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. 2 Pursuant to Rule 429 under the Securities Act of 1933, as amended (the "Securities Act"), the Prospectus included in this registration statement relates to the unsold Debt Securities, Common Stock, Preferred Stock, Depositary Shares and Warrants having an aggregate principal or liquidation amount of $130,000,000 that were previously registered by Foster Wheeler Corporation under the Registration Statement No. 33-61809 on Form S-3 (effective November 16, 1995). This registration statement constitutes Post-Effective Amendment No. 1 to such prior registration statement. Such post-effective amendment shall hereafter become effective in accordance with Section 8(c) of the Securities Act concurrently with the effectiveness of this Registration Statement. 3 INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. PROSPECTUS Subject to Completion dated June 24, 1998 $300,000,000 FOSTER WHEELER CORPORATION DEBT SECURITIES PREFERRED STOCK COMMON STOCK DEPOSITARY SHARES WARRANTS FW PREFERRED CAPITAL TRUST I FW PREFERRED CAPITAL TRUST II PREFERRED SECURITIES FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY FOSTER WHEELER CORPORATION Foster Wheeler Corporation ("Foster Wheeler" or the "Corporation") may offer from time to time, together or separately, up to $300,000,000 aggregate principal amount, or its equivalent based on the applicable exchange rate at the time of the offering, of its (i) debt securities consisting of debentures, notes or other unsecured evidences of indebtedness (the "Debt Securities"), which may be either senior debt securities (the "Senior Debt Securities"), senior subordinated debt securities (the "Senior Subordinated Debt Securities") or junior subordinated debt securities (the "Junior Subordinated Debentures"); (ii) shares of preferred stock (the "Preferred Stock"), which may be issued in the form of depositary receipts (the "Depositary Shares") that will represent a fraction of a share of Preferred Stock; (iii) shares of common stock (the "Common Stock") and (iv) warrants to purchase securities of the Corporation as shall be designated by the Corporation at the time of the offering (the "Warrants"), in each case in amounts, at prices and on terms to be determined at the time of the offering. The Debt Securities, Preferred Stock, Depositary Shares, Common Stock and the Warrants are collectively called the "Corporation Securities." FW Preferred Capital Trust I and FW Preferred Capital Trust II, each a statutory business trust organized under the laws of the State of Delaware (each, an "Issuer Trust"), may severally offer, from time to time, preferred securities (the "Preferred Securities") representing preferred undivided beneficial interests in the assets of such Issuer Trust. The Corporation will initially be the registered holder (the "Holder") of all the beneficial interests represented by common securities of such Issuer Trust (the "Common Securities" and, together with the Preferred Securities, the "Trust Securities"). The Trust Securities and the Corporation Securities are referred to collectively herein as the "Securities"). Holders of the Preferred Securities will be entitled to receive preferential cumulative cash distributions ("Distributions") accumulating from the date of original issuance and payable periodically as provided in the applicable supplement to this Prospectus (the "Prospectus Supplement"). Concurrently with the issuance by an Issuer Trust of its Preferred Securities, such Issuer Trust will invest the proceeds thereof and of any contributions received in respect of the Common Securities in a corresponding series of the Corporation's Junior Subordinated Debentures (the "Corresponding Junior Subordinated Debentures") with terms corresponding to the terms of that Issuer Trust's Preferred Securities (the "Related Preferred Securities"). The Corresponding Junior Subordinated Debentures will be the sole assets of such Issuer Trust, and payments under the Corresponding Junior Subordinated Debentures will be the only revenues of such Issuer Trust. If so provided in the applicable Prospectus Supplement, the Corporation may redeem the Corresponding Junior Subordinated Debentures (and cause the redemption of the Related Preferred Securities) or may dissolve each Issuer Trust and cause the Corresponding Junior Subordinated Debentures to be distributed to the Holders of the Related Preferred Securities in liquidation of their interests in such Issuer Trust. --------------------------- NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS OR ANY APPLICABLE PROSPECTUS SUPPLEMENT, IN CONNECTION WITH THE OFFERING CONTAINED HEREIN, AND, IF GIVEN OR MADE, SUCH INFORMATION AND REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION OR THE ISSUER TRUSTS. THIS PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER OF ANY SECURITIES OTHER THAN THOSE TO WHICH THEY RELATE OR AN OFFER TO ANY PERSON IN ANY JURISDICTION WHERE SUCH AN OFFER WOULD BE UNLAWFUL OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE THEREOF OR, IN THE CASE OF INFORMATION INCORPORATED HEREIN BY REFERENCE, THE DATE OF FILING WITH THE COMMISSION. --------------------------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ------------------------ LEHMAN BROTHERS THE DATE OF THIS PROSPECTUS IS , 1998 4 AVAILABLE INFORMATION The Corporation is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information concerning the Corporation can be inspected and copied at the Commission's office at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and the Commission's Regional Offices in New York (Seven World Trade Center, 13th Floor, New York, New York 10048) and Chicago (Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511). Copies of such material can also be obtained at prescribed rates from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. The Commission also maintains a site on the World Wide Web, the address of which is http://www.sec.gov, that contains reports, proxy statements and other information regarding issuers, such as the Corporation, that file electronically with the Commission. In addition, such materials can be inspected at the office of the New York Stock Exchange, Inc., on which certain securities of the Corporation are listed. This Prospectus does not contain all the information set forth in the registration statement of which this Prospectus forms a part (the "Registration Statement"), which the Corporation and the Issuer Trusts have filed with the Commission under the Securities Act of 1933, as amended (the "Securities Act"), and to which reference is hereby made, certain parts of which are omitted in accordance with the rules and regulations of the Commission. No separate financial statements of any Issuer Trust have been included or incorporated by reference herein. The Corporation and the Issuer Trusts do not consider that such financial statements would be material to Holders of the Preferred Securities because each Issuer Trust is a newly-formed special-purpose entity, has no operating history or independent operations and is not engaged in and does not propose to engage in any activity other than holding as trust assets the Corresponding Junior Subordinated Debentures and issuing the Trust Securities and engaging in only those other activities necessary or incidental thereto. Furthermore, taken together, the Corporation's obligations under each series of Corresponding Junior Subordinated Debentures, the Junior Subordinated Indenture, the related Declaration of Trust, the related Expense Agreement and the related Guarantee, in the aggregate, provide a full, irrevocable and unconditional guarantee of payments of Distributions and other amounts due on the Preferred Securities of the Issuer Trust. See "The Issuer Trusts", "Description of Preferred Securities", "Description of Junior Subordinated Debentures", "Description of Guarantees" and "Relationship Among the Preferred Securities, the Corresponding Junior Subordinated Debentures, the Guarantees and the Expense Agreements". In addition, the Corporation does not expect that the Issuer Trusts will be filing reports under the Exchange Act with the Commission. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The Corporation and the Issuer Trusts hereby incorporate by reference in this Prospectus the following documents: (a) The Corporation's Annual Report on Form 10-K for the fiscal year ended December 26, 1997, filed pursuant to Section 13 of the Exchange Act; and (b) The Corporation's Quarterly Report on Form 10-Q for the fiscal quarter ended March 27, 1998, filed pursuant to Section 13 of the Exchange Act. All documents filed by the Corporation pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the termination of any offering of the securities offered hereby shall be deemed to be incorporated by reference into this Prospectus and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such 2 5 statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. Any person who receives a copy of this Prospectus may obtain without charge, upon written or oral request, a copy of any of the documents incorporated by reference herein, except for the exhibits to such documents (unless such exhibits are specifically incorporated by reference herein). Written requests should be mailed to the Office of the Secretary, Foster Wheeler Corporation, Perryville Corporate Park, Clinton, NJ 08809. Telephone requests may be directed to (908) 730-4000. THE CORPORATION GENERAL The business of the Corporation and its subsidiaries falls within three business groups. The Corporation's Engineering and Construction Group (the "E&C Group") designs, engineers and constructs petroleum, chemical, petrochemical and alternative-fuels facilities and related infrastructure, including power generation and distribution facilities, production terminals, pollution control equipment and water treatment facilities and process plants for the production of fine chemicals, pharmaceuticals, dyestuffs, fragrances, flavors, food additives and vitamins. Also, the E&C Group provides a broad range of environmental remediation services, together with related technical, design and regulatory services. The Corporation's Energy Equipment Group (the "Energy Equipment Group") designs, manufactures and erects steam generating and auxiliary equipment for power stations and industrial markets worldwide. Steam generating equipment includes a full range of fluidized bed and conventional boilers firing coal, oil, gas, biomass and other municipal solid waste, waste wood and low-Btu gases. Auxiliary equipment includes feedwater heaters, steam condensers, heat-recovery equipment and low-NOx burners. Site services related to these products encompass plant erection, maintenance engineering, plant upgrading and life extension, and plant repowering. In addition, the Energy Equipment Group provides research analysis and experimental work in fluid dynamics, heat transfer, combustion and fuel technology, materials engineering and solids mechanics. At the end of June 1997, the Energy Equipment Group sold Glitsch International, Inc. which provided proprietary solutions and systems for many separation applications and manufactured highly engineered chemical separations equipment for the petroleum refining, petrochemical, chemical and gas processing industries. The Corporation's Power System's Group (the "Power Systems Group") utilizes Foster Wheeler strengths in design, engineering, manufacturing and construction to build, own or lease, and operate cogeneration, independent power production and resource recovery facilities as well as facilities for the process and petrochemical industries. The Power Systems Group generates revenues from construction and operating activities pursuant to long-term off-take and operating and maintenance agreements and from returns on its equity positions. A special-purpose subsidiary established for each new project manages that project from the permitting stage through plant construction and operation. All of the special-purpose subsidiary project debt is limited-recourse. The Power Systems Group refinances its equity interest in selected projects from time to time when such refinancing will result in risk mitigation, a lower effective financing cost or a potential increased return on investment. The executive offices of the Corporation, a New York corporation organized in 1900, are located at Perryville Corporate Park, Clinton, New Jersey 08809, and the general telephone number is (908) 730-4000. RATIO OF EARNINGS TO FIXED CHARGES The following table sets forth the ratio of earnings to fixed charges for the periods indicated:
FISCAL QUARTER ENDED - --------- FISCAL YEAR MARCH 27, -------------------------------- 1998 1997 1996 1995 1994 1993 - --------- ---- ---- ---- ---- ---- 2.11 0.73 2.64 2.13 3.38 3.26
3 6 The ratio of earnings to fixed charges was calculated based on information from the Corporation's books and records. In computing the ratio of earnings to fixed charges, earnings consist of net earnings/loss of the Corporation and its consolidated subsidiaries, plus income taxes, plus fixed charges and capitalized interest amortized, less capitalized interest and equity earnings of non-consolidated associated companies accounted for by the equity method, net of dividends. Fixed charges consist of interest costs on borrowed funds, including capitalized interest, commitment fees, and a reasonable approximation of the imputed interest on non-capitalized lease expense. THE ISSUER TRUSTS Each Issuer Trust is a statutory business trust created under Delaware law pursuant to (i) a declaration of trust executed by the Corporation, as sponsor (the "Sponsor") of the Issuer Trust, and the Delaware Trustee (as defined herein) of such Issuer Trust and (ii) a certificate of trust filed with the Delaware Secretary of State. Each declaration of trust will be amended and restated in its entirety (each, as so amended and restated, a "Declaration of Trust") substantially in the form filed as an exhibit to the Registration Statement. Each Declaration of Trust will be qualified as an indenture under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). The Corporation will acquire Common Securities in an aggregate liquidation amount equal to at least 3% of the total capital of such Issuer Trust at the same time as the Preferred Securities are sold. Each Issuer Trust exists for the exclusive purposes of (i) issuing and selling its Trust Securities, (ii) using the proceeds from the sale of such Trust Securities to acquire a series of Corresponding Junior Subordinated Debentures issued by the Corporation, and (iii) engaging in only those other activities necessary or incidental thereto (such as registering the transfer of the Trust Securities). Accordingly, the Corresponding Junior Subordinated Debentures will be the sole assets of each Issuer Trust, and payments under the Corresponding Junior Subordinated Debentures will be the sole source of revenue of such Issuer Trust. All of the Common Securities of each Issuer Trust will initially be owned by the Corporation. The Common Securities of an Issuer Trust will rank pari passu, and payments will be made thereon pro rata, with the Preferred Securities of such Issuer Trust, except that upon the occurrence of a Trust Enforcement Event (as defined under "Description of Preferred Securities"), the rights of the Holder of all the Common Securities to payment in respect of Distributions and payments upon liquidation, redemption or otherwise, will be subordinated to the rights of the Holders of the Preferred Securities of such Issuer Trust. See "Description of Preferred Securities". Each Issuer Trust's business and affairs are conducted by its trustees, each appointed by the Corporation as Holder of all the Common Securities. The trustees for each Issuer Trust will be Harris Trust and Savings Bank, as the Property Trustee (the "Property Trustee"), and Wilmington Trust Company, as Delaware Trustee (the "Delaware Trustee"), and three individual trustees (the "Administrative Trustees") who are employees or officers of or affiliated with the Corporation (collectively, the "Issuer Trustees"). Harris Trust and Savings Bank, as Property Trustee, will act as sole indenture trustee under each Declaration of Trust for purposes of compliance with the Trust Indenture Act. Harris Trust and Savings Bank will also act as trustee under the Guarantees (as defined under "Description of Guarantees") and the Indentures (as defined under "Description of Debt Securities"). See "Description of Guarantees" and "Description of Debt Securities". If a Trust Enforcement Event relating thereto has occurred and is continuing, the Holders of a majority in liquidation amount of the Related Preferred Securities will be entitled to appoint, remove or replace the Property Trustee and/or the Delaware Trustee for such Issuer Trust. In no event will the Holders of the Preferred Securities have the right to vote to appoint, remove or replace the Administrative Trustees; such voting rights are vested exclusively in the Holder of all the Common Securities. The duties and obligations of each Issuer Trustee are governed by the applicable Declaration of Trust. The Property Trustee will hold title to the Corresponding Junior Subordinated Debentures for the benefit of the Holders of the related Trust Securities and, as Holder of such Corresponding Junior Subordinated Debentures, the Property Trustee will have the power to exercise all rights, powers and privileges of a Holder of Corresponding Junior Subordinated Debentures under the Junior Subordinated Indenture. In addition, the Property Trustee will maintain exclusive control of a non-interest bearing bank account (the "Property 4 7 Account") to hold all payments made in respect of the Corresponding Junior Subordinated Debentures for the benefit of the Holders of the related Trust Securities. The Corporation, as Holder of all the Common Securities, will have the right to appoint, remove or replace any of the Issuer Trustees and to increase or decrease the number of Issuer Trustees; provided that after the issuance of the Trust Securities, the number of Issuer Trustees will at all times be at least three; and provided further, that after the issuance of the Trust Securities, at least one Issuer Trustee will be a Delaware Trustee, one Issuer Trustee will be a Property Trustee and one Issuer Trustee will be an Administrative Trustee. The Corporation, as issuer of the Corresponding Junior Subordinated Debentures to be acquired and held by the Issuer Trusts, will pay all fees and expenses related to the organization and operations of the Issuer Trusts (including any taxes, duties, assessments or governmental charges of whatever nature, other than United States withholding taxes, imposed by the United States or any other domestic taxing authority upon the Issuer Trusts) and the offering of the Trust Securities and be responsible for all debts and obligations of the Issuer Trusts (other than with respect to the Trust Securities). With respect to each Issuer Trust, for so long as the Preferred Securities of such Issuer Trust remain outstanding, the Corporation will covenant, among other things, to maintain 100% ownership of the Common Securities of such Issuer Trust, to cause such Issuer Trust to remain a statutory business trust and to use its commercially reasonable efforts to ensure that such Issuer Trust will not be an "investment company" for purposes of the Investment Company Act of 1940 (the "Investment Company Act"). The rights of the Holders of the Preferred Securities of an Issuer Trust, including economic rights, rights to information and voting rights, are set forth in the Declaration of Trust of each Issuer Trust and the Trust Indenture Act. See "Description of Preferred Securities". The Declarations of Trust and the Guarantees also incorporate by reference the terms of the Trust Indenture Act. The principal executive office of each Issuer Trust is c/o Foster Wheeler Corporation, Perryville Corporate Park, Clinton, New Jersey, 08809 and its telephone number is (908) 730-4000. DESCRIPTION OF DEBT SECURITIES The Senior Debt Securities and the Senior Subordinated Debt Securities may be issued by the Corporation from time to time in one or more series under an Indenture, dated as of November 17, 1995 (the "1995 Indenture"), between the Corporation and Harris Trust and Savings Bank, as Trustee. The Junior Subordinated Debentures may be issued by the Corporation from time to time in one or more series under an Indenture, the form of which has been filed as an exhibit to the Registration Statement (the "Junior Subordinated Indenture" and, together with the 1995 Indenture, the "Indentures"), between the Corporation and Harris Trust and Savings Bank, as Trustee (in its capacity as Trustee under either the 1995 Indenture or the Junior Subordinated Indenture, as applicable, the "Indenture Trustee"). The following summaries of certain provisions of the Debt Securities and the Indentures, as modified or superseded by any applicable Prospectus Supplement, are brief summaries of certain provisions thereof, do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all of the provisions of the relevant Indenture. Capitalized terms are used as defined in the 1995 Indenture and the Junior Subordinated Indenture, as applicable, unless otherwise defined herein. Whenever any term defined therein is referred to, such definition is incorporated herein by reference. GENERAL Neither Indenture limits the amount of Debt Securities that may be issued thereunder, and each provides that additional Debt Securities may be issued in one or more series thereunder up to the aggregate principal amount that may be authorized from time to time by the Corporation's Board of Directors (the "Board of Directors"). The Senior Debt Securities will be unsecured senior obligations of the Corporation and will rank equally and ratably with all other unsecured unsubordinated indebtedness of the Corporation. As will be described more fully in the applicable Prospectus Supplement, the Senior Subordinated Debt Securities will be subordinated in right of payment to the prior payment in full of all Senior Debt (as defined below under "-- Certain Covenants of the Corporation under the 1995 Indenture -- Definitions") of the Corporation. See "-- Senior Subordinated Debt Securities". The Junior Subordinated Debentures will be subordinated and junior in right of payment to the prior payment in full of all Senior Indebtedness (as defined under "-- Junior 5 8 Subordinated Debentures -- Subordination") of the Corporation. See "-- Junior Subordinated Debentures -- Subordination". In the event that Junior Subordinated Debentures are issued to an Issuer Trust or an Issuer Trustee thereof in connection with the issuance of Trust Securities by such Issuer Trust, such Junior Subordinated Debentures may subsequently be distributed pro rata to the Holders of such Trust Securities as will be described in the Prospectus Supplement relating to such Trust Securities. Only one series of Junior Subordinated Debentures will be issued to an Issuer Trust or an Issuer Trustee thereof in connection with the issuance of Trust Securities by such Trust. Reference is made to the Prospectus Supplement relating to the particular Debt Securities offered thereby for the following terms, where applicable, of the Debt Securities: (i) the specific designation of the Debt Securities; (ii) the denominations in which such Debt Securities are authorized to be issued; (iii) the aggregate principal amount of such Debt Securities; (iv) the date or dates on which the principal and premium, if any, of such Debt Securities will mature or the method of determining such date or dates; (v) the price or prices (expressed as a percentage of the aggregate principal amount thereof) at which the Debt Securities will be issued; (vi) the rate or rates (which may be fixed or variable) at which such Debt Securities will bear interest, if any, or the method of calculating such rate or rates; (vii) the times and places where principal of, premium, if any, and interest, if any, on such Debt Securities will be payable; (viii) the date, if any, after which such Debt Securities may be redeemed and the redemption prices; (ix) the date or dates on which interest, if any, will be payable and the record date or dates therefor or the method by which such date or dates will be determined; (x) the period or periods within which, the price or prices at which, the currency or currencies (including currency units) in which, and the terms and conditions upon which, such Debt Securities may be redeemed, in whole or in part, at the option of the Corporation, pursuant to any sinking fund or otherwise; (xi) the obligation, if any, of the Corporation to redeem or purchase such Debt Securities pursuant to any sinking fund or analogous provisions, upon the happening of a specified event or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which, such Debt Securities shall be redeemed or purchased, in whole or in part, pursuant to such obligations; (xii) the terms and conditions, if any, pursuant to which the Debt Securities are convertible or exchangeable into Common Stock or Preferred Stock or other debt securities, including the conversion or exchange price, the conversion or exchange period and other conversion or exchange provisions; (xiii) the currency or currency units for which such Debt Securities may be purchased or in which such Debt Securities may be denominated and/or the currency or currency units in which principal of, premium, if any, and/or interest, if any, on such Debt Securities will be payable and whether the Corporation or the Holders of any such Debt Securities may elect to receive payments in respect of such Debt Securities in a currency or currency units other than that in which such Debt Securities are stated to be payable; (xiv) any index or formula used to determine the amount of payments of principal of and premium, if any, and interest; (xv) if other than the principal amount thereof, the portion of the principal amount of such Debt Securities that will be payable upon declaration of the acceleration of the maturity thereof or the method by which such portion shall be determined; (xvi) the person to whom any interest on any such Debt Security shall be payable if other than the person in whose name such Debt Security is registered on the applicable record date; (xvii) any addition to, or modification or deletion of, any Event of Default (as defined herein) or any covenant of the Corporation specified in the relevant Indenture with respect to such Debt Securities; (xviii) the application, if any, of such means of defeasance or covenant defeasance as may be specified for such Debt Securities; (xix) whether such Debt Securities are to be issued in whole or in part in the form of one or more temporary or permanent global securities and, if so, the identity of the depositary for such global security or securities; (xx) subordination terms, if any, applicable to such Debt Securities; (xxi) the right, if any, to extend the interest payment periods and the duration of such extension; (xxii) the form of the Debt Securities, including the form of the certificate of authentication; (xxiii) any trustee, paying agent, authenticating agent, warrant agent, transfer agent or registrar with respect to the Debt Securities; and (xxiv) any other terms pertaining to such Debt Securities not inconsistent with the provisions of the applicable Indenture. Debt Securities may also be issued under the 1995 Indenture upon the exercise of Debt Warrants. See "Description of Warrants -- Debt Warrants." Unless otherwise specified in the applicable Prospectus Supplement, the Debt Securities will not be listed on any securities exchange. 6 9 Some of the Debt Securities may be issued at a discount (bearing no interest or interest at below market rates) ("Discount Securities") to their stated principal amount. United States Federal income tax consequences and other special considerations applicable to any such Discount Securities or any Debt Securities which are denominated in a currency or composite currency other than United States dollars will be described in the applicable Prospectus Supplement. Since the Corporation is a holding company, the rights of the Corporation, and hence the right of creditors of the Corporation (including the Holders of Debt Securities), to participate in any distribution of the assets of any subsidiary upon its liquidation or reorganization otherwise is necessarily subject to the prior claims of creditors of any such subsidiary except to the extent that claims of the Corporation itself as a creditor of the subsidiary may be recognized. Unless otherwise indicated in the applicable Prospectus Supplement, the covenants contained in the Indentures and the Debt Securities would not provide for redemption at the option of a Holder nor necessarily afford Holders thereof protection in the event of a highly leveraged or other transaction that may adversely affect such Holders, except to the extent described under "-- Consolidation, Merger and Sale of Assets." Such covenants may not be waived or modified by the Corporation or its Board of Directors, although Holders of Debt Securities could waive or modify such covenants as more fully described below under "-- Modification and Waiver." CONVERSION OR EXCHANGE OF DEBT SECURITIES If so indicated in the applicable Prospectus Supplement with respect to a particular series of Debt Securities, such series will be convertible or exchangeable into Common Stock, Preferred Stock or other securities on the terms and conditions set forth therein. Such terms will include provisions as to whether conversion is mandatory, at the option of the Holder or at the option of the Corporation, and may include provisions pursuant to which the number of shares of Common Stock, Preferred Stock or other securities of the Corporation to be received by the Holders of such Debt Securities would be calculated according to the market price of Common Stock, Preferred Stock or other securities of the Corporation as of a time stated in the Prospectus Supplement. The applicable Prospectus Supplement will indicate restrictions on ownership that may apply in the event of a conversion or exchange. FORM, EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT Unless otherwise specified in the applicable Prospectus Supplement, the Debt Securities will be issued in fully registered form without coupons in denominations set forth in the Prospectus Supplement. No service charge will be made for any transfer or exchange of such Debt Securities, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Where Debt Securities of any series are issued in bearer form, the special restrictions and considerations, including special offering restrictions and special United States Federal income tax considerations, applicable to any such Debt Securities and to payment on and transfer and exchange of such Debt Securities will be described in the Prospectus Supplement. Debt Securities in bearer form will be transferable by delivery. Unless otherwise provided in the applicable Prospectus Supplement, principal and premium, if any, or interest, if any, will be payable and the Debt Securities may be surrendered for payment or transferred at the offices of the Indenture Trustee as paying and authenticating agent, provided that payment of interest on registered securities may be made at the option of the Corporation (i) by check mailed to the address of the person entitled thereto as it appears in the applicable Security Register or (ii) by wire transfer to an account maintained by the person entitled thereto as specified in the applicable Security Register. Payment of Debt Securities in bearer form will be made at such paying agencies outside of the United States as the Corporation may appoint. BOOK-ENTRY DEBT SECURITIES The Debt Securities of a series may be issued in whole or in part in the form of one or more Global Securities that will be deposited with, or on behalf of, a depositary (the "Global Depositary"), or its nominee, 7 10 identified in the Prospectus Supplement relating to such series. In such a case, one or more Global Securities will be issued in a denomination or aggregate denomination equal to the portion of the aggregate principal amount of outstanding Debt Securities of the series to be represented by such Global Security or Securities. Unless and until it is exchanged in whole or in part for Debt Securities in definitive registered form, a Global Security may not be registered for transfer or exchange except as a whole by the Global Depositary for such Global Security to a nominee for such Global Depositary and except in the circumstances described in the applicable Prospectus Supplement. The specific terms of the depositary arrangement with respect to any portion of a series of Debt Securities to be represented by a Global Security and a description of the Global Depositary will be provided in the applicable Prospectus Supplement. CERTAIN COVENANTS OF THE CORPORATION UNDER THE 1995 INDENTURE Definitions "Attributable Debt" is defined to mean as to any particular lease under which any Person is at the time liable, at any date as of which the amount thereof is to be determined, the total net amount of rent required to be paid by such Person under such lease during the remaining primary term thereof, discounted from the respective due dates thereof to such date at the rate of interest per annum, compounded semi-annually, implicit in the terms of such lease, as determined in good faith by the Corporation. The net amount of rent required to be paid under any such lease for any such period shall be the amount of the rent payable by the lessee with respect to such period, after excluding amounts required to be paid on account of maintenance, repairs, insurance, taxes, assessments, water rates and similar charges and contingent rents such as those based on sales. In the case of any lease which is terminable by the lessee upon the payment of a penalty, such net amount shall also include the amount of such penalty, but shall not include any rent required to be paid under such lease subsequent to the first date upon which it may be so terminated. "Consolidated Net Tangible Assets" is defined to mean the aggregate amount of assets after deducting (a) all current liabilities and (b) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense, and other like intangibles, all as set forth on the most recently prepared balance sheet of the Corporation and its consolidated Subsidiaries and computed in accordance with United States generally accepted accounting principles. "Corporation" includes corporations, partnerships, associations, companies, joint-stock companies and business trusts. "Debt" with respect to any Person is defined to mean (i) any debt (a) for money borrowed, or (b) evidenced by a bond, note, debenture, or similar instrument (including purchase money obligations) given in connection with the acquisition of any business, property or assets, whether by purchase, merger, consolidation or otherwise, but shall not include any account payable or other obligation created or assumed by a Person in the ordinary course of business in connection with the obtaining of materials or services, or (c) which is a direct or indirect obligation which arises as a result of banker's acceptances; (ii) any debt of others described in the preceding clause (i) which such Person has guaranteed or for which it is otherwise directly liable; (iii) the obligation of such Person as lessee under any lease of property which is reflected on such Person's balance sheet as a capitalized lease; and (iv) any deferral, amendment, renewal, extension, supplement or refunding of any liability of the kind described in any of the preceding clauses (i), (ii) and (iii); provided, however, that, in computing the Debt of any Person, there shall be excluded any particular Debt if, upon or prior to the maturity thereof, there shall have been deposited with a depository in trust money (or evidence of Debt if permitted by the instrument creating such Debt) in the necessary amount to pay, redeem or satisfy such Debt as it becomes due, and the amount so deposited shall not be included in any computation of the assets of such Person. "Existing Debt" is defined to mean all Debt outstanding on the date of issuance of a particular series of Debt Securities. 8 11 "Permitted Secured Debt" means all Debt (i) permitted under the covenant described in "-- Limitation on Liens" and (ii) to which the covenant described in "-- Limitation on Liens" is expressly inapplicable. "Principal Property" is defined to mean any facility owned by the Corporation or any Subsidiary, in each case, the gross book value of which on the date of determination exceeds 1% of Consolidated Net Tangible Assets. "Project Debt" means Debt incurred to finance cogeneration, waste-to-energy or other operating or construction projects, but only to the extent that such Debt is limited in recourse to the assets, contractual rights and revenues of the particular project being financed. "Restricted Subsidiary" is defined to mean any Subsidiary of the Corporation which owns, directly or indirectly, a Principal Property and any Subsidiary which, in the opinion of the Board of Directors or any duly authorized committee thereof, is of material importance to the Corporation. "Secured Debt" means all Debt secured by a Lien. "Senior Debt" is defined to mean the principal, premium, if any, unpaid interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Corporation whether or not a claim for post-filing interest is allowed in such proceeding), fees, charges, expenses, reimbursement and indemnification obligations, and all other amounts payable under or in respect of Debt of the Corporation, whether any such Debt exists as of the date of the Indenture or is created, incurred, assumed or guaranteed after such date, other than (i) Debt that by its terms or by operation of law is subordinated to or on a parity with the Debt Securities and (ii) Debt owed to a subsidiary or partnership of the Corporation. "Subsidiary" is defined to mean a corporation of which securities having ordinary voting power, in the absence of contingencies, to elect a majority of directors, are owned directly or indirectly by the Corporation. "Working Debt" means Debt incurred by Subsidiaries of the Corporation organized outside the United States for (i) working capital in the ordinary course of business that is repayable within three years or (ii) hedging currency risk relating to contracts with customers for the delivery of products and services with proceeds segregated and identified and limited to investments and uses designed to accomplish such purpose. Limitation on Liens In the 1995 Indenture, the Corporation has covenanted that it will not, and will not permit any Subsidiary to, incur, issue, assume or guarantee any Debt secured after the date of the 1995 Indenture by pledge of, or mortgage or other lien on ("Lien"), any Principal Property of the Corporation or any Subsidiary, or any shares of stock or Debt of any Subsidiary without effectively providing that the Debt Securities of all series issued pursuant to the 1995 Indenture (together with, if the Corporation shall so determine, any other Debt of the Corporation or such Subsidiary then existing or thereafter created which is not subordinate to the Debt Securities) shall be secured equally and ratably with (or, at the option of the Corporation, prior to) such Secured Debt, so long as such Secured Debt shall be so secured, unless after giving effect thereto, the aggregate principal amount of all such Secured Debt then outstanding which would otherwise be prohibited, plus all Attributable Debt of the Corporation and its Subsidiaries in respect of sale and leaseback transactions (as defined in "-- Restrictions on Sales and Leasebacks") occurring after the date of the 1995 Indenture and existing at such time which would otherwise be prohibited by the covenant described in "-- Restrictions on Sales and Leasebacks", would not exceed 5% of Consolidated Net Tangible Assets. This restriction does not apply to, and there shall be excluded in computing secured Debt for the purpose of such restriction, Debt secured by: (1) Liens on property, capital stock or Debt existing at the time of acquisition thereof (including acquisition through merger or consolidation) or to secure the payment of all or any part of the purchase price or construction cost or commencement of operation thereof or to secure any Debt incurred prior to, at the time of, or within 180 days after, the later of the acquisition of such property or shares or Debt, the completion of any such construction and the commencement of operation for the purpose of financing all or any part of the purchase price or construction cost or commencement of operation thereof, provided 9 12 that any such Liens shall only extend to the above-described property or property on which the above-described property is situated; (2) Liens on property of, or on any shares of stock or Debt of, any corporation or other Person existing at the time such corporation becomes a Restricted Subsidiary; (3) Liens on property of, or on any shares of capital stock or Debt of any Corporation or other Person existing at the time such Corporation or other Person is merged into or consolidated with the Corporation or a Restricted Subsidiary or at the time of sale, lease or other disposition of all or substantially all the properties of a Corporation or other Person to the Corporation; (4) Liens (a) (i) in favor of the United States of America or any State thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or (ii) in favor any other country, or any political subdivision thereof, to secure partial, progress, advance or other payments pursuant to any contract or statute, or (b) (i) for taxes, assessments or governmental charges or levies in each case not then due and delinquent or the validity of which is being contested in good faith by appropriate proceedings, and (ii) for materialmen's, mechanics', carriers', workmen's, repairmen's, landlord's or other like Liens, or deposits to obtain the release of such Liens; (5) Liens on any property or assets of any Restricted Subsidiary to secure Debt owing by it to the Corporation or any other Restricted Subsidiary; (6) Liens arising out of judgments or awards against the Corporation or any subsidiary that the Corporation or such subsidiary is contesting in good faith; (7) Liens made in favor of any customer arising in the ordinary course of business of the Corporation or any subsidiary in respect of payments made by or on behalf of such customer for goods produced or services rendered to such customer, (8) Liens existing at the date of the 1995 Indenture; (9) Liens created to secure Project Debt, but only to the extent that any such Lien does not extend beyond the assets, contractual rights and revenues of such project and the capital stock of the corporation owning such project, and any extension, renewal, refunding, replacement or refinancing (or successive extensions, renewals, replacements, refundings or refinancings) as a whole or in part of any Liens referred to in this clause (9); and (10) Any extension, renewal, refunding or replacement (or successive extensions, renewals, refundings or replacements), as a whole or in part, of any Lien referred to in the foregoing clauses (1) through (3) and (8), inclusive; provided, however, that (i) such extension, renewal, refunding or replacement Lien shall be limited to all or a part of the same property, shares of stock or Debt that secured the Lien extended, renewed, refunded or replaced (plus improvements on such property) and (ii) the Debt secured by such Lien at such time is not increased. Restrictions on Sales and Leasebacks In the 1995 Indenture, the Corporation has covenanted that it will not, and will not permit any Subsidiary to, enter into any arrangement with any bank, insurance company or other lender or investor (not including the Corporation or any Subsidiary) or to which any such lender or investor is a party, providing for the leasing by the Corporation or any such Subsidiary of any Principal Property which has been owned and operated by the Corporation or such Subsidiary for more than 180 days and which has been sold or transferred by the Corporation or such Subsidiary to such lender or investor or to any Person to whom funds have been advanced by such lender or investor (each, a "sale and leaseback transaction") unless, after giving effect thereto, the aggregate amount of all Attributable Debt of the Corporation and its Subsidiaries in respect of such sale and leaseback transactions occurring after the date of the 1995 Indenture and existing at such time which would otherwise be prohibited under the covenant described in "-- Restrictions on Sales and Leasebacks" plus all secured Debt then outstanding of the Corporation and its Subsidiaries incurred after the date of the 1995 Indenture which would otherwise be prohibited by the covenant described in "-- Limitation on Liens", would 10 13 not exceed 5% of Consolidated Net Tangible Assets. This restriction does not apply to, and there shall be excluded from Attributable Debt in any computation under such restriction, Attributable Debt with respect to any sale and leaseback transaction under any of the following circumstances: (1) the lease in such sale and leaseback transaction is for a period, including renewals, of not in excess of three years; or (2) the property which is the subject of the sale and leaseback transaction is property capable of being subject to a Lien described in clauses (1), (2), (3), (8) or (9) in the covenant described in "-- Limitation on Liens"; or (3) the Corporation or a Subsidiary, within 180 days after the sale or transfer shall have been made by the Corporation or by any such Subsidiary, applies an amount equal to the lesser of (i) Attributable Debt or (ii) the net proceeds of any such sale or transfer to (a) the acquisition of other Principal Property of equal fair market value (as determined by the Board of Directors) or (b) the retirement of indebtedness for pari passu borrowed money (including Debt Securities of any series). Limitation on Debt Incurred by Restricted Subsidiaries In the 1995 Indenture, the Corporation has covenanted that it will not permit any Restricted Subsidiary to directly or indirectly, incur, assume or suffer to exist any Debt, unless, after giving effect thereto, the aggregate amount of then outstanding Debt incurred by all Restricted Subsidiaries, excluding all Secured Debt and Attributable Debt in respect of sale and leaseback transactions, shall not exceed 10% of Consolidated Net Tangible Assets. The immediately preceding sentence shall not apply to the incurrence or issuance of (a) Existing Debt, (b) Working Debt, (c) Debt of a Restricted Subsidiary which represents the assumption by such Restricted Subsidiary of Debt of another Restricted Subsidiary as a result of the merger or acquisition of such Restricted Subsidiary, (d) Debt of any Corporation existing at the time such corporation becomes a Restricted Subsidiary, (e) Permitted Secured Debt and (f) Project Debt which does not constitute Secured Debt. No Similar Restrictive Covenants in the Junior Subordinated Indenture The Junior Subordinated Indenture contains no covenants analogous to those described above under "-- Certain Covenants of the Corporation under the 1995 Indenture -- Limitation on Liens" and "-- Restrictions on Sales and Leasebacks". EVENTS OF DEFAULT Events of Default under the 1995 Indenture The following are Events of Default under the 1995 Indenture with respect to Debt Securities of any particular series: (1) default in the payment of any installment of interest, if any, upon any of the Debt Securities of such series as and when it shall become due and payable, and continuance of such default for a period of 30 days; or (2) default in the payment of the principal of, or any premium on, any of the Debt Securities of such series as and when the same shall become due and payable either at Stated Maturity, upon redemption, by declaration or otherwise; or (3) default in the payment of any sinking fund payment, when and as due and payable by the terms of the Debt Securities of such series; or (4) default in the performance, or breach, of any covenant of the Corporation in the 1995 Indenture or the Debt Securities of such series (other than a covenant a default in the performance or a breach of which is otherwise specified as an Event of Default or which has expressly been included in the 1995 Indenture and designated as being solely for the benefit of such series of Debt Securities other than such 11 14 series), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Corporation by the Indenture Trustee or to the Corporation and the Indenture Trustee by the Holders of at least 25% in principal amount of the Debt Securities of such series then outstanding, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" under the 1995 Indenture; or (5) default resulting in acceleration of or failure to pay at maturity (i) other Debt of the Corporation or Debt that the Corporation has guaranteed where the aggregate principal amount so accelerated exceeds $15 million or (ii) Debt of any Subsidiary which the Corporation has directly assumed or on which the Corporation has otherwise become directly liable as a result of the exercise of remedies upon the occurrence of a default by such Subsidiary in the performance of its obligations under any agreement guaranteed by the Corporation in a principal amount of $15 million or more; without such involuntary acceleration having been rescinded or annulled within a period of 30 days after there shall have been given, by registered or certified mail, to the Corporation by the Indenture Trustee or to the Corporation and the Indenture Trustee by the Holders of at least 25% in aggregate principal amount of the Debt Securities of such series then outstanding a written notice specifying such default and requiring the Corporation to cause such acceleration to be rescinded or annulled and stating that such notice is a "Notice of Default" under the 1995 Indenture; provided, however, that, if such default shall be remedied or cured by the Corporation or waived by the Holders of such indebtedness before any judgment or decree for the payment of money due shall have been obtained or entered, then the Event of Default under the Indenture by reason thereof shall be deemed likewise to have been thereupon remedied, cured or waived without any action on the part of the Indenture Trustee or any of the Holders; or (6) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Corporation in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law then or thereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Corporation or for all or substantially all of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or (7) the Corporation shall commence a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law then or thereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Corporation or for all or substantially all of its property, or make any general assignment for the benefit of creditors; or (8) any other Event of Default provided with respect to Debt Securities of such series. Events of Default under the Junior Subordinated Indenture The Junior Subordinated Indenture provides that any one or more of the following events that has occurred and is continuing constitutes an "Event of Default": (i) failure for 30 days to pay any interest on the Junior Subordinated Debentures when due (subject to the deferral of any due date in the case of an Extension Period); or (ii) failure to pay any principal of (or premium, if any) on the Junior Subordinated Debentures when due, whether at maturity or upon redemption, by declaration, by acceleration or otherwise; or (iii) failure to observe or perform in any material respect certain other covenants or agreements contained in the Junior Subordinated Indenture that shall not have been remedied for 90 days after written notice to the Corporation from the Indenture Trustee or to the Indenture Trustee and the Corporation by the holders of at least 25% in aggregate outstanding principal amount of the outstanding Junior Subordinated Debentures of that series; or (iv) certain events of bankruptcy, insolvency or reorganization of the Corporation; or 12 15 (v) any other Event of Default with respect to a particular series of Junior Subordinated Debentures as described in the related Prospectus Supplement. Provisions Applicable to Events of Default under either Indenture If an Event of Default (as used herein, "Event of Default" with respect to a particular series of Debt Securities shall refer to an Event of Default under the Indenture under which such series was issued) with respect to Debt Securities of any series at the time outstanding occurs and is continuing, then, and in each and every such case, unless the principal of all of the Debt Securities of such series shall have already become due and payable, either the Indenture Trustee or the Holders of not less than 25% in aggregate principal amount of the Debt Securities of such series then outstanding, by notice in writing to the Corporation (and to the Indenture Trustee if given by Holders), may declare the entire principal amount (or, if the Debt Securities of such series are Discount Securities (as defined in the applicable Indenture), such portion of the principal as may be specified in the terms of such series) of all of the Debt Securities of such series and any premium and interest accrued thereon to be due and payable immediately, and upon any such declaration such principal amount (or specified amount) and any premium and interest accrued thereon shall become immediately due and payable. With regard to Corresponding Junior Subordinated Debentures held by an Issuer Trust, if the Indenture Trustee or such percentage of Holders of Corresponding Junior Subordinated Debentures fails to make such declaration, the Holders of at least 25% in aggregate liquidation amount of the outstanding Related Preferred Securities will have such right. However, at any time after a declaration of acceleration with respect to Debt Securities of any series has been made, but before a judgment or decree based on such acceleration has been obtained, the Holders of a majority in principal amount of outstanding Debt Securities of that series may, under certain circumstances, rescind and annul such acceleration. See also "-- Modification and Waiver." In the case of Corresponding Junior Subordinated Debentures, if the Holders of such Corresponding Junior Subordinated Debentures fail to rescind and annul such declaration, the Holders of a majority in aggregate liquidation amount of the Related Preferred Securities will have such right. Reference is made to the Prospectus Supplement relating to each series of Debt Securities which are Discount Securities for the particular provisions relating to acceleration of the Maturity of a portion of the principal amount of such Discount Securities upon the occurrence of an Event of Default and the continuation thereof. Each Indenture provides that, subject to the duty of the Indenture Trustee during default to act with the required standard of care, the Indenture Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request or direction of any of the Holders, unless such Holders shall have offered to the Indenture Trustee reasonable indemnity. Subject to such provisions for indemnification of the Indenture Trustee, the Holders of a majority in principal amount of the outstanding Debt Securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred on the Indenture Trustee, with respect to the Debt Securities of that series. The occurrence of an Event of Default in respect of a series of Corresponding Junior Subordinated Debentures will also constitute a Trust Enforcement Event in respect of the Related Preferred Securities and related Common Securities. See "Description of Preferred Securities." If an Event of Default occurs and is continuing with respect to a series of Corresponding Junior Subordinated Debentures, the Property Trustee will have the right to declare the principal of and the interest on such Corresponding Junior Subordinated Debentures, and any other amounts payable under the Indenture with respect thereto, to be forthwith due and payable and to enforce its other rights as a creditor with respect to such Corresponding Junior Subordinated Debentures. The Corporation is required to furnish to the Indenture Trustee annual statements as to the performance by the Corporation of certain of its obligations under each Indenture and as to any default in such performance. 13 16 MODIFICATION AND WAIVER 1995 Indenture Modifications and amendments of the 1995 Indenture may be made by the Corporation and the Indenture Trustee with the consent of the Holders of a majority in principal amount of the outstanding Debt Securities of each series affected thereby (each such series voting as a single class); provided, however, that no such modification or amendment may, without the consent of the Holder of each outstanding Debt Security affected thereby, (a) change the Stated Maturity of the principal, or any installment of principal of or interest on, any Debt Security, (b) reduce the principal amount thereof, or reduce any premium thereof or change the time of payment of any premium thereon, (c) reduce the rate or change the time of payment of interest thereon, if any, (d) reduce any amount payable on redemption of any such Debt Security (if any), (e) reduce the overdue rate thereof, (f) change the place or currency of payment of principal of, or any premium or interest thereon, (g) reduce, if applicable, the amount of principal of any Discount Security payable upon acceleration of the Maturity thereof or the amount thereof provable in bankruptcy, (h) impair, if applicable, any right of repayment at the option of the Holder, (i) impair the right to institute suit for the enforcement of any payment on or with respect to any Debt Security, or (j) reduce the percentage in principal amount of outstanding Debt Securities of any series, the consent of the Holders of which is required for modification or amendment of the 1995 Indenture or for waiver of compliance with certain provisions of the 1995 Indenture or for waiver of certain defaults, or (k) alter or impair the right of any Holder to convert or exchange Debt Securities of any series, if applicable, at the rate and upon the terms established pursuant to the 1995 Indenture. Junior Subordinated Indenture The Junior Subordinated Indenture contains provisions permitting the Corporation and the Indenture Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Junior Subordinated Debentures of all series affected by such modification or amendment at the time outstanding, to amend the Junior Subordinated Indenture or modify the rights of the Holders of the Junior Subordinated Debentures; provided, that no such amendment or modification shall (i) change the Stated Maturity of any Junior Subordinated Debenture or reduce the principal amount thereof or reduce the rate or extend the time for payment of interest thereon, or make the principal thereof, or interest or premium, if any, thereon, payable in any coin or currency other than that provided in such Junior Subordinated Debentures, or impair or affect the right of any Holder of Junior Subordinated Debentures to institute suit for the payment thereon or reduce any amount payable on prepayment thereof, without the consent of each Holder of Junior Subordinated Debentures so affected, or (ii) reduce the aforesaid percentage of principal amount of Junior Subordinated Debentures for which the consent of the Holders is required for any such modification, without the consent of each Holder of Junior Subordinated Debentures so affected. Furthermore, in the case of Corresponding Junior Subordinated Debentures, so long as any of the Related Preferred Securities remain outstanding, (a) no such modification may be made that adversely affects the Holders of such Preferred Securities in any material respect, and no termination of the Junior Subordinated Indenture may occur, and no waiver of any event of default or compliance with any covenant under the Junior Subordinated Indenture in respect of such series of Junior Subordinated Debentures may be effective, without the prior consent of the Holders of at least a majority in aggregate liquidation amount of all the outstanding Related Preferred Securities unless and until the principal of (and premium, if any, on) the Corresponding Junior Subordinated Debentures and all accrued and unpaid interest thereon have been paid in full and certain other conditions are satisfied and (b) where a consent under the Junior Subordinated Indenture would require the consent of each Holder of Corresponding Junior Subordinated Debentures, no such consent may be given by the Property Trustee without the prior consent of each Holder of Related Preferred Securities. The Indentures Generally The Holders of a majority in aggregate principal amount of the outstanding Debt Securities of any series may on behalf of the Holders of all Debt Securities of that series waive, insofar as that series is concerned, compliance by the Corporation with certain restrictive provisions of the applicable Indenture. In the case of 14 17 Corresponding Junior Subordinated Debentures, if the Holders of such Corresponding Junior Subordinated Debentures fail to waive such compliance, the Holders of a majority in aggregate liquidation amount of the Related Preferred Securities will have such right. The Holders of a majority in principal amount of the outstanding Debt Securities of any series may, on behalf of the Holders of all Debt Securities of that series, direct the Indenture Trustee as to the time, method and place of pursuing any remedy available to it or exercising any trust or power conferred on it and may waive any past default under the Indenture with respect to Debt Securities of that series, except a default not theretofore cured in the payment of the principal of (or premium, if any) or interest on any Debt Securities of that series or in respect of any provision which under the applicable Indenture cannot be modified or amended without the consent of the Holder of each outstanding Security of that series affected. Each Indenture contains provisions, where applicable, permitting the Corporation and the Indenture Trustee to enter into one or more supplemental indentures without the consent of the Holders of any of the Debt Securities in order (i) to evidence the succession of another corporation to the Corporation and the assumption of the covenants of the Corporation by a successor to the Corporation; (ii) to add to the covenants of the Corporation or surrender any right or power of the Corporation; (iii) to add additional Events of Default with respect to any series of Debt Securities; (iv) to add to, change or eliminate any provision affecting Debt Securities not yet issued; (v) to secure the Debt Securities (in the case of Debt Securities issued under the 1995 Indenture only); (vi) to establish the form or terms of Debt Securities; (vii) to evidence and provide for a successor Indenture Trustee; and (viii) to cure any ambiguity or correct any mistake or to correct any defect or supplement any inconsistent provisions or to make any other provisions with respect to matters or questions arising under the Indenture, provided that such action does not adversely affect the interests of any Holder of Debt Securities of any series. CONSOLIDATION, MERGER AND SALE OF ASSETS The Corporation may not consolidate or merge with or into, or convey, transfer or lease all or substantially all its properties and assets to, any Person, and any other Person may not consolidate or merge with or into, the Corporation, unless (i) the Person (if other than the Corporation) formed by such consolidation or into which the Corporation is merged or which acquires or leases all or substantially all the assets of the Corporation is organized and existing under the laws of the United States, any state thereof or the District of Columbia and expressly assumes all of the Corporation's obligations under the Debt Securities and under the applicable Indenture, (ii) immediately after giving effect to such transaction no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing (provided that a transaction will only be deemed to be in violation of this condition (ii) as to any series of Debt Securities as to which such Event of Default or such event shall have occurred and be continuing), and (iii) with respect to the 1995 Indenture only, the Trustee receives an Opinion of Counsel and an Officers' Certificate that such consolidation, merger, conversion, transfer or lease and such assumption complies with the terms of the 1995 Indenture and all conditions precedent set forth in the 1995 indenture relating to such transaction have been complied with. SATISFACTION, DISCHARGE, AND DEFEASANCE PRIOR TO MATURITY OR REDEMPTION Covenant Defeasance of any Series Issued under the 1995 Indenture If the Corporation shall deposit with the Indenture Trustee, in trust, at or before maturity or redemption of the Debt Securities of any series issued under the 1995 Indenture, money and/or Government Obligations in such amounts and maturing at such times such that the proceeds of such obligations to be received upon the respective maturities and interest payment dates of such obligations will provide funds sufficient, without reinvestment, in the opinion of a nationally recognized firm of independent public accountants, to pay when due the principal of (and premium, if any) and each installment of principal of (and premium, if any) and interest on such series of Debt Securities at the Stated Maturity of such principal or installment of principal or interest, as the case may be, then the Corporation may omit to comply with certain of the terms of the 1995 Indenture with respect to that series of Debt Securities, including any or all of the restrictive covenants described above or in any Prospectus Supplement, and the Events of Default described in clauses (4) and (5) 15 18 under "Events of Default -- Events of Default under the 1995 Indenture" shall not apply. Defeasance of Debt Securities of any such series is subject to the satisfaction of certain conditions, including among others: (1) the absence of an Event of Default or event which, with notice or lapse of time, would become an Event of Default at the date of the deposit, (2) the delivery to the Indenture Trustee by the Corporation of an Opinion of Counsel to the effect that Holders of the Debt Securities of such series will not recognize income, gain or loss for United States Federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to United States Federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred, (3) such covenant defeasance will not cause any Debt Securities of such series then listed on any nationally recognized securities exchange to be delisted, (4) that such covenant defeasance will not result in a breach of, or constitute a default under, any instrument by which the Corporation is bound and (5) such covenant defeasance shall not cause the Indenture Trustee for the Securities of such series to have a "conflicting interest" (as defined in Section 310(b) of the Trust Indenture Act) with respect to any securities of the Corporation. If indicated in the Prospectus Supplement relating to a series of Debt Securities, in addition to the obligations of the United States of America or obligations guaranteed by the United States of America, Government Obligations may include obligations of the government, and obligations guaranteed by such government, issuing the currency or currency unit in which Debt Securities of such series are payable. Defeasance of any Series Issued under the 1995 Indenture Upon the deposit of money or securities as contemplated in the preceding paragraph and the satisfaction of certain other conditions, the Corporation may also omit to comply with its obligation duly and punctually to pay the principal of (and premium, if any) and interest on a particular series of Debt Securities issued under the 1995 Indenture, and any Events of Default with respect thereto shall not apply, and thereafter, the Holders of Debt Securities of such series shall be entitled only to payment out of the money or securities deposited with the Indenture Trustee. Such conditions include among others: (1) the absence of an Event of Default or event which, with notice or lapse of time, would become an Event of Default at the date of the deposit, (2) the delivery to the Indenture Trustee by the Corporation of an Opinion of Counsel, which refers to or is based on a ruling of the Internal Revenue Service or a change in the applicable United States Federal income tax law occurring after the date of the Indenture, to the effect that Holders of the Debt Securities of such series will not recognize income, gain or loss for United States Federal income tax purposes as a result of such deposit and the satisfaction, discharge and defeasance, and will be subject to United States Federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred, (3) such defeasance will not cause any Debt Securities of such series then listed on any nationally recognized securities exchange to be delisted, (4) that such defeasance will not result in a breach of, or constitute a default under, any instrument by which the Corporation is bound and (5) such defeasance shall not cause the Indenture Trustee for the Securities of such series to have a conflicting interest for the purpose of the Trust Indenture Act with respect to any securities of the Corporation. SATISFACTION AND DISCHARGE OF THE JUNIOR SUBORDINATED INDENTURE The Junior Subordinated Indenture provides that when, among other things, all Junior Subordinated Debentures of a series not previously delivered to the Indenture Trustee for cancellation (i) have become due and payable or (ii) will become due and payable at their Stated Maturity within one year, and the Corporation deposits or causes to be deposited with the Indenture Trustee trust funds, in trust, for the purpose of, and in an amount sufficient for, payment and discharge of the entire indebtedness on the Junior Subordinated Debentures of such series not previously delivered to the Indenture Trustee for cancellation, for the principal (and premium, if any) and interest to the date of the deposit or to the Stated Maturity, as the case may be, then the Junior Subordinated Indenture will cease to be of further effect with respect to the series (except as to the Corporation's obligations to pay all other sums due with respect to that series pursuant to the Junior Subordinated Indenture and to provide the officer's certificates and opinions of counsel described therein), and the Corporation will be deemed to have satisfied and discharged the Junior Subordinated Indenture with respect to that series. 16 19 SENIOR DEBT SECURITIES The Debt Securities that will be designated and will constitute part of the Senior Debt and Senior Indebtedness of the Corporation, will rank pari passu with all other unsecured and unsubordinated Debt of the Corporation. SENIOR SUBORDINATED DEBT SECURITIES The Senior Subordinated Debt Securities, may be subordinated and junior in right of payment, to the extent set forth in the applicable Prospectus Supplement, to all Senior Debt. JUNIOR SUBORDINATED DEBENTURES Corresponding Junior Subordinated Debentures The Corresponding Junior Subordinated Debentures may be issued in one or more series of Junior Subordinated Debentures under the Junior Subordinated Indenture in connection with the issuance of a series of Related Preferred Securities by an Issuer Trust. In that event, concurrently with the issuance of such Issuer Trust's Preferred Securities, such Issuer Trust will invest the proceeds thereof and the consideration paid by the Corporation for the Common Securities of such Issuer Trust in such series of Corresponding Junior Subordinated Debentures, which will be issued by the Corporation to such Issuer Trust. Each series of Corresponding Junior Subordinated Debentures will be in a principal amount equal to the aggregate stated liquidation amount of the Related Preferred Securities and the Common Securities of such Issuer Trust. Holders of the Related Preferred Securities for a series of Corresponding Junior Subordinated Debentures will have the rights in connection with modifications to the Indenture or upon occurrence of Events of Default, as described under "-- Modification and Waiver" and "-- Events of Default -- Events of Default under the Junior Subordinated Indenture", unless provided otherwise in the applicable Prospectus Supplement. Deferral of Interest Payments If provided in the applicable Prospectus Supplement, the Corporation will have the right under the Junior Subordinated Indenture and the Corresponding Junior Subordinated Debentures to defer the payment of interest at any time or from time to time on any series of Corresponding Junior Subordinated Debentures for up to such number of consecutive interest payment periods as may be specified in such Prospectus Supplement relating to such series (each, an "Extension Period"); provided that no Extension Period may extend beyond the Stated Maturity of the Corresponding Junior Subordinated Debentures as in effect at the time of the Corporation's election to defer interest in this manner. As a consequence of any such election, Distributions on the Related Preferred Securities would be deferred (but would continue to accumulate additional Distributions thereon at the rate per annum set forth in the Prospectus Supplement for such Preferred Securities) by the Issuer Trust of such Preferred Securities during any such Extension Period. During any such Extension Period, the Corporation may not (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any of the Corporation's capital stock, (ii) make any payment of principal, interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Corporation that rank pari passu with or junior in interest to the Corresponding Junior Subordinated Debentures, or (iii) make any guarantee payments with respect to any guarantee by the Corporation of debt securities of any subsidiary of the Corporation if such guarantee ranks pari passu with, or junior in right of payment to, the Junior Subordinated Debentures (other than (a) dividends or distributions by the Corporation by way of issuance of its common stock, (b) payments under the applicable Guarantee made by the Corporation in respect of the Trust Securities of such Issuer Trust, (c) any declaration of a dividend in connection with the implementation of a shareholders' rights plan, or the issuance of stock under any such plan in the future, or the redemption or repurchase of any such rights pursuant thereto, and (d) purchases of common stock related to the issuance of common stock or rights under any of the Corporation's benefit plans). Certain United States federal income tax consequences and special considerations applicable to any such Junior Subordinated Debentures will be described in the applicable Prospectus Supplement. 17 20 Enforcement of Certain Rights by Holders of Preferred Securities If an Event of Default with respect to a series of Corresponding Junior Subordinated Debentures has occurred and is continuing and such event is attributable to the failure of the Corporation to pay any amounts payable in respect of such Corresponding Junior Subordinated Debentures on the date such amounts are otherwise payable, a Holder of the Related Preferred Securities may institute a legal proceeding directly against the Corporation for enforcement of payment to such Holder of an amount equal to the amount payable in respect of such Corresponding Junior Subordinated Debentures having a principal amount equal to the aggregate liquidation amount of the Related Preferred Securities held by such Holder (a "Direct Action"). The Corporation may not amend the Junior Subordinated Indenture or the Corresponding Junior Subordinated Debentures to remove the foregoing right to bring a Direct Action without the prior written consent of the Holders of all of the Preferred Securities. The Holders of the Preferred Securities will not be able to exercise directly any remedies available to the Holders of the Junior Subordinated Debentures except under the circumstances described in the previous paragraph. See "Description of Preferred Securities". Subordination The Junior Subordinated Debentures will be subordinate and junior in right of payment, to the extent set forth therein and in the Junior Subordinated Indenture, to all Debt of the Corporation other than Debt that expressly ranks pari passu with, or junior in interest to, the Junior Subordinated Debentures ("Senior Indebtedness"). If the Corporation defaults in the payment of any principal, premium, if any, or interest, if any, or any other amount payable on any Senior Indebtedness when the same becomes due and payable, whether at maturity or at a date fixed for redemption or by declaration of acceleration or otherwise, then, unless and until such default has been cured or waived or has ceased to exist or all Senior Indebtedness has been paid, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) may be made or agreed to be made on the Junior Subordinated Debentures, or in respect of any redemption, repayment, retirement, purchase or other acquisition of any of the Junior Subordinated Debentures. In the event of (i) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Corporation, its creditors or its property, (ii) any proceeding for the liquidation, dissolution or other winding up of the Corporation, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings, (iii) any assignment by the Corporation for the benefit of creditors or (iv) any other marshalling of the assets of the Corporation, all Senior Indebtedness (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made on account of the Junior Subordinated Debentures. In such event, any payment or distribution on account of the Junior Subordinated Debentures, whether in cash, securities or other property, that would otherwise (but for the subordination provisions) be payable or deliverable in respect of the Junior Subordinated Debentures will be paid or delivered directly to the Holders of Senior Indebtedness in accordance with the priorities then existing among such Holders until all Senior Indebtedness (including any interest thereon accruing after the commencement of any such proceedings) has been paid in full. In the event of any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the Holders of Junior Subordinated Debentures, together with the Holders of any obligations of the Corporation ranking pari passu with the Junior Subordinated Debentures, will be entitled to be paid from the remaining assets of the Corporation the amounts at the time due and owing on the Junior Subordinated Debentures and such other obligations before any payment or other distribution, whether in cash, property or otherwise, will be made on account of any capital stock or obligations of the Corporation ranking junior to the Junior Subordinated Debentures and such other obligations. If any payment or distribution on account of the Junior Subordinated Debentures of any character or any security, whether in cash, securities or other property is received by any Holder of any Junior Subordinated Debentures in contravention of any of the terms hereof and before all the Senior Indebtedness has been paid in full, such payment or distribution or security will be received in trust for the benefit of, and must be paid over or delivered and transferred to, the Holders of the 18 21 Senior Indebtedness at the time outstanding in accordance with the priorities then existing among such Holders for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all such Senior Indebtedness in full. By reason of such subordination, in the event of the insolvency of the Corporation, Holders of Senior Indebtedness may receive more, ratably, and Holders of the Junior Subordinated Debentures may receive less, ratably, than the other creditors of the Corporation. Such subordination will not prevent the occurrence of any Event of Default. The Junior Subordinated Indenture places no limitation on the amount of additional Senior Indebtedness that may be incurred by the Corporation. The Corporation expects from time to time to incur additional indebtedness constituting Senior Indebtedness. Restrictions on Certain Payments The Corporation will not, as to each series of Junior Subordinated Debentures, (i) declare or pay any dividends or distributions on, or prepay, redeem, purchase, acquire, or make a liquidation payment with respect to, any of the Corporation's capital stock, (ii) make any payment of principal of, premium, if any, or interest on, or repay, repurchase or redeem any debt securities of the Corporation that rank pari passu with or junior in interest to the Junior Subordinated Debentures, including other Junior Subordinated Debentures, or (iii) make any guarantee payment with respect to any guarantee by the Corporation of debt securities of any subsidiary of the Corporation if such guarantee ranks pari passu with, or junior in right of payment to, the Junior Subordinated Debentures (other than (a) dividends or distributions by the Corporation by way of issuance of its common stock, (b) payments under the applicable Guarantee made by the Corporation in respect of the Trust Securities of such Issuer Trust, (c) any declaration of a dividend in connection with the implementation of a shareholders' rights plan, or the issuance of stock under any such plan in the future, or the redemption or repurchase of any such rights pursuant thereto, and (d) purchases of common stock related to the issuance of common stock or rights under any of the Corporation's benefit plans), if at such time (i) there has occurred any event of which the Corporation has actual knowledge that with the giving of notice or the lapse of time, or both, would constitute an Event of Default with respect to the Junior Subordinated Debentures of such series, (ii) if such Junior Subordinated Debentures are held by an Issuer Trust, the Corporation is in default with respect to its payment of any obligations under the Guarantee relating to the Related Preferred Securities or (iii) the Corporation has given notice of its selection of an Extension Period as provided in the Junior Subordinated Indenture with respect to the Junior Subordinated Debentures of such series and has not rescinded such notice, or such Extension Period, or any extension thereof, is continuing. Certain Covenants of the Corporation In the event Junior Subordinated Debentures are issued to an Issuer Trust or Issuer Trustee thereof in connection with the issuance of Trust Securities of such Issuer Trust, for so long as such Trust Securities remain outstanding, the Corporation will covenant (i) to maintain, directly or indirectly, 100% ownership of the Common Securities of such Issuer Trust, provided that certain successors that are permitted pursuant to the Junior Subordinated Indenture may succeed to the Corporation's ownership of the Common Securities, (ii) to use commercially reasonable efforts, consistent with the terms and provisions of the Declaration of Trust of such Issuer Trust to cause such Issuer Trust (a) to remain a grantor trust, except in connection with a distribution of Junior Subordinated Debentures to the Holders of the Trust Securities in liquidation of the Issuer Trust, the redemption of all of the Trust Securities of an Issuer Trust, or certain mergers, consolidations or amalgamations, each as permitted by the Declaration of Trust of such Issuer Trust, and (b) to otherwise continue to be classified as a grantor trust and not an association taxable as a corporation for United States federal income tax purposes and (iii) not to cause, as Sponsor of each Issuer Trust, or permit, as Holder of the Commons Securities, the dissolution, winding-up or termination of such Issuer Trust except in connection with a distribution of the Junior Subordinated Debentures as provided in the Declaration of Trust of such Issuer Trust and in connection with certain mergers, consolidations or amalgamations. 19 22 GOVERNING LAW Each Indenture and the Debt Securities will be governed by, and construed in accordance with, the laws of the State of New York. REGARDING THE INDENTURE TRUSTEE Harris Trust and Savings Bank is the trustee under each Indenture and has been appointed by the Corporation as initial Security Registrar and Paying Agent with regard to the Debt Securities. The Company has customary banking relationships with the Indenture Trustee and certain of its affiliates in the ordinary course of business. DESCRIPTION OF PREFERRED SECURITIES Each Issuer Trust may issue only one series of Preferred Securities having terms described in the Prospectus Supplement relating thereto. The Declaration of Trust of each Issuer Trust will be qualified as an indenture under the Trust Indenture Act. Harris Trust and Savings Bank will act as indenture trustee under each Declaration of Trust. The Preferred Securities will represent undivided beneficial ownership interests in the assets of the Issuer Trusts and the Holders thereof will be entitled to a preference in certain circumstances with respect to Distributions and amounts payable on redemption or liquidation over the Common Securities, as well as other benefits as described in the Declaration of Trust. This Prospectus contains a description of all material provisions of each Declaration of Trust. The summary of such provisions does not purport to be complete; a copy of the form of such Declarations of Trust is filed as an exhibit to the Registration Statement. All capitalized terms set forth below have the meanings specified in the form of Declaration of Trust. The Preferred Securities will have such terms, including as to Distributions, redemption, voting, liquidation rights and such other preferred, deferred or other special rights or such restrictions as shall be set forth in the Declaration of Trust of the Issuer Trust issuing such Preferred Securities or made part of such Declaration by the Trust Indenture Act. Reference is made to any Prospectus Supplement relating to the Preferred Securities of an Issuer Trust for specific terms, including (i) the distinctive designation of such Preferred Securities, (ii) the number of Preferred Securities issued by such Issuer Trust, (iii) the annual Distribution rate (or method of determining such rate) for Preferred Securities issued by such Issuer Trust and the date or dates upon which such Distributions shall be payable, (iv) whether Distributions on Preferred Securities issued by such Issuer Trust shall be cumulative, and, in the case of Preferred Securities having such cumulative distribution rights, the date or dates or method of determining the date or dates from which distributions on Preferred Securities issued by such Issuer Trust shall be cumulative, (v) the amount or amounts which shall be paid out of the assets of such Issuer Trust to the Holders of Preferred Securities of such Issuer Trust upon voluntary or involuntary dissolution, winding-up or termination of such Issuer Trust, (vi) the obligation, if any, of such Issuer Trust to purchase or redeem Preferred Securities issued by such Issuer Trust and the price or prices at which, the period or periods within which and the terms and conditions upon which Preferred Securities issued by such Issuer Trust shall be purchased or redeemed, in whole or in part, pursuant to such obligation, (vii) the voting rights, if any, of Preferred Securities issued by such Issuer Trust in addition to those required by law, including the number of votes per Preferred Security and any requirement for the approval by the Holders of Preferred Securities as a condition to specified action or amendments to the Declaration of Trust of such Issuer Trust, and (viii) any other relevant rights, preferences, privileges, limitations or restrictions of Preferred Securities issued by such Issuer Trust, consistent with the Declaration of Trust of such Issuer Trust and with applicable law. All Preferred Securities offered hereby will be guaranteed by the Corporation to the extent set forth below under "Description of Guarantees." Certain United States federal income tax considerations applicable to any offering of Preferred Securities will be described in the Prospectus Supplement relating thereto. In connection with the issuance of Preferred Securities, each Issuer Trust will issue one series of Common Securities, having such terms, including as to Distributions, redemption, voting, liquidation rights or such restrictions, as shall be set forth in the Declaration of Trust of the Issuer Trust issuing such Common Securities or made part of such Declaration of Trust by the Trust Indenture Act. The terms of the Common 20 23 Securities issued by such Issuer Trust will be substantially identical to the terms of the Preferred Securities issued by such Issuer Trust. The Common Securities will rank on a parity, and payments will be made thereon pro rata, with such Preferred Securities except that upon a Trust Enforcement Event under the Declaration of Trust of such Issuer Trust, the rights of the Holders of such Common Securities to payment in respect of Distributions and payments upon liquidation, redemption and otherwise will be subordinated to the rights of the Holders of such Preferred Securities. Except in certain limited circumstances, the Holders of Common Securities of an Issuer Trust will also be entitled to vote and appoint, remove or replace any of the Issuer Trustees of such Issuer Trust. All of the Common Securities of an Issuer Trust will be directly or indirectly owned by the Corporation. If a Trust Enforcement Event with respect to a Declaration of Trust of any Issuer Trust occurs and is continuing, then the Holders of Preferred Securities of such Issuer Trust would rely on the enforcement by the Property Trustee of its rights as a Holder of Junior Subordinated Debentures against the Corporation. In addition, the Holders of a majority in liquidation amount of such Preferred Securities will have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Property Trustee or to direct the exercise of any trust or power conferred upon the Property Trustee under such Declaration of Trust, including the right to direct the Property Trustee to exercise the remedies available to it as a Holder of Junior Subordinated Debentures. An Event of Default under the Junior Subordinated Indenture that has occurred and is continuing with respect to Corresponding Junior Subordinated Debentures constitutes a "Trust Enforcement Event" under the Declaration of Trust with respect to the Issuer Trust that issued the Related Preferred Securities; provided that pursuant to such Declaration, the Holder of the Common Securities will be deemed to have waived any Trust Enforcement Event with respect to the Common Securities until all Trust Enforcement Events with respect to the Related Preferred Securities have been cured, waived or otherwise eliminated. Until such Trust Enforcement Event with respect to the Related Preferred Securities has been so cured, waived or otherwise eliminated, the Property Trustee will be deemed to be acting solely on behalf of the Holders of the Related Preferred Securities and only the Holders of the Related Preferred Securities will have the right to direct the Property Trustee with respect to certain matters under such Declaration of Trust, and therefore the Junior Subordinated Indenture. Upon the occurrence of a Trust Enforcement Event, the Property Trustee, as the Holder of Corresponding Junior Subordinated Debentures, will have the right under the Junior Subordinated Indenture to declare the principal of and premium, if any, and interest on such Junior Subordinated Debentures to be immediately due and payable. If the Property Trustee fails to enforce its rights with respect to Junior Subordinated Debentures, any Holder of Preferred Securities may, to the extent permitted by applicable law, institute a legal proceeding directly against the Corporation to enforce the Property Trustee's rights under such Junior Subordinated Debentures without first instituting any legal proceeding against the Property Trustee or any other person or entity. In addition, if a Trust Enforcement Event has occurred and is continuing and such event is attributable to the failure of the Corporation to pay principal of and premium, if any, and interest or other required payments on Junior Subordinated Debentures on the date such interest, principal or other payment is otherwise payable, then a Holder of Preferred Securities of such Issuer Trust may, on or after the respective due dates specified in such Junior Subordinated Debentures, institute a Direct Action. In connection with such Direct Action, the rights of the Corporation will be subrogated to the rights of such Holder of Preferred Securities under such Declaration of Trust to the extent of any payment made by the Corporation to such Holder of Preferred Securities in such Direct Action. Consequently, the Corporation will be entitled to payment of amounts that a Holder of Preferred Securities receives in respect of an unpaid distribution that resulted in the bringing of a Direct Action to the extent that such Holder receives or has already received full payment with respect to such unpaid distribution from an Issuer Trust. The Holders of Preferred Securities of an Issuer Trust will not be able to exercise directly any other remedy available to the Holders of Junior Subordinated Debentures. 21 24 DESCRIPTION OF CAPITAL STOCK GENERAL The following description of the Corporation's capital stock does not purport to be complete and is subject to, and qualified in its entirety by reference to, the more complete descriptions thereof set forth in the Corporation's Restated Certificate of Incorporation, as amended (the "Certificate"), and By-laws, as amended (the "By-laws") which documents are exhibits to this Registration Statement. The Corporation is authorized to issue up to 80,000,000 shares of Common Stock, par value $1.00, and up to 1,500,000 shares of Preferred Stock, no par value. As of March 27, 1998 there were 40,734,864 shares of Common Stock and no shares of Preferred Stock outstanding. Of the 1,500,000 shares of authorized Preferred Stock, 400,000 shares have been reserved and designated as "Series A Junior Participating Preferred Stock." PREFERRED STOCK General. The following summary contains a description of certain general terms of the Preferred Stock. The particular terms of any series of Preferred Stock that may be offered will be described in the applicable Prospectus Supplement. If so indicated in a Prospectus Supplement, the terms of any such series may differ from the terms set forth below. The summary of terms of the Preferred Stock does not purport to be complete and is subject to and qualified in its entirety by reference to the provisions of the Certificate and the Certificate of Designation (the "Certificate of Designation") relating to a particular series of offered Preferred Stock which is or will be in the form filed or incorporated by reference as an exhibit to the Registration Statement at or prior to the time of the issuance of such series of Preferred Stock. The Board of Directors has the power, without further action by the shareholders, to issue Preferred Stock in one or more series, with such designations or titles, dividend rates, redemption provisions, special or relative rights in the event of liquidation, dissolution, distribution or winding up of the Corporation, sinking fund provisions, conversion provisions, voting rights thereof and other preferences, privileges, powers, rights, qualifications, limitations and restrictions, as shall be set forth as and when established by the Board of Directors; provided that the Board of Directors shall fix such provisions as will, at a minimum, entitle the Holders of such Preferred Stock, voting as a class, to elect at least two directors upon default of the equivalent of six quarterly dividends, such right to continue until cumulative dividends have been paid in full, or until non-cumulative dividends have been paid regularly for at least a year, and require the affirmative approval of at least two-thirds of the outstanding Preferred Stock as a prerequisite to any amendment to the Certificate or By-laws altering materially any existing provision of such Preferred Stock. The shares of any series of Preferred Stock will be, when issued, fully paid and non-assessable and Holders thereof will have no preemptive rights in connection therewith. Rank. Any series of Preferred Stock will, with respect to rights on liquidation, winding up and dissolution, rank (i) senior to all classes of Common Stock and to all equity securities issued by the Corporation, the terms of which specifically provide that such equity securities will rank junior to such series of Preferred Stock (the "Junior Liquidation Securities"); (ii) on a parity with all equity securities issued by the Corporation, the terms of which specifically provide that such equity securities will rank on a parity with such series of Preferred Stock ("Parity Liquidation Securities"); and (iii) junior to all equity securities issued by the Corporation, the terms of which specifically provide that such equity securities will rank senior to such series of Preferred Stock (the "Senior Liquidation Securities"). In addition, any series of Preferred Stock will, with respect to dividend rights, rank (i) senior to all equity securities issued by the Corporation, the terms of which specifically provide that such equity securities will rank junior to such series of Preferred Stock and, to the extent provided in the applicable Certificate of Designation, to Common Stock; (ii) on a parity with all equity securities issued by the Corporation, the terms of which specifically provide that such equity securities will rank on a parity with such series of Preferred Stock and, to the extent provided in the applicable Certificate of Designation, to Common Stock ("Parity Dividend Securities"); and (iii) junior to all equity securities issued by the Corporation, the terms of which specifically provide that such equity securities will 22 25 rank senior to such series of Preferred Stock. As used in any Certificate of Designation for these purposes, the term "equity securities" will not include debt securities convertible into or exchangeable for equity securities. Dividends. Holders of each series of Preferred Stock will be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available therefor, cash dividends at such rates and on such dates as are set forth in the Prospectus Supplement relating to such series of Preferred Stock. Dividends will be payable to Holders of Preferred Stock as they appear on the books of the Corporation (or, if applicable, the records of the Depositary referred to below under "-- Depositary Shares") on such record dates as shall be fixed by the Board of Directors. Dividends on any series of Preferred Stock may be cumulative or non-cumulative. No full dividends may be declared or paid out of funds set apart for the payment of dividends on any series of Preferred Stock unless dividends shall have been paid or set apart for such payment on the Parity Dividend Securities. If full dividends are not so paid, such series of Preferred Stock shall share dividends pro rata with the Parity Dividend Securities. Conversion and Exchange. The Prospectus Supplement for any series of Preferred Stock will state the terms, if any, on which shares of that series are convertible into shares of another series of Preferred Stock or Common Stock or exchangeable for another series of Preferred Stock, Common Stock or Debt Securities of the Corporation. Redemption. A series of Preferred Stock may be redeemable at any time, in whole or in part, at the option of the Corporation or the Holder thereof and may be subject to mandatory redemption pursuant to a sinking fund or otherwise upon terms and at the redemption prices set forth in the Prospectus Supplement relating to such series. In the event of partial redemptions of Preferred Stock, whether by mandatory or optional redemption, the shares to be redeemed will be determined by lot or pro rata, as may be determined by the Board of Directors, or by any other method determined to be equitable by the Board of Directors. On and after a redemption date, unless the Corporation defaults in the payment of the redemption price, dividends will cease to accrue on shares of Preferred Stock called for redemption and all rights of Holders of such shares will terminate except for the right to receive the redemption price. Liquidation Preference. Upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, Holders of each series of Preferred Stock that ranks senior to the Junior Liquidation Securities will be entitled to receive out of assets of the Corporation available for distribution to shareholders, before any distribution is made on any Junior Liquidation Securities, including Common Stock, distributions upon liquidation in the amount set forth in the Prospectus Supplement relating to such series of Preferred Stock. If the Holders of the Preferred Stock of any series and any other Parity Liquidation Securities are not paid in full, the Holders of the Preferred Stock of such series and the Parity Liquidation Securities will share ratably in any such distribution of assets of the Corporation in proportion to the full liquidation preferences to which each is entitled. After payment of the full amount of the liquidation preference to which they are entitled, the Holders of such series of Preferred Stock will not be entitled (unless the applicable Prospectus Supplement indicates otherwise) to any further participation in any distribution of assets of the Corporation. The liquidation preference of any series of Preferred Stock is not necessarily indicative of the price at which shares of such series of Preferred Stock will actually trade at or after the time of their issuance. Voting Rights. Except as indicated in the Prospectus Supplement relating to a particular series of Preferred Stock as specified under "-- General" above, or except as expressly required by applicable law or the Certificate, the Holders of shares of Preferred Stock will have no voting rights. Preferred Share Purchase Rights. On September 22, 1987, the Corporation's Board of Directors declared a dividend distribution of one Preferred Share Purchase Right (a "Right") on each share of the Common Stock outstanding as of October 2, 1987 and adopted the Rights Agreement, dated as of October 22, 1987 (the "Rights Agreement"). On September 30, 1997, the Board of Directors amended and restated the Rights Agreement. Each Right allows the shareholder to purchase 1/100th of a share of a new series of 23 26 preferred stock of the Corporation at an exercise price of $175. Rights are exercisable only if a person or group acquires 20% or more of the Common Stock or announces a tender offer the consummation of which would result in ownership by a person or group of 20% or more of the Common Stock. The Rights, which do not have the right to vote or receive dividends, expire on October 2, 2007 and may be redeemed, prior to becoming exercisable, by the Board of Directors at $.02 per Right or by shareholder action with an acquisition proposal. If any person or group acquires 20% or more of the outstanding Common Stock, the "flip-in" provision of the Rights will be triggered and the Rights will entitle a Holder (other than such person or any member of such group) to acquire a number of additional shares of the Corporation's common stock having a market value of twice the exercise price of each Right. In the event the Corporation is involved in a merger or other business combination transaction, each Right will entitle its Holder to purchase, at the Right's then-current exercise price, a number of the acquiring company's common stock having a market value at that time of twice the Rights' exercise price. The existence of the Rights Plan and the Rights may, under certain circumstances discourage, delay or prevent a change in control of the Corporation. DEPOSITARY SHARES The description set forth below of certain provisions of the Deposit Agreement (as defined below) and of the Depositary Shares and Depositary Receipts (as defined below) does not purport to be complete and is subject to and qualified in its entirety by reference to the forms of Deposit Agreement and Deposit Receipt, included as exhibits to the Registration Statement. General. The Corporation may, at its option, elect to offer fractional shares of Preferred Stock, rather than full shares of Preferred Stock. In the event the Corporation so elects, the Depositary will issue receipts for Depositary Shares, each of which will represent a fraction (to be set forth in the Prospectus Supplement relating to a particular series of Preferred Stock) of a share of a particular series of Preferred Stock as described below. The shares of any series of Preferred Stock represented by Depositary Shares will be deposited under a Deposit Agreement (the "Deposit Agreement") between the Corporation and a depositary that is a bank or trust company having its principal offices in the United States and having a combined capital surplus of at least the amount set forth in the Deposit Agreement (the "Depositary"). Subject to the terms of the Deposit Agreement, each owner of a Depositary Share will be entitled, in proportion to the applicable fraction of a share of Preferred Stock represented by such Depositary Share, to all the rights and preferences of the Preferred Stock represented thereby (including dividend, voting, redemption, conversion and liquidation rights). The Depositary Shares will be evidenced by depositary receipts issued pursuant to the Deposit Agreement (the "Depositary Receipts"). The Depositary Receipts will be distributed to those persons purchasing the fractional shares of Preferred Stock in accordance with the terms of the offering. Pending the preparation of definitive Depositary Receipts, the Depositary shall, upon the written order of the Corporation or any Holder of deposited Preferred Stock, execute and deliver temporary Depositary Receipts which are substantially identical to, and entitle the Holders thereof to all the rights pertaining to, the definitive Depositary Receipts. Depositary Receipts will be prepared thereafter without unreasonable delay, and temporary Depositary Receipts will be exchangeable for definitive Depositary Receipts at the Corporation's expense. Dividends and Other Distributions. The Depositary will distribute all cash dividends or other cash distributions received in respect of the deposited Preferred Stock to the record Holders of the Depositary Shares relating to such Preferred Stock in proportion to the number of such Depositary Shares owned by such Holders. In the event of a distribution other than in cash, the Depositary will distribute property received by it to the record Holders of Depositary Shares entitled thereto. If the Depositary determines that it is not feasible to 24 27 make such distribution, it may, with the approval of the Corporation, sell such property and distribute the net proceeds from such sale to such Holders. Redemption of Stock. If a series of Preferred Stock represented by Depositary Shares is to be redeemed, the Depositary Shares will be redeemed from the proceeds received by the Depositary resulting from the redemption, in whole or in part, of such series of Preferred Stock held by the Depositary. The Depositary Shares will be redeemed by the Depositary at a price per Depositary Share equal to the applicable fraction of the redemption price per share payable in respect of the shares of Preferred Stock so redeemed. If fewer than all the Depositary Shares will be redeemed, the Depositary Shares to be redeemed will be selected by the Depositary by lot or pro rata or by any other equitable method as may be determined by the Depositary. Voting Deposited Preferred Stock. Upon receipt of notice of any meeting at which the Holders of any series of deposited Preferred Stock are entitled to vote, the Depositary will mail the information contained in such notice of meeting to the record Holders of the Depositary Shares relating to such series of Preferred Stock. Each record Holder of such Depositary Shares on the record date (which will be the same date as the record date for the relevant series of Preferred Stock) will be entitled to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of the Preferred Stock represented by such Holder's Depositary Shares. The Depositary will endeavor, insofar as practicable, to vote the amount of such series of Preferred Stock represented by such Depositary Shares in accordance with such instructions, and the Corporation will agree to take all reasonable actions that may be deemed necessary by the Depositary in order to enable the Depositary to do so. The Depositary will abstain from voting shares of the Preferred Stock to the extent it does not receive specific instructions from the Holder of Depositary Shares representing such Preferred Stock. Amendment and Termination of the Deposit Agreement. The form of the Depositary Receipt evidencing the Depositary Shares and any provision of the Deposit Agreement may at any time be amended by agreement between the Corporation and the Depositary. However, any amendment which materially prejudices any substantial right of the Holders of the Depositary Shares representing Preferred Stock of any series will not be effective unless such amendment has been approved by the record Holders of a majority of the Depositary Shares then outstanding. Every Holder of an outstanding Depositary Receipt at the time any such amendment becomes effective shall be deemed, by continuing to hold such Depositary Receipt to consent and agree to such amendment and to be bound by the Deposit Agreement as amended thereby. The Deposit Agreement may be terminated by the Corporation or by the Depositary only after (i) all outstanding Depositary Shares have been redeemed; or (ii) each share of Preferred Stock has been converted into other Preferred Stock or Common Stock or has been exchanged for Debt Securities; or (iii) there has been a final distribution in respect of the Preferred Stock in connection with any liquidation, dissolution or winding up of the Corporation and such distribution has been distributed to the Holders of Depositary Shares. Charges of Depositary. The Corporation will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. The Corporation will pay all charges of the Depositary in connection with the initial deposit of the relevant series of Preferred Stock and any redemption of such Preferred Stock. Holders of Depositary Receipts will pay other transfer and other taxes and governmental charges and such other charges or expenses as are expressly provided in the Deposit Agreement to be for their accounts. Resignation and Removal of Depositary. The Depositary may resign at any time by delivering to the Corporation notice of its election to do so, and the Corporation may at any time remove the Depositary, any such resignation or removal to take effect upon the appointment of a successor Depositary and its acceptance of such appointment. Such successor Depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least the amount set forth in the Deposit Agreement. Miscellaneous. The Depositary will forward all reports and communications from the Corporation that are delivered to the Depositary and that the Corporation is required to furnish to the Holders of the deposited Preferred Stock. 25 28 Neither the Depositary nor the Corporation will be liable if it is prevented or delayed by law or any circumstances beyond its control in performing its obligations under the Deposit Agreement. The obligations of the Depositary under the Deposit Agreement will be limited to performance in good faith of its duties thereunder, and it will not be obligated to prosecute or defend any legal proceeding in respect of any Depositary Shares, Depositary Receipts or shares of Preferred Stock unless satisfactory indemnity is furnished. The Depositary may rely upon written advice of counsel or accountants, or upon information provided by Holders of Depositary Receipts or other persons believed to be competent and on documents believed to be genuine. COMMON STOCK Each Holder of Common Stock is entitled to one vote for each share owned of record on all matters voted upon by shareholders, and a majority vote is required for all action to be taken by shareholders except for certain transactions described in the Certificate and in the New York Business Corporation Law. See "Corporate Provisions." In the event of a liquidation, dissolution or winding up of the Corporation, the Holders of Common Stock are entitled to share equally and ratably in the assets of the Corporation, if any, remaining after the payment of all debts and liabilities of the Corporation and the liquidation preference of any outstanding Preferred Stock. The Holders of the Common Stock have no preemptive rights or cumulative voting rights and there are no redemption, sinking fund or conversion provisions applicable to the Common Stock. Holders of Common Stock are entitled to receive dividends if, as and when declared by the Board of Directors out of funds legally available for such purpose, subject to the dividend and liquidation rights of any Preferred Stock that may be issued and subject to restrictions and limitations that may be contained in the Corporation's loan agreements. See "-- Preferred Stock -- Preferred Share Purchase Rights." DESCRIPTION OF WARRANTS GENERAL The Corporation may issue together with other Securities or separately, warrants for the purchase of (i) Debt Securities ("Debt Warrants"), (ii) Common Stock ("Common Stock Warrants") or (iii) Preferred Stock ("Preferred Stock Warrants"). The Corporation may also issue, together with Debt Securities or Debt Warrants or separately, currency warrants ("Currency Warrants" and together with Debt Warrants, Common Stock Warrants, the "Warrants") either in the form of Currency Put Warrants or Currency Call Warrants (as defined below). The Warrants are to be issued under agreements ("Warrant Agreements") to be entered into between the Corporation and a bank or trust company, as agent, all to be set forth in the applicable Prospectus Supplement relating to any or all Warrants in respect of which this Prospectus is being delivered. Copies of the form of agreement for each warrant, including the forms of certificates representing the Warrants reflecting the provisions to be included in such agreements that will be entered into with respect to particular offerings of each type of warrant are filed as exhibits to the Registration Statement. The following summaries of certain provisions of the Warrant Agreements and Warrant Certificates do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all the provisions of each Warrant Agreement and Warrant Certificate, respectively, including the definitions therein of certain capitalized terms not defined herein. DEBT WARRANTS General. Reference is made to the applicable Prospectus Supplement for the terms of Debt Warrants in respect of which this Prospectus is being delivered, the Debt Warrant Agreement relating to such Debt Warrants and the Debt Warrant Certificates representing such Debt Warrants, including the following: (1) the designation, aggregate principal amount and terms of the Debt Securities purchasable upon exercise of 26 29 such Debt Warrants and the procedures and conditions relating to the exercise of such Debt Warrants; (2) the designation and terms of any related Debt Securities with which such Debt Warrants are issued and the number of such Debt Warrants issued with each such Debt Security; (3) the date, if any, on and after which such Debt Warrants and the related Debt Securities will be separately transferable; (4) the principal amount of Debt Securities purchasable upon exercise of each Debt Warrant and the price at which such principal amount of Debt Securities may be purchased upon such exercise; (5) the date on which the right to exercise such Debt Warrants shall commence and the date on which such right shall expire; (6) if the Debt Securities purchasable upon exercise of such Debt Warrants are original issue discount Debt Securities, a discussion of United States Federal income tax considerations applicable thereto; and (7) whether the Debt Warrants represented by the Debt Warrant Certificates will be issued in registered or bearer form, and, if registered, where they may be transferred and registered. Debt Warrant Certificates will be exchangeable for new Debt Warrant Certificates of different denominations and Debt Warrants may be exercised at the corporate trust office of the Debt Warrant Agent or any other office indicated in the applicable Prospectus Supplement. Prior to the exercise of their Debt Warrants, Holders of Debt Warrants will not have any of the rights of Holders of the Debt Securities purchasable upon such exercise and will not be entitled to payments of principal of (and premium, if any) or interest, if any, on the Debt Securities purchasable upon such exercise. Exercise of Debt Warrants. Each Debt Warrant will entitle the Holder to purchase for cash such principal amount of Debt Securities at such exercise price as shall in each case be set forth in, or be determinable as set forth in, the applicable Prospectus Supplement relating to the Debt Warrants offered thereby. Debt Warrants may be exercised at any time up to 5:00 p.m. New York City time on the expiration date set forth in the applicable Prospectus Supplement. After 5:00 p.m. New York City time on the expiration date, unexercised Debt Warrants will become void. Debt Warrants may be exercised as set forth in the applicable Prospectus Supplement relating to the Debt Warrants. Upon receipt of payment and the Debt Warrant Certificate properly completed and duly executed at the corporate trust office of the Debt Warrant Agent or any other office indicated in the applicable Prospectus Supplement, the Corporation will, as soon as practicable, forward the Debt Securities purchasable upon such exercise. If less than all of the Debt Warrants represented by such Debt Warrant Certificate are exercised, a new Debt Warrant Certificate will be issued for the remaining amount of Debt Warrants. COMMON STOCK WARRANTS General. Reference is made to the applicable Prospectus Supplement for the terms of Common Stock Warrants in respect of which this Prospectus is being delivered, the Common Stock Warrant Agreement relating to such Common Stock Warrants and the Common Stock Warrant Certificates representing such Common Stock Warrants, including the following: (1) the offering price of such Common Stock Warrants, if any; (2) the procedures and conditions relating to the exercise of such Common Stock Warrants; (3) the number of shares of Common Stock purchasable upon exercise of each Common Stock Warrant and the initial price at which such shares may be purchased upon exercise; (4) the date on which the right to exercise such Common Stock Warrants shall commence and the date on which such right shall expire; (5) a discussion of United States Federal income tax considerations applicable to the exercise of Common Stock Warrants; (6) call provisions of such Common Stock Warrants, if any; and (7) any other terms of the Common Stock Warrants. Prior to the exercise of their Common Stock Warrants, Holders of the Common Stock Warrants will not have any of the rights of Holders of Common Stock purchasable upon such exercise, and will not be entitled to any dividend payments on the Common Stock purchasable upon such exercise. Exercise of Common Stock Warrants. Each Common Stock Warrant will entitle the Holder to purchase for cash such number of shares of Common Stock at such exercise price as shall in each case be set forth in, or be determinable as set forth in, the applicable Prospectus Supplement relating to the Common Stock Warrants offered thereby. Unless otherwise specified in the applicable Prospectus Supplement, Common Stock Warrants may be exercised at any time up to 5:00 p.m. New York City time on the expiration 27 30 date set forth in the applicable Prospectus Supplement. After 5:00 p.m. New York City time on the expiration date, unexercised Common Stock Warrants will become void. Common Stock Warrants may be exercised as to be set forth in the applicable Prospectus Supplement relating to the Common Stock Warrants in respect of which this Prospectus is being delivered. Upon receipt of payment and the Common Stock Warrant Certificates properly completed and duly executed at the corporate trust office of the Common Stock Warrant Agent or any other office indicated in the applicable Prospectus Supplement, the Corporation will, as soon as practicable, forward a certificate representing the number of shares of Common Stock purchasable upon such exercise. If less than all of the Common Stock Warrants represented by such Common Stock Warrant Certificate are exercised, a new Common Stock Warrant Certificate will be issued for the remaining amount of Common Stock Warrants. Anti-dilution Provisions. Unless otherwise specified in the applicable Prospectus Supplement, the exercise price payable and the number of shares purchasable upon the exercise of each Common Stock Warrant will be subject to adjustment in certain events, including (1) the issuance of a stock dividend to Holders of Common Stock or a combination, subdivision or reclassification of Common Stock, (2) the issuance of rights, warrants or options to all Holders of Common Stock entitling the Holders thereof to purchase Common Stock for an aggregate consideration per share less than the then current market price per share of the Common Stock, or (3) any distribution by the Corporation to the Holders of its Common Stock of evidences of indebtedness of the Corporation or of assets (excluding cash dividends or distributions payable out of capital surplus and dividends and distributions referred to in (1) above). No fractional shares will be issued upon exercise of Common Stock Warrants, but the Corporation will pay the cash value of any fractional shares otherwise issuable. PREFERRED STOCK WARRANTS General. Reference is made to the applicable Prospectus Supplement for the terms of Preferred Stock Warrants in respect of which this Prospectus is being delivered, the Preferred Stock Warrant Agreement relating to such Preferred Stock Warrants and the Preferred Stock Warrant Certificates representing such Preferred Stock Warrants, including the following: (1) the offering price of such Preferred Stock Warrants, if any; (2) the procedures and conditions relating to the exercise of such Preferred Stock Warrants; (3) the number of shares of Preferred Stock purchasable upon exercise of such Preferred Stock Warrants and the initial price at which such shares may be purchased upon exercise; (4) the date on which the right to exercise such Preferred Stock Warrants shall commence and the date on which such right shall expire; (5) a discussion of the United States Federal income tax considerations applicable to the exercise of Preferred Stock Warrants; (6) call provisions of such Preferred Stock Warrants, if any; and (7) any other terms of the Preferred Stock Warrants. Prior to the exercise of their Preferred Stock Warrants, Holders of Preferred Stock Warrants will not have any of the rights of Holders of Preferred Stock purchasable upon such exercise, and will not be entitled to any dividend payments on the Preferred Stock purchasable upon such exercise. Exercise of Preferred Stock Warrants. Each Preferred Stock Warrant will entitle the Holder to purchase for cash such number of shares of Preferred Stock at such exercise price as shall in each case be set forth in, or be determinable as set forth in, the applicable Prospectus Supplement relating to the Preferred Stock Warrants offered thereby. Unless otherwise specified in the applicable Prospectus Supplement, Preferred Stock Warrants may be exercised at any time up to 5:00 p.m. New York City time on the expiration date set forth in the applicable Prospectus Supplement. After 5:00 p.m. New York City time on the expiration date, unexercised Preferred Stock Warrants will become void. Preferred Stock Warrants may be exercised as to be set forth in the applicable Prospectus Supplement relating to the Preferred Stock Warrants. Upon receipt of payment and the Preferred Stock Warrant Certificates properly completed and duly executed at the corporate trust office of the Preferred Stock Warrant Agent or any other office indicated in the applicable Prospectus Supplement, the Corporation will, as soon as practicable, forward a certificate representing the number of shares of Preferred Stock purchasable upon such exercise. If less than all of the Preferred Stock Warrants represented by such Preferred Stock Warrant 28 31 Certificate are exercised, a new Preferred Stock Warrant Certificate will be issued for the remaining amount of Preferred Stock Warrants. CURRENCY WARRANTS The Corporation may issue, together with Debt Securities or Debt Warrants or separately, Currency Warrants either in the form of "Currency Put Warrants" entitling the Holders thereof to receive from the Corporation the Cash Settlement Value in U.S. dollars of the right to sell a specified amount of a specified foreign currency or currency units for a specified amount of U.S. dollars, or in the form of "Currency Call Warrants" entitling the Holders thereof to receive from the Corporation the Cash Settlement Value in U.S. dollars of the right to purchase a specified amount of a specified foreign currency or currency units for a specified amount of U.S. dollars. The spot exchange rate of the applicable Base Currency, upon exercise, as compared to the U.S. dollar, will determine whether the Currency Warrants have a Cash Settlement Value on any given day prior to their expiration. General. Reference is made to the applicable Prospectus Supplement for the terms of Currency Warrants in respect of which this Prospectus is being delivered, the Currency Warrant Agreement relating to such Currency Warrants and the Currency Warrant Certificates representing such Currency Warrants, including the following: (1) whether such Currency Warrants will be Currency Put Warrants, Currency Call Warrants, or both; (2) the formula for determining the Cash Settlement Value, if any, of each Currency Warrant; (3) the procedures and conditions relating to the exercise of such Currency Warrants; (4) the circumstances which will cause the Currency Warrants to be deemed to be automatically exercised; (5) any minimum number of Currency Warrants which must be exercised at any one time, other than upon automatic exercise; and (6) the date on which the right to exercise such Currency Warrants will commence and the date on which such right will expire. Book-Entry Procedures and Settlement. Except as may otherwise be provided in the applicable Prospectus Supplement, the Currency Warrants will be issued in the form of Global Currency Warrant Certificates, registered in the name of a depositary or its nominee. Holders will not be entitled to receive definitive certificates representing Currency Warrants. A Holder's ownership of a Currency Warrant will be recorded on or through the records of the brokerage firm or other entity that maintains such Holder's account. In turn, the total number of Currency Warrants held by an individual brokerage firm for its clients will be maintained on the records of the depositary in the name of such brokerage firm or its agent. Transfer of ownership of any Currency Warrant will be effected only through the selling Holder's brokerage firm. Exercise of Currency Warrants. Each Currency Warrant will entitle the Holder to receive the Cash Settlement Value of such Currency Warrant on the applicable Exercise Date, in each case as such terms will be defined in the applicable Prospectus Supplement. If not exercised prior to 3:00 p.m., New York City time, on the fifth New York Business Day preceding the expiration date, Currency Warrants will be deemed automatically exercised on the expiration date. DESCRIPTION OF GUARANTEES A guarantee (each, a "Guarantee") will be executed and delivered by the Corporation concurrently with the issuance by an Issuer Trust of Preferred Securities for the benefit of the Holders from time to time of such Preferred Securities. Each Guarantee will be qualified as an indenture under the Trust Indenture Act. Harris Trust and Savings Bank will act as indenture trustee under each Guarantee (the "Guarantee Trustee"). This Prospectus contains a description of all material provisions of each Guarantee. The summary of such provisions does not purport to be complete; a copy of the form of such Guarantees is filed as an exhibit to the Registration Statement. All capitalized terms set forth below have the meanings specified in the form of Guarantee. The Guarantee Trustee will hold each Guarantee for the benefit of the Holders of the Preferred Securities of an Issuer Trust. 29 32 GENERAL Pursuant to and to the extent set forth in each Guarantee, and except as otherwise set forth in the applicable Prospectus Supplement, the Corporation will irrevocably and unconditionally agree to pay in full the Guarantee Payments (as defined below) to the Holders of the Preferred Securities, as and when due, regardless of any defense, right of set-off or counterclaim that such Issuer Trust may have or assert. The following payments or Distributions with respect to the Preferred Securities, to the extent not paid by or on behalf of such Issuer Trust (the "Guarantee Payments"), will be subject to such Guarantee: (i) any accumulated and unpaid Distributions required to be paid on such Preferred Securities, to the extent that such Issuer Trust has sufficient funds available therefor at the time, (ii) the Redemption Price with respect to any Preferred Securities called for redemption, to the extent that such Issuer Trust has sufficient funds available therefor at such time, and (iii) upon a voluntary or involuntary dissolution, winding up or liquidation of such Issuer Trust (other than in connection with the distribution of Junior Subordinated Debentures to the Holders of Trust Securities as provided in the Declaration of Trust), the lesser of (a) the aggregate liquidation amount of the Preferred Securities and all accumulated and unpaid Distributions thereon to the date of payment and (b) the amount of assets of such Issuer Trust remaining available for distribution to Holders of such Preferred Securities. The Corporation's obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Corporation to the Holders of the applicable Preferred Securities or by causing such Issuer Trust to pay such amounts to such Holders. Each Guarantee will apply only to the extent that the applicable Issuer Trust has sufficient funds available to make such payments. If the Corporation does not make interest payments on Junior Subordinated Debentures held by an Issuer Trust, such Issuer Trust will not be able to pay Distributions on the Preferred Securities issued by such Issuer Trust and will not have funds legally available therefor. The Corporation will also irrevocably and unconditionally guarantee the obligations of any Issuer Trust with respect to such Issuer Trust's Common Securities to the same extent as the Guarantee of the Preferred Securities of such Issuer Trust, except that upon the occurrence and the continuation of a Trust Enforcement Event with respect to such Issuer Trust, Holders of such Preferred Securities shall have a priority over Holders of such Common Securities with respect to Distributions and payments on liquidation, redemption or otherwise. The Corporation will, through the Declarations of Trust, the Guarantees, the Expense Agreements (as defined under "Description of Expense Agreements"), the Junior Subordinated Debentures and the Junior Subordinated Indenture, taken together, fully and unconditionally guarantee each Issuer Trust's obligations under the Preferred Securities of such Issuer Trust. No single document standing alone or operating in conjunction with fewer than all of the other documents constitutes such guarantee. It is only the combined operation of these documents that has the effect of providing a full and unconditional guarantee of each Issuer Trust's obligations under the Preferred Securities of such Issuer Trust. STATUS OF THE GUARANTEES Each Guarantee will constitute an unsecured obligation of the Corporation and will rank (i) subordinate and junior in right of payment to all other liabilities of the Corporation, (ii) on a parity with the most senior preferred or preference stock now or hereafter issued by the Corporation and with any guarantee now or hereafter entered into by the Corporation in respect of any preferred securities of any affiliate of the Corporation and (iii) senior to the Corporation's common stock. The Guarantees will not place a limitation on the amount of additional Senior Indebtedness that may be incurred by the Corporation. Each Guarantee will constitute a guarantee of payment and not of collection (that is, the guaranteed party may institute a legal proceeding directly against the Corporation to enforce its rights under a Guarantee without first instituting a legal proceeding against any other person or entity). Each such Guarantee will not be discharged except by payment of the Guarantee Payments in full to the extent not paid by the applicable Issuer Trust or upon distribution of Junior Subordinated Debentures to the Holders of the applicable Preferred Securities in exchange for all such Preferred Securities. 30 33 CERTAIN COVENANTS OF THE CORPORATION In each Guarantee, the Corporation will covenant that, so long as any Trust Securities issued by the applicable Issuer Trust remain outstanding, if (i) there shall have occurred any Event of Default under the Junior Subordinated Indenture with respect to the applicable series of Junior Subordinated Debentures held by such Issuer Trust, (ii) the Corporation shall be in default with respect to its payment of any obligations under such Guarantee or (iii) the Corporation shall have given notice of its election of an Extension Period as provided in the certificate evidencing such Junior Subordinated Debentures and shall not have rescinded such notice, or such Extension Period or any extension thereof shall be continuing, then the Corporation will not, and will not permit any subsidiary to, (x) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any of the Corporation's capital stock or (y) make any payment of principal, interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Corporation that rank on a parity with or junior in interest to Junior Subordinated Debentures or (z) make any guarantee payments with respect to any guarantee by the Corporation of the debt securities of any subsidiary of the Corporation if such guarantee ranks pari passu with, or junior in interest to, such Junior Subordinated Debentures (other than (a) dividends or distributions by the Corporation by way of issuance of its common stock, (b) payments under the applicable Guarantee made by the Corporation in respect of the Trust Securities of such Issuer Trust, (c) any declaration of a dividend in connection with the implementation of a shareholders' rights plan, or the issuance of stock under any such plan in the future, or the redemption or repurchase of any such rights pursuant thereto, and (d) purchases of common stock related to the issuance of common stock or rights under any of the Corporation's benefit plans). AMENDMENTS AND ASSIGNMENT Except with respect to any changes that do not materially adversely affect the rights of Holders of Preferred Securities to which a Guarantee relates (in which case no consent of such Holders will be required), a Guarantee may not be amended without the prior approval of the Holders of not less than 66 2/3% of the aggregate liquidation amount of the outstanding Preferred Securities to which a Guarantee relates. The manner of obtaining any such approval will be as set forth in an accompanying Prospectus Supplement. All guarantees and agreements contained in a Guarantee shall bind the successors, assigns, receivers, trustees and representatives of the Corporation and shall inure to the benefit of the Holders of such Preferred Securities then outstanding. EVENTS OF DEFAULT An event of default under a Guarantee will occur upon the failure of the Corporation to perform any of its payment or other obligations thereunder. The Holders of not less than a majority in aggregate liquidation amount of the Preferred Securities to which a Guarantee relates have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee in respect of the Guarantee or to direct the exercise of any trust or power conferred upon the Guarantee Trustee under such Guarantee. If the Guarantee Trustee fails to enforce a Guarantee, then any Holder of Preferred Securities to which such Guarantee relates may institute a legal proceeding directly against the Corporation to enforce the Guarantee Trustee's rights under such Guarantee, without first instituting a legal proceeding against the Issuer Trust that issued such Preferred Securities, the Guarantee Trustee or any other person or entity. The Corporation, as guarantor, will be required to file annually with the Guarantee Trustee a certificate as to whether or not the Corporation is in compliance with all the conditions and covenants applicable to it under any outstanding Guarantees. INFORMATION CONCERNING THE GUARANTEE TRUSTEE The Guarantee Trustee, other than during the occurrence and continuance of a default by the Corporation in performance of a Guarantee, undertakes to perform only such duties as are specifically set forth in the Guarantee and, after default with respect to a Guarantee (that has not been cured or waived) that is 31 34 actually known to a responsible officer of the Guarantee Trustee, must exercise the same degree of care and skill as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. Subject to this provision, the Guarantee Trustee is under no obligation to exercise any of the powers vested in it by a Guarantee at the request of any Holder of Preferred Securities to which such Guarantee relates unless it is offered reasonable indemnity against the costs, expenses and liabilities that might be incurred thereby. TERMINATION OF THE GUARANTEES Each Guarantee will terminate as to the Preferred Securities issued by an Issuer Trust and be of no further force and effect upon full payment of the Redemption Price of all Preferred Securities of such Issuer Trust, upon full payment of the amounts payable upon liquidation of such Issuer Trust or upon distribution of Junior Subordinated Debentures held by such Issuer Trust to the Holders of the Preferred Securities of such Issuer Trust in exchange for all of the Preferred Securities of such Issuer Trust. Each Guarantee will continue to be effective or will be reinstated, as the case may be, if at any time any Holder of related Preferred Securities issued by an Issuer Trust must restore payment of any sums paid under such Preferred Securities or such Guarantee. GOVERNING LAW The Guarantees will be governed by and construed and interpreted in accordance with the laws of the State of New York. DESCRIPTION OF EXPENSE AGREEMENTS Pursuant to the Agreements as to Expenses and Liabilities entered into by the Corporation and each Issuer Trust (each, an "Expense Agreement"), the Corporation will, as Sponsor, irrevocably and unconditionally guarantee to each person or entity to whom the applicable Issuer Trust becomes indebted or liable, the full payment of any costs, expenses or liabilities of such Issuer Trust, other than obligations of such Issuer Trust to pay to the Holders of its Trust Securities the amounts distributable to such Holders pursuant to the terms of such Trust Securities. Each Expense Agreement will constitute an unsecured obligation of the Corporation and will rank subordinate and junior in right of payment to all liabilities of the Corporation in the same manner as the Guarantees. RELATIONSHIP AMONG THE PREFERRED SECURITIES, THE CORRESPONDING JUNIOR SUBORDINATED DEBENTURES, THE GUARANTEES AND THE EXPENSE AGREEMENTS FULL AND UNCONDITIONAL GUARANTEE Payments of Distributions and other amounts due on the Preferred Securities of any Issuer Trust (to the extent such Issuer Trust has funds available for such payment) are irrevocably guaranteed by the Corporation as and to the extent set forth under "Description of Guarantees". Taken together, the Corporation's obligations under each series of Corresponding Junior Subordinated Debentures, the Junior Subordinated Indenture, the related Declaration of Trust, the related Expense Agreement and the related Guarantee provide, in the aggregate, a full, irrevocable and unconditional guarantee on a subordinated basis of payments of Distributions and other amounts due on the Related Preferred Securities. No single document standing alone or operating in conjunction with fewer than all of the other documents constitutes such guarantee. It is only the combined operation of these documents that has the effect of providing a full, irrevocable and unconditional guarantee of such Issuer Trust's obligations in respect of the Related Preferred Securities. If and to the extent that the Corporation does not make payments on the Corresponding Junior Subordinated Debentures held by any Issuer Trust, such Issuer Trust will not have sufficient funds to pay Distributions or other amounts due on its Related Preferred Securities. The Guarantees do not cover payment of amounts payable with respect to an Issuer Trust's Preferred Securities when such Issuer Trust does not have sufficient 32 35 funds to pay such amounts. In such event, the remedy of a Holder of Preferred Securities is to institute a Direct Action against the Corporation for enforcement of payment of the Corporation's obligations under Corresponding Junior Subordinated Debentures having a principal amount equal to the liquidation amount of the Preferred Securities held by such Holder. The obligations of the Corporation under the Junior Subordinated Debentures, each Guarantee and each Expense Agreement are subordinate and junior in right of payment to all Senior Indebtedness of the Corporation. SUFFICIENCY OF PAYMENTS As long as payments are made when due on each series of Corresponding Junior Subordinated Debentures, such payments will be sufficient to cover Distributions and other payments distributable on the Related Preferred Securities, primarily because (i) the aggregate principal amount of each series of Corresponding Junior Subordinated Debentures will be equal to the sum of the aggregate stated liquidation amount of the Related Preferred Securities and related Common Securities; (ii) the interest rate and interest and other payment dates on each series of Corresponding Junior Subordinated Debentures will match the Distribution rate, Distribution dates and other payment dates for the Related Preferred Securities; (iii) the Corporation will pay for all and any costs, expenses and liabilities of each Issuer Trust except such Issuer Trust's obligations to Holders of its Trust Securities; and (iv) each Declaration of Trust further provides that the Issuer Trust will not engage in any activity that is not consistent with the limited purposes of such Issuer Trust. Notwithstanding anything to the contrary in the Junior Subordinated Indenture, the Corporation has the right to set off any payment it is otherwise required to make thereunder against and to the extent the Corporation has theretofore made, or is concurrently on the date of such payment making, a payment under the related Guarantee. ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES A Holder of any Preferred Security may institute a legal proceeding directly against the Corporation to enforce its rights under the related Guarantee without first instituting a legal proceeding against the Guarantee Trustee, the related Issuer Trust or any other person or entity. See "Description of Guarantee". A default or event of default under any Debt (other than the Corresponding Junior Subordinated Debentures) of the Corporation would not constitute a default or Event of Default in respect of the Related Preferred Securities. However, in the event of payment defaults under, or acceleration of, Senior Indebtedness of the Corporation, the subordination provisions of the Junior Subordinated Indenture and the Junior Subordinated Debentures provide that no payments may be made in respect of any Junior Subordinated Debentures until such Senior Indebtedness has been paid in full or any payment default thereunder has been cured or waived. See "Description of Debt Securities -- Description of Junior Subordinated Debentures -- Subordination." Failure to make required payments on any series of Corresponding Junior Subordinated Debentures would constitute an Event of Default with respect to such series under the Junior Subordinated Indenture. LIMITED PURPOSE OF ISSUER TRUSTS Each Issuer Trust's Preferred Securities represent preferred undivided beneficial interests in the assets of such Issuer Trust, and each Issuer Trust exists for the sole purpose of issuing its Preferred Securities and Common Securities, investing the proceeds thereof in Corresponding Junior Subordinated Debentures and engaging in only those other activities necessary or incidental thereto. A principal difference between the rights of a Holder of a Preferred Security and a Holder of a Corresponding Junior Subordinated Debenture is that a Holder of a Corresponding Junior Subordinated Debenture is entitled to receive from the Corporation payments on Corresponding Junior Subordinated Debentures held, while a Holder of Preferred Securities is entitled to receive Distributions or other amounts distributable with respect to the Preferred Securities from 33 36 such Issuer Trust (or from the Corporation under the related Guarantee) only if and to the extent such Issuer Trust has funds available for the payment of such Distributions. RIGHTS UPON TERMINATION Upon any voluntary or involuntary dissolution, winding-up or liquidation of any Issuer Trust, other than any such dissolution, winding-up or liquidation involving the distribution of the Corresponding Junior Subordinated Debentures, after satisfaction of liabilities to creditors of the Issuer Trust as required by applicable law, the Holders of the Related Preferred Securities will be entitled to receive, out of the assets held by such Issuer Trust, the Liquidation Distribution (as defined in the relevant Declaration of Trust) in cash. See "Description of Preferred Securities". Upon any voluntary or involuntary liquidation or bankruptcy of the Corporation, the Property Trustee, as the Holder of the Corresponding Junior Subordinated Debentures, would be a subordinated creditor of the Corporation, subordinated and junior in right of payment to all Senior Indebtedness as set forth in the Junior Subordinated Indenture and the Corresponding Junior Subordinated Debentures, but entitled to receive payment in full of all amounts payable with respect to the Corresponding Junior Subordinated Debentures, before any Holders of Common Stock or Preferred Stock of the Corporation receive payments or distributions. Since the Corporation is the guarantor under each Guarantee and has agreed under the related Expense Agreement to pay for all costs, expenses and liabilities of each Issuer Trust (other than such Issuer Trust's obligations to the Holders of its Trust Securities), the positions of a Holder of the Preferred Securities and a Holder of such Corresponding Junior Subordinated Debentures relative to other creditors and to stockholders of the Corporation in the event of liquidation or bankruptcy of the Corporation are expected to be substantially the same. CORPORATE PROVISIONS CERTIFICATE OF INCORPORATION AND BYLAWS The Certificate and By-laws provide (i) for the classification of the Board of Directors into three classes to be elected to staggered three-year terms (with the exception of Mr. David J. Roberts who is elected to a two-year term); (ii) that special meetings of shareholders may only be called pursuant to a resolution approved by a majority of the entire Board of Directors and (iii) subject to the rights of any series of Preferred Stock then outstanding, directors may be removed from office only for cause and only by the affirmative vote of the Holders of at least 66 2/3% of the voting power of all of the shares of the Corporation entitled to vote for the election of directors. The Board of Directors believes that the provisions described above and the Rights described under "Description of Capital Stock -- Preferred Stock -- Preferred Share Purchase Rights" will help assure that all of the Corporation's shareholders will be treated similarly if certain kinds of business combinations are effected. However, these provisions also may have the effect of deterring hostile takeovers or delaying or preventing changes in control or management of the Corporation, and may make it more difficult to accomplish certain transactions that are opposed by the incumbent Board of Directors. NEW YORK BUSINESS CORPORATION LAW The New York Business Corporation Law (the "BCL") requires the affirmative vote of at least two thirds of the voting power of the outstanding shares entitled to vote thereon to approve mergers or consolidations in which the Corporation would be merged or consolidated or the sale of all or substantially all the assets of the Corporation. New York law provides that mergers, consolidations and amendments of the Certificate must also be approved by a majority of each class of outstanding shares, voting separately as a class, if the merger, consolidation or amendment would (1) eliminate or limit the voting rights of the class, (2) subordinate the rights of the class or (3) change such shares or result in their conversion or in the modification of the terms on which they may be converted, but only if any such actions would adversely affect the Holders thereof. Other amendments of the Certificate require the affirmative vote of a majority of the voting power of the outstanding shares entitled to vote thereon. 34 37 In addition, Section 912 of the BCL provides, with certain exceptions that no "domestic corporation" (or any subsidiary) shall engage in a "business combination" with any "interested shareholder" (generally, a beneficial owner of 20% or more of the outstanding voting stock) for a period of five years of such shareholder's "stock acquisition date," unless (1) the business combination or the purchase of stock by the interested shareholder is approved by the board of directors prior to such shareholder's stock acquisition date, (2) the business combination is approved by a majority of the voting power of the corporation's outstanding stock (excluding any stock owned by the interested shareholder) at a meeting called no earlier than five years after the stock acquisition date or (3) the consideration paid to shareholders in the business combination (which may not occur until the expiration of five years from the stock acquisition date) is at least equal to the highest of certain specified amounts. As defined, a "domestic corporation" is a corporation incorporated under the BCL or any other general statute or special act of the State of New York, other than under the cooperative corporation law; a "business combination" includes a merger or consolidation, a sale of assets representing 10% or more of the corporation's consolidated earning power or market value, the issuance of stock amounting to 5% or more of the corporation's outstanding stock and a liquidation proposal made by the interested shareholder; and the "stock acquisition date" is the date on which a shareholder first becomes an interested shareholder. LIMITATION OF LIABILITY AND INDEMNIFICATION MATTERS The Corporation has a By-law provision requiring it to indemnify its directors and officers to the fullest extent permitted in certain circumstances, to advance expenses, to maintain insurance and to follow certain other procedures. Provisions of the Certificate eliminate the personal monetary liability of directors and officers for breaches of duty, except for (i) breaches of such person's duty of loyalty, (ii) those instances where such person is found not to have acted in good faith or in knowing violation of law, (iii) those instances where such person received an improper personal benefit as the result of such breach and (iv) acts in violation of Section 719 of the BCL. TRANSFER AGENT The transfer agent for the Common Stock is Mellon Securities Trust Company. UNITED STATES TAXATION Certain special United States federal income tax considerations may be applicable to the Securities. If any such tax considerations are material to investors, the applicable Prospectus Supplement will describe such tax considerations. Prospective purchasers of Securities are urged to consult their own tax advisors prior to any acquisition of such Securities. PLAN OF DISTRIBUTION The Corporation may sell the Securities directly to purchasers, through agents, through underwriters, or through dealers. The distribution of the Securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. Offers to purchase Securities may be solicited directly by the Corporation or by agents designated by the Corporation from time to time. Any such agent, who may be deemed to be an underwriter as that term is defined in the Securities Act involved in the offer or sale of the Securities in respect of which this Prospectus is delivered will be named, and any commissions payable by the Corporation to such agent will be set forth, in the Prospectus Supplement. Unless otherwise indicated in the Prospectus Supplement, any such agent will be acting on a best efforts basis for the period of its appointment. Agents may be customers of, engage in transactions with or perform services for the Corporation in the ordinary course of business. 35 38 If an underwriter or underwriters are utilized in the sale, the Corporation will execute an underwriting agreement with such underwriters at the time of sale to them, and the names of the underwriters and the terms of the transaction will be set forth in the Prospectus Supplement, which will be used by the underwriters to make resales of the Securities in respect of which this Prospectus is delivered to the public. If a dealer is utilized in the sale of the Securities in respect of which this Prospectus is delivered, the Corporation will sell such Securities to such dealer, as principal. The dealer may then resell such Securities to the public at varying prices to be determined by such dealer at the time of resale. Agents, underwriters and dealers may be entitled under the relevant agreements to indemnification by the Corporation against certain liabilities, including liabilities under the Securities Act. If so indicated in the Prospectus Supplement, the Corporation will authorize agents or underwriters to solicit offers by certain institutions to purchase Securities from the Corporation at the public offering price set forth in the Prospectus Supplement pursuant to delayed delivery contracts ("Contracts") providing for payment and delivery on the date stated in the Prospectus Supplement. Each Contract will be for an amount not less than, and unless the Corporation otherwise agrees the aggregate principal amount of Securities sold pursuant to Contracts shall be not more than, the respective amounts stated in the Prospectus Supplement. Institutions with which Contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but shall in all cases be subject to the approval of the Corporation. Contracts will not be subject to any condition except that the purchase by an institution of the Securities covered by its Contract shall not at the time of delivery be prohibited under the laws of any jurisdiction in the United States to which such institution is subject. A commission indicated in the Prospectus Supplement will be paid to underwriters or agents soliciting purchases of Securities pursuant to Contracts accepted by the Corporation. The place and time of delivery for the Securities in respect of which this Prospectus is delivered will be set forth in the Prospectus Supplement. VALIDITY OF SECURITIES The validity of the Preferred Securities, the enforceability of the Declaration of Trust and the creation of the Issuer Trust will be passed upon by Richards, Layton & Finger, P.A., One Rodney Square, Wilmington, Delaware 19801, special Delaware counsel to the Corporation and the Issuer Trust. The validity of the Guarantee and the Junior Subordinated Debentures will be passed upon for the Corporation by White & Case LLP, 1155 Avenue of the Americas, New York, New York 10036, and certain matters will be passed upon for the underwriters by Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third Avenue, New York, New York 10022. Certain matters relating to United States federal income tax considerations will be passed upon for the Corporation by White & Case LLP, as counsel for the Corporation. White & Case LLP performs legal services for the Corporation from time to time. Richards, Layton & Finger, P.A. is also serving as counsel to Wilmington Trust Company, in its various capacities, in connection with the issuance of the Preferred Securities. Richards, Layton & Finger, P.A. performs other services for the Corporation and Wilmington Trust Company from time to time. EXPERTS The consolidated financial statements of the Corporation and subsidiaries for the year ended December 26, 1997, appearing in the Corporation's Annual Report on Form 10-K for the year ended December 26, 1997, and incorporated by reference into this Prospectus, have been audited by Coopers & Lybrand, LLP, independent auditors, as set forth in their report thereon, included therein and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given upon the authority of such firm as experts in auditing and accounting. 36 39 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. Expenses in connection with the issuance of the securities being registered hereby are estimated as follows: Registration fee............................................ $43,673 ------- Accounting fees and expenses................................ 50,000 ------- Legal fees and expenses..................................... 275,000 ------- Blue Sky and Legal Investment fees and expenses............. 25,000 ------- Transfer Agent's fees and expenses.......................... * ------- Rating Agency fees.......................................... 200,000 ------- Trustee fees................................................ * ------- Printing expenses........................................... * ------- Miscellaneous............................................... * ------- Total............................................. $ * =======
- --------------- * Subject to future contingencies. ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS. Reference is made to Sections 721 through 726 of BCL, which are summarized below. Section 721 of the BCL provides that indemnification pursuant to the BCL shall not be deemed exclusive of other indemnification rights to which a director or officer may be entitled, provided that no indemnification may be made if a judgment or other final adjudication adverse to the director or officer establishes that (1) his acts were committed in bad faith or were the result of active and deliberate dishonesty, and, in either case, were material to the cause of action so adjudicated, or (2) he personally gained in fact a financial profit or other advantage to which he was not legally entitled. Section 722(a) of the BCL provides that a corporation may indemnify a director or officer made, or threatened to be made, a party to any civil or criminal action, other than a derivative action, against judgments, fines, amounts paid in settlement and reasonable expenses actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or officer acted in good faith, for a purpose which he reasonably believed to be in the best interests of the corporation and, in criminal actions or proceedings, in addition, had no reasonable cause to believe that his conduct was unlawful. With respect to derivative actions, Section 722(c) of the BCL provides that a director or officer may be indemnified only against amounts paid in settlement and reasonable expenses, including attorneys' fees, actually and necessarily incurred in connection with the defense or settlement of such action, or any appeal therein, if such director or officer acted in good faith, for a purpose which he reasonably believed to be in the best interests of the corporation and that no indemnification shall be made in respect of (1) a threatened action, or a pending action which is settled or otherwise disposed of, or (2) any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and to the extent an appropriate court determines that the person is fairly and reasonably entitled to partial or full indemnification. Section 723 of the BCL specifies the manner in which payment of such indemnification may be authorized by the corporation. It provides that indemnification by a corporation is mandatory in any case in which the director or officer has been successful, whether on the merits or otherwise, in defending an action. In the event that the director or officer has not been successful or the action is settled, indemnification may be II-1 40 made by the corporation only if authorized by any of the corporate actions set forth in such Section 723 (unless the corporation has provided for indemnification in some other manner as otherwise permitted by Section 721 of the BCL). Section 724 of the BCL provides that upon proper application by a director or officer, indemnification shall be awarded by a court to the extent authorized under Sections 722 and 723 of the BCL. Section 725 of the BCL contains certain other miscellaneous provisions affecting the indemnification of directors and officers, including provision for the return of amounts paid as indemnification if any such person is ultimately found not to be entitled thereto. Section 726 of the BCL authorizes the purchase and maintenance of insurance to indemnify (1) a corporation for any obligation which it incurs as a result of the indemnification of directors and officers under the above sections, (2) directors and officers in instances in which they may be indemnified by a corporation under such sections, and (3) directors and officers in instances in which they may not otherwise be indemnified by a corporation under such sections, provided the contract of insurance covering such directors and officers provides, in a manner acceptable to the New York State Superintendent of Insurance, for a retention amount and for co-insurance. Article EIGHTH of the Certificate provides that a director of the corporation shall not be personally liable to the corporation or its shareholders for damages for any breach of duty in such capacity except that the liability of a director shall not be limited (1) if a judgment or other final adjudication adverse to him establishes that his acts or omissions were in bad faith or involved in intentional misconduct or knowing violation of law or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled or that his acts violated section 719 of the BCL, or (2) his acts or omissions occurred prior to the adoption of said Article of the Certificate. In addition, the By-laws provide for indemnification of its directors and officers to the fullest extent permitted in certain circumstances, to advance expenses, to maintain insurance and to follow certain other procedures. The Corporation carries two layers of directors' and officers' insurance. The primary layer of $15 million annual aggregate amount is provided by the National Union Fire Insurance Company of Pittsburgh, PA. An excess layer of $10 million annual aggregate amount is underwritten by CNA Insurance Companies. ITEM 16. EXHIBITS. (a) Documents filed as part of this report: 1.1 Form of Underwriting Agreement between the Corporation and the underwriters named therein for Common Stock, Preferred Stock, Debt Securities, Depositary Shares and Warrants (filed as Exhibit 1.1 to the Corporation's Current Report on Form 8-K filed on November 17, 1995 and incorporated herein by reference) 1.2* Form of Underwriting Agreement between the Corporation, the Issuer Trust and the underwriters named therein for Preferred Securities 4.1 Indenture, dated as of November 17, 1995 (filed as Exhibit 4 to the Corporation's Current Report on Form 8-K filed on November 17, 1995 and incorporated herein by reference) 4.2 Form of Junior Subordinated Indenture 4.3 Form of Supplemental Indenture to be used in connection with the issuance of the Junior Subordinated Debentures 4.4 Certificate of Trust for FW Preferred Capital Trust I 4.5 Certificate of Trust for FW Preferred Capital Trust II 4.6 Declaration of Trust for FW Preferred Capital Trust I 4.7 Declaration of Trust for FW Preferred Capital Trust II 4.8 Form of Amended and Restated Declaration of Trust for FW Preferred Capital Trust I and FW Preferred Capital Trust II 4.9 Form of Preferred Security Certificate (included in Exhibit 4.8) 4.10 Form of Junior Subordinated Debenture (included in Exhibit 4.3) 4.11 Form of Guarantee Agreement 5.1 Opinion of White & Case LLP regarding the validity of the Debt Securities, Common Stock, Preferred Stock, Depositary Shares, Warrants and the Guarantees
II-2 41 5.2* Opinion of Richards, Layton & Finger, P.A. regarding the validity of the Preferred Securities 8* Tax Opinion of White & Case LLP 12 Statement of Computation of Consolidated Ratio of Earnings to Fixed Charges and Preferred Shares Dividend Requirements (filed as Exhibit 12-1 to Foster Wheeler Corporation's Quarterly Report on Form 10-Q for the quarter ended March 27, 1998 and incorporated herein by reference) 23.1 Consent of independent accountants 23.2 Consents of White & Case LLP (included in the opinions filed as Exhibits 5.1 and 8) 23.3* Consent of Richards, Layton & Finger, P.A. (included in the opinion filed as Exhibit 5.2) 24 Powers of Attorney (see "Power of Attorney" on pages II-5 and II-6 of the Registration Statement) 25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Harris Trust and Savings Bank to act as trustee under the Junior Subordinated Indenture relating to the Junior Subordinated Debentures 25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Harris Trust and Savings Bank to act as trustee under the Amended and Restated Declaration of Trust of FW Preferred Capital Trust I 25.3 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Harris Trust and Savings Bank to act as trustee under the Amended and Restated Declaration of Trust of FW Preferred Capital Trust II 25.4 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Harris Trust and Savings Bank to act as trustee under the Guarantee for the benefit of the holders of Preferred Securities issued by FW Preferred Capital Trust I 25.5 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Harris Trust and Savings Bank to act as trustee under the Guarantee for the benefit of the holders of Preferred Securities issued by FW Preferred Capital Trust II 25.6 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Harris Trust and Savings Bank to act as trustee under the 1995 Indenture (filed as Exhibit 25.1 to the Corporation's Current Report on Form 8-K filed on November 17, 1995 and incorporated herein by reference)
- --------------- * To be filed by amendment or on Form 8-K. ITEM 17. UNDERTAKINGS. Each undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) If such registrant is a foreign private issuer, to file a post-effective amendment to the registration statement to include any financial statements required by Rule 3-19 of this chapter at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a) (3) of the Act need not be furnished, provided, that such registrant II-3 42 includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a) (4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a) (3) of the Act or Rule 3-19 of this chapter if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3. Each undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of such registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Each undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report, to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 or Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of a registrant pursuant to the foregoing provisions, or otherwise, the Corporation has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Corporation of expenses incurred or paid by a director, officer or controlling person of the Corporation in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Corporation will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. Each undersigned registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(b) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. (2) For purposes of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-4 43 SIGNATURE Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has duly caused this Pre-Effective Amendment No. 1 to this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized. FOSTER WHEELER CORPORATION (Registrant) By: /s/ RICHARD J. SWIFT ------------------------------------ Name: Richard J. Swift Title: Chairman, President and Chief Executive Officer Dated: June 23, 1998 Pursuant to the requirements of the Securities Act of 1933, this Pre-Effective Amendment No. 1 to this Registration Statement has been signed, as of June 23, 1998, by the following persons on behalf of Foster Wheeler Corporation, in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ RICHARD J. SWIFT Director, Chairman, President and June 23, 1998 - --------------------------------------------- Chief Executive Officer Richard J. Swift (Principal Executive Officer) * Director, Vice Chairman, and June 23, 1998 - --------------------------------------------- Chief Financial Officer David J. Roberts (Principal Financial Officer) * Vice President and Controller June 23, 1998 - --------------------------------------------- (Principal Accounting Officer) George S. White * Director June 23, 1998 - --------------------------------------------- Eugene D. Atkinson * Director June 23, 1998 - --------------------------------------------- Louis E. Azzato * Director June 23, 1998 - --------------------------------------------- David J. Farris * Director June 23, 1998 - --------------------------------------------- E. James Ferland Director - --------------------------------------------- Martha Clark Goss * Director June 23, 1998 - --------------------------------------------- Constance J. Homer * Director June 23, 1998 - --------------------------------------------- Joseph J. Melone
II-5 44
SIGNATURE TITLE DATE --------- ----- ---- * Director June 23, 1998 - --------------------------------------------- John E. Stuart *By: /s/ RICHARD J. SWIFT --------------------------------------- Richard J. Swift
II-6 45 Pursuant to the requirements of the Securities Act of 1933, FW Preferred Capital Trust I certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has duly caused this Pre-Effective Amendment No. 1 to this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, on the 23rd day of June, 1998. FW PREFERRED CAPITAL TRUST I By: FOSTER WHEELER CORPORATION, as Sponsor By: /s/ DAVID J. ROBERTS ------------------------------------ II-7 46 Pursuant to the requirements of the Securities Act of 1933, FW Preferred Capital Trust II certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has duly caused this Pre-Effective Amendment No. 1 to this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, on the 23rd day of June, 1998. FW PREFERRED CAPITAL TRUST II By: FOSTER WHEELER CORPORATION, as Sponsor By: /s/ DAVID J. ROBERTS ------------------------------------ II-8 47 INDEX TO EXHIBITS
SEQUENTIALLY EXHIBIT NUMBERED NUMBER EXHIBIT PAGE - ------- ------- ------------ 1.1 Form of Underwriting Agreement between the Corporation and the underwriters named therein for Common Stock, Preferred Stock, Debt Securities, Depositary Shares and Warrants (filed as Exhibit 1.1 to the Corporation's Current Report on Form 8-K filed on November 17, 1995 and incorporated herein by reference) 1.2* Form of Underwriting Agreement between the Corporation, the Issuer Trust and the underwriters named therein for Preferred Securities 4.1 Indenture, dated as of November 17, 1995 (filed as Exhibit 4 to the Corporation's Current Report on Form 8-K filed on November 17, 1995 and incorporated herein by reference) 4.2 Form of Junior Subordinated Indenture 4.3 Form of Supplemental Indenture to be used in connection with the issuance of the Junior Subordinated Debentures 4.4 Certificate of Trust for FW Preferred Capital Trust I 4.5 Certificate of Trust for FW Preferred Capital Trust II 4.6 Declaration of Trust for FW Preferred Capital Trust I 4.7 Declaration of Trust for FW Preferred Capital Trust II 4.8 Form of Amended and Restated Declaration of Trust for FW Preferred Capital Trust I and FW Preferred Capital Trust II 4.9 Form of Preferred Security Certificate (included in Exhibit 4.8) 4.10 Form of Junior Subordinated Debenture (included in Exhibit 4.3) 4.11 Form of Guarantee Agreement 5.1 Opinion of White & Case LLP regarding the validity of the Debt Securities, Common Stock, Preferred Stock, Depositary Shares, Warrants and the Guarantees 5.2* Opinion of Richards, Layton & Finger, P.A. regarding the validity of the Preferred Securities 8* Tax Opinion of White & Case LLP 12 Statement of Computation of Consolidated Ratio of Earnings to Fixed Charges and Preferred Shares Dividend Requirements (filed as Exhibit 12-1 to Foster Wheeler Corporation's Quarterly Report on Form 10-Q for the quarter ended March 27, 1998 and incorporated herein by reference) 23.1 Consent of independent accountants 23.2 Consents of White & Case LLP (included in the opinions filed as Exhibits 5.1 and 8) 23.3* Consent of Richards, Layton & Finger, P.A. (included in the opinion filed as Exhibit 5.2) 24 Powers of Attorney (see "Power of Attorney" on pages II-5 and II-6 of the Registration Statement) 25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Harris Trust and Savings Bank to act as trustee under the Junior Subordinated Indenture relating to the Junior Subordinated Debentures 25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Harris Trust and Savings Bank to act as trustee under the Amended and Restated Declaration of Trust of FW Preferred Capital Trust I 25.3 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Harris Trust and Savings Bank to act as trustee under the Amended and Restated Declaration of Trust of FW Preferred Capital Trust II 25.4 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Harris Trust and Savings Bank to act as trustee under the Guarantee for the benefit of the holders of Preferred Securities issued by FW Preferred Capital Trust I
II-9 48
SEQUENTIALLY EXHIBIT NUMBERED NUMBER EXHIBIT PAGE - ------- ------- ------------ 25.5 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Harris Trust and Savings Bank to act as trustee under the Guarantee for the benefit of the holders of Preferred Securities issued by FW Preferred Capital Trust II 25.6 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Harris Trust and Savings Bank to act as trustee under the 1995 Indenture (filed as Exhibit 25.1 to the Corporation's Current Report on Form 8-K filed on November 17, 1995 and incorporated herein by reference)
- --------------- * To be filed by amendment or on Form 8-K. II-10 EX-4.2 2 FORM OF JUNIOR SUBORDINATED INDENTURE 1 EXHIBIT 4.2 ================================================================================ FOSTER WHEELER CORPORATION ------------------------------ ------------------------------ JUNIOR SUBORDINATED INDENTURE Dated as of ___ __, 1998 ------------------------------ HARRIS TRUST AND SAVINGS BANK as Trustee ------------------------------ ================================================================================ 2 TIE-SHEET of provisions of Trust Indenture Act of 1939 with Indenture dated as of ___ __, 1998 between Foster Wheeler Corporation and Harris Trust and Savings Bank, as Trustee: ACT SECTION INDENTURE SECTION 310(a)(1)...................................................................6.09 (a)(2) ..................................................................6.09 (a)(3)....................................................................N/A (a)(4)....................................................................N/A (a)(5)...................................................................6.09 (b)..........................................................6.08, 6.10, 6.11 (c).......................................................................N/A 311(a) and (b)..............................................................6.13 (c).......................................................................N/A 312(a).............................................................4.01, 4.02(a) (b)...................................................................4.02(b) (c)...................................................................4.02(c) 313(a)...................................................................4.04(a) (b)...................................................................4.04(a) (c)...................................................................4.04(a) (d)...................................................................4.04(b) 314(a)................................................................4.03, 3.05 (b).......................................................................N/A (c)(1) and (2)...........................................................6.07 (c)(3)....................................................................N/A (d) ......................................................................N/A (e)......................................................................6.07 (f) ......................................................................N/A 315(a), (c) and (d).........................................................6.01 (b) .....................................................................5.09 (e) .....................................................................5.10 316(a)......................................................................1.01 (a)(1) ..................................................................5.08 (a)(2) ...................................................................N/A (b) .....................................................................9.02 (c) .....................................................................7.01 317(a)(1) ..................................................................5.05 (a)(2) ..................................................................5.07 (b) .....................................................................6.05 318(a) ....................................................................13.08 - ---------- THIS TIE-SHEET IS NOT PART OF THIS INDENTURE AS EXECUTED. 3 TABLE OF CONTENTS* Page ---- ARTICLE I DEFINITIONS SECTION 1.01. Definitions............................................1 Affiliate ..............................................................1 Authenticating Agent.....................................................1 Bankruptcy Law...........................................................1 Board of Directors.......................................................2 Board Resolution.........................................................2 Business Day.............................................................2 Commission ..............................................................2 Common Securities........................................................2 Common Stock.............................................................2 Company ..............................................................2 Company Request..........................................................2 Corporate Trust Office...................................................2 Custodian ..............................................................2 Debenture" or "Debentures................................................2 Declaration..............................................................3 Default ..............................................................3 Defaulted Interest.......................................................3 Definitive Debentures....................................................3 Depositary ..............................................................3 Event of Default.........................................................3 Exchange Act.............................................................3 FW Preferred Capital Trust...............................................3 Global Debenture.........................................................3 Guarantee Agreement......................................................3 Holder ..............................................................3 Indebtedness.............................................................4 Indenture ..............................................................4 Interest Payment Date....................................................4 Officer ..............................................................4 Officer's Certificate....................................................4 Opinion of Counsel.......................................................4 outstanding..............................................................4 Person ..............................................................5 Predecessor Debenture....................................................5 Preferred Securities.....................................................5 Principal Office of the Trustee..........................................5 Property Trustee.........................................................6 Responsible Officer......................................................6 Securities Act...........................................................6 Security Register........................................................6 - ---------- * This Table of Contents shall not, for any purpose, be deemed to be a part of this Indenture. i 4 Senior Indebtedness......................................................6 Stated Maturity..........................................................6 Subsidiary ..............................................................6 Trust Indenture Act......................................................7 Trust Securities.........................................................7 Trustee ..............................................................7 U.S. Government Obligations..............................................7 ARTICLE II DEBENTURES SECTION 2.01. Forms Generally........................................7 SECTION 2.02 Form of Trustee's Certificate of Authentication.........................................8 SECTION 2.03 Amount Unlimited; Issuable in Series...................8 SECTION 2.04 Denomination of Debentures............................10 SECTION 2.05. Execution and Authentication..........................10 SECTION 2.06. Global Debenture......................................11 SECTION 2.07. Transfer and Exchange.................................12 SECTION 2.08. Replacement Debentures................................12 SECTION 2.09. Temporary Debentures..................................13 SECTION 2.10. Cancellation..........................................13 SECTION 2.11. Defaulted Interest....................................14 SECTION 2.12. CUSIP Numbers.........................................15 ARTICLE III PARTICULAR COVENANTS OF THE COMPANY SECTION 3.01. Payment of Principal, Premium and Interest..............................................15 SECTION 3.02. Offices for Notices and Payments, etc.................16 SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office......................................16 SECTION 3.04. Provision as to Paying Agent..........................16 SECTION 3.05. Certificate to Trustee................................17 SECTION 3.06. Payment Upon Resignation or Removal...................18 ARTICLE IV HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE SECTION 4.01. Holders' Lists........................................18 SECTION 4.02. Preservation and Disclosure of Lists..................18 SECTION 4.03. Reports by the Company................................20 SECTION 4.04. Reports by the Trustee................................21 ii 5 ARTICLE V REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT SECTION 5.01. Events of Default.....................................22 SECTION 5.02. Payment of Debentures on Default; Suit Therefor..............................................25 SECTION 5.03. Application of Moneys Collected by Trustee...............................................27 SECTION 5.04. Proceedings by Holders................................28 SECTION 5.05. Proceedings by Trustee................................29 SECTION 5.06. Trustee May File Proofs of Claim......................29 SECTION 5.07. Remedies Cumulative and Continuing....................30 SECTION 5.08. Direction of Proceedings and Waiver of Defaults by Majority of Holders.......................30 SECTION 5.09. Notice of Defaults....................................31 SECTION 5.10. Undertaking to Pay Costs..............................32 ARTICLE VI CONCERNING THE TRUSTEE SECTION 6.01. Duties and Responsibilities of Trustee................32 SECTION 6.02. Reliance on Documents, Opinions, etc..................34 SECTION 6.03. No Responsibility for Recitals, etc...................36 SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own Debentures....................................36 SECTION 6.05. Moneys to be Held in Trust............................36 SECTION 6.06. Compensation and Expenses of Trustee..................37 SECTION 6.07. Officer's Certificate and Opinion of Counsel as Evidence...................................37 SECTION 6.08. Conflicting Interest of Trustee.......................38 SECTION 6.09. Eligibility of Trustee................................38 SECTION 6.10. Resignation or Removal of Trustee.....................39 SECTION 6.11. Acceptance by Successor Trustee.......................41 SECTION 6.12. Succession by Merger, etc.............................42 SECTION 6.13. Limitation on Rights of Trustee as a Creditor..............................................42 SECTION 6.14. Authenticating Agents.................................42 ARTICLE VII CONCERNING THE HOLDERS SECTION 7.01. Action by Holders.....................................44 SECTION 7.02. Proof of Execution by Holders.........................44 SECTION 7.03. Persons Who May Be Deemed Absolute Owners.............45 SECTION 7.04. Debentures Owned by Company Deemed Not Outstanding.......................................45 SECTION 7.05. Revocation of Consents; Future Holders Bound.................................................46 iii 6 ARTICLE VIII HOLDERS' MEETINGS SECTION 8.01. Purposes of Meetings..................................46 SECTION 8.02. Call of Meetings by Trustee...........................47 SECTION 8.03. Call of Meetings by Company or Holders................47 SECTION 8.04. Qualifications for Voting.............................47 SECTION 8.05. Regulations...........................................48 SECTION 8.06. Voting................................................48 ARTICLE IX AMENDMENTS SECTION 9.01. Without Consent of Holders............................49 SECTION 9.02. With Consent of Holders...............................51 SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures.....................52 SECTION 9.04. Notation on Debentures................................53 SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished to Trustee..................53 ARTICLE X CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE SECTION 10.01. Company May Consolidate, etc., on Certain Terms.........................................53 SECTION 10.02. Successor Corporation to be Substituted for Company...............................54 SECTION 10.03. Opinion of Counsel to be Given Trustee................55 ARTICLE XI SATISFACTION AND DISCHARGE OF INDENTURE SECTION 11.01. Discharge of Indenture................................55 SECTION 11.02. Deposited Moneys and U.S. Government Obligations to be Held in Trust by Trustee...............................................56 SECTION 11.03. Paying Agent to Repay Moneys Held.....................56 SECTION 11.04. Return of Unclaimed Moneys............................56 SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government Obligations...........................57 ARTICLE XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS SECTION 12.01. Indenture and Debentures Solely Corporate Obligations.................................58 iv 7 ARTICLE XIII MISCELLANEOUS PROVISIONS SECTION 13.01. Successors............................................59 SECTION 13.02. Official Acts by Successor Corporation................59 SECTION 13.03. Surrender of Company Powers...........................59 SECTION 13.04. Addresses for Notices, etc............................60 SECTION 13.05. Governing Law.........................................60 SECTION 13.06. Business Days.........................................60 SECTION 13.07. Trust Indenture Act to Control........................60 SECTION 13.08. Table of Contents, Headings, etc......................61 SECTION 13.09. Execution in Counterparts.............................61 SECTION 13.10. Separability..........................................61 SECTION 13.11. Assignment............................................61 ARTICLE XIV REDEMPTION OF DEBENTURES SECTION 14.01. Applicability of Article..............................61 SECTION 14.02. Notice of Redemption; Selection of Debentures............................................62 SECTION 14.03. Payment of Debentures Called for Redemption............................................63 ARTICLE XV SUBORDINATION OF DEBENTURES SECTION 15.01. Agreement to Subordinate..............................64 SECTION 15.02. Default on Senior Indebtedness........................64 SECTION 15.03. Liquidation; Dissolution; Bankruptcy..................65 SECTION 15.04. Subrogation...........................................67 SECTION 15.05. Trustee to Effectuate Subordination...................68 SECTION 15.06. Notice by the Company.................................68 SECTION 15.07. Rights of the Trustee; Holders of Senior Indebtedness..........................................69 SECTION 15.08. Subordination May Not Be Impaired.....................70 SIGNATURES..............................................................71 v 8 THIS JUNIOR SUBORDINATED INDENTURE, dated as of ___ __, 1998, between Foster Wheeler Corporation, a New York corporation (the "Company"), and Harris Trust and Savings Bank, an Illinois banking corporation, as trustee (the "Trustee"), W I T N E S S E T H : In consideration of the premises, and the purchase of the Debentures by the Holders thereof, the Company covenants and agrees with the Trustee for the equal and proportionate benefit of the respective Holders from time to time of the Debentures, as follows: ARTICLE I DEFINITIONS SECTION 1.01 Definitions. The terms defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture shall have the respective meanings specified in this Section 1.01. All other terms used in this Indenture which are defined in the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), or which are by reference therein defined in the Securities Act, shall (except as herein otherwise expressly provided or unless the context otherwise requires) have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of this Indenture as originally executed. All accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with generally accepted accounting principles, and the term "generally accepted accounting principles" means such accounting principles as are generally accepted at the time of any computation. The words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. Headings are used for convenience of reference only and do not affect interpretation. The singular includes the plural and vice versa. "Affiliate" shall have the meaning given to that term in Rule 405 under the Securities Act or any successor rule thereunder. "Authenticating Agent" shall mean any agent or agents of the Trustee which at the time shall be appointed and acting pursuant to Section 6.14. "Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar federal or state law for the relief of debtors. 9 "Board of Directors" shall mean either the Board of Directors of the Company or any duly authorized committee of that board. "Board Resolution" shall mean a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Business Day" means a day other than (a) a day on which banking institutions in the Borough of Manhattan, The City of New York and Chicago, Illinois are authorized or required by law, regulation or executive order to remain closed or (b) a day on which the Corporate Trust Office of the Trustee is closed for business. "Commission" shall mean the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time. "Common Securities" shall mean the common beneficial ownership interests in the assets of the applicable FW Preferred Capital Trust. "Common Stock" shall mean the Common Stock, par value $1.00 per share, of the Company or any other class of stock resulting from changes or reclassifications of such Common Stock consisting solely of changes in par value, or from par value to no par value, or from no par value to par value. "Company" shall mean Foster Wheeler Corporation, a New York corporation, and, subject to the provisions of Article X, shall include its successors and assigns. "Company Request" or "Company Order" shall mean a written request or order signed in the name of the Company by the Chairman, the Chief Executive Officer, the President, a Vice Chairman, a Vice President, the Comptroller, the Secretary or an Assistant Secretary of the Company, and delivered to the Trustee. "Corporate Trust Office" means, when used with respect to the Trustee, the Principal Office of the Trustee. "Custodian" shall mean any receiver, trustee, assignee, liquidator, or similar official under any Bankruptcy Law. 2 10 "Debenture" or "Debentures" means any Debenture or Debentures, as the case may be, authenticated and delivered under this Indenture. "Declaration" shall mean with respect to an FW Preferred Capital Trust, the Declaration of Trust, as amended, of such FW Preferred Capital Trust. "Default" means any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default. "Defaulted Interest" shall have the same meaning set forth in Section 2.11. "Definitive Debentures" shall mean those securities issued in fully registered certificated form not otherwise in global form. "Depositary" shall mean, with respect to the Debentures, The Depository Trust Company, New York, New York, another clearing agency, or any successor registered as a clearing agency under the Exchange Act or other applicable statute or regulation, as designated by the Company. "Event of Default" shall mean any event specified in Section 5.01, continued for the period of time, if any, and after the giving of the notice, if any, therein designated. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from time to time. "FW Preferred Capital Trust" shall mean each of FW Preferred Capital Trust I and FW Preferred Capital Trust II, each a Delaware statutory business trust, or any other similar trust created for the purpose of issuing Trust Securities in connection with the issuance of Debentures under this Indenture. "Global Debenture" shall mean, with respect to any series of Debentures, a Debenture executed by the Company and delivered by the Trustee to the Depositary or pursuant to the Depositary's instruction, all in accordance with this Indenture, which shall be registered in the name of the Depositary or its nominee. "Guarantee Agreement" means, with respect to any FW Preferred Capital Trust, the Guarantee Agreement executed by the Company for the benefit of the Holders of the Preferred Securities issued by such FW Preferred Capital Trust, as modified, amended, or supplemented from time to time. 3 11 "Holder" shall mean any Person in whose name at the time a particular Debenture is registered on the Security Register kept by the Company or the Trustee for that purpose in accordance with the terms hereof. "Indebtedness" shall mean (i) every obligation of the Company for money borrowed; (ii) every obligation of the Company evidenced by bonds, debentures, notes or other similar instruments, including obligations incurred in connection with the acquisition of property, assets or businesses; (iii) every reimbursement obligation of the Company with respect to letters of credit, banker's acceptances or similar facilities issued for the account of the Company; (iv) every obligation of the Company issued or assumed as the deferred purchase price of property or services (but excluding trade accounts payable or accrued liabilities arising in the ordinary course of business); (v) every capital lease obligation of the Company; (vi) every obligation of the Company for claims in respect of derivative products, including interest rate, foreign exchange rate and commodity forward contracts, options and swaps and other similar arrangements; and (vii) every obligation of the type referred to in clauses (i) through (vi) of another Person and all dividends of another Person the payment of which, in either case, the Company has guaranteed or is responsible or liable for, directly or indirectly, as obligor or otherwise. "Indenture" shall mean this instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented. "Interest Payment Date" means, when used with respect to any series of Debentures, the Stated Maturity of an installment of interest on such Debentures. "Officer" shall mean any of the Chairman, the Chief Executive Officer, the President, a Vice President, the Chief Financial Officer, the Secretary or an Assistant Secretary of the Company. "Officer's Certificate" shall mean a certificate signed by an Officer and delivered to the Trustee. Each such certificate shall include the statements provided for in Section 6.07 if and to the extent required by the provisions thereof. "Opinion of Counsel" shall mean a written opinion of counsel, who may be an employee of the Company, and who shall be reasonably acceptable to the Trustee. Each such opinion shall include the statements provided for in Section 6.07 if and to the extent required by the provisions thereof. 4 12 The term "outstanding" when used with reference to the Debentures, shall mean, subject to the provisions of Section 7.04, as of any particular time, all Debentures authenticated and delivered by the Trustee or the Authenticating Agent under this Indenture, except (a) Debentures theretofore cancelled by the Trustee or the Authenticating Agent or delivered to the Trustee for cancellation or that have previously been cancelled; (b) Debentures, or portions thereof, for the payment or prepayment or redemption of which moneys in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent); provided that, if such Debentures, or portions thereof, are to be redeemed prior to maturity thereof, notice of such redemption shall have been given as set forth in Article XIV or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Debentures in lieu of or in substitution for which other Debentures shall have been authenticated and delivered pursuant to the terms of Section 2.08 unless proof satisfactory to the Company and the Trustee is presented that any such Debentures are held by bona fide holders in due course. "Person" shall mean any individual, corporation, estate, partnership, joint venture, association, joint-stock company, limited liability company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Predecessor Debenture" of any particular Debenture means every previous Debenture evidencing all or a portion of the same debt and as that evidenced by such particular Debenture; and, for the purposes of this definition, any Debenture authenticated and delivered under Section 2.08 in lieu of a lost, destroyed or stolen Debenture shall be deemed to evidence the same debt as the lost, destroyed or stolen Debenture. "Preferred Securities" shall mean the preferred beneficial ownership interests in the assets of the applicable FW Preferred Capital Trust. "Principal Office of the Trustee", or other similar term, shall mean the office or offices of the Trustee, at which 5 13 at any particular time its corporate trust business shall be administered, and which at the date hereof are located at c/o Harris Trust and Savings Bank, 311 West Monroe Street, 12th Floor, Chicago, Illinois 60606. "Property Trustee" shall mean the trustee acting as such Property Trustee under the Declaration of such FW Preferred Capital Trust. "Responsible Officer" shall mean any officer of the Trustee's Corporate Trust Administration department with direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject. "Securities Act" shall mean the Securities Act of 1933, as amended from time to time. "Security Register" shall mean the list of Holders provided to the Trustee pursuant to Section 4.01, or any security register maintained by a security registrar for the Debentures appointed by the Company following the execution of a supplemental indenture providing for transfer procedures as provided for in Section 2.06(a). "Senior Indebtedness" shall mean the principal of, premium, if any, and interest on, all Indebtedness, whether outstanding on the date of execution of this Indenture or hereafter created, assumed or incurred, except Indebtedness that by its terms is expressly stated to be junior in right of payment to, or to rank pari passu with, the Debentures, and any deferrals, renewals or extensions of such Senior Indebtedness. "Stated Maturity" means, when used with respect to any Debenture, or any installment of principal thereof or interest thereon, the date specified in such Debenture as the fixed date on which principal of such Debenture, or such installment of principal or interest, is due and payable. "Subsidiary" shall mean with respect to any Person, (i) any corporation at least a majority of the outstanding voting stock of which is owned, directly or indirectly, by such Person or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii) any general partnership, joint venture or similar entity, at least a majority of whose outstanding partnership or similar interests shall at the time be owned by such Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any limited partnership of which such Person or any of its Subsidiaries is a general partner. For the purposes of this definition, "voting 6 14 stock" means shares, interests, participations or other equivalents in the equity interest (however designated) in such Person having ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person, other than shares, interests, participations or other equivalents having such power only by reason of the occurrence of a contingency. "Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as amended from time to time. "Trust Securities" shall mean the Common Securities and Preferred Securities of the applicable FW Preferred Capital Trust. "Trustee" shall mean the Person identified as "Trustee" in the first paragraph hereof, and, subject to the provisions of Article VI hereof, shall also include its successors and assigns and, if at any time there is more than one Person acting in such capacity hereunder, "Trustee" shall mean each such Person acting as Trustee hereunder. The term "Trustee" as used with respect to a particular series of the Debentures shall mean the trustee with respect to that series. "U.S. Government Obligations" shall mean securities that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case under clauses (i) or (ii) are not callable or prepayable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt. 7 15 ARTICLE II DEBENTURES SECTION 2.01 Forms Generally. The Debentures of each series shall be in substantially the form as shall be established by or pursuant to a Board Resolution and as set forth in an Officer's Certificate of the Company or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law or with any rules made pursuant thereto or with any rules of any securities exchange or all as may, consistently herewith, be determined by the officers executing such Debentures, as evidenced by their execution of such Debentures. The Definitive Debentures shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Debentures, as evidenced by their execution of such Debentures. SECTION 2.02 Form of Trustee's Certificate of Authentication. The Trustee's Certificate of Authentication on all Debentures shall be in substantially the following form: This is one of the Debentures of the series designated therein referred to in the within-mentioned Indenture. Harris Trust and Savings Bank, as Trustee By: --------------------------- Authorized Officer SECTION 2.03 Amount Unlimited; Issuable in Series. The aggregate principal amount of Debentures which may be authenticated and delivered under this Indenture is unlimited. The Debentures may be issued in one or more series up to the aggregate principal amount of securities of that series from time to time authorized by or pursuant to a Board Resolution of the Company or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Debentures of any series, there shall be established in or pursuant to a Board 8 16 Resolution of the Company and set forth in an Officer's Certificate of the Company or established in one or more indentures supplemental: (i) the title of the Debentures of the series (which shall distinguish the Debentures of the series from all other Debentures); (ii) any limit upon the aggregate principal amount of the Debentures of the series which may be authenticated and delivered under this Indenture (except for Debentures authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Debentures of the series pursuant hereto); (iii) the date or dates on which the principal of and premium, if any, on the Debentures of the series is payable; (iv) the rate or rates at which the Debentures of the series shall bear interest, if any, or the method by which such interest may be determined, the date or dates from which such interest shall accrue, the Interest Payment Date on which such interest shall be payable or the manner of determination of such Interest Payment Dates and the record dates for the determination of holders to whom interest is payable on any such Interest Payment Dates; (v) the place or places where the principal of, premium, if any, and interest on Debentures of the series shall be payable; (vi) the right, if any, to extend the interest payment periods and the duration of such extension; (vii) the price or prices at which, the period or periods within which, the event or events giving rise to, and the terms and conditions upon which Debentures of the series may be redeemed, in whole or in part, at the option of the Company, pursuant to any sinking fund or otherwise; (viii) the obligation, if any, of the Company to redeem or purchase Debentures of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which, and the period or periods within which, and the terms and conditions upon which, Debentures of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation; (ix) if other than denominations of $25 and any integral multiple thereof, the denominations in which Debentures of the series shall be issuable; (x) any Events of Default with respect to the Debentures of a particular series, if not set forth herein; 9 17 (xi) the form of the Debentures of the series; (xii) any trustee, authenticating or paying agents, warrant agents, transfer agents or registrars with respect to the Debentures of such series; (xiii) whether the Debentures of the series shall be issued in whole or in part in the form of one or more Global Debentures and, in such case, the Depositary for such Global Debenture or Global Debentures, and whether beneficial owners of interests in any such Global Debentures may exchange such interests for other Debentures of such series in the manner provided in Section 2.07, and the manner and the circumstances under which and the place or places where any such exchanges may occur if other than in the manner provided in Section 2.07, and any other terms of the series relating to the global nature of the Global Debentures of such series and the exchange, registration or transfer thereof and the payment of any principal, premium, if any, or interest thereon; and (xiv) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture). All Debentures of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such resolution of the Board of Directors or in any such indenture supplemental hereto. If any of the terms of the series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officer's Certificate of the Company setting forth the terms of the series. SECTION 2.04 Denomination of Debentures. The Debentures of each series shall be issuable as registered Debentures without coupons and in such denominations as shall be specified as contemplated by Section 2.03. Subject to Section 2.03(ix), the Debentures of such series shall be issuable in the denominations of $25 and any integral multiple thereof. The Debentures shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plans as the officers of the Company executing the same may determine with the approval of the Trustee as evidenced by the execution and authentication thereof. SECTION 2.05 Execution and Authentication. 10 18 Two Officers shall sign the Debentures for the Company by manual or facsimile signature. If an Officer whose signature is on a Debenture no longer holds that office at the time the Debenture is authenticated, the Debenture shall nevertheless be valid. A Debenture shall not be valid until authenticated by the manual signature of the Trustee. The signature of the Trustee shall be conclusive evidence that the Debenture has been authenticated under this Indenture. The form of Trustee's certificate of authentication to be borne by the Debentures shall be substantially as set forth in Section 2.02. SECTION 2.06 Global Debenture. (a) A Global Debenture with respect to any series may be transferred, in whole but not in part, only to another nominee of the Depositary, or to a successor Depositary selected or approved by the Company or to a nominee of such successor Depositary. (b) If at any time the Depositary notifies the Company that it is unwilling or unable to continue as Depositary or the Depositary has ceased to be a clearing agency registered under the Exchange Act, and a successor Depositary is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, the Company will execute, and the Trustee, upon receipt of a Company Order, will authenticate and make available for delivery Definitive Debentures, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Debenture or Global Debentures, in exchange for such Global Debenture or Global Debentures. If there is an Event of Default, the Depositary shall have the right to exchange the Global Debenture or Global Debentures for Definitive Debentures. In addition, the Company may at any time determine that the Debentures of any series shall no longer be represented by a Global Debenture. In the event of such an Event of Default or such a determination, the Company shall execute, and subject to this Section 2.06, the Trustee, upon receipt of an Officer's Certificate evidencing such determination by the Company and a Company Order, will authenticate and make available for delivery Definitive Debentures, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Debenture or Global Debentures in exchange for such Global Debenture or Global Debentures. Upon the exchange of the Global Debenture or Global Debentures for such Definitive Debentures, in authorized denominations, the Global Debenture or Global Debentures shall be cancelled by the Trustee. Such Definitive Debentures issued in exchange for the Global Debenture or Global Debentures shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions 11 19 from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Definitive Debentures to the Depositary for delivery to the Persons in whose names such Definitive Debentures are so registered. 12 20 SECTION 2.07 Transfer and Exchange. To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Definitive Debentures and Global Debentures at the request of the Security Registrar. All Definitive Debentures and Global Debentures issued upon any registration of transfer or exchange thereof shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Definitive Debentures or Global Debentures surrendered upon such registration of transfer or exchange. No service charge shall be made to a Holder for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith. The Company shall not be required to (i) issue, register the transfer of, or exchange Debentures of any series during a period beginning at the opening of business 15 days before the day of mailing of a notice of prepayment or any notice of selection of Debentures of such series for prepayment under Article XIV hereof and ending at the close of business on the day of such mailing; or (ii) register the transfer of or exchange any Debenture of such series so selected for prepayment in whole or in part, except the unredeemed portion of any Debenture being prepaid in part. Prior to due presentment for the registration of a transfer of any Debenture, the Trustee, the Company and any agent of the Trustee or the Company may deem and treat the Person in whose name any Debenture is registered as the absolute owner of such Debenture for the purpose of receiving payment of principal of, premium, if any, and interest on such Debentures, and none of the Trustee, the Company and any agents of the Trustee or the Company shall be affected by notice to the contrary. SECTION 2.08 Replacement Debentures. If any mutilated Debenture is surrendered to the Trustee, or the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Debenture, and there is delivered to the Company and the Trustee such security or indemnity as may be required by each of them to save each of them harmless, then the Company shall issue and the Trustee shall authenticate a replacement Debenture if the Trustee's requirements for replacement of Debentures are met. An indemnity bond must be supplied by the Holder that is sufficient in the reasonable judgment of the Trustee and the Company to protect the Company, the Trustee, any agent thereof or any authenticating agent from any loss that any of them may suffer if 13 21 a Debenture is replaced. The Company or the Trustee may charge for its expenses in replacing a Debenture. Every replacement Debenture is an obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Debentures duly issued hereunder. SECTION 2.09 Temporary Debentures. Pending the preparation of Definitive Debentures of any series, the Company may execute, and upon receipt of a Company Order the Trustee shall authenticate and make available for delivery, temporary Debentures of such series that are printed, lithographed, typewritten, mimeographed or otherwise reproduced, in any authorized denomination, substantially of the tenor of the Definitive Debentures in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Debentures may determine, as conclusively evidenced by their execution of such Debentures. If temporary Debentures of any series are issued, the Company shall cause Definitive Debentures to be prepared without unreasonable delay. The Definitive Debentures of such series shall be printed, lithographed or engraved, or provided by any combination thereof, or in any other manner permitted by the rules and regulations of any applicable securities exchange, all as determined by the officers executing such Definitive Debentures. After the preparation of Definitive Debentures of such series, the temporary Debentures of such series shall be exchangeable for Definitive Debentures upon surrender of such temporary Debentures at the office or agency maintained by the Company for such purpose pursuant to Section 3.02 hereof, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Debentures of any series, the Company shall execute, and the Trustee shall authenticate and make available for delivery, in exchange therefor the same aggregate principal amount of Definitive Debentures of such series of authorized denominations. Until so exchanged, the temporary Debentures shall in all respects be entitled to the same benefits under this Indenture as Definitive Debentures. SECTION 2.10 Cancellation. Unless otherwise provided with respect to a series of Debentures, all Debentures and coupons surrendered for payment, registration of transfer, exchange, repayment or redemption shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Debentures so delivered or surrendered directly to the Trustee for any such purpose shall be promptly cancelled by it. The Company may at any time, deliver 14 22 to the Trustee for cancellation any Debentures previously authenticated and delivered hereunder that the Company may have acquired in any manner whatsoever, and all Debentures so delivered shall be promptly cancelled by the Trustee. No Debenture shall be authenticated in lieu of or in exchange for any Debenture cancelled as provided in this Section, except as expressly permitted by this Indenture or such Debentures. All cancelled Debentures or coupons held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures and the Trustee shall deliver a certificate of such disposition to the Company. The Company may not issue new Debentures to replace Debentures that have been prepaid or paid or that have been delivered to the Trustee for cancellation. SECTION 2.11 Defaulted Interest. Any interest on any Debenture that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant regular record date by virtue of having been such Holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause (a) or clause (b) below: (a) The Company may make payment of any Defaulted Interest on Debentures of any series to the Persons in whose names such Debentures (or their respective Predecessor Debentures) are registered at the close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Debenture and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be mailed, first class postage prepaid, to each Holder at his or her address as it appears in the Security Register, not less than 10 days prior to such special record date. 15 23 Notice of the proposed payment of such Defaulted Interest and the special record date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Debentures (or their respective Predecessor Debentures) are registered on such special record date and shall be no longer payable pursuant to the following clause (b). (b) The Company may make payment of any Defaulted Interest on any Debentures in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Debentures may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. SECTION 2.12 CUSIP Numbers. The Company in issuing the Debentures may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of prepayment as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Debentures or as contained in any notice of a prepayment and that reliance may be placed only on the other identification numbers printed on the Debentures, and any such prepayment shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the CUSIP numbers. ARTICLE III PARTICULAR COVENANTS OF THE COMPANY SECTION 3.01 Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series of Debentures that it will duly and punctually pay or cause to be paid the principal of, premium, if any, and interest on the Debentures of such series at the place, at the respective times and in the manner provided herein and established with respect to such Debentures. Except as may be provided in a supplemental indenture hereto with respect to any series of Debentures, each installment of interest on such Debentures may be paid by mailing checks for such interest payable to the order of the Holder entitled thereto as they appear in the Security Register. 16 24 SECTION 3.02 Offices for Notices and Payments, etc. So long as any Debentures of any series remain outstanding, the Company will maintain (or cause to be maintained) in New York, New York an office or agency where the Debentures of each such series may be presented for payment, an office or agency where the Debentures of such series may be presented for registration of transfer and for exchange as provided in this Indenture and an office or agency where notices and demands to or upon the Company in respect of the Debentures of each such series or of this Indenture may be served. The Company will give to the Trustee written notice of the location of any such office or agency and of any change of location thereof. Until otherwise designated from time to time by the Company in a notice to the Trustee, any such office or agency for all of the above purposes shall be the Principal Office of the Trustee. In case the Company shall fail to maintain any such office or agency in New York, New York, or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notices may be served at the Principal Office of the Trustee. In addition to any such office or agency, the Company may from time to time designate one or more offices or agencies outside New York, New York, where the Debentures may be presented for payment, registration of transfer and for exchange in the manner provided in this Indenture, and the Company may from time to time rescind such designation, as the Company may deem desirable or expedient; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain any such office or agency in New York, New York, for the purposes above mentioned. The Company will give to the Trustee prompt written notice of any such designation or rescission thereof. SECTION 3.03 Appointments to Fill Vacancies in Trustee's Office. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so that there shall at all times be a Trustee hereunder. SECTION 3.04 Provision as to Paying Agent. (a) If the Company shall appoint a paying agent other than the Trustee with respect to the Debentures of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provision of this Section 3.04, 17 25 (1) that it will hold all sums held by it as such agent for the payment of the principal of, premium, if any, or interest on the Debentures of such series (whether such sums have been paid to it by the Company or by any other obligor on the Debentures) in trust for the benefit of the Holders thereof; and (2) that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Debentures of such series) to make any payment of the principal of, premium, if any, or interest on the Debentures of such series when the same shall be due and payable. (b) If the Company shall act as its own paying agent, it will, on or before each due date of the principal of, premium, if any, or interest on the Debentures of any series, set aside, segregate and hold in trust for the benefit of the Holders a sum sufficient to pay such principal, premium or interest so becoming due and will notify the Trustee of any failure to take such action and of any failure by the Company (or by any other obligor under the Debentures) to make any payment of the principal of, premium, if any, or interest on the Debentures of such series when the same shall become due and payable. (c) Anything in this Section 3.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge with respect to the Debentures of any series hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust for such Debentures by the Trustee or any paying agent hereunder, as required by this Section 3.04, such sums to be held by the Trustee upon the trusts herein contained. (d) Anything in this Section 3.04 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 3.04 is subject to Sections 11.03 and 11.04. SECTION 3.05 Certificate to Trustee. The Company will deliver to the Trustee on or before 120 days after the end of each fiscal year of the Company, so long as Debentures of any series are outstanding hereunder, an Officer's Certificate, one of the signers of which shall be the 18 26 principal executive, principal financial or principal accounting officer of the Company, stating that in the course of the performance by the signers of their duties as officers of the Company they would normally have knowledge of any default by the Company in the performance of any covenants contained herein, stating whether or not they have knowledge of any such default and, if so, specifying each such default of which the signers have knowledge and the nature thereof. For purposes of this Section 3.05, default shall be determined without regard to any period of grace or requirement of notice provided for herein. SECTION 3.06 Payment Upon Resignation or Removal. Upon termination of this Indenture or the removal or resignation of the Trustee, unless otherwise stated, the Company shall pay to the Trustee all amounts accrued and owing to the date of such termination, removal or resignation. ARTICLE IV HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE SECTION 4.01 Holders' Lists. So long as Debentures of any series are outstanding hereunder, the Company covenants and agrees that it will furnish or cause to be furnished to the Trustee: (a) on an annual basis on each alternating regular record date commencing with the first such date for the Debentures of such series a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such record date; and (b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished, except that no such lists need be furnished so long as the Trustee is in possession thereof by reason of its acting as registrar for the Debentures. SECTION 4.02 Preservation and Disclosure of Lists. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders (1) 19 27 contained in the most recent list furnished to it as provided in Section 4.01 or (2) received by it in the capacity of registrar for the Debentures of such series (if so acting) hereunder. The Trustee may destroy any list furnished to it as provided in Section 4.01 upon receipt of a new list so furnished. (b) In case three or more Holders (hereinafter referred to as "applicants") apply in writing to the Trustee and furnish to the Trustee reasonable proof that each such applicant has owned a Debenture for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders or with Holders of all Debentures of such series with respect to their rights under this Indenture and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall within 5 Business Days after the receipt of such application, at its election, either: (1) afford such applicants access to the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section 4.02, or (2) inform such applicants as to the approximate number of Holders of all Debentures of such series, whose names and addresses appear in the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section 4.02, and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application. If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder whose name and address appear in the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section 4.02, a copy of the form of proxy or other communication which is specified in such request with reasonable promptness after a tender to the Trustee of the material 20 28 to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five Business Days after such tender, the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the Holders of such series of Debentures or all Debentures of such series, as the case may be, or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application. (c) Each and every Holder, by receiving and holding Debentures, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any paying agent shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with the provisions of subsection (b) of this Section 4.02, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under said subsection (b). SECTION 4.03 Reports by the Company. So long as Debentures of any series are outstanding hereunder: (a) The Company covenants and agrees to file with the Trustee, within 15 days after the date on which the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as 21 29 said Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then to provide to the Trustee, such of the supplementary and periodic information, documents and reports which would have been required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations. (b) The Company covenants and agrees to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by said Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations. (c) The Company covenants and agrees to transmit by mail to all Holders, as the names and addresses of such Holders appear upon the Security Register, within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to subsections (a) and (b) of this Section 4.03 as may be required by rules and regulations prescribed from time to time by the Commission. (d) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer's Certificates). SECTION 4.04 Reports by the Trustee. So long as Debentures of any series are outstanding hereunder: (a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this 22 30 Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty days after each May 15, commencing May 15, 1999, deliver to Holders a brief report, dated as of such May 15, which complies with the provisions of Section 313(a) of the Trust Indenture Act. (b) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange, if any, upon which the Debentures are listed, with the Commission and with the Company. The Company will promptly notify the Trustee when the Debentures are listed on any stock exchange. ARTICLE V REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT SECTION 5.01 Events of Default. One or more of the following events of default shall constitute an Event of Default hereunder with respect to Debentures of a particular series (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) unless it is either inapplicable to a particular series or specifically deleted or modified in a supplemental indenture (or Board Resolution) under which such series of Debentures is issued or in the form of Debentures for such series: (a) default in the payment of any interest on the Debentures of that series when due, and continuance of such default for a period of 30 days; provided, however, that a valid extension of an interest payment period by the Company in accordance with the terms hereof shall not constitute a default in the payment of interest for this purpose; or (b) default in the payment of any principal of or premium, if any, on the Debentures of that series when due whether at maturity, upon redemption, by declaration of acceleration of maturity or otherwise; or 23 31 (c) default in the performance, or breach, of any covenant or warranty of the Company with respect to that series contained in such Debentures or otherwise established with respect to that series of Debentures pursuant to Section 2.01 or contained in this Indenture (other than a covenant or warranty a default in whose performance or a breach of which is elsewhere in this Section 5.01 specifically dealt with and other than a covenant or warranty set forth in terms of another series of Debentures established or contemplated in this Indenture), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Debentures of such series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (d) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs and such decree or order shall remain unstayed and in effect for a period of 90 consecutive days; or (e) the Company shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Company or of any substantial part of its property, or shall make any general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due. If an Event of Default (other than an Event of Default specified in Section 5.01(d) or 5.01(e))with respect to Debentures of a particular series at the time outstanding occurs and is continuing, then in every such case the Trustee or the Holders 24 32 of not less than 25% in aggregate principal amount of the Debentures of such series then outstanding may declare the principal amount of all Debentures of such series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders of the outstanding Debentures of such series), provided that, in the case of the Debentures of a series issued to an FW Preferred Capital Trust, if, upon an Event of Default, the Trustee or the Holders of not less than 25% in principal amount of the outstanding Debentures of such series fail to declare the principal of all the outstanding Debentures of such series (or specified portion thereof) to be immediately due and payable, the holders of at least 25% in aggregate Liquidation Amount (as defined in the related Declaration) of the related series of Preferred Securities issued by such FW Preferred Capital Trust then outstanding shall have the right to make such declaration by a notice in writing to the Company and the Trustee; and upon any such declaration such principal amount (or specified portion thereof) of and the accrued interest (including any additional interest) on all the Debentures of such series shall become immediately due and payable. If an Event of Default specified in Section 5.01(d) or 5.01(e) with respect to Debentures of any series at the time outstanding occurs, the principal amount of all the Debentures of such series (or, if the Debentures of such series are Discount Debentures, such portion of the principal amount of such Debentures as may be specified by the terms of that series) and the accrued interest (including any additional interest) on all the Debentures of such series shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable. Payment of principal (and premium, if any) and interest (including any additional interest) on such Debentures shall remain subordinated to the extent provided in Article XV notwithstanding that such amount shall become immediately due and payable as herein provided. The foregoing provisions, however, are subject to the condition that if, at any time after the principal of the Debentures of a series shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, (i) the Company shall pay or shall deposit with the Trustee a sum sufficient to pay (A) all matured installments of interest upon all the Debentures of that series and the principal of and premium, if any, on any and all Debentures of that series which shall have become due otherwise than by acceleration (with interest upon such principal and premium, if any, and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest specified in the Debentures of such series to the date of such payment or deposit) and (B) such amount as shall be sufficient to cover compensation due to the Trustee and each predecessor Trustee, their respective agents, 25 33 attorneys and counsel, pursuant to Section 6.06, and (ii) any and all Events of Default under this Indenture, other than the non-payment of the principal of the Debentures of such series which shall have become due solely by such declaration of acceleration, shall have been cured, waived or otherwise remedied as provided herein, then, in every such case, the Holders of a majority in aggregate principal amount of the Debentures of that series then outstanding, by written notice to the Company and to the Trustee, may rescind and annul such declaration and its consequences. In the case of Debentures of a series initially issued to an FW Preferred Capital Trust, if the Holders of such Debentures fail to annul such declaration and waive such default, the holders of a Majority in Liquidation Amount of the Preferred Securities (as defined in the related Declaration) issued by such FW Preferred Capital Trust shall also have the right to rescind and annul such declaration and its consequences by written notice to the Company and the Trustee, subject to the satisfaction of the conditions set forth in Clauses (i) and (ii) above. No such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Trustee and the Holders shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company, the Trustee and the Holders shall continue as though no such proceeding had been taken. SECTION 5.02. Payment of Debentures on Default; Suit Therefor. The Company covenants that (a) in case default shall be made in the payment of any installment of interest upon any of the Debentures of a series as and when the same shall become due and payable, and such default shall have continued for a period of 30 days, or (b) in case default shall be made in the payment of the principal of or premium, if any, on any of the Debentures of a series as and when the same shall have become due and payable, whether at maturity of the Debentures of such series or upon prepayment or by declaration or otherwise, then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holders, the whole amount that then shall have become due and payable on all such Debentures of such series for principal of, premium, if any, or interest or both, as the case may be, with interest upon the overdue principal and premium, if any, and (to the extent that payment of such interest is enforce- 26 34 able under applicable law and, if the Debentures of such series are held by the Trust or a trustee of such trust, without duplication of any other amounts paid by the Trust or a trustee in respect thereof) upon the overdue installments of interest at the rate borne by the Debentures of such series; and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including a reasonable compensation to the Trustee, its agents, attorneys and counsel, and any other amount due to the Trustee pursuant to Section 6.06. In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or any other obligor on the Debentures of such series and collect in the manner provided by law out of the property of the Company or any other obligor on the Debentures of such series, wherever situated, the moneys adjudged or decreed to be payable. In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Debentures of any series under title 11 of the United States Code, or any other applicable law, or in case a receiver or trustee shall have been appointed for the property of the Company or such other obligor, or in the case of any other similar judicial proceedings relative to the Company or other obligor upon the Debentures of such series, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of the Debentures of a series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 5.02, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect of the Debentures of such series and, in case of any judicial proceedings, to file such 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 amounts due to the Trustee pursuant to Section 6.06) and of the Holders allowed in such judicial proceedings relative to the Company or any other obligor on the Debentures, or to the creditors or property of the Company or such other obligor, unless prohibited by applicable law and regulations, to vote on behalf of the Holders in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or person performing similar functions in comparable proceedings, and to collect and receive any moneys or other property payable or deliverable on any such claims, and 27 35 to distribute the same after the deduction of its charges and expenses; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the Holders to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee such amounts as shall be sufficient to cover reasonable compensation to the Trustee, each predecessor Trustee and their respective agents, attorneys and counsel, and all other amounts due to the Trustee pursuant to Section 6.06. Nothing herein contained shall be construed to authorize 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 Debentures of any series or the rights of any Holder or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. All rights of action and of asserting claims under this Indenture, or under any of the Debentures of any series, may be prosecuted and enforced by the Trustee without the possession of any of the Debentures of such series, or the production thereof on any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the Holders of the Debentures of such series. In any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders, and it shall not be necessary to make any Holders parties to any such proceedings. SECTION 5.03. Application of Moneys Collected by Trustee. Any moneys collected by the Trustee shall be applied in the following order, at the date or dates fixed by the Trustee for the distribution of such moneys, upon presentation of the Debentures of the series in respect of which moneys have been collected, and stamping thereon the payment, if only partially paid, and upon surrender thereof if fully paid: First: To the payment of costs and expenses of collection applicable to the Debentures of such series and all other amounts due to the Trustee under Section 6.06; Second: To the payment of all Senior Indebtedness of the Company if and to the extent required by Article XV; 28 36 Third: In case the principal of the outstanding Debentures of such series in respect of which moneys have been collected shall not have become due and be unpaid, to the payment of the amounts then due and unpaid upon Debentures of such series for principal of, premium, if any, and interest on the Debentures of such series, in respect of which or for the benefit of which money has been collected, ratably, without preference of priority of any kind, according to the amounts due on the Debentures of such series for principal, premium, if any, and interest, respectively; and Fourth: To the Person or Persons entitled thereto. SECTION 5.04. Proceedings by Holders. No Holder of Debentures of any series shall have any right by virtue of or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (i) such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof with respect to the Debentures of such series specifying such Event of Default, as hereinbefore provided, (ii) the Holders of not less than 25% in aggregate principal amount of the Debentures of such series then outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby, (iii) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action, suit or proceeding, and (iv) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the outstanding Debentures of such series, it being understood and intended, and being expressly covenanted by the taker and Holder of every Debenture of such series with every other taker and Holder and the Trustee, that no one or more Holders shall have any right in any manner whatever by virtue of or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders. Notwithstanding any other provisions in this Indenture, however, the right of any Holder to receive payment of the principal of, premium, if any, and interest on such Debenture of such series, on or after the same shall have become due and payable, or to institute suit for the enforcement of any such 29 37 payment, shall not be impaired or affected without the consent of such Holder. SECTION 5.05. Proceedings by Trustee. In case an Event of Default occurs with respect to Debentures of any series and is continuing, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law. SECTION 5.06. Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Debentures of any series or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of any such Debentures shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal, premium, if any, or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise, (i) to file and prove a claim for the whole amount of principal, premium, if any, and interest owing and unpaid in respect of such Debentures and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts due the Trustee under Section 6.06) and of the Holders allowed in such judicial proceeding, and (ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same, and any 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 in the event that the Trustee shall consent to the making of such payments directly to the Holders of such Debentures, to pay to the Trustee any amount due to it for the reasonable compensa- 30 38 tion, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.06. Nothing herein contained shall be deemed to authorize 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 Debentures of any series 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 5.07. Remedies Cumulative and Continuing. All powers and remedies given by this Article V to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee or the Holders, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture or otherwise established with respect to the Debentures of any series, and no delay or omission of the Trustee or of any Holder to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 5.04, every power and remedy given by this Article V or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders. SECTION 5.08. Direction of Proceedings and Waiver of Defaults by Majority of Holders. Subject to the provisions of any supplemental indenture hereto, the Holders of a majority in aggregate principal amount of the Debentures of any series at the time outstanding shall have the right to 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; provided, however, that (subject to the provisions of Section 6.01) the Trustee shall have the right to decline to follow any such direction if the Trustee shall determine that the action so directed would be unjustly prejudicial to the Holders of Debentures of such series not taking part in such direction, it being understood that the Trustee shall have no duty or obligation to determine whether or not such actions or forebearances would be unduly prejudicial to such Holders, or if the Trustee being advised in writing by counsel determines that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors or trustees, executive committee, or a trust committee of directors or trust- 31 39 ees and/or Responsible Officers shall determine that the action or proceedings so directed would likely involve the Trustee in personal liability. Prior to any declaration accelerating the maturity of the Debentures of any series, the Holders of a majority in aggregate principal amount of the Debentures of such series at the time outstanding, and, in the case of any Debentures of a series initially issued to an FW Preferred Capital Trust, the holders of a Majority in Liquidation Amount of the Preferred Securities (as defined in the related Declaration) issued by such FW Preferred Capital Trust may on behalf of the Holders of all of the Debentures of such series waive any past default or Event of Default and its consequences except a default (a) in the payment of principal of, premium, if any, or interest on any of the Debentures of such series (unless such default has been cured and a sum sufficient to pay all matured installments of principal, premium, if any, and interest due otherwise than by acceleration has been deposited with the Trustee) or (b) in respect of covenants or provisions hereof which cannot be modified or amended without the consent of the Holder of each Debenture affected. Upon any such waiver, the default covered thereby shall be deemed to be cured for all purposes of this Indenture and the Company, the Trustee and the Holders of Debentures of such series shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. Whenever any default or Event of Default hereunder shall have been waived as permitted by this Section 5.08, said default or Event of Default shall for all purposes of such series of Debentures and this Indenture be deemed to have been cured and to be not continuing. SECTION 5.09. Notice of Defaults. (a) The Trustee, within 90 days after the occurrence of a Default with respect to a series of Debentures actually known to the Trustee, shall mail to all Holders, as the names and addresses of such Holders appear upon the Security Register, notice of all Defaults known to the Trustee, unless such Default shall have been cured before the giving of such notice (the term "Default" for the purpose of this Section 5.09 being hereby defined to be any of the events specified in clauses (a), (b), (c), (d) and (e) of Section 5.01, not including periods of grace, if any, provided for therein, and irrespective of the giving of written notice specified in clause (c) of Section 5.01); and provided that, except in the case of default in the payment of the principal of, premium, if any, or interest on any series of Debentures, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders thereof; and provided further, that in the case of any default of 32 40 the character specified in Section 5.01(c), no such notice to Holders shall be given until at least 30 days after the occurrence thereof. (b) Within five Business Days after the occurrence of any Event of Default actually known to the Trustee, the Trustee shall transmit notice of such Event of Default to all Holders of the affected series of Debentures as their names and addresses appear on the Security Register, unless such Event of Default shall have been cured or waived. SECTION 5.10. Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder by his or her acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, 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 as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 5.10 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in aggregate principal amount of any series of Debentures outstanding, or to any suit instituted by any Holder for the enforcement of the payment of the principal of, premium, if any, or interest on any such Debenture against the Company on or after the same shall have become due and payable. ARTICLE VI CONCERNING THE TRUSTEE SECTION 6.01. Duties and Responsibilities of Trustee. With respect to the Holders of Debentures of any series issued hereunder, the Trustee, prior to the occurrence of an Event of Default with respect to such series and after the curing or waiving of all Events of Default with respect to such series which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case any such Event of Default has occurred (which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. 33 41 No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own wilful misconduct, except that: (a) prior to the occurrence of an Event of Default with respect to any series of Debentures and after the curing or waiving of all Events of Default with respect to such series which may have occurred, (1) the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture; and (2) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture; (b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and (c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders pursuant to Section 5.08, 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. None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or 34 42 powers, if there is reasonable ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture or adequate indemnity against such risk is not reasonably assured to it. SECTION 6.02. Reliance on Documents, Opinions, etc. Except as otherwise provided in Section 6.01: (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, note, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request, direction, order or demand of the Company mentioned herein may be sufficiently evidenced by an Officer's Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company; (c) before the Trustee acts or refrains from acting, it may consult with counsel of its selection and any written advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel; (d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders of any series of Debentures, pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Trustee reasonable and sufficient security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; (e) the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (that has not been cured or waived), to exercise such of the 35 43 rights and powers vested in it by this Indenture, and to use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs; (f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, coupon or other paper or document, unless requested in writing to do so by the Holders of a majority in aggregate principal amount of any outstanding series of Debentures; provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such expense or liability as a condition to so proceeding; (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents (including any Authenticating Agent) or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed by it with due care; (h) the Trustee shall not be charged with knowledge of any Default or Event of Default with respect to a series of Debentures unless (1) such default is a default under Sections 5.01(a) and 5.01(b) of this Indenture, (2) a Responsible Officer shall have actual knowledge of such Default or Event of Default or (3) written notice of such Default or Event of Default shall have been given to the Trustee by the Company or any other obligor on the Debentures or by any Holder; as used herein, the term "actual knowledge" means the actual fact or statement of knowing, without any duty to make any investigation with regard thereto; (i) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith, without negligence or wilful misconduct and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; 36 44 (j) the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder; and (k) the permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty. SECTION 6.03. No Responsibility for Recitals, etc. The recitals contained herein and in any series of Debentures (except in the certificate of authentication of the Trustee or the Authenticating Agent) shall be taken as the statements of the Company, and the Trustee and the Authenticating Agent assume no responsibility for the correctness of the same. The Trustee and the Authenticating Agent make no representations as to the legality, validity or sufficiency of this Indenture or of any series of Debentures. The Trustee and the Authenticating Agent shall not be accountable for the use or application by the Company of any Debentures or the proceeds of any Debentures authenticated and delivered by the Trustee or the Authenticating Agent in conformity with the provisions of this Indenture. SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own Debentures. The Trustee or any Authenticating Agent or any paying agent or any transfer agent or any registrar for any series of Debentures, in its individual or any other capacity, may become the owner or pledgee of such Debentures with the same rights it would have if it were not Trustee, Authenticating Agent, paying agent, transfer agent or registrar for any such Debentures. SECTION 6.05. Moneys to be Held in Trust. Subject to the provisions of Section 11.04, all moneys received by the Trustee or any paying agent with respect to any series of Debentures shall, until used or applied as herein provided, be held in trust for the purpose for which they were received, but need not be segregated from other funds except to the extent required by law. The Trustee and any paying agent with respect to any series of Debentures shall be under no liability with respect to any series of Debentures for interest on any money received by it hereunder except as otherwise agreed in writing with the Company. So long as no Event of Default with respect to any series of Debentures shall have occurred and be continuing, all interest allowed on any such moneys relating to such series of Debentures shall be paid from time to time upon the written order of the Company, signed by the Chairman of the Board of Directors, the President, Chief Financial Officer, a 37 45 Vice President, Controller, an Assistant Controller or the Treasurer or an Assistant Treasurer of the Company. SECTION 6.06. Compensation and Expenses of Trustee. The Company, as issuer of Debentures under this Indenture, covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, such compensation as shall be agreed to in writing between the Company and the Trustee (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its negligence or willful misconduct. The Company also covenants to indemnify each of the Trustee or any predecessor Trustee (and its officers, agents, directors and employees) for, and to hold it harmless against, any and all loss, damage, claim, liability or expense including taxes (other than taxes based on the income of the Trustee) incurred without negligence or willful misconduct on the part of the Trustee and arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against or investigating any claim of liability in the premises. The obligations of the Company under this Section 6.06 to compensate and indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that of the Debentures of any series upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Debentures of any series. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.01(d) or Section 5.01(e), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law. The provisions of this Section shall survive the resignation or removal of the Trustee and the defeasance or other termination of this Indenture. 38 46 SECTION 6.07. Officer's Certificate and Opinion of Counsel as Evidence. Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer's Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than the Officer's Certificate required by Section 3.05) shall include: (i) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (iii) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether or not in the opinion of each such individual, such condition or covenant has been complied with. SECTION 6.08. Conflicting Interest of Trustee. If the Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act. SECTION 6.09. Eligibility of Trustee. The Trustee hereunder shall at all times be a corporation organized and doing business under the laws of the United States of America or any state or territory thereof or of the District of Columbia, or a corporation or other Person permitted 39 47 to act as trustee by the Commission authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least 50 million U.S. dollars ($50,000,000) and subject to supervision or examination by federal, state, territorial, or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 6.09, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 6.09, the Trustee shall resign immediately in the manner and with the effect specified in Section 6.10. SECTION 6.10. Resignation or Removal of Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more or all series of Debentures by giving written notice of such resignation to the Company and by mailing notice thereof to the Holders of the affected series of Debentures at their addresses as they shall appear on the Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee or trustees with respect to the applicable series by written instrument, in duplicate, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and shall have accepted such appointment within 60 days after the mailing of such notice of resignation to the affected Holders, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee, or any Holder who has been a bona fide holder of a Debenture of any affected series for at least six months may, subject to the provisions of Section 5.10, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee. 40 48 (b) In case at any time any of the following shall occur: (1) the Trustee shall fail to comply with the provisions of Section 6.08 after written request therefor by the Company or by any Holder who has been a bona fide holder of a Debenture of any affected series for at least six months, or (2) the Trustee shall cease to be eligible in accordance with the provisions of Section 6.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or (3) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, the Company may remove the Trustee and appoint a successor trustee by written instrument, in duplicate, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 5.10, any Holder who has been a bona fide holder of a Debenture of any affected series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee. (c) The Holders of a majority in aggregate principal amount of the Debentures of any series at the time outstanding may at any time remove the Trustee with respect to that series and nominate a successor trustee, which shall be deemed appointed as successor trustee unless within 10 days after such nomination the Company objects thereto, or if no successor trustee shall have been so appointed and shall have accepted appointment within 30 days after such removal, in which case the Trustee so removed or any Holder of a Debenture of such se- 41 49 ries, upon the terms and conditions and otherwise as in subsection (a) of this Section 6.10 provided, may petition any court of competent jurisdiction for an appointment of a successor trustee. (d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 6.10 shall become effective only upon the acceptance of such appointment by the successor trustee as provided in Section 6.11. SECTION 6.11. Acceptance by Successor Trustee. Any successor trustee appointed as provided in Section 6.10 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the retiring trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as trustee herein; but, nevertheless, on the written request of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 6.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act and shall duly assign, transfer and deliver to such successor trustee all property and money held by such retiring trustee thereunder. Upon request of any such successor trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 6.06. No successor trustee shall accept appointment as provided in this Section 6.11 unless at the time of such acceptance such successor trustee shall be qualified under the provisions of Section 6.08 and eligible under the provisions of Section 6.09. Upon acceptance of appointment by a successor trustee as provided in this Section 6.11, the Company shall mail notice of the succession of such trustee hereunder to the Holders of the affected series of Debentures at their addresses as they shall appear on the Security Register. If the Company fails to mail such notice within 10 days after the acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the expense of the Company. 42 50 SECTION 6.12. Succession by Merger, etc. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case, at the time such successor to the Trustee shall succeed to the trusts created by this Indenture, Debentures of any series shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Debentures so authenticated; and in case at that time any Debentures of any series shall not have been authenticated, any successor to the Trustee may authenticate such Debentures either in the name of any predecessor hereunder or in the name of the successor trustee; and in all such cases such certificates shall have the full force which such Debentures or this Indenture elsewhere provides that the certificate of authentication of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor Trustee or authenticate Debentures in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation. SECTION 6.13. Limitation on Rights of Trustee as a Creditor. The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent required thereby. SECTION 6.14. Authenticating Agents. There may be one or more Authenticating Agents with respect to a series of Debentures appointed by the Trustee upon the request of the Company with power to act on its behalf and subject to its direction in the authentication and delivery of Debentures of any such series issued upon exchange or transfer thereof as fully to all intents and purposes as though any such Authenticating Agent had been expressly authorized to authenticate and deliver such Debentures; provided, that the Trustee shall have no liability to the Company for any acts or omissions of the Authenticating Agent with respect to the authentication and delivery of Debentures of any such series. Any such Authenticating Agent shall at all times be a corporation organized and 43 51 doing business under the laws of the United States or of any state or territory thereof or of the District of Columbia authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of at least $50,000,000 and being subject to supervision or examination by federal, state, territorial or District of Columbia authority. If such corporation publishes reports of condition at least annually pursuant to law or the requirements of such authority, then for the purposes of this Section 6.14 the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect herein specified in this Section. Any corporation into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, consolidation or conversion to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate trust business of any Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, if such successor corporation is otherwise eligible under this Section 6.14 without the execution or filing of any paper or any further act on the part of the parties hereto or such Authenticating Agent. Any Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible under this Section 6.14, the Trustee may, and upon the request of the Company shall, promptly appoint a successor Authenticating Agent eligible under this Section 6.14, shall give written notice of such appointment to the Company and shall mail notice of such appointment to all Holders as the names and addresses of such Holders appear on the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent herein. The Company, as borrower, agrees to pay to any Authenticating Agent from time to time reasonable compensation for its services. Any Authenticating Agent shall have no responsibility or liability for any action taken by it as such in accordance with the directions of the Trustee. 44 52 ARTICLE VII CONCERNING THE HOLDERS SECTION 7.01. Action by Holders. Whenever in this Indenture it is provided that the Holders of a specified percentage in aggregate principal amount of the Debentures of any series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action the Holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by such Holders in person or by agent or proxy appointed in writing, or (b) by the record of such Holders voting in favor thereof at any meeting of such Holders duly called and held in accordance with the provisions of Article VIII, or (c) by a combination of such instrument or instruments and any such record of such a meeting of such Holders. If the Company shall solicit from the Holders of Debentures of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option, as evidenced by an Officer's Certificate, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other action may be given before or after the record date, but only the Holders of record at the close of business on the record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of outstanding Debentures of any series have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other action, and for that purpose the outstanding Debentures of any such series shall be computed as of the record date; provided, however, that no such authorization, agreement or consent by such Holders of Debentures of any such series on the record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date. SECTION 7.02. Proof of Execution by Holders. Subject to the provisions of Section 6.01, 6.02 and 8.05, proof of the execution of any instrument by a Holder or his or her agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The ownership of Debentures shall be proved by the 45 53 Security Register or by a certificate of the Security Registrar. The Trustee may require such additional proof of any matter referred to in this Section as it shall deem necessary. The record of any Holders' meeting shall be proved in the manner provided in Section 8.06. SECTION 7.03. Persons Who May Be Deemed Absolute Owners. Prior to due presentment for registration of transfer of any Debenture of any series, the Company, the Trustee, any Authenticating Agent, any paying agent, any transfer agent and any registrar for the Debentures of any such series may deem the person in whose name such Debenture shall be registered upon the Security Register to be, and may treat him as, the absolute owner of such Debenture (whether or not such Debenture shall be overdue) for the purpose of receiving payment of or on account of the principal of and premium, if any, and (subject to any applicable provisions of any supplement hereto) interest on such Debenture and for all other purposes; and neither the Company nor the Trustee nor any Authenticating Agent nor any paying agent nor any transfer agent nor any registrar for the Debentures of any such series shall be affected by any notice to the contrary. All such payments so made to any Holder for the time being or upon his or her order shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Debenture. SECTION 7.04. Debentures Owned by Company Deemed Not Outstanding. In determining whether the Holders of the requisite aggregate principal amount of Debentures of any series have concurred in any direction, consent or waiver under this Indenture, Debentures of such series that are owned by the Company or any other obligor on the Debentures of such series or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any other obligor on the Debentures shall be disregarded and deemed not to be outstanding for the purpose of any such determination; provided that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Debentures which a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. Debentures so owned which have been pledged in good faith may be regarded as outstanding for the purposes of this Section 7.04 if the pledgee shall establish to the satisfaction of the Trustee the pledgee's right to vote such Debentures and that the pledgee is not the Company or any such other obligor or Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any such other 46 54 obligor. In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee. SECTION 7.05. Revocation of Consents; Future Holders Bound. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 7.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Debentures of any series specified in this Indenture in connection with such action, any Holder (or Holder of any Debenture issued in whole or in part in exchange or substitution therefor), subject to Section 7.01, of a Debenture the serial number of which is shown by the evidence to be included in the group of Debentures the Holders of which have consented to such action may, by filing written notice with the Trustee at its principal office and upon proof of holding as provided in Section 7.02, revoke such action so far as concerns such Debenture (or so far as concerns the principal amount represented by any exchanged or substituted Debenture). Except as aforesaid any such action taken by any Holder shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Debenture, and of any Debenture issued in exchange or substitution therefor, irrespective of whether or not any notation in regard thereto is made upon such Debenture or any Debenture issued in exchange or substitution therefor. ARTICLE VIII HOLDERS' MEETINGS SECTION 8.01. Purposes of Meetings. A meeting of Holders of Debentures of any series may be called at any time and from time to time pursuant to the provisions of this Article VIII for any of the following purposes: (a) to give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of any default hereunder and its consequences, or to take any other action authorized to be taken by Holders of Debentures of such series pursuant to any of the provisions of Article V; (b) to remove the Trustee with respect to such series and nominate a successor trustee pursuant to the provisions of Article VI; 47 55 (c) to consent to the execution of an indenture or indentures supplemental hereto with respect to such series pursuant to the provisions of Section 9.02; or (d) to take any other action authorized to be taken by or on behalf of the Holders of Debentures of such series of any specified aggregate principal amount of such Debentures under any other provision of this Indenture or under applicable law. SECTION 8.02. Call of Meetings by Trustee. The Trustee may at any time call a meeting of Holders of Debentures of any series to take any action specified in Section 8.01, to be held at such time and at such place in New York, New York, as the Trustee shall determine. Notice of every meeting of such Holders, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be mailed to such Holders at their addresses as they shall appear on the Security Register. Such notice shall be mailed not less than 20 nor more than 60 days prior to the date fixed for the meeting. SECTION 8.03. Call of Meetings by Company or Holders. In case at any time the Company, pursuant to a resolution of the Board of Directors, or the Holders of at least 10% in aggregate principal amount of the Debentures of any particular series then outstanding, shall have requested the Trustee to call a meeting of Holders of Debentures of such series, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within 20 days after receipt of such request, then the Company or such Holders may determine the time and the place in New York, New York for such meeting and may call such meeting to take any action authorized in Section 8.01, by mailing notice thereof as provided in Section 8.02. SECTION 8.04. Qualifications for Voting. To be entitled to vote at any meeting of Holders of any series of Debentures a Person shall (a) be a Holder of one or more Debentures of such series or (b) a Person appointed by an instrument in writing as proxy by any such Holder. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel. 48 56 SECTION 8.05. Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders, in regard to proof of the holding of Debentures and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit. The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders as provided in Section 8.03, in which case the Company or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by majority vote of the meeting. Subject to the provisions of Section 8.04, at any meeting each Holder or proxy therefor shall be entitled to one vote for each $25 principal amount of Debentures of the affected series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Debenture challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Debentures of the affected series held by him or instruments in writing as aforesaid duly designating him as the person to vote on behalf of other Holders. Any meeting of Holders duly called pursuant to the provisions of Section 8.02 or 8.03 may be adjourned from time to time by a majority of those present, and the meeting may be held as so adjourned without further notice. SECTION 8.06. Voting. The vote upon any resolution submitted to any meeting of Holders shall be by written ballots on which shall be subscribed the signatures of such Holders or of their representatives by proxy and the serial number or numbers of the Debentures held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in triplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and 49 57 showing that said notice was mailed as provided in Section 8.02. The record shall show the serial numbers of the Debentures voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated. ARTICLE IX AMENDMENTS SECTION 9.01. Without Consent of Holders. The Company and the Trustee may from time to time and at any time amend this Indenture, without the consent of the Holders of Debentures of any affected series then outstanding, for one or more of the following purposes: (a) to evidence the succession of another Person to the Company, or successive successions, and the assumption by the successor Person of the covenants, agreements and obligations of the Company pursuant to Article X hereof; (b) to add to the covenants of the Company or to surrender any right or power herein conferred to the Company, such further covenants, restrictions, conditions or surrender of rights or power by the Company for the protection of the Holders of the Debentures of such series as the Board of Directors and the Trustee shall consider to be for the protection of such Holders, and to make the occurrence, or the occurrence and continuance, of a default in any of such additional covenants, restrictions or conditions a default or an Event of Default with respect to such series of Debentures permitting the enforcement of all or any of the remedies provided in this Indenture as herein set forth; provided, however, that in respect of any such additional covenant, restriction or condition such amendment may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such default or may limit the 50 58 remedies available to the Trustee upon such default; (c) to provide for the issuance under this Indenture of Debentures of any series with coupons (including Debentures registerable as to principal only) and to provide for exchangeability of such Debentures with the Debentures of such series issued hereunder in fully registered form and to make all appropriate changes for such purpose; (d) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make such other provisions in regard to matters or questions arising under this Indenture; provided that any such action shall not materially adversely affect the interests of the Holders of Debentures of such series; (e) to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to such series of Debentures; (f) to make provision for transfer procedures, certification, book-entry provisions and all other matters required pursuant to this Indenture or otherwise necessary, desirable or appropriate in connection with the issuance of such series of Debentures; provided that any such action shall not materially adversely affect the interests of the Holders of such series of Debentures; (g) to qualify or maintain qualification of this Indenture under the Trust Indenture Act; or (h) to make any change that does not adversely affect the rights of any such Holder in any material respect. The Trustee is hereby authorized to join with the Company in the execution of any supplemental indenture to effect such amendment, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer and assignment of any property thereunder, but the Trustee shall not be obligated to, but may in its discretion, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. 51 59 Any amendment to this Indenture authorized by the provisions of this Section 9.01 may be executed by the Company and the Trustee without the consent of the Holders of Debentures of the series affected at the time outstanding, notwithstanding any of the provisions of Section 9.02. SECTION 9.02. With Consent of Holders. With the consent (evidenced as provided in Section 7.01) of the Holders of a majority in aggregate principal amount of the Debentures of all series at the time outstanding affected by such amendment (voting as one class), the Company, when authorized by a Board Resolution, and the Trustee may from time to time and at any time amend this Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of any such series; provided, however, that no such amendment shall, without the consent of the Holders of each Debenture of each series then outstanding and affected thereby (i) change the Stated Maturity of any such Debenture, or reduce the rate or extend the time of payment of interest thereon (except as contemplated by any Supplemental Indenture entered into in accordance with the provisions of Article IX hereof), or reduce the principal amount thereof, or reduce any amount payable on prepayment thereof, or make the principal thereof or any interest or premium thereon payable in any coin or currency other than that provided in such Debentures, or impair or affect the right of any Holder thereof to institute suit for payment thereof, (ii) reduce the aforesaid percentage of Debentures of any series, the Holders of which are required to consent to any such amendment, this Indenture, or (iii) modify any of the provisions of this Section 9.02 or Section 5.08 except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Debenture affected thereby; provided, however, that if any series of Debentures are held by a Property Trustee of an FW Preferred Capital Trust, such amendment shall not be effective until the holders of a Majority in Liquidation Amount (as defined in the related Declaration) of Trust Securities of such FW Preferred Capital Trust shall have consented to such amendment; provided, further, that if the consent of the Holders of each outstanding Debenture of any series is required, such amendment shall not be effective until each holder of the Trust Securities of such FW Preferred Capital Trust owning such Debentures shall have consented to such amendment. A supplemental indenture that changes or eliminates any covenant or other provision of this Indenture that has expressly been included solely for the benefit of one or more particular series of Debentures or any corresponding series of Preferred Securities of an FW Preferred Capital Trust that holds the 52 60 Debentures of any series, or that modifies the rights of the Holders of Debentures of such series or holders of such Preferred Securities of such corresponding series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series or holders of Preferred Securities of any other series. It shall not be necessary for any act of Holders under this Section 9.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such act shall approve the substance thereof. Upon the request of the Company accompanied by a copy of a resolution of the Board of Directors certified by its Secretary or Assistant Secretary authorizing the execution of any supplemental indenture effecting such amendment, and upon the filing with the Trustee of evidence of the consent of the affected Holders as aforesaid, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture. Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall transmit by mail, first class postage prepaid, a notice, prepared by the Company, setting forth in general terms the substance of such supplemental indenture, to the Holders of the affected series of Debentures as their names and addresses appear upon the Security Register. Any failure of the Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture. It shall not be necessary for the consent of Holders under this Section 9.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures. Any supplemental indenture executed pursuant to the provisions of this Article IX shall comply with the Trust Indenture Act. Upon the execution of any supplemental indenture pursuant to the provisions of this Article IX, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the Holders of Debentures of each series 53 61 affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes. SECTION 9.04. Notation on Debentures. Debentures of any series authenticated and delivered after the execution of any supplemental indenture affecting such series pursuant to the provisions of this Article IX may bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company or the Trustee shall so determine, new Debentures of such series so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared and executed by the Company, authenticated by the Trustee or the Authenticating Agent and delivered in exchange for the Debentures of such series then outstanding. SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished to Trustee. The Trustee, subject to the provisions of Sections 6.01 and 6.02, may request and shall receive an Officer's Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant hereto complies with the requirements of this Article IX. ARTICLE X CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE SECTION 10.01. Company May Consolidate, etc., on Certain Terms. Nothing contained in this Indenture or in any Debentures of any series shall prevent (i) any consolidation or merger of the Company with or into any other Person (whether or not affiliated with the Company, as the case may be), or successive consolidations or mergers in which the Company or its successor or successors, as the case may be, shall be a party or parties, or (ii) prevent any sale, conveyance, transfer or lease of the property of the Company, or its successor or successors as the case may be, as an entirety, or substantially as an entirety, to any other Person (whether or not affiliated with the Company, or its successor or successors, as the case may be) authorized to acquire and operate the same; provided, that (a) the Company is the surviving Person, or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to 54 62 which such sale, conveyance, transfer or lease of property is made is a Person organized and existing under the laws of the United States or any state thereof or the District of Columbia, and (b) upon any such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of, premium, if any and interest on the Debentures of each series then outstanding according to their tenor and the due and punctual performance and observance of all the covenants and conditions of this Indenture to be kept or performed by the Company shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act as then in effect) satisfactory in form to the Trustee executed and delivered to the Trustee by the Person formed by such consolidation, or into which the Company shall have been merged, or by the Person which shall have acquired such property, as the case may be, and (c) after giving effect to such consolidation, merger, sale, conveyance, transfer or lease, no Default or Event of Default with respect to any series of Debentures shall have occurred and be continuing. SECTION 10.02. Successor Corporation to be Substituted for Company. In case of any such consolidation, merger, conveyance or transfer and upon the assumption by the successor corporation, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligation of due and punctual payment of the principal of, premium, if any, and interest on all of the Debentures and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed or observed by the Company, such successor Person shall succeed to and be substituted for the Company, with the same effect as if it had been named herein as the party of the first part, and the Company thereupon shall be relieved of any further liability or obligation hereunder or upon the Debentures. Such successor Person thereupon may cause to be signed, and may issue either in its own name or in the name of Foster Wheeler Corporation, any or all of the Debentures of any series issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee or the Authenticating Agent; and, upon the order of such successor Person instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee or the Authenticating Agent shall authenticate and deliver any Debentures which previously shall have been signed and delivered by the officers of the Company to the Trustee or the Authenticating Agent for authentication, and any Debentures which such successor Person thereafter shall cause to be signed and delivered to the Trustee or the Authenticating Agent for that purpose. All the Debentures so issued shall in all respects have the same legal 55 63 rank and benefit under this Indenture as the Debentures theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Debentures had been issued at the date of the execution hereof. SECTION 10.03. Opinion of Counsel to be Given Trustee. The Trustee, subject to the provisions of Sections 6.01 and 6.02, may request and shall receive an Opinion of Counsel and/or an Officer's Certificate as conclusive evidence that any consolidation, merger, sale, conveyance, transfer or lease, and any assumption, permitted or required by the terms of this Article X complies with the provisions of this Article X. ARTICLE XI SATISFACTION AND DISCHARGE OF INDENTURE SECTION 11.01. Discharge of Indenture. When (a) the Company shall deliver to the Trustee for cancellation all Debentures of any series theretofore authenticated (other than any Debentures of such series which shall have been destroyed, lost or stolen and which shall have been replaced as provided in Section 2.08) and not theretofore cancelled, or (b) all the Debentures of any series outstanding hereunder not theretofore cancelled or delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for prepayment within one year under arrangements satisfactory to the Trustee for the giving of notice of prepayment, and the Company shall deposit with the Trustee, in trust, an amount in cash or U.S. Government Obligations, maturing as to principal and interest at such times and in such amounts as will insure the availability of cash, or a combination thereof sufficient to pay on the Stated Maturity or upon prepayment all of the Debentures of such series (other than any such Debentures which shall have been destroyed, lost or stolen and which shall have been replaced as provided in Section 2.08) not theretofore cancelled or delivered to the Trustee for cancellation, including principal, premium, if any, and interest due or to become due to the Stated Maturity or prepayment date, as the case may be, but excluding, however, the amount of any moneys for the payment of principal of, premium, if any, or interest on the Debentures (1) theretofore repaid to the Company in accordance with the provisions of Section 11.04, or (2) paid to any state or to the District of Columbia pursuant to its unclaimed property or similar laws, and if in either case the Company shall also pay or cause to be paid all other sums payable hereunder by the Company, then this Indenture shall cease to be of further effect except for the provisions of Sections 2.05, 2.07, 2.08, 3.01, 3.02, 3.05, 6.06, 6.10 and 11.04 hereof, which 56 64 shall survive until such Debentures shall mature and be paid. Thereafter, Sections 6.06, 6.10 and 11.04 shall survive, and the Trustee, on demand of the Company accompanied by any Officer's Certificate and an Opinion of Counsel and at the cost and expense of the Company, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture; the Company, however, hereby agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred by the Trustee in connection with this Indenture or the Debentures. SECTION 11.02. Deposited Moneys and U.S. Government Obligations to be Held in Trust by Trustee. Subject to the provisions of Section 11.04, all moneys and U.S. Government Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.05 shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Company if acting as its own paying agent), to the Holders of the particular series of Debentures for the payment of which such moneys or U.S. Government Obligations have been deposited with the Trustee, of all sums due and to become due thereon for principal, premium, if any, and interest. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 11.01 or 11.05 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 outstanding Debentures of the affected series. SECTION 11.03. Paying Agent to Repay Moneys Held. Upon the satisfaction and discharge of this Indenture all moneys then held by any paying agent of the Debentures of any series (other than the Trustee) shall, upon written demand of the Company, be repaid to it or paid to the Trustee, and thereupon such paying agent shall be released from all further liability with respect to such moneys. SECTION 11.04. Return of Unclaimed Moneys. Any moneys deposited with or paid to the Trustee or any paying agent for payment of the principal of, premium, if any, or interest on any Debentures of any series and not applied but remaining unclaimed by the Holders thereof for two years after the date upon which the principal of, premium, if any, or interest on such Debentures, as the case may be, shall have become due and payable, shall be repaid to the Company by the Trustee or such paying agent on written demand; and the Holder of any such Debentures shall thereafter look only to the Company for any 57 65 payment which such Holder may be entitled to collect and all liability of the Trustee or such paying agent with respect to such moneys shall thereupon cease. SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government Obligations. The Company shall be deemed to have been Discharged (as defined below) from its obligations with respect to any series of Debentures on the 91st day after the applicable conditions set forth below have been satisfied: (1) the Company shall have deposited or caused to be deposited irrevocably with the Trustee or the Defeasance Agent (as defined below) as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Debentures of such series (i) money in an amount, or (ii) U.S. Government Obligations, maturing as to principal and interest at such times and in such amounts as will insure the availability of cash, or (iii) a combination of (i) and (ii), sufficient, in the opinion (with respect to (ii) and (iii)) of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and the Defeasance Agent, if any, to pay and discharge each installment of principal of, premium, if any, and interest on the outstanding Debentures of such series on the dates such installments of principal, premium or interest are due; (2) if the Debentures of such series are then listed on any national securities exchange, the Company shall have delivered to the Trustee and the Defeasance Agent, if any, an Opinion of Counsel to the effect that the exercise of the option under this Section 11.05 would not cause such Debentures to be delisted from such exchange; (3) no Default or Event of Default with respect to the Debentures of such series shall have occurred and be continuing on the date of such deposit; and (4) the Company shall have delivered to the Trustee and the Defeasance Agent, if any, an Opinion of Counsel to the effect that Holders of the Debentures of such series will not recognize income, gain or loss for United States federal income tax purposes as a result of the exercise of the option under this Section 11.05 and will be subject to 58 66 United States federal income tax on the same amount and in the same manner and at the same times as would have been the case if such option had not been exercised. "Discharged" means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by, and obligations under, the Debentures of such series and to have satisfied all the obligations under this Indenture relating to the Debentures of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except (A) the rights of Holders of the Debentures of such series to receive, from the trust fund described in clause (1) above, payment of the principal of, premium, if any, and interest on such Debentures when such payments are due; (B) the Company's obligations with respect to such Debentures under Sections 2.07, 2.08, 5.02 and 11.04; and (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder. "Defeasance Agent" means another financial institution which is eligible to act as Trustee hereunder and which assumes all of the obligations of the Trustee necessary to enable the Trustee to act hereunder. In the event such a Defeasance Agent is appointed pursuant to this Section, the following conditions shall apply: (1) The Trustee shall have approval rights over the document appointing such Defeasance Agent and the document setting forth such Defeasance Agent's rights and responsibilities; (2) The Defeasance Agent shall provide verification to the Trustee acknowledging receipt of sufficient money and/or U. S. Government Obligations to meet the applicable conditions set forth in this Section 11.05. ARTICLE XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS SECTION 12.01. Indenture and Debentures Solely Corporate Obligations. No recourse for the payment of the principal of, premium, if any, or interest on any Debenture of any series, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture, or in any Debenture of any series, or because of the creation of any indebtedness repre- 59 67 sented thereby, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor Person to the Company, either directly or through the Company or any successor Person to the Company, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations of the Company, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, shareholders, officers or directors, as such of the Company or any successor corporation, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Debentures of any series or coupons, or implied therefrom; and that any and all such personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, shareholder, officer or director, as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Debentures of any series or coupons, or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of such Debentures. ARTICLE XIII MISCELLANEOUS PROVISIONS SECTION 13.01. Successors. All the covenants, stipulations, promises and agreements in this Indenture contained by the Company shall bind its successors and assigns whether so expressed or not. SECTION 13.02. Official Acts by Successor Corporation. Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation that shall at the time be the lawful sole successor of the Company. SECTION 13.03. Surrender of Company Powers. The Company by instrument in writing executed by authority of 2/3 (two-thirds) of its Board of Directors and 60 68 delivered to the Trustee may surrender any of the powers reserved to the Company, and thereupon such power so surrendered shall terminate both as to the Company, as the case may be, and as to any successor Person. SECTION 13.04. Addresses for Notices, etc. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders on the Company may be given or served by being deposited postage prepaid by first class mail, registered or certified mail, overnight courier service or conformed telecopy addressed (until another address is filed by the Company with the Trustee for the purpose) to the Company at Perryville Corporate Park, Clinton, New Jersey 08809-4000, Attention: Robert Iseman. Any notice, direction, request or demand by any Holder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at the office of the Trustee, Harris Trust and Savings Bank, 311 West Monroe Street, 12th Floor, Chicago, Illinois 60606, Attention: Corporate Trust Administration (unless another address is provided by the Trustee to the Company for such purpose). Any notice or communication to a Holder shall be mailed by first class mail to his or her address shown on the Security Register. SECTION 13.05. Governing Law. This Indenture and each Debenture shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be governed by and construed in accordance with the laws of said State, without regard to conflicts of laws principles thereof. SECTION 13.06. Business Days. In any case where the date of payment of principal of, premium, if any, or interest on the Debentures will not be a Business Day, the payment of such principal of, premium, if any, or interest on the Debentures need not be made on such date but may be made on the next succeeding Business Day, with the same force and effect as if made on the date of payment and no interest shall accrue for the period from and after such date, except that if such next succeeding Business Day falls in the next succeeding calendar year, then such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date. SECTION 13.07. Trust Indenture Act to Control. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 318, inclusive, of the Trust Indenture Act, such 61 69 imposed duties shall control. If any provision of this Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or excluded, as the case may be. SECTION 13.08. Table of Contents, Headings, etc. The table of contents and the titles and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof. SECTION 13.09. Execution in Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. SECTION 13.10. Separability. In case any one or more of the provisions contained in this Indenture or in the Debentures shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of the Debentures, but this Indenture and the Debentures shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein. SECTION 13.11. Assignment. The Company will have the right at all times to assign any of its respective rights or obligations under this Indenture to a direct or indirect wholly owned Subsidiary of the Company, provided that, in the event of any such assignment, the Company will remain liable for all such obligations. Subject to the foregoing, this Indenture is binding upon and inures to the benefit of the parties thereto and their respective successors and assigns. This Indenture may not otherwise be assigned by the parties thereto. ARTICLE XIV REDEMPTION OF DEBENTURES SECTION 14.01. Applicability of Article. Debentures of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with 62 70 their terms and, except as contemplated by Section 2.03 for Debentures of any series, in accordance with this Article. SECTION 14.02. Notice of Redemption; Selection of Debentures. In case the Company shall desire to exercise the right to redeem all, or, as the case may be, any part of the Debentures of any series in accordance with their terms, it shall fix a date for redemption and shall mail a notice of such redemption at least 30 and not more than 60 days prior to the date fixed for redemption to the Trustee and to the Holders of Debentures of such series to be so redeemed as a whole or in part at their last addresses as the same appear on the Security Register. Such mailing shall be by first class mail. The notice if mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the Holder of any Debenture of any series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Debenture of such series. Each such notice of redemption shall specify the CUSIP number of the Debentures of such series to be redeemed, the date fixed for redemption, the redemption price at which the Debentures of such series are to be redeemed (or the method by which such redemption price is to be calculated), the place or places of payment that payment will be made upon presentation and surrender of the Debentures of such series, that interest accrued to the date fixed for redemption will be paid as specified in said notice, and that on and after said date interest thereon or on the portions thereof to be redeemed will cease to accrue. If less than all the Debentures of a series are to be redeemed, the notice of redemption shall specify the numbers of the Debentures of such series to be redeemed. In case any Debenture of a series is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Debenture, a new Debenture or Debentures of such series in principal amount equal to the portion thereof that has not been redeemed will be issued. By 10:00 a.m. New York, New York time on the redemption date specified in the notice of redemption given as provided in this Section 14.02, the Company will deposit with the Trustee or with one or more paying agents an amount of money sufficient to redeem on the redemption date all the Debentures so called for redemption at the appropriate Redemption Price, together with accrued interest to the date fixed for redemption. 63 71 The Company will give the Trustee notice not less than 45 days prior to the redemption date (unless a shorter notice is acceptable to the Trustee) as to the aggregate principal amount of Debentures to be redeemed and the Trustee shall select, in such manner as in its sole discretion it shall deem appropriate and fair, the Debentures or portions thereof to be redeemed. SECTION 14.03. Payment of Debentures Called for Redemption. If notice of redemption has been given as provided in Section 14.02, the Debentures or portions of Debentures of any series with respect to which such notice has been given shall become due and payable on the date and at the place or places stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption (subject to the rights of Holders at the close of business on a regular record date in respect of an Interest Payment Date occurring on or prior to the redemption date), and on and after said date (unless the Company shall default in the payment of such Debentures at the Redemption Price, together with interest accrued to said date) interest on such Debentures or portions of Debentures so called for redemption shall cease to accrue. On presentation and surrender of such Debentures at a place of payment specified in said notice, the said Debentures or the specified portions thereof shall be redeemed by the Company at the applicable Redemption Price, together with interest accrued thereon to the date fixed for redemption (subject to the rights of Holders on the close of business on a regular record date in respect of an Interest Payment Date occurring on or prior to the redemption date). Upon presentation of any Debenture of a series redeemed in part only, the Company shall execute and the Trustee shall authenticate and make available for delivery to the Holder thereof, at the expense of the Company, a new Debenture or Debentures of such series of authorized denominations, in principal amount equal to the portion of the Debenture so presented that has not been redeemed. 64 72 ARTICLE XV SUBORDINATION OF DEBENTURES SECTION 15.01. Agreement to Subordinate. The Company covenants and agrees, and each Holder of Debentures issued hereunder likewise covenants and agrees, that the Debentures shall be issued subject to the provisions of this Article XV; and each Holder, whether upon original issue or upon transfer or assignment thereof, accepts and agrees to be bound by such provisions. The payment by the Company of the principal of, premium, if any, and interest on all Debentures issued hereunder shall, to the extent and in the manner hereinafter set forth, be subordinated and junior in right of payment to all Senior Indebtedness, whether outstanding at the date of this Indenture or thereafter incurred. No provision of this Article XV shall prevent the occurrence of any Default or Event of Default hereunder. SECTION 15.02. Default on Senior Indebtedness. In the event and during the continuation of any default by the Company in the payment of principal, premium, interest or any other payment due on any Senior Indebtedness, or in the event that the maturity of any Senior Indebtedness has been accelerated because of a default, then, in either case, no payment shall be made by the Company with respect to the principal (including redemption payments) of, premium, if any, or interest on the Debentures of any series or any other amounts which may be due on such Debentures pursuant to the terms hereof or otherwise until the holders of all Senior Indebtedness outstanding at the time of such acceleration shall receive payment in full of such Senior Indebtedness (including any amounts due upon acceleration). In the event of the acceleration of the maturity of the Debentures of any series, then no payment shall be made by the Company with respect to the principal (including redemption payments) of, premium, if any, or interest on such Debentures (including any other amounts which may be due on such Debentures pursuant to the terms hereof or otherwise) until the holders of all Senior Indebtedness outstanding at the time of such acceleration shall receive payment in full of such Senior Indebtedness (including any amounts due upon acceleration). In the event that, notwithstanding the foregoing, any payment shall be received by the Trustee or any Holder when such payment is prohibited by the preceding paragraphs of this Section 65 73 15.02, such payment shall be held in trust for the benefit of, and shall be paid over or delivered, by the Trustee (if the Notice required by Section 15.06 has been received by the Trustee) or by the Holder, to the holders of Senior Indebtedness or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness may have been issued, as their respective interests may appear, but only to the extent that the holders of the Senior Indebtedness (or their representative or representatives or a trustee) notify the Trustee in writing within 90 days of such payment of the amounts then due and owing on such Senior Indebtedness, and only the amounts specified in such notice to the Trustee shall be paid to the holders of such Senior Indebtedness. SECTION 15.03. Liquidation; Dissolution; Bankruptcy. Upon any payment by the Company or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution, winding-up, liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, all Senior Indebtedness of the Company shall first be paid in full, or payment thereof provided for in money in accordance with its terms, before any payment is made by the Company on account of the principal of, premium, if any, or interest on Debentures of any series (including any other amounts which may be due on such Debentures pursuant to the terms hereof or otherwise); and upon any such dissolution or winding-up or liquidation or reorganization, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, which the Holders or the Trustee would be entitled to receive from the Company, except for the provisions of this Article XV, shall be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Indebtedness of the Company (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders, as calculated by the Company) or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay all such Senior Indebtedness in full, in money or money's worth, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders or to the Trustee. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or 66 74 character prohibited by the foregoing, whether in cash, property or securities, shall be received by the Trustee before all Senior Indebtedness is paid in full, or provision is made for such payment in money in accordance with its terms, such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of such Senior Indebtedness or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Senior Indebtedness may have been issued, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all such Senior Indebtedness in full in money in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the benefit of the holders of such Senior Indebtedness. For purposes of this Article XV, the words "cash, property or securities" shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article XV with respect to the Debentures of any series to the payment of Senior Indebtedness that may at the time be outstanding, provided that (i) such Senior Indebtedness is assumed by the new corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of such Senior Indebtedness are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the sale, conveyance, transfer or lease of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for in Article X of this Indenture shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 15.03 if such other Person shall, as a part of such consolidation, merger, sale, conveyance, transfer or lease, comply with the conditions stated in Article X of this Indenture. Nothing in Section 15.02 or in this Section 15.03 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.06 of this Indenture. SECTION 15.04. Subrogation. Subject to the payment in full of all Senior Indebtedness, the rights of the Holders of Debentures of any series shall be subrogated to the rights of the holders of such Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company, as the case may be, applicable to such Senior Indebtedness until the principal of, premium, if any, and interest on the Debentures of such series shall be paid in full; 67 75 and, for the purposes of such subrogation, no payments or distributions to the holders of such Senior Indebtedness of any cash, property or securities to which the Holders or the Trustee would be entitled except for the provisions of this Article XV, and no payment over pursuant to the provisions of this Article XV to or for the benefit of the holders of such Senior Indebtedness by Holders or the Trustee, shall, as between the Company, its creditors other than holders of Senior Indebtedness of the Company, and the Holders, be deemed to be a payment by the Company to or on account of such Senior Indebtedness. It is understood that the provisions of this Article XV are and are intended solely for the purposes of defining the relative rights of the Holders, on the one hand, and the holders of such Senior Indebtedness on the other hand. Nothing contained in this Article XV or elsewhere in this Indenture or in the Debentures of any series is intended to or shall (i) impair, as between the Company, its creditors other than the holders of Senior Indebtedness of the Company, and the Holders of Debentures of any series, the obligation of the Company, which is absolute and unconditional, to pay to the Holders of Debentures of any series the principal of, premium, if any, and interest on such Debentures as and when the same shall become due and payable in accordance with their terms, or (ii) affect the relative rights of such Holders and creditors of the Company, as the case may be, other than the holders of Senior Indebtedness of the Company, as the case may be, nor shall anything herein or therein prevent the Trustee or any such Holder from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article XV of the holders of such Senior Indebtedness in respect of cash, property or securities of the Company, as the case may be, received upon the exercise of any such remedy. Upon any payment or distribution of assets of the Company referred to in this Article XV, the Trustee, subject to the provisions of Article VI of this Indenture, and the Holders of Debentures of any series shall be entitled to conclusively rely upon any order or decree made by any court of competent jurisdiction in which such dissolution, winding-up, liquidation or reorganization proceedings are pending, or a certificate of the receiver, trustee in bankruptcy, liquidation trustee, agent or other Person making such payment or distribution, delivered to the Trustee or to such Holders, for the purposes of ascertaining the Persons entitled to participate in such distribution, the holders of Senior Indebtedness and other indebtedness of the Company, as the case may be, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article XV. SECTION 15.05. Trustee to Effectuate Subordination. 68 76 Each Holder by such Holder's acceptance thereof authorizes and directs the Trustee on such Holder's behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article XV and appoints the Trustee such Holder's attorney-in-fact for any and all such purposes. SECTION 15.06. Notice by the Company. The Company shall give prompt written notice to a Responsible Officer of the Trustee of any fact known to the Company that would prohibit the making of any payment of monies to or by the Trustee in respect of the Debentures of any series pursuant to the provisions of this Article XV. Notwithstanding the provisions of this Article XV or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment of monies to or by the Trustee in respect of the Debentures of any series pursuant to the provisions of this Article XV, unless and until a Responsible Officer of the Trustee shall have received written notice thereof from the Company or a holder or holders of Senior Indebtedness or from any trustee therefor; and before the receipt of any such written notice, the Trustee, subject to the provisions of Article VI of this Indenture, shall be entitled in all respects to assume that no such facts exist; provided, however, that if the Trustee shall not have received the notice provided for in this Section 15.06 at least two Business Days prior to the date upon which by the terms hereof any money may become payable for any purpose (including, without limitation, the payment of the principal of, premium, if any, or interest on any Debenture), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money and to apply the same to the purposes for which they were received, and shall not be affected by any notice to the contrary that may be received by it within two Business Days prior to such date. The Trustee, subject to the provisions of Article VI of this Indenture, shall be entitled to conclusively rely on a written notice delivered to it by a Person representing himself to be a holder of Senior Indebtedness of the Company (or a trustee on behalf of such holder), as the case may be, to establish that such notice has been given by a holder of such Senior Indebtedness or a trustee on behalf of any such holder or holders. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of such Senior Indebtedness to participate in any payment or distribution pursuant to this Article XV, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of such Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution 69 77 and any other facts pertinent to the rights of such Person under this Article XV, and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. Upon any payment or distribution of assets of the Company referred to in this Article XV, the Trustee and the Holders shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit of creditors, agent or other person making such payment or distribution, delivered to the Trustee or to the Holders, for the purpose of ascertaining the persons entitled to participate in such payment or distribution, the holders of Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article XV. SECTION 15.07. Rights of the Trustee; Holders of Senior Indebtedness. The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article XV in respect of any Senior Indebtedness at any time held by it, to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder. With respect to the holders of Senior Indebtedness of the Company, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article XV, and no implied covenants or obligations with respect to the holders of such Senior Indebtedness shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of such Senior Indebtedness and, subject to the provisions of Article VI of this Indenture, the Trustee shall not be liable to any holder of such Senior Indebtedness if it shall pay over or deliver to Holders, the Company or any other Person money or assets to which any holder of such Senior Indebtedness shall be entitled by virtue of this Article XV or otherwise. Nothing in this Article XV shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.06. 70 78 SECTION 15.08. Subordination May Not Be Impaired. No right of any present or future holder of any Senior Indebtedness of the Company to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company, as the case may be, or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company, as the case may be, with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof that any such holder may have or otherwise be charged with. Without in any way limiting the generality of the foregoing paragraph, the holders of Senior Indebtedness of the Company may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders of Debentures of any series, without incurring responsibility to such Holders and without impairing or releasing the subordination provided in this Article XV or the obligations hereunder of such Holders to the holders of such Senior Indebtedness, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, such Senior Indebtedness, or otherwise amend or supplement in any manner such Senior Indebtedness or any instrument evidencing the same or any agreement under which such Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing such Senior Indebtedness; (iii) release any Person liable in any manner for the collection of such Senior Indebtedness; and (iv) exercise or refrain from exercising any rights against the Company, as the case may be, and any other Person. 71 79 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed by their respective officers thereunto duly authorized, as of the day and year first above written. FOSTER WHEELER CORPORATION By: ----------------------------------- Name: Title: Attest: By: -------------------------------- Name: Title: HARRIS TRUST AND SAVINGS BANK, as Trustee By: ----------------------------------- Name: Title: Attest: By: -------------------------------- Name: Title: 72 EX-4.3 3 FORM OF SUPPLEMENTAL INDENTURE 1 EXHIBIT 4.3 FIRST SUPPLEMENTAL INDENTURE between FOSTER WHEELER CORPORATION and HARRIS TRUST AND SAVINGS BANK Dated as of _________, _________ 2 TABLE OF CONTENTS Page ---- ARTICLE I DEFINITIONS SECTION 1.1. Definition of Terms........................................2 ARTICLE II GENERAL TERMS AND CONDITIONS OF THE DEBENTURES SECTION 2.1. Designation and Principal Amount...........................5 SECTION 2.2. Maturity...................................................5 SECTION 2.3. Form and Payment...........................................6 SECTION 2.4. Global Debenture...........................................6 SECTION 2.5. Interest...................................................7 ARTICLE III REDEMPTION OF THE DEBENTURES SECTION 3.1. Tax Event Redemption.......................................9 SECTION 3.2. Investment Company Event of Redemption....................10 SECTION 3.3. Optional Redemption by Company............................10 SECTION 3.4. No Sinking Fund...........................................10 ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD SECTION 4.1. Extension of Interest Payment Period......................10 SECTION 4.2. Notice of Extension.......................................11 ARTICLE V FORM OF DEBENTURE SECTION 5.1. Form of Debenture.........................................12 ARTICLE VI ORIGINAL ISSUE OF DEBENTURES SECTION 6.1. Original Issue of Debentures..............................12 ARTICLE VII COVENANTS i 3 Page ---- SECTION 7.1. Limitation on Dividends...................................12 SECTION 7.2. Covenants as to the Trust.................................13 ARTICLE VIII MISCELLANEOUS SECTION 8.1. Ratification of Indenture.................................14 SECTION 8.2. Acknowledgment of Rights..................................14 SECTION 8.3. Direction of Proceedings and Waiver of Defaults by Majority of Holders........................14 SECTION 8.4. Trustee Not Responsible for Recitals......................16 SECTION 8.5. Governing Law.............................................16 SECTION 8.6. Separability..............................................16 SECTION 8.7. Counterparts..............................................16 ii 4 FIRST SUPPLEMENTAL INDENTURE, dated as of ___________, ________ (the "First Supplemental Indenture") between Foster Wheeler Corporation, a New York corporation (the "Company"), and Harris Trust and Savings Bank, as trustee (the "Trustee"), under the Indenture dated as of __________, 1998 between the Company and the Trustee (the "Indenture"). WHEREAS, the Company executed and delivered the Indenture to the Trustee to provide for the future issuance of the Company's unsecured subordinated debentures to be issued from time to time in one or more series as might be determined by the Company under the Indenture, in an unlimited aggregate principal amount which may be authenticated and delivered as provided in the Indenture; WHEREAS, pursuant to the terms of the Indenture, the Company desires to provide for the establishment of a new series of its junior subordinated deferrable interest debentures to be known as its ___% Junior Subordinated Deferrable Interest Debentures, Series I (the "Debentures"), the form and substance of such Debentures and the terms, provisions and conditions thereof to be set forth as provided in the Indenture and this _____ Supplemental Indenture; WHEREAS, FW Preferred Capital Trust I, a Delaware statutory business trust (the "Trust"), has offered to the public $_________ aggregate liquidation amount of its % Preferred Securities, Series I (the "Preferred Securities"), representing beneficial ownership interests in the assets of the Trust, and proposes to invest the proceeds from such offering, together with the proceeds of the issuance and sale by the Trust to the Company of $____________ aggregate liquidation amount of its Common Securities; and WHEREAS, the Company has requested that the Trustee execute and deliver this First Supplemental Indenture pursuant to Sections 2.03 and 8.01 of the Indenture and all requirements necessary to make this First Supplemental Indenture a valid and binding instrument in accordance with its terms, and to make the Debentures, when executed by the Company and authenticated and delivered by the Trustee, the valid and binding obligations of the Company, have been performed, and the execution and delivery of this First Supplemental Indenture has been duly authorized in all respects: 5 NOW THEREFORE, in consideration of the purchase of the Debentures by the Holders thereof, and for the purpose of setting forth, as provided in the Indenture, the form and substance of the Debentures and the additional terms, provisions and conditions thereof, the Company covenants and agrees with the Trustee as follows: ARTICLE I DEFINITIONS SECTION 1.1. Definition of Terms. Unless the context otherwise requires: (a) a term defined in the Indenture has the same meaning when used in this First Supplemental Indenture; (b) a term defined anywhere in this First Supplemental Indenture has the same meaning throughout; (c) the singular includes the plural and vice versa; (d) a reference to a Section or Article is to a Section or Article of this First Supplemental Indenture; (e) headings are for convenience of reference only and do not affect interpretation; (f) the following terms have the meanings given to them in the Declaration: Business Day; Common Securi ties; Delaware Trustee; Direct Action; Distribution; Prop erty Account; Preferred Securities; Guarantee; Preferred Security Certificate; and Administrative Trustees; (g) the following terms have the meanings given to them in this Section 1.1(g): "Additional Sums" shall have the meaning set forth in Section 2.5(e). "Additional Interest" shall have the meaning set forth in Section 4.1. 2 6 "Debentures" shall have the meaning set forth in the preamble of this First Supplemental Indenture. "Declaration" means the Amended and Restated Declaration of Trust of the Trust, dated as of _____, , 1998, as amended from time to time. "Deferred Interest" shall have the meaning set forth in Section 4.1. "Depositary", with respect to the Debentures, means The Depository Trust Company or such other successor Clearing Agency for the Preferred Securities. "Dissolution Event" means the liquidation of the Trust pursuant to the Declaration and the distribution of the Debentures held by the Property Trustee to the holders of the Trust Securities issued by the Trust pro rata in accordance with the Declaration. "Extension Period" shall have the meaning set forth in Section 4.1. "Global Debenture" shall have the meaning set forth in Section 2.4(a)(i). "Interest Payment Date" shall have the meaning set forth in Section 2.5(d). "Interest Period" means each period beginning on, and including, _________, _______, and ending on, but excluding, the first Interest Payment Date, and each successive period beginning on, and including, an Interest Payment Date and ending on, but excluding, the next succeeding Interest Payment Date. "Investment Company Event" means the receipt by the Trust of an opinion of counsel, rendered by a law firm having a recognized national securities practice, to the effect that, as a result of the occurrence of a change in law or regulation or a change in interpretation or application of law or regulation by any legislative body, court, governmental agency or regulatory authority (a "Change in 1940 Act Law"), there is more than an insubstantial risk that the Trust is or will be considered an "investment company" that is required to be registered under the Investment Company Act, which Change in 1940 Act Law becomes 3 7 effective on or after the date of issuance of the Preferred Securities under the Declaration. "Investment Company Event Redemption Price" means, with respect to a redemption following an Investment Company Event, 100% of the principal amount of the Debentures to be redeemed plus accrued and unpaid interest thereon, including Additional Interest, if any, to the redemption date. "Maturity Date" shall mean ___________,2028. "Non Book-Entry Preferred Securities" shall have the meaning set forth in Section 2.4(a)(ii). "Other Guarantees" means all guarantees issued or to be issued by the Company with respect to capital securities (if any) and issued to other trusts to be established by the Company (if any), in each case similar to the Trust. "Optional Redemption" means a redemption pursuant to Section 3.3(a). "Optional Redemption Price" has the meaning set forth in Section 3.3(a). "Paying Agent" means the Trustee or any Person authorized by the Company to pay the principal of (or premium, if any) or interest on, or other amounts in respect of, any Debentures on behalf of the Company. "Security Registrar" shall have the meaning set forth in Section 2.3. "Tax Event" means the receipt by the Trust of an opinion of counsel to the Company that is experienced in such matters to the effect that, as a result of any amend ment to, clarification of, or change (including any announced proposed change) in, the laws or any regulations thereunder of the United States or any political subdivision or taxing authority thereof or therein, or change in the official position with respect thereto or as a result of any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or which proposed change, pronouncement notice, announcement or decision is announced on or after the date of issuance of the Preferred Securities under the Declaration, there is more than an insubstantial 4 8 risk that (i) the Trust is, or will be within 90 days of the date of such opinion, subject to United States federal income tax with respect to income received or accrued on the Debentures, (ii) interest payable by the Company on the Debentures is not, or within 90 days of the date of such opinion, will not be, deductible by the Company, in whole or in part, for United States federal income tax purposes or (iii) the Trust is, or will be within 90 days of the date of such opinion, subject to more than a de minimis amount of other taxes, duties or other governmental charges. "Tax Event Redemption Price" means, with respect to a redemption following a Tax Event, 100% of the principal amount of the Debentures to be redeemed plus accrued and unpaid interest, including Additional Interest and Additional Sums, if any, to the redemption date. "Trust" shall have the meaning set forth in the preamble of this First Supplemental Indenture. "Trust Securities" shall mean the Preferred Securities and the Common Securities, collectively. ARTICLE II GENERAL TERMS AND CONDITIONS OF THE DEBENTURES SECTION 2.1. Designation and Principal Amount. There is hereby authorized a series of Debt Securities designated the "________% Junior Subordinated Deferrable Interest Debentures, Series I", limited in aggregate principal amount to $___________, which amount shall be as set forth in any written order of the Company for the authentication and delivery of Debentures pursuant to Section 2.05 of the Indenture. SECTION 2.2. Maturity. The Maturity Date (which shall constitute the Stated Maturity of the Debentures for purposes of the Indenture) shall be the date on which the Debentures mature and on which the principal thereof shall be due and payable together with all accrued and unpaid interest thereon (including Additional Interest and Additional Sums, if any). 5 9 SECTION 2.3. Form and Payment. Except as provided in Section 2.4, the Debentures shall be issued in fully registered certificated form without interest coupons. Principal of, premium, if any, and interest on (including Additional Interest and Additional Sums, if any) the Debentures issued in certificated form will be payable, the transfer of such Debentures will be registrable and such Debentures will be exchangeable for Debentures bearing identical terms and provisions at the office or agency of the Company maintained for such purpose as set forth in the Indenture; provided, however, that payment of interest with respect to Debentures (other than a Global Debenture) may be made at the option of the Company (i) by check mailed to the Holder at such address as shall appear in the Security Register or (ii) by transfer to an account maintained by the Person entitled thereto, provided that proper transfer instructions have been received in writing by the relevant record date. The Company selects each of New York, New York and Chicago, Illinois as a place of payment where the principal of (and premium, if any) and interest on the Debentures are payable as specified in accordance herewith, and hereby appoints Harris Trust and Savings Bank, the Trustee, as registrar for the Debentures (the "Security Registrar"). Notwithstanding the foregoing, so long as the Holder of any Debentures is the Property Trustee, the payment of the principal of, premium, if any, and interest (including Additional Interest and Additional Sums, if any) on such Debentures held by the Property Trustee will be made at such place and to such account as may be designated by the Property Trustee. SECTION 2.4. Global Debenture. (a) In connection with a Dissolution Event, (i) the Debentures in certificated form may be presented to the Trustee by the Property Trustee in exchange for one or more global Debentures in an aggregate principal amount equal to the aggregate principal amount of all outstanding Debentures (each a "Global Debenture"), to be registered in the name of the Depositary, or its nominee, and delivered by the Trustee to or upon the order of the Depositary for crediting to the accounts of its participants pursuant to the instructions of the Administrative Trustees. The Company 6 10 upon any such presentation shall execute such Global Debenture or Global Debentures in such aggregate principal amount and deliver the same to the Trustee for authentication and delivery in accordance with the Indenture. Payments on the Debentures issued in the form of a Global Debenture will be made to the Depositary; and (ii) if any Preferred Securities are held in non book-entry certificated form, the Debentures in certificated form may be presented to the Trustee by the Property Trustee and any Preferred Security Certificate which represents Preferred Securities other than Preferred Securities held by the Clearing Agency or its nominee ("Non Book-Entry Preferred Securities") will be deemed to represent beneficial interests in Debentures presented to the Trustee by the Property Trustee having an aggregate principal amount equal to the aggregate liquidation amount of the Non Book-Entry Preferred Securities until such Preferred Security Certificates are presented to the Security Registrar for transfer or reissuance at which time such Preferred Security Certificates will be cancelled and a Debenture, registered in the name of the holder of the Preferred Security Certificate or the transferee of the holder of such Preferred Security Certificate, as the case may be, with an aggregate principal amount equal to the aggregate liquidation amount of the Preferred Security Certificate cancelled, will be executed by the Company and delivered to the Trustee for authentication and delivery in accordance with the Indenture. Upon the issuance of such Debentures, Debentures with an equivalent aggregate principal amount that were presented by the Property Trustee to the Trustee will be deemed to have been cancelled. (b) A Global Debenture may be transferred, in whole but not in part, only to another nominee of the Depositary, or to a successor Depositary selected or approved by the Company or to a nominee of such successor Depositary. SECTION 2.5. Interest. (a) Each Debenture will bear interest at a rate of ______% per annum from _________, ______ until the principal thereof becomes due and payable, and on any overdue principal at a rate of ______% per annum and (to the extent 7 11 that payment of such interest is enforceable under applicable law) on any overdue installment of interest at a rate of _______% per annum, compounded quarterly, payable (subject to the provisions of Article IV) quarterly in arrears on the day of ________, _________, _________ and ________ of each year commencing on ________, _______, to the Person in whose name such Debenture or any predecessor Debenture is registered, at the close of business on the regular record date for such interest installment, which, in respect of any Debentures of which the Property Trustee is the Holder or in the case of a Global Debenture, shall be the close of business on the Business Day immediately preceding that Interest Payment Date (as defined below). Notwithstanding the foregoing sentence, if the Debentures are no longer in book-entry only form, except if the Debentures are held by the Property Trustee, the record dates shall be the _________, __________, and ________ prior to the applicable Interest Payment Date. (b) Unless otherwise provided by the Trustee, the Paying Agent will calculate the amount of interest payable on the Debentures in respect of each Interest Period. The amount of interest payable for any Interest Period will be computed (i) for any full quarterly Interest Period, on the basis of a 360-day year of twelve 30-day months, (ii) for any period shorter than a full quarterly Interest Period for which distributions are computed, on the basis of a 30-day month and (iii) for periods of less than a month, the actual number of days elapsed per 30-day month. The amount of interest payable for any full Interest Period will be com puted by dividing the rate per annum by four. The determination of the amount of interest payable by Paying Agent will (in the absence of wilful default, bad faith or manifest error) be final, conclusive and binding on all concerned. (c) All certificates, communications, opinions, determinations, calculations, quotations and decisions given, expressed, made or obtained for the purposes of the provisions relating to the payment and calculation of interest on the Debentures, whether by the Trustee or Paying Agent, will (in the absence of wilful default, bad faith or manifest error) be binding on the Trust, the Company, the Trustee and all of the holders of the Debentures, and no liability will (in the absence of wilful default, bad faith or manifest error) attach to the Trustee or Paying Agent in 8 12 connection with the exercise or non-exercise by any of them of their powers, duties and discretion. (d) In the event that any date on which interest is payable on the Debentures is not a Business Day, then payment of interest payable on such date will be made on the next succeeding day which is a Business Day, except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date (each date on which interest is actually payable, an "Interest Payment Date"). (e) If a Tax Event has occurred and is continuing while the Property Trustee is the Holder of any Debentures, and the Trust or the Property Trustee is required to pay any taxes, duties, assessments or governmental charges of whatever nature (other than withholding taxes) imposed by the United States, or any other taxing authority, then, in any case, the Company will pay such additional sums ("Additional Sums") on the Debentures held by the Property Trustee, as shall be required so that the net amounts received and retained by the Trust and the Property Trustee after paying such taxes, duties, assessments or other governmental charges will be equal to the amounts the Trust and the Property Trustee would have received had the Trust and the Property Trustee not been subject to such taxes, duties, assessments or other government charges as a result of such Tax Event. Additional Sums shall be treated as interest for all purposes under the Indenture. (f) All percentages resulting from any calculations referred to in this First Supplemental Indenture will be rounded, if necessary, to the nearest multiple of 1/100 of 1% and all U.S. dollar amounts used in or resulting from such calculations will be rounded to the nearest cent (with one-half cent or more being rounded upwards). ARTICLE III REDEMPTION OF THE DEBENTURES SECTION 3.1. Tax Event Redemption. If at any time a Tax Event shall occur and be continuing, the Company shall have the right upon not less 9 13 than 30 nor more than 60 days' notice, to redeem the Debentures, in whole, but not in part, for cash within 90 days following the occurrence of such Tax Event at the Tax Event Redemption Price. SECTION 3.2. Investment Company Event of Redemption. If at any time an Investment Company Event shall occur and be continuing, the Company shall have the right, upon not less than 30 nor more 60 days' notice, to redeem the Debentures, in whole, but not in part, for cash within 90 days following the occurrence of such Investment Company Event at the Investment Company Event Redemption Price. SECTION 3.3. Optional Redemption by Company. (a) The Company shall have the right to redeem the Debentures, in whole or in part, from time to time, on or after _________, _________, upon not less than 30 days nor more than 60 days' notice at a redemption price equal to 100% of the principal amount of the Debentures to be redeemed plus accrued and unpaid interest thereon, including Additional Interest, if any, to the redemption date (in any such case, an "Optional Redemption Price"). (b) If the Debentures are only partially redeemed pursuant to this Section 3.3, the Debentures will be redeemed pro rata or by lot or by any other method utilized by the Security Registrar; provided, that if at the time of redemption the Debentures are registered as a Global Debenture, the Depositary shall determine, in accordance with its procedures, the principal amount of such Debentures beneficially held by each Holder of Debentures to be redeemed. (c) If a partial redemption of the Debentures would result in the delisting of the Preferred Securities issued by the Trust or the Debentures from any national securities exchange or interdealer quotation system or other organization on which the Preferred Securities or Debentures are then listed, the Company shall not be permitted to effect such a partial redemption and may only effect such a redemption as would not result in such a delisting. 10 14 SECTION 3.4. No Sinking Fund. The Debentures are not entitled to the benefit of any sinking fund. ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD SECTION 4.1. Extension of Interest Payment Period. So long as no Event of Default has occurred and is continuing, the Company shall have the right, at any time and from time to time during the term of the Debentures, to defer payments of interest on the Debentures by extending the interest payment period of such Debentures for a period not exceeding 20 consecutive quarterly periods (the "Extension Period"), during which Extension Period no interest shall be due and payable; provided that no Extension Period shall end on a date other than an Interest Payment Date or extend beyond the Maturity Date. To the extent permitted by applicable law, interest, the payment of which has been deferred because of the extension of the interest payment period pursuant to this Section 4.1 will bear interest thereon at a rate of _______% per annum compounded quarterly for each quarterly period of the Extension Period ("Additional Interest"). At the end of the Extension Period, the Company shall pay all interest accrued and unpaid on the Debentures, including any Additional Sums and Additional Interest (together, "Deferred Interest") that shall be payable to the Holders in whose names the Debentures are registered in the Security Register on the record date relating to the Interest Payment Date on which the Extension Period ends. Before the termination of any Extension Period, the Company may further defer payments of interest by further extending such period, provided that such period, together with all such previous and further extensions within such Extension Period, shall not exceed 20 consecutive quarterly periods or extend beyond the Maturity Date of the Debentures. Upon the termination of any Extension Period and the payment of all Deferred Interest then due, the Company may commence a new Extension Period, subject to the foregoing requirements. No interest shall be due and payable during an Extension Period, except at the end thereof. Additional Interest shall be treated as interest for all purposes under the Indenture. 11 15 SECTION 4.2. Notice of Extension. (a) The Company shall give written notice to the Administrative Trustees, the Property Trustee and the Trustee of its selection of such Extension Period at least one Business Day before the earlier of (i) the next succeeding date on which Distributions on the Trust Securities issued by the Trust are payable, or (ii) the date the Trust is required to give notice of the record date, or the date such Distributions are payable, to any national securities exchange or interdealer quotation system or to holders of the Preferred Securities issued by the Trust, but in any event at least one Business Day before such record date. (b) The quarterly period in which any notice is given pursuant to paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the 20 quarterly periods permitted in the maximum Extension Period permitted under Section 4.1. ARTICLE V FORM OF DEBENTURE SECTION 5.1. Form of Debenture. The Debentures and the Trustee's Certificate of Authentication to be endorsed thereon are to be substantially in the forms set forth in Exhibit A hereto. ARTICLE VI ORIGINAL ISSUE OF DEBENTURES SECTION 6.1. Original Issue of Debentures. Debentures in the aggregate principal amount of $___________ may, upon execution of this First Supplemental Indenture, be executed by the Company and delivered to the Trustee for authentication as provided in Sections 2.03 and 2.05 of the Indenture. 12 16 ARTICLE VII COVENANTS SECTION 7.1. Limitation on Dividends. The Company will not, and will not permit any subsidiary to, (i) declare or pay any dividends or distributions on, or prepay, purchase, acquire, or make a liquidation payment with respect to, any of the Company's capital stock, (ii) make any payment of principal of, premium, if any, or interest on or repay, repurchase or redeem any debt securities of the Company (including Other Debentures) that rank pari passu with, or junior in right of payment to, the Debentures or (iii) make any guarantee payment with respect to any guarantee by the Company of the debt securities of any Subsidiary of the Company(including Other Guarantees) if such guarantee ranks pari passu with, or junior in right of payment to, the Debentures (other than (a) dividends or distributions by the Company by way of issuance of its common stock, (b) payments under the Guarantee made by the Company in respect of the Trust Securities of such Trust, (c) any declaration of a dividend in connection with the implementation of a shareholders' rights plan, or the issuance of stock under any such plan in the future, or the redemption or repurchase of any such rights pursuant thereto, and (d) purchases of common stock related to the issuance of common stock or rights under any of the Company's benefit plans), if at such time (1) there shall have occurred any event of which the Company has actual knowledge that with the giving of notice, or the lapse of time, or both, would constitute an Event of Default hereunder, (2) if such Debentures are held by the Property Trustee, the Company shall be in default with respect to its payment obligations under the Preferred Securities Guarantee or Common Securities Guaran tee or (3) the Company shall have given notice of its selection of an Extension Period and shall not have rescinded such notice or such Extension Period and such Extension Period shall be continuing. SECTION 7.2. Covenants as to the Trust. In the event Debentures are issued to the Trust or a trustee of such trust in connection with the issuance of Trust Securities by the Trust, for so long as such Trust Securities remain outstanding, the Company (i) will maintain 100% direct or indirect ownership of the Common Securities 13 17 of the Trust; provided, however, that any successor of the Company, permitted pursuant to Article X of the Indenture, may succeed to the Company's ownership of such Common Securities, (ii) will use commercially reasonable efforts to cause the Trust (a) to remain a grantor trust, except in connection with a distribution of Debentures to the holders of Trust Securities in liquidation of the Trust, the redemption of all of the Trust Securities of the Trust, or certain mergers, consolidations or amalgamations, each as permitted by the Declaration, and (b) to otherwise continue to be classified as a grantor trust and not an association taxable as a corporation for United States federal income tax purposes and (iii) will not cause, as sponsor of the Trust, or permit, as holder of the Common Securities, the dissolution, winding-up or termination of the Trust, except in connection with a distribution of the Debentures as provided in the Declaration and in connection with certain mergers, consolidations or amalgamations. ARTICLE VIII MISCELLANEOUS SECTION 8.1. Ratification of Indenture. The Indenture, as supplemented by this First Supplemental Indenture, is in all respects ratified and confirmed, and this First Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided. SECTION 8.2. Acknowledgment of Rights. The Company acknowledges that, with respect to any Debentures held by the Trust or a trustee thereof, if the Property Trustee of such Trust fails to enforce its rights under this First Supplemental Indenture or the Indenture as the Holder of the Debentures held as the assets of FW Preferred Capital Trust I, any holder of Preferred Securities may institute legal proceedings directly against the Company to enforce such Property Trustee's rights under this First Supplemental Indenture or the Indenture without first instituting any legal proceedings against such Property Trustee or any other person or entity. Notwithstanding the foregoing, if an Event of Default has occurred and is continuing and such event is attributable to the failure of the Company 14 18 to pay principal of, premium, if any, or interest on the Debentures when due, the Company acknowledges that a holder of Preferred Securities may institute a Direct Action for enforcement of payment to such holder of the principal of, premium, if any, or interest on the Debentures having a principal amount equal to the aggregate liquidation amount of the Preferred Securities of such holder on or after the respective due date specified in the Debentures. SECTION 8.3. Direction of Proceedings and Waiver of De faults by Majority of Holders. The Holders of a majority in aggregate principal amount of the Debentures at the time outstanding shall have the right to 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; provided, however, that (subject to the provisions of Section 6.01 of the Indenture) the Trustee shall have the right to decline to follow any such direction if the Trustee shall determine that the action so directed would be unjustly prejudicial to the Holders not taking part in such direction, it being understood that the Trustee shall have no duty or obligation to determine whether or not such actions or forebearances would be unduly prejudicial to such Holders, or if the Trustee being advised by counsel determines that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors or trustees, executive committee, or a trust committee of directors or trustees and/or Responsible Officers shall determine that the action or proceedings so directed would likely involve the Trustee in personal liability. Prior to any declaration accelerating the maturity of the Debentures, the Holders of a majority in aggregate principal amount of the Debentures at the time outstanding may on behalf of the Holders of all of the Debentures waive any past default or Event of Default and its consequences except a default (a) in the payment of principal of, premium, if any, or interest on any of the Debentures (unless such default has been cured and a sum sufficient to pay all matured installments of principal, premium, if any, and interest due otherwise than by acceleration has been deposited with the Trustee) or (b) in respect of covenants or provisions hereof which cannot be modified or amended without the consent of the Holder of each Debenture affected; provided, however, that if the Debentures are held by the Property Trustee, such waiver or modification to such waiver 15 19 shall not be effective until the holders of a majority in aggregate liquidation amount of Trust Securities shall have consented to such waiver or modification to such waiver; provided further, that if the consent of the Holder of each outstanding Debenture is required, such waiver shall not be effective until each holder of the Trust Securities shall have consented to such waiver. Upon any such waiver, the default covered thereby shall be deemed to be cured for all purposes of this First Supplemental Indenture and the Indenture and the Company, the Trustee and the Holders shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. Whenever any default or Event of Default hereunder shall have been waived as permitted by Section 5.08 of the Indenture, said default or Event of Default shall for all purposes of the Debentures and the Indenture be deemed to have been cured and to be not continuing. SECTION 8.4. Trustee Not Responsible for Recitals. The recitals herein contained are made by the Company and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the legality, validity or sufficiency of this First Supplemental Indenture. SECTION 8.5. Governing Law. This First Supplemental Indenture and each Debenture shall be construed in accordance with and governed by the laws of the State of New York. SECTION 8.6. Separability. In case any one or more of the provisions contained in this First Supplemental Indenture or in the Debentures shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this First Supplemental Indenture or of the Debentures, but this First Supplemental Indenture and the Debentures shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein. 16 20 SECTION 8.7. Counterparts. This First Supplemental Indenture may be executed in any number of counterparts each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. 17 21 IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed and attested, as of the day and year first above written. FOSTER WHEELER CORPORATION By: ----------------------------- Name: Title: Attest: By: ------------------------------ Name: Title: HARRIS TRUST AND SAVINGS BANK, as Trustee By: ----------------------------- Name: Title: Attest: By: ------------------------------ Name: Title: 18 22 EXHIBIT A (FORM OF FACE OF DEBENTURE) [IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This Debenture is a Book-Entry Security within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depositary or a nominee of a Depositary. This Debenture is exchangeable for Debentures registered in the name of a person other than the Depositary or its nominee only in the limited circumstances described in the Indenture, and no transfer of this Debenture (other than a transfer of this Debenture as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary) may be registered except in limited circumstances. Unless this Debenture is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York, New York) to the issuer or its agent for registration of transfer, exchange or payment, and any Debenture issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of The Depository Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.] A-1 23 No. __________ CUSIP No. __________ FOSTER WHEELER CORPORATION __________% __________ FOSTER WHEELER CORPORATION, a New York corporation (the "Company", which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to FW Preferred Capital Trust I, or registered assigns, the principal sum of $__________ on ________, _________, __________, _____ and to pay interest on said principal sum from ___________, ________, or from the most recent interest payment date to which interest has been paid or duly provided for, quarterly (subject to deferral as set forth herein) in arrears on the _______day of ______, _______, ________ and ________ of each year commencing __________, _______, at a rate of _______% per annum until the principal hereof shall have become due and payable, and on any overdue principal and premium, if any, at a rate of ________% per annum and (without duplication and to the extent that payment of such interest is enforceable under applicable law) on any overdue installment of interest at a rate of ____% per annum compounded quarterly. The amount of interest payable on any Interest Payment Date (as defined below) shall be calculated as provided in the Indenture. In the event that any date on which interest is payable on this Debenture is not a Business Day, then payment of interest payable on such date will be made on the next succeeding day that is a Business Day, except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date (each date on which interest is actually payable, an "Interest Payment Date"). The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the person in whose name this Debenture (or one or more Predecessor Debentures, as defined in said Indenture) is registered at the close of business on the regular record date for such interest installment, which shall be, except if the Debentures are held by the Property Trustee, the close of business on the ________, ________, ________ and _________ prior to the applicable Interest Payment Date. Any such interest installment not punctually paid or duly provided for shall forthwith cease to be payable to the registered Holders on such regular record date and may be paid to the Person in A-2 24 whose name this Debenture (or one or more Predecessor Debentures) is registered at the close of business on a special record date to be fixed by the Trustee for the payment of such defaulted interest, notice whereof shall be given to the registered Holders not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange or interdealer quotation system on which the Debentures may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. The principal of, premium, if any, and interest (including Additional Interest and Additional Sums, if any) on this Debenture shall be payable at the office or agency of the Trustee maintained for that purpose in any coin or currency of the United States of America that at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of interest may be made, at the option of the Company, by check mailed to the registered Holder at such address as shall appear in the Security Register or by wire transfer to an account designated by a Holder in writing not less than ten days prior to the date of payment. Notwithstanding the foregoing, so long as the Holder of this Debenture is the Property Trustee, the payment of the principal of, premium, if any, and interest on this Debenture will be made at such place and to such account as may be designated by the Property Trustee. The indebtedness evidenced by this Debenture is, to the extent provided in the Indenture, subordinate and junior in right of payment to the prior payment in full of all Senior Indebtedness, and this Debenture is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Debenture, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his or her behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c) appoints the Trustee his or her attorney-in-fact for any and all such purposes. Each Holder hereof, by his or her acceptance hereof, hereby waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such holder or creditor upon said provisions. This Debenture shall not be entitled to any benefit under the Indenture hereinafter referred to, or be valid or A-3 25 become obligatory for any purpose until the Certificate of Authentication hereon shall have been signed by or on behalf of the Trustee. The provisions of this Debenture are continued on the reverse side hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place. IN WITNESS WHEREOF, the Company has caused this instrument to be executed. FOSTER WHEELER CORPORATION By: ----------------------------- Name: Title: Attest: By: ----------------------------------- Name: Title: A-4 26 CERTIFICATE OF AUTHENTICATION This is one of the Debentures of the series desig nated therein referred to in the within-mentioned Indenture. Harris Trust and Savings Bank, as Trustee By: ---------------------------------- Authorized Officer Dated: ------------------------------- A-5 27 (FORM OF REVERSE OF DEBENTURE) This Debenture is one of a duly authorized series of debentures of the Company (herein sometimes referred to as the "Debentures"), all issued or to be issued in one or more series under and pursuant to an Indenture, dated as of ___________, _______duly executed and delivered between the Company and Harris Trust and Savings Bank, as Trustee (the "Trustee"), as supplemented by the ____ Supplemental Indenture, dated as of __________, _________between the Company and the Trustee (the Indenture as so supplemented, the "Indenture"), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Debentures. By the terms of the Indenture, Debentures are issuable in series that may vary as to amount, date of maturity, rate of interest and in other respects as provided in the Indenture. This Debenture is one of the series designated on the face hereof and is limited in aggregate principal amount as specified in said ___________ Supplemental Indenture. Upon the occurrence and continuation of a Tax Event or Investment Company Event, the Company shall have the right, subject to certain conditions set forth in the Indenture, to redeem this Debenture in whole, but not in part, at the Tax Event Redemption Price or Investment Company Event Redemption Price, as the case may be, within 90 days following the occurrence of such Tax Event or Investment Company Event. In addition, the Company shall have the right to redeem this Debenture, in whole or in part, from time to time on or after ___________, 2003, at a redemption price equal to 100% of the principal amount of the Debentures to be redeemed plus accrued and unpaid interest thereon, including Additional Interest, if any, to the redemption date. Any redemption pursuant to this paragraph will be made upon not less than 30 days nor more than 60 days notice. If the Debentures are only partially redeemed by the Company pursuant to an Optional Redemption, the Debentures will be redeemed pro rata or by lot or by any other method utilized by the Security Registrar; provided that if, at the time of redemption, the Debentures are registered as a Global Debenture, the Depositary shall determine the principal amount of such Debentures beneficially held by each Debenture holder to be redeemed in accordance with its procedures. A-6 28 In the event of redemption of this Debenture in part only, a new Debenture or Debentures for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof. In case an Event of Default, as defined in the Indenture, shall have occurred and be continuing, the principal of all of the Debentures may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. The Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the outstanding Debentures of all series affected (acting as one class), to execute supplemental indentures for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Debentures; provided, however, that no such supplemental indenture shall without the consent of the Holders of the outstanding Debentures affected thereby (i) change the Maturity Date, or reduce the rate or extend the time of payment of interest (except as contemplated by Section 4.1 of the First Supplemental Indenture), or reduce the principal amount thereof, or reduce any amount payable on prepayment thereof, or make the principal thereof or any interest or premium thereon payable in any coin or currency other than that in which any Debenture (or premium, if any, thereon) or the interest thereon is payable according to its terms, or impair or affect the right of any Holder to institute suit for payment thereof; (ii) reduce the percentage in principal amount of the outstanding Debentures, the Holders of which are required to consent to any such amendment to the First Supplemental Indenture; or (iii) modify any of the provisions of Section 5.08 or 9.02 of the Indenture except to increase any such percentage or to provide that certain other provisions of the Indenture cannot be modified or waived without the consent of the Holder of each Debenture affected thereby; provided, however, that if the Debentures are held by the Property Trustee of the Trust, such amendment shall not be effective until the holders of a majority in liquidation amount of Trust Securities shall have consented to such amendment; provided, further, that if the consent of the Holder of each outstanding Debenture is required, such amendment shall not be effective until each holder of the A-7 29 Trust Securities shall have consented to such amendment. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the outstanding Debentures of any series affected thereby, and, in the case of any Debentures of a series issued to the Trust, the holders of a majority in liquidation amount of Trust Securities, on behalf of all of the Holders of the Debentures of such series, to waive any past default in the performance of any of the covenants contained in the Indenture, or established pursuant to the Indenture with respect to such series, and its consequences, except a default in the payment of the principal of, premium, if any, or interest on any of the Debentures of such series or covenants or provisions thereof which cannot be modified or amended without the consent of the Holder of each Debenture affected. Any such consent or waiver by the registered Holder of this Debenture, or the holders of the Trust Securities, as applicable, (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this Debenture and of any Debenture issued in exchange therefor or in place hereof (whether by registration of transfer or otherwise), irrespective of whether or not any notation of such consent or waiver is made upon this Debenture. No reference herein to the Indenture and no provision of this Debenture or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Debenture at the time and place and at the rate and in the money herein prescribed. So long as no Event of Default has occurred and is continuing, the Company shall have the right, at any time and from time to time during the term of the Debentures, to defer payments of interest on this Debenture by extending the interest payment period of this Debenture for a period not exceeding 20 consecutive quarterly periods (an "Extension Period") during which Extension Period no interest shall be due and payable; provided that no Extension Period shall end on a date other than an Interest Payment Date or extend beyond the Maturity Date. Before the termination of any Extension Period, the Company may further defer payments of interest by further extending such period, provided that such period, together with all such previous and further extensions within such Extension Period, shall not exceed 20 consecutive quarterly periods or extend beyond the Maturity Date. Upon the termination of any Extension Period and the payment of all A-8 30 accrued and unpaid interest and including any Additional Sums and Additional Interest then due, the Company may commence a new Extension Period, subject to the foregoing requirements. The Company will not (i) declare or pay any dividends or distributions on, or prepay, purchase, acquire, or make a liquidation payment with respect to, any of the Company's capital stock, (ii) make any payment of principal of, premium, if any, or interest on or repay, repurchase or redeem any debt securities of the Company (including Other Debentures) that rank pari passu with, or junior in right of payment to, the Debentures or (iii) make any guarantee payments with respect to any guarantee by the Company of the debt securities of any Subsidiary of the Company(including Other Guarantees) if such guarantee ranks pari passu with or junior in right of payment to the Debentures (other than (a) dividends or distributions by the Company by way of issuance of its common stock, (b) payments under the Guarantee made by the Company in respect of the Trust Securities of such Trust, (c) any declaration of a dividend in connection with the implementation of a shareholders' rights plan, or the issuance of stock under any such plan in the future, or the redemption or repurchase of any such rights pursuant thereto, and (d) purchases of common stock related to the issuance of common stock or rights under any of the Company's benefit plans), if at such time (1) there shall have occurred any event of which the Company has actual knowledge that with the giving of notice, or the lapse of time, or both would constitute an Event of Default, (2) if such Debentures are held by the Property Trustee, the Company shall be in default with respect to its payment obligations under the Preferred Securities Guarantee or Common Securities Guarantee or (3) the Company shall have given notice of its selection of an Extension Period and shall not have rescinded such notice or such Extension Period and such Extension Period shall be continuing. The Company will have the right at any time to liquidate the Trust and cause the Debentures to be distributed to the holders of the Trust Securities in liquidation of the Trust. As provided in the Indenture and subject to certain limitations therein set forth, this Debenture is transferable by the registered Holder hereof on the Security Register of the Company, upon surrender of this Debenture for registration of transfer at the office or agency of the Trustee in New A-9 31 York, New York, c/o Harris Trust Co. of New York, 88 Pine Street, 19th Floor, New York, NY 10005, accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Security Registrar duly executed by the registered Holder hereof or his or her attorney duly authorized in writing, and thereupon one or more new Debentures of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be made for any such transfer, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in relation thereto. Prior to due presentment for registration of transfer of this Debenture, the Company, the Trustee, any paying agent and the Security Registrar may deem and treat the registered holder hereof as the owner hereof (whether or not this Debenture shall be overdue and notwithstanding any notice of ownership or writing hereon made by anyone other than the Security Registrar) for the purpose of receiving payment of or on account of the principal hereof and premium, if any, and (subject to Section 2.5 of the First Supplemental Indenture) interest due hereon and for all other purposes, and neither the Company nor the Trustee nor any paying agent nor any Security Registrar shall be affected by any notice to the contrary. No recourse shall be had for the payment of the principal of or the interest on this Debenture, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator, stockholder, officer or director, past, present or future, as such, of the Company or of any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuance hereof, expressly waived and released. The Debentures are issuable only in registered form without coupons in denominations of $25 and any integral multiple thereof. All terms used in this Debenture that are defined in the Indenture shall have the meanings assigned to them in the Indenture. A-10 32 THE INDENTURE AND THE DEBENTURES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. A-11 EX-4.4 4 CERTIFICATE OF TRUST FOR CAPITAL TRUST I 1 EXHIBIT 4.4 CERTIFICATE OF TRUST OF FW PREFERRED CAPITAL TRUST I This Certificate of Trust is being duly executed as of May 8, 1998 for the purposes of forming a business trust pursuant to the Delaware Business Trust Act (12 Del. C. Section 3801 et. seq.) (the "Act"). 1. Name. The name of the business trust formed hereby is "FW Preferred Capital Trust I" (the "Trust"). 2. Delaware Trustee. The name and business address of the Delaware resident trustee of the Trust meeting the requirements of Section 3807 of the Act are as follows: Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, Delaware 19890 Attention: Corporate Trust Administration. 3. Effective Date. This Certificate of Trust, which may be executed in counterparts, shall be effective immediately upon filing with the Secretary of State of the State of Delaware. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 2 IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust, has duly executed this Certificate of Trust as of the date first written above. WILMINGTON TRUST COMPANY, as Delaware Trustee By: /s/ Christopher L. Kaiser Name: Christopher L. Kaiser Title: Vice President EX-4.5 5 CERTIFICATE OF TRUST FOR CAPITAL TRUST II 1 EXHIBIT 4.5 CERTIFICATE OF TRUST OF FW PREFERRED CAPITAL TRUST II This Certificate of Trust is being duly executed as of May 8, 1998 for the purposes of forming a business trust pursuant to the Delaware Business Trust Act (12 Del. C. Section 3801 et. seq.) (the "Act"). 1. Name. The name of the business trust formed hereby is "FW Preferred Capital Trust II" (the "Trust"). 2. Delaware Trustee. The name and business address of the Delaware resident trustee of the Trust meeting the requirements of Section 3807 of the Act are as follows: Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, Delaware 19890 Attention: Corporate Trust Administration. 3. Effective Date. This Certificate of Trust, which may be executed in counterparts, shall be effective immediately upon filing with the Secretary of State of the State of Delaware. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 2 IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust, has duly executed this Certificate of Trust as of the date first written above. WILMINGTON TRUST COMPANY, as Delaware Trustee By: /s/ Christopher L. Kaiser Name: Christopher L. Kaiser Title: Vice President EX-4.6 6 DECLARATION OF TRUST FOR CAPITAL TRUST I 1 EXHIBIT 4.6 DECLARATION OF TRUST DECLARATION OF TRUST, dated as of May 8, 1998, between Foster Wheeler Corporation, a New York corporation, as Sponsor, and Wilmington Trust Company, as the initial Delaware Trustee ("Trustee"). The Sponsor and the Trustee hereby agree as follows: 1. The trust created hereby (the "Trust") shall be known as "FW Preferred Capital Trust I", in which name the Trustee, or the Sponsor to the extent provided herein, may conduct the business of the Trust, make and execute contracts, and sue and be sued. 2. The Sponsor hereby assigns, transfers, conveys and sets over to the Trustee the sum of Ten Dollars ($10.00). The Trustee hereby acknowledges receipt of such amount in trust from the Sponsor, which amount shall constitute the initial trust estate. The Trustee hereby declares that it will hold the trust estate in trust for the Sponsor. It is the intention of the parties hereto that the Trust created hereby constitute a business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del C. Section 3801 et seq. (the "Business Trust Act"), and that this document constitute the governing instrument of the Trust. The Trustee is hereby authorized and directed to execute and file a certificate of trust with the Delaware Secretary of State in the form attached hereto. 3. The Sponsor and the Trustee will enter into an amended and restated Declaration of Trust, satisfactory to each such party (and substantially in the form to be included as an exhibit to the 1933 Act Registration Statement (as defined below)), to provide for the contemplated operation of the Trust created hereby and the issuance of preferred securities (the "Preferred Securities") and common securities by the Trust as such securities will be described therein. Prior to the execution and delivery of such amended and restated Declaration of Trust, the Trustee shall not have any duty or obligation hereunder or with respect to the trust estate, except as otherwise required by applicable law or as may be necessary to obtain prior to such execution and delivery and licenses, consents or approvals required by applicable law or otherwise. 4. The Sponsor and the Trustee hereby authorize and direct the Sponsor, in each case on behalf of the Trust, as sponsor of the Trust, (i) to prepare for filing with the Securities and Exchange Commission (the "Commission") (a) a Registration Statement on Form S-3 (the "1933 Act Registration Statement"), including any pre-effective or post-effective amendments to the 1933 Act Registration Statement, relating to the registration under the Securities Act of 1933, as amended, of the Preferred Securities of the Trust and possibly certain other securities and (b) a Registration Statement on Form 8-A (the "1934 Act Registration Statement") (including all pre-effective and post-effective amendments thereto) relating to the registration of the Preferred Securities of the Trust under the Securities Exchange Act of 1934, as amended; (ii) to file with the New York Stock Exchange or any other national stock exchange or The Nasdaq National Market (each, an "Exchange") and execute on behalf of the Trust one or more listing applications and all other applications, statements, certificates, agreements and other instruments as shall be necessary or desirable to cause the Preferred Securities to be listed on any of the Exchanges; (iii) to negotiate and execute an underwriting agreement among the Trust, the Sponsor and the underwriter(s) party thereto relating to the offer and sale of the Preferred Securities, substantially in the form included or to be incorporated as an exhibit to the 1933 Act 2 Registration Statement and (iv) to execute and file such applications, reports, surety bonds, irrevocable consents, appointments of attorneys for service of process and other papers and documents as shall be necessary or desirable to register the Preferred Securities under the securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or desirable. 5. This Declaration of Trust may be executed in one or more counterparts. 6. The number of Trustees initially shall be one (1) and thereafter the number of Trustees shall be such number as shall be fixed from time to time by a written instrument signed by the Sponsor which may increase or decrease the number of Trustees; provided that, to the extent required by the Business Trust Act, one Trustee shall be an entity that has its principal place of business in the State of Delaware. Subject to the foregoing, the Sponsor is entitled to appoint or remove without cause any Trustee at any time. The Trustee may resign upon thirty days prior notice to the Sponsor. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 2 3 IN WITNESS WHEREOF, the parties hereto have caused this Declaration of Trust to be duly executed as of the day and year first above written. FOSTER WHEELER CORPORATION, as Sponsor By: /s/ Richard J. Swift Name: Richard J. Swift Title: President, Chairman and Chief Executive Officer WILMINGTON TRUST COMPANY, as Delaware Trustee By: /s/ Christopher L. Kaiser Name: Christopher L. Kaiser Title: Vice President 3 EX-4.7 7 DECLARATION OF TRUST FOR CAPITAL TRUST II 1 EXHIBIT 4.7 DECLARATION OF TRUST DECLARATION OF TRUST, dated as of May 8, 1998, between Foster Wheeler Corporation, a New York corporation, as Sponsor, and Wilmington Trust Company, as the initial Delaware Trustee ("Trustee"). The Sponsor and the Trustee hereby agree as follows: 1. The trust created hereby (the "Trust") shall be known as "FW Preferred Capital Trust II", in which name the Trustee, or the Sponsor to the extent provided herein, may conduct the business of the Trust, make and execute contracts, and sue and be sued. 2. The Sponsor hereby assigns, transfers, conveys and sets over to the Trustee the sum of Ten Dollars ($10.00). The Trustee hereby acknowledges receipt of such amount in trust from the Sponsor, which amount shall constitute the initial trust estate. The Trustee hereby declares that it will hold the trust estate in trust for the Sponsor. It is the intention of the parties hereto that the Trust created hereby constitute a business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del C. Section 3801 et seq. (the "Business Trust Act"), and that this document constitute the governing instrument of the Trust. The Trustee is hereby authorized and directed to execute and file a certificate of trust with the Delaware Secretary of State in the form attached hereto. 3. The Sponsor and the Trustee will enter into an amended and restated Declaration of Trust, satisfactory to each such party (and substantially in the form to be included as an exhibit to the 1933 Act Registration Statement (as defined below)), to provide for the contemplated operation of the Trust created hereby and the issuance of preferred securities (the "Preferred Securities") and common securities by the Trust as such securities will be described therein. Prior to the execution and delivery of such amended and restated Declaration of Trust, the Trustee shall not have any duty or obligation hereunder or with respect to the trust estate, except as otherwise required by applicable law or as may be necessary to obtain prior to such execution and delivery and licenses, consents or approvals required by applicable law or otherwise. 4. The Sponsor and the Trustee hereby authorize and direct the Sponsor, in each case on behalf of the Trust, as sponsor of the Trust, (i) to prepare for filing with the Securities and Exchange Commission (the "Commission") (a) a Registration Statement on Form S-3 (the "1933 Act Registration Statement"), including any pre-effective or post-effective amendments to the 1933 Act Registration Statement, relating to the registration under the Securities Act of 1933, as amended, of the Preferred Securities of the Trust and possibly certain other securities and (b) a Registration Statement on Form 8-A (the "1934 Act Registration Statement") (including all pre-effective and post-effective amendments thereto) relating to the registration of the Preferred Securities of the Trust under the Securities Exchange Act of 1934, as amended; (ii) to file with the New York Stock Exchange or any other national stock exchange or The Nasdaq National Market (each, an "Exchange") and execute on behalf of the Trust one or more listing applications and all other applications, statements, certificates, agreements and other instruments as shall be necessary or desirable to cause the Preferred Securities to be listed on any of the Exchanges; (iii) to negotiate and execute an underwriting agreement among the Trust, the Sponsor and the underwriter(s) party thereto relating to the offer and sale of the Preferred Securities, substantially in the form included or to be incorporated as an exhibit to the 1933 Act 2 Registration Statement and (iv) to execute and file such applications, reports, surety bonds, irrevocable consents, appointments of attorneys for service of process and other papers and documents as shall be necessary or desirable to register the Preferred Securities under the securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or desirable. 5. This Declaration of Trust may be executed in one or more counterparts. 6. The number of Trustees initially shall be one (1) and thereafter the number of Trustees shall be such number as shall be fixed from time to time by a written instrument signed by the Sponsor which may increase or decrease the number of Trustees; provided that, to the extent required by the Business Trust Act, one Trustee shall be an entity that has its principal place of business in the State of Delaware. Subject to the foregoing, the Sponsor is entitled to appoint or remove without cause any Trustee at any time. The Trustee may resign upon thirty days prior notice to the Sponsor. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 2 3 IN WITNESS WHEREOF, the parties hereto have caused this Declaration of Trust to be duly executed as of the day and year first above written. FOSTER WHEELER CORPORATION, as Sponsor By: /s/ Richard J. Swift Name: Richard J. Swift Title: President, Chairman and Chief Executive Officer WILMINGTON TRUST COMPANY, as Delaware Trustee By: /s/ Christopher L. Kaiser Name: Christopher L. Kaiser Title: Vice President 3 EX-4.8 8 AMENDED AND RESTATED DECLARATION OF TRUST 1 EXHIBIT 4.8 - -------------------------------------------------------------------------------- AMENDED AND RESTATED DECLARATION OF TRUST FW Preferred Capital Trust I Dated as of _____ __, 1998 - -------------------------------------------------------------------------------- 2 CROSS REFERENCE TABLE* Section of Trust Indenture Act of Section of 1939, as amended Agreement - ---------------- --------- 310(a).....................................................................6.3 310(b)..........................................................6.3(c); 6.3(d) 310(c)............................................................Inapplicable 311(a)..................................................................2.2(b) 311(b)..................................................................2.2(b) 311(c)............................................................Inapplicable 312(a)..................................................................2.2(a) 312(b)..................................................................2.2(b) 312(c)............................................................Inapplicable 313(a).....................................................................2.3 313(b).....................................................................2.3 313(c).....................................................................2.3 313(d).....................................................................2.3 314(a).....................................................................2.4 314(b)............................................................Inapplicable 314(c).....................................................................2.5 314(d)............................................................Inapplicable 314(e).....................................................................2.5 314(f)............................................................Inapplicable 315(a).........................................................3.9(b); 3.10(a) 315(b)..................................................................2.7(a) 315(c)..................................................................3.9(a) 315(d)..................................................................3.9(b) 316(a).....................................................2.6; 7.5(b); 7.6(c) 316(b)............................................................Inapplicable 316(c)............................................................Inapplicable 317(a)....................................................................3.16 317(b)............................................................Inapplicable 318(a)..................................................................2.1(c) - -------- * This Cross-Reference Table does not constitute part of the Agreement and shall not have any bearing upon the interpretation of any of its terms or provisions. 3 TABLE OF CONTENTS Page ---- ARTICLE 1 INTERPRETATION AND DEFINITIONS SECTION 1.1 Interpretation and Definitions..................................1 Administrative Trustee.....................................2 Affiliate..................................................2 Authorized Officer.........................................2 Beneficial Owners..........................................2 Business Day...............................................2 Business Trust Act.........................................2 Cedel......................................................2 Certificate................................................2 Certificate of Trust.......................................3 Closing Date...............................................3 Code.......................................................3 Commission.................................................3 Common Securities Holder...................................3 Common Security............................................3 Common Security Certificate................................3 Corporate Trust Office.....................................3 Covered Person.............................................3 Debenture Issuer...........................................3 Debenture Issuer Indemnified Person........................3 Debenture Trustee..........................................3 Delaware Trustee...........................................4 Depositary.................................................4 Depositary Participant.....................................4 Direct Action..............................................4 Distribution...............................................4 Euroclear..................................................4 Exchange Act...............................................4 Fiduciary Indemnified Person...............................4 Fiscal Year................................................4 Global Security............................................4 Guarantee..................................................4 Holder.....................................................4 Indemnified Person.........................................4 i 4 Page ---- Indenture Event of Default.................................4 Investment Company.........................................5 Investment Company Act.....................................5 Investment Company Event...................................5 Issuer Trust...............................................5 Junior Subordinated Debentures.............................5 Junior Subordinated Indenture..............................5 Legal Action...............................................5 List of Holders............................................5 Majority in Liquidation Amount.............................5 New York Stock Exchange....................................5 Officers' Certificate......................................5 Paying Agent...............................................6 Payment Amount.............................................6 Person.....................................................6 Preferred Security.........................................6 Preferred Security Certificate.............................6 Property Account...........................................6 Property Trustee...........................................6 Pro Rata...................................................6 Quorum.....................................................7 Redemption/Distribution Notice.............................7 Redemption Price...........................................7 Related Party..............................................7 Responsible Officer........................................7 Rule 3a-5..................................................7 Securities Act.............................................7 Special Event..............................................7 Sponsor....................................................7 Successor Delaware Trustee.................................7 Successor Entity...........................................7 Successor Property Trustee.................................7 Successor Security.........................................7 Super Majority.............................................7 Tax Event..................................................8 10% in Liquidation Amount..................................8 Treasury Regulations.......................................8 Trust Enforcement Event....................................8 Trust Indenture Act........................................8 Trust Securities...........................................8 Trustee....................................................8 ii 5 Page ---- ARTICLE 2 TRUST INDENTURE ACT SECTION 2.1 Trust Indenture Act; Application................................9 SECTION 2.2 Lists of Holders of Trust Securities............................9 SECTION 2.3 Reports by the Property Trustee................................10 SECTION 2.4 Periodic Reports to the Property Trustee.......................10 SECTION 2.5 Evidence of Compliance with Conditions Precedent...............10 SECTION 2.6 Trust Enforcement Events; Waiver...............................10 SECTION 2.7 Trust Enforcement Event; Notice................................12 ARTICLE 3 ORGANIZATION SECTION 3.1 Name and Organization..........................................13 SECTION 3.2 Office.........................................................13 SECTION 3.3 Purpose........................................................13 SECTION 3.4 Authority......................................................14 SECTION 3.5 Title to Property of the Issuer Trust..........................14 SECTION 3.6 Powers and Duties of the Administrative Trustees...............14 SECTION 3.7 Prohibition of Actions by the Issuer Trust and the Trustees....17 SECTION 3.8 Powers and Duties of the Property Trustee......................19 SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee....21 SECTION 3.10 Certain Rights of Property Trustee............................23 SECTION 3.11 Delaware Trustee..............................................26 SECTION 3.12 Execution of Documents........................................26 SECTION 3.13 Not Responsible for Recitals or Issuance of Trust Securities..26 SECTION 3.14 Duration of Issuer Trust......................................26 SECTION 3.15 Mergers.......................................................26 SECTION 3.16 Property Trustee May File Proofs of Claim.....................28 ARTICLE 4 SPONSOR iii 6 Page ---- SECTION 4.1 Responsibilities of the Sponsor................................29 SECTION 4.2 Indemnification and Expenses of the Trustees...................30 ARTICLE 5 TRUST COMMON SECURITIES HOLDER SECTION 5.1 Debenture Issuer's Purchase of Common Securities...............30 SECTION 5.2 Covenants of the Common Securities Holder......................30 ARTICLE 6 TRUSTEES SECTION 6.1 Number of Trustees.............................................31 SECTION 6.2 [Reserved].....................................................31 SECTION 6.3 Property Trustee; Eligibility..................................32 SECTION 6.4 Qualifications of Administrative Trustees and Delaware Trustee Generally...................................32 SECTION 6.5 Initial Administrative Trustees................................33 SECTION 6.6 Appointment, Removal and Resignation of Trustees...............33 SECTION 6.7 Vacancies among Trustees.......................................34 SECTION 6.8 Effect of Vacancies............................................34 SECTION 6.9 Meetings.......................................................35 SECTION 6.10 Delegation of Power...........................................35 SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business...36 ARTICLE 7 TERMS OF TRUST SECURITIES SECTION 7.1 General Provisions Regarding Trust Securities..................36 SECTION 7.2 Paying Agent...................................................37 SECTION 7.3 Listing........................................................38 SECTION 7.4 Transfer of Trust Securities...................................38 SECTION 7.5 Mutilated, Destroyed, Lost or Stolen Certificates..............39 SECTION 7.6 Deemed Security Holders........................................39 SECTION 7.7 Global Securities..............................................40 iv 7 Page ---- ARTICLE 8 DISSOLUTION AND TERMINATION OF TRUST SECTION 8.1 Dissolution and Termination of Issuer Trust....................42 SECTION 8.2 Optional Liquidation of Issuer Trust...........................43 ARTICLE 9 LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS SECTION 9.1 Liability......................................................43 SECTION 9.2 Exculpation....................................................44 SECTION 9.3 Fiduciary Duty.................................................44 SECTION 9.4 Indemnification................................................45 SECTION 9.5 Outside Businesses.............................................48 ARTICLE 10 ACCOUNTING SECTION 10.1 Fiscal Year...................................................48 SECTION 10.2 Certain Accounting Matters....................................48 SECTION 10.3 Banking.......................................................49 SECTION 10.4 Withholding...................................................49 ARTICLE 11 AMENDMENTS AND MEETINGS SECTION 11.1 Amendments....................................................50 SECTION 11.2 Meetings of the Holders of Trust Securities; Action by Written Consent..............................................52 v 8 Page ---- ARTICLE 12 REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE SECTION 12.1 Representations and Warranties of the Property Trustee........54 SECTION 12.2 Representations and Warranties of the Delaware Trustee........55 ARTICLE 13 MISCELLANEOUS SECTION 13.1 Notices.......................................................55 SECTION 13.2 Governing Law.................................................57 SECTION 13.3 Intention of the Parties......................................57 SECTION 13.4 Headings......................................................57 SECTION 13.5 Successors and Assigns........................................57 SECTION 13.6 Partial Enforceability........................................57 SECTION 13.7 Counterparts..................................................57 EXHIBITS Annex I Terms of the Trust Securities I-1 Exhibit A Form of Preferred Security Certificate A-1 Exhibit B Form of Common Security Certificate B-1 vi 9 AMENDED AND RESTATED DECLARATION OF TRUST THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration of Trust"), dated as of ______ __, 1998, by and among FOSTER WHEELER CORPORATION, a New York corporation, as Sponsor, and Richard J. Swift, David J. Roberts and Robert D. Iseman as the initial Administrative Trustees, Harris Trust and Savings Bank, as the initial Property Trustee and Wilmington Trust Company, as the initial Delaware Trustee, not in their individual capacities but solely as Trustees, and the Holders, from time to time, of undivided beneficial ownership interests in the Issuer Trust to be issued pursuant to this Declaration of Trust. WHEREAS, the Trustees and the Sponsor established FW Preferred Capital Trust I (the "Issuer Trust"), a business trust under the Business Trust Act (as defined, together with other capitalized terms, herein) pursuant to a Declaration of Trust dated as of May 8, 1998, (the "Original Declaration") and a Certificate of Trust (the "Certificate of Trust") filed with the Secretary of State of the State of Delaware on May 8, 1998; and WHEREAS, the sole purpose of the Issuer Trust shall be to issue and sell certain securities representing undivided beneficial ownership interests in the assets of the Issuer Trust, to invest the proceeds from such sales in the Junior Subordinated Debentures issued by the Debenture Issuer and to engage in only those activities necessary or incidental thereto; and WHEREAS, all of the Trustees and the Sponsor, by this Declaration of Trust, amend and restate each and every term and provision of the Original Declaration. NOW, THEREFORE, it being the intention of the parties hereto to continue the Issuer Trust as a business trust under the Business Trust Act and that this Declaration of Trust constitute the governing instrument of such business trust, the Trustees hereby declare that all assets contributed to the Issuer Trust be held in trust for the benefit of the Holders, from time to time, of the Trust Securities representing undivided beneficial ownership interests in the assets of the Issuer Trust issued hereunder, subject to the provisions of this Declaration of Trust. ARTICLE 1 INTERPRETATION AND DEFINITIONS SECTION 1.1 Interpretation and Definitions. Unless the context otherwise requires: (a) capitalized terms used in this Declaration of Trust but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1; 10 (b) a term defined anywhere in this Declaration of Trust has the same meaning throughout; (c) all references to "the Declaration of Trust" or "this Declaration of Trust" are to this Declaration of Trust as modified, supplemented or amended from time to time; (d) all references in this Declaration of Trust to Articles, Sections, Recitals and Exhibits are to Articles and Sections of, or Recitals and Exhibits to, this Declaration of Trust unless otherwise specified; (e) unless otherwise defined in this Declaration of Trust, a term defined in the Trust Indenture Act has the same meaning when used in this Declaration of Trust; and (f) a reference to the singular includes the plural and vice versa and a reference to any masculine form of a term shall include the feminine form of a term, as applicable. (g) the following terms have the following meanings: "Administrative Trustee" means any Trustee other than the Property Trustee and the Delaware Trustee. "Affiliate" has the same meaning as given to that term in Rule 405 of the Securities Act or any successor rule thereunder. "Authorized Officer" of a Person means any Person that is authorized to bind such Person. "Beneficial Owners" means, for Preferred Securities represented by a Global Security, the person who acquires an interest in the Preferred Securities which is reflected on the records of the Depositary through the Depositary Participants. "Business Day" means a day other than (a) a day on which banking institutions in the Borough of Manhattan, The City of New York and Chicago, Illinois are authorized or required by law, regulation or executive order to close or (b) a day on which the Corporate Trust Office of the Trustee is closed for business. "Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time, or any successor legislation. "Cedel" means Cedel Bank, societe anonyme. "Certificate" means a Common Security Certificate or a Preferred Security Certificate. 2 11 "Certificate of Trust" has the meaning specified in the Recitals hereto. "Closing Date" means the date on which the Preferred Securities are issued and sold. "Code" means the Internal Revenue Code of 1986, as amended from time to time, or any successor legislation. A reference to a specific section of the Code refers not only to such specific section but also to any corresponding provision of any federal tax statute enacted after the date of this Declaration of Trust, as such specific section or corresponding provision is in effect on the date of application of the provisions of this Declaration of Trust containing such reference. "Commission" means the Securities and Exchange Commission. "Common Securities Holder" means Foster Wheeler Corporation, in its capacity as purchaser and holder of all of the Common Securities issued by the Issuer Trust. "Common Security" has the meaning specified in Section 7.1. "Common Security Certificate" means a definitive certificate in fully registered form representing a Common Security, substantially in the form of Exhibit B hereto. "Corporate Trust Office" means the principal office of the Property Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of execution of this Declaration of Trust is located at 311 West Monroe Street, 12th floor, Chicago, Illinois 60606. "Covered Person" means (a) any officer, director, shareholder, partner, member, representative, employee or agent of (i) the Issuer Trust or (ii) the Issuer Trust's Affiliates; and (b) any Holder of Trust Securities. "Debenture Issuer" means Foster Wheeler Corporation, in its capacity as issuer of the Junior Subordinated Debentures under the Junior Subordinated Indenture. "Debenture Issuer Indemnified Person" means (a) any Administrative Trustee; (b) any Affiliate of any Administrative Trustee; (c) any officers, directors, shareholders, members, partners, employees, representatives or agents of any Administrative Trustee or any Affiliate thereof; or (d) any officer, employee or agent of the Issuer Trust or its Affiliates other than the Property Trustee, the Delaware Trustee and their respective affiliates. "Debenture Trustee" means Harris Trust and Savings Bank, in its capacity as trustee under the Junior Subordinated Indenture until a successor trustee is appointed thereunder, and thereafter means such successor trustee. 3 12 "Delaware Trustee" has the meaning specified in Section 6.1. "Depositary" means, with respect to Trust Securities issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Trust Securities. "Depositary Participant" means a member of, or participant in, the Depositary. "Direct Action" has the meaning specified in Section 3.8(e). "Distribution" means a distribution payable to Holders of Trust Securities in accordance with Annex I hereto. "Euroclear" means Morgan Guaranty Trust Company of New York, Brussels office, as operator of the Euroclear System. "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time, or any successor legislation. "Fiduciary Indemnified Person" has the meaning set forth in Section 9.4(b). "Fiscal Year" has the meaning specified in Section 10.1. "Global Security" means a fully registered, global Preferred Security Certificate. "Guarantee" means the Guarantee Agreement, dated as of _____ __, 1998 of the Sponsor in respect of the Trust Securities. "Holder" means any holder of Trust Securities, as registered on the books and records of the Issuer Trust; provided, however, that in determining whether the Holders of the requisite liquidation amount of Preferred Securities have voted on any matter provided for in this Declaration of Trust, then for the purpose of such determination only (and not for any other purpose hereunder), if the Preferred Securities remain in the form of one or more Global Securities and if the Depositary which is the holder of such Global Securities has sent an omnibus proxy to the Issuer Trust assigning voting rights to Depositary Participants to whose accounts the Preferred Securities are credited on the record date, the term "Holders" shall mean such Depositary Participants acting at the direction of the Beneficial Owners. "Indemnified Person" means a Debenture Issuer Indemnified Person or a Fiduciary Indemnified Person. "Indenture Event of Default" has the meaning given to the term "Event of Default" in the Junior Subordinated Indenture. 4 13 "Investment Company" means an investment company as defined in the Investment Company Act and the regulations promulgated thereunder. "Investment Company Act" means the Investment Company Act of 1940, as amended from time to time, or any successor legislation. "Investment Company Event" means the receipt by the Issuer Trust of an opinion of counsel, rendered by a law firm having a recognized national securities practice, to the effect that, as a result of the occurrence of a change in law or regulation or a change in interpretation or application of law or regulation by any legislative body, court, governmental agency or regulatory authority (a "Change in 1940 Act Law"), there is more than an insubstantial risk that the Issuer Trust is or will be considered an "investment company" that is required to be registered under the Investment Company Act, which Change in 1940 Act Law becomes effective on or after the Closing Date. "Issuer Trust" has the meaning specified in the Recitals hereto. "Junior Subordinated Debentures" means series of debentures to be issued by the Debenture Issuer under the Junior Subordinated Indenture and held by the Property Trustee. "Junior Subordinated Indenture" means the Junior Subordinated Indenture, dated as of _____ __, 1998 between the Debenture Issuer and Harris Trust and Savings Bank, as trustee, and as amended and supplemented by any amendment or supplement thereto, pursuant to which the Junior Subordinated Debentures are to be issued. "Legal Action" has the meaning specified in Section 3.6(g). "List of Holders" has the meaning specified in Section 2.2(a). "Majority in Liquidation Amount" means, except as provided in the terms of the Preferred Securities or by the Trust Indenture Act, Holder(s) of outstanding Trust Securities, voting together as a single class, or, as the context may require, Holders of outstanding Preferred Securities or Holders of outstanding Common Securities, voting separately as a class, who are the record owners of more than 50% of the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accumulated and unpaid Distributions to the date upon which the voting percentages are determined) of all outstanding Trust Securities of the relevant class. "New York Stock Exchange" means the New York Stock Exchange, Inc. or any successor thereto. "Officers' Certificate" means, with respect to any Person, a certificate signed on behalf of such Person by two Authorized Officers of such Person. Any Officers' Certificate 5 14 delivered with respect to compliance with a condition or covenant provided for in this Declaration of Trust shall include: (a) a statement that each officer signing the Officers' Certificate has read the covenant or condition and the definitions relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by each officer on behalf of such Person in rendering the Officers' Certificate; (c) a statement that each such officer has made such examination or investigation as, in such officer's opinion, is necessary to enable such officer on behalf of such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether or not, in the opinion of each such officer acting on behalf of such Person, such condition or covenant has been complied with; provided, that the term "Officers' Certificate", when used with reference to Administrative Trustees who are natural persons shall mean a certificate signed by two of the Administrative Trustees which otherwise satisfies the foregoing requirements. "Paying Agent" has the meaning specified in Section 3.8(h). "Payment Amount" has the meaning specified in Annex I hereto. "Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature. "Preferred Security" has the meaning specified in Section 7.1. "Preferred Security Certificate" means a definitive certificate in fully registered form representing a Preferred Security, substantially in the form of Exhibit A. "Property Account" has the meaning specified in Section 3.8(c). "Property Trustee" means the Trustee meeting the eligibility requirements set forth in Section 6.3. "Pro Rata" means pro rata to each Holder of Trust Securities according to the aggregate liquidation amount of the Trust Securities held by the relevant Holder in relation to the aggregate liquidation amount of all Trust Securities outstanding. 6 15 "Quorum" means a majority of the Administrative Trustees or, if there are only two Administrative Trustees, both of them. "Redemption/Distribution Notice" has the meaning specified in Annex I hereto. "Redemption Price" means the amount for which the Trust Securities will be redeemed, which amount will equal (i) the redemption price paid by the Debenture Issuer to repay or redeem, in whole or in part, the Junior Subordinated Debentures held by the Issuer Trust plus an amount equal to accumulated and unpaid Distributions on such Trust Securities through the date of their redemption or (ii) such lesser amount as will be received by the Issuer Trust in respect of the Junior Subordinated Debentures so repaid or redeemed. "Related Party" means, with respect to the Sponsor, any direct or wholly owned subsidiary of the Sponsor or any Person that owns, directly or indirectly, 100% of the outstanding voting securities of the Sponsor. "Responsible Officer" means, with respect to the Property Trustee, any officer with direct responsibility for the administration of this Declaration of Trust and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of that officer's knowledge of and familiarity with the particular subject. "Rule 3a-5" means Rule 3a-5 under the Investment Company Act or any successor rule thereunder. "Securities Act" means the Securities Act of 1933, as amended from time to time, or any successor legislation. "Special Event" means a Tax Event or an Investment Company Event. "Sponsor" means Foster Wheeler Corporation, a New York corporation, or any successor entity in a merger, consolidation, amalgamation or replacement by or conveyance, transfer or lease of its properties substantially as an entirety, in its capacity as sponsor of the Issuer Trust. "Successor Delaware Trustee" has the meaning specified in Section 6.6(b). "Successor Entity" has the meaning specified in Section 3.15(b)(i). "Successor Property Trustee" has the meaning specified in Section 6.6(b). "Successor Security" has the meaning specified in Section 3.15(b)(i)B. "Super Majority" has the meaning specified in Section 2.6(a)(ii). 7 16 "Tax Event" means the receipt by the Issuer Trust of an opinion of independent counsel experienced in such matters, to the effect that, as a result of (a) any amendment to, clarification of, or change (including any announced proposed change) in, the laws (or any regulations thereunder) of the United States or any political subdivision or taxing authority thereof or therein, or change in the official position with respect thereto or (b) any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or proposed change, pronouncement, notice, announcement or decision is announced on or after the Closing Date, there is more than an insubstantial risk that (i) the Issuer Trust is, or will be within 90 days of the date of such opinion, subject to the United States federal income tax with respect to income received or accrued on the Junior Subordinated Debentures, (ii) interest payable by the Debenture Issuer on the Junior Subordinated Debentures is not, or within 90 days of the date of such opinion, will not be, deductible by the Debenture Issuer, in whole or in part, by the Debenture Issuer for United States federal income tax purposes, or (iii) the Issuer Trust is, or will be within 90 days of the date of such opinion, subject to more than a de minimis amount of other taxes, duties or other governmental charges. "10% in Liquidation Amount" means, except as provided in the terms of the Preferred Securities or by the Trust Indenture Act, Holder(s) of outstanding Trust Securities, voting together as a single class, or, as the context may require, Holders of outstanding Preferred Securities or Holders of outstanding Common Securities, voting separately as a class, who are the record owners of 10% or more of the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are determined) of all outstanding Trust Securities of the relevant class. "Treasury Regulations" means the income tax regulations, including temporary and proposed regulations, promulgated under the Code by the United States Treasury, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations). "Trust Enforcement Event" in respect of the Trust Securities means an Indenture Event of Default has occurred and is continuing in respect of the Junior Subordinated Debentures. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended from time to time, or any successor legislation. "Trust Securities" means the Common Securities and the Preferred Securities. "Trustee" or "Trustees" means each Person who has signed this Declaration of Trust as a trustee, so long as such Person shall continue in office in accordance with the terms hereof, and all other Persons who may from time to time be duly appointed, qualified and serving 8 17 as Trustees in accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall refer to such Person or Persons solely in their capacity as trustees hereunder. ARTICLE 2 TRUST INDENTURE ACT SECTION 2.1 Trust Indenture Act; Application. (a) This Declaration of Trust is subject to the provisions of the Trust Indenture Act that are required to be part of this Declaration of Trust and shall, to the extent applicable, be governed by such provisions. (b) The Property Trustee shall be the only Trustee which is a Trustee for the purposes of the Trust Indenture Act. (c) If and to the extent that any provision of this Declaration of Trust conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control. (d) The application of the Trust Indenture Act to this Declaration of Trust shall not affect the Issuer Trust's classification as a grantor trust for United States federal income tax purposes and shall not affect the nature of the Trust Securities as equity securities representing undivided beneficial ownership interests in the assets of the Issuer Trust. SECTION 2.2 Lists of Holders of Trust Securities. (a) Each of the Sponsor and the Administrative Trustees on behalf of the Issuer Trust shall provide the Property Trustee, (i) except while the Preferred Securities are represented by one or more Global Securities, at least one Business Day prior to the date for payment of Distributions, a list, in such form as the Property Trustee may reasonably require, of the names and addresses of the Holders of the Trust Securities ("List of Holders") as of the record date relating to the payment of such Distributions and (ii) at any other time, within 30 days of receipt by the Issuer Trust of a written request from the Property Trustee for a List of Holders as of a date no more than 15 days before such List of Holders is given to the Property Trustee; provided that neither the Sponsor nor the Administrative Trustees on behalf of the Issuer Trust shall be obligated to provide such List of Holders at any time the List of Holders does not differ from the most recent List of Holders given to the Property Trustee by the Sponsor and the Administrative Trustees on behalf of the Issuer Trust. The Property Trustee shall preserve, in as current a form as is reasonably practicable, all information contained in Lists of Holders given to it or which it receives in the capacity as Paying Agent (if acting in such capacity), provided that the Property Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders. 9 18 (b) The Property Trustee shall comply with its obligations under, and shall be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act. SECTION 2.3 Reports by the Property Trustee. Within 60 days after May 15 of each year (commencing with the year of the first anniversary of the issuance of the Preferred Securities), the Property Trustee shall provide to the Holders of the Preferred Securities such reports as are required by Section 313 of the Trust Indenture Act, if any, in the form and in the manner provided by Section 313 of the Trust Indenture Act. The Property Trustee shall also comply with the requirements of Section 313(d) of the Trust Indenture Act. SECTION 2.4 Periodic Reports to the Property Trustee. Each of the Sponsor and the Administrative Trustees on behalf of the Issuer Trust shall provide to the Property Trustee such documents, reports and information as required by Section 314 of the Trust Indenture Act (if any) and the compliance certificate required by Section 314 of the Trust Indenture Act in the form, in the manner and at the times required by Section 314 of the Trust Indenture Act. SECTION 2.5 Evidence of Compliance with Conditions Precedent. Each of the Sponsor and the Administrative Trustees on behalf of the Issuer Trust shall provide to the Property Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Declaration of Trust that relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) may be given in the form of an Officers' Certificate. SECTION 2.6 Trust Enforcement Events; Waiver. (a) The Holders of a Majority in Liquidation Amount of the Preferred Securities may, by vote or written consent, on behalf of the Holders of all of the Preferred Securities, waive any past Trust Enforcement Event in respect of the Preferred Securities and its consequences, provided that, if the underlying Indenture Event of Default: (i) is not waivable under the Junior Subordinated Indenture, the Trust Enforcement Event under the Declaration of Trust shall also not be waivable; or (ii) requires the consent or vote of greater than a majority in principal amount of the holders of the Junior Subordinated Debentures (a "Super Majority") to be waived under the Junior Subordinated Indenture, the related Trust Enforcement Event under the Declaration of Trust may only be waived by the vote or written 10 19 consent of the Holders of at least the proportion in liquidation amount of the Preferred Securities that the relevant Super Majority represents of the aggregate principal amount of the Junior Subordinated Debentures outstanding. The foregoing provisions of this Section 2.6(a) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this Declaration of Trust and the Trust Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such default shall cease to exist, and any Trust Enforcement Event with respect to the Preferred Securities arising therefrom shall be deemed to have been cured, for every purpose of this Declaration of Trust and the Preferred Securities, but no such waiver shall extend to any subsequent or other Trust Enforcement Event with respect to the Preferred Securities or impair any right consequent thereon. Any waiver by the Holders of the Preferred Securities of a Trust Enforcement Event with respect to the Preferred Securities shall also be deemed to constitute a waiver by the Holders of the Common Securities of any such Trust Enforcement Event with respect to the Common Securities for all purposes of this Declaration of Trust without any further act, vote, or consent of the Holders of the Common Securities. (b) The Holders of a Majority in Liquidation Amount of the Common Securities may, by vote or written consent, on behalf of the Holders of all of the Common Securities, waive any past Trust Enforcement Event in respect of the Common Securities and its consequences, provided that, if the underlying Indenture Event of Default: (i) is not waivable under the Junior Subordinated Indenture, except where the Holders of the Common Securities are deemed to have waived such Trust Enforcement Event under the Declaration of Trust as provided below in this Section 2.6(b), the Trust Enforcement Event under the Declaration of Trust shall also not be waivable; or (ii) requires the consent or vote of a Super Majority to be waived under the Junior Subordinated Indenture, except where the Holders of the Common Securities are deemed to have waived such Trust Enforcement Event under the Declaration of Trust as provided below in this Section 2.6(b), the Trust Enforcement Event under the Declaration of Trust may only be waived by the vote or written consent of the Holders of at least the proportion in liquidation amount of the Common Securities that the relevant Super Majority represents of the aggregate principal amount of the Junior Subordinated Debentures outstanding; provided further, that each Holder of Common Securities will be deemed to have waived any Trust Enforcement Event and all Trust Enforcement Events with respect to the Common 11 20 Securities and the consequences thereof until all Trust Enforcement Events with respect to the Preferred Securities have been cured, waived or otherwise eliminated, and until such Trust Enforcement Events with respect to the Preferred Securities have been so cured, waived or otherwise eliminated, the Property Trustee will be deemed to be acting solely on behalf of the Holders of the Preferred Securities and only the Holders of the Preferred Securities will have the right to direct the Property Trustee in accordance with the terms of the Trust Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded from this Declaration of Trust and the Trust Securities, as permitted by the Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b), upon such cure, waiver or other elimination, any such default shall cease to exist and any Trust Enforcement Event with respect to the Common Securities arising therefrom shall be deemed to have been cured for every purpose of this Declaration of Trust, but no such waiver shall extend to any subsequent or other Trust Enforcement Event with respect to the Common Securities or impair any right consequent thereon. (c) A waiver of an Indenture Event of Default by the Property Trustee at the direction of the Holders of the Preferred Securities constitutes a waiver of the corresponding Trust Enforcement Event with respect to the Preferred Securities under this Declaration of Trust. The foregoing provisions of this Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this Declaration of Trust and the Trust Securities, as permitted by the Trust Indenture Act. SECTION 2.7 Trust Enforcement Event; Notice. (a) The Property Trustee shall, within 90 days after the occurrence of a Trust Enforcement Event, transmit by mail, first class postage prepaid, to the Holders of the Trust Securities, notices of all defaults with respect to the Trust Securities actually known to a Responsible Officer of the Property Trustee, unless such defaults have been cured before the giving of such notice (the term "defaults" for the purposes of this Section 2.7(a) being hereby defined to be an Indenture Event of Default, not including any periods of grace provided for therein and irrespective of the giving of any notice provided therein); provided that, except for a default in the payment of principal of (or premium, if any) or interest on any of the Junior Subordinated Debentures, the Property Trustee shall be protected in withholding such notice if and so long as a Responsible Officer of the Property Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of the Trust Securities. (b) The Property Trustee shall not be deemed to have knowledge of any default except: (i) a default under Sections 5.01(a) or 5.01(b) of the Junior Subordinated Indenture; or 12 21 (ii) any default as to which the Property Trustee shall have received written notice or of which a Responsible Officer of the Property Trustee charged with the administration of this Declaration of Trust shall have actual knowledge. As used herein, the term "actual knowledge" means the actual fact or statement of knowing without any duty to make any investigation without regard thereto. ARTICLE 3 ORGANIZATION SECTION 3.1 Name and Organization. The Issuer Trust hereby continued is named "FW Preferred Capital Trust I" as such name may be modified from time to time by the Administrative Trustees following written notice to the Holders of Trust Securities. The Issuer Trust's activities may be conducted under the name of the Issuer Trust or any other name deemed advisable by the Administrative Trustees. SECTION 3.2 Office. The address of the principal office of the Issuer Trust is c/o Foster Wheeler Corporation, Perryville Corporate Park, Clinton, New Jersey 08809. On 10 Business Days' written notice to the Holders of Trust Securities, the Administrative Trustees may designate another principal office. SECTION 3.3 Purpose. The exclusive purposes and functions of the Issuer Trust are (a) to issue and sell Trust Securities and use the gross proceeds from such sale to acquire the Junior Subordinated Debentures, and (b) except as otherwise limited herein, to engage in only those other activities necessary or incidental thereto. The Issuer Trust shall not borrow money, issue debt or reinvest proceeds derived from investments, pledge any of its assets or otherwise undertake (or permit to be undertaken) any activity that would cause the Issuer Trust not to be classified as a grantor trust for United States federal income tax purposes. By the acceptance of this Issuer Trust, none of the Trustees, the Sponsor, the Holders of the Preferred Securities or Common Securities or the Preferred Securities Beneficial Owners will take any position for United States federal income tax purposes which is contrary to the classification of the Issuer Trust as a grantor trust. 13 22 SECTION 3.4 Authority. (a) Subject to the limitations provided in this Declaration of Trust and to the specific duties of the Property Trustee, the Administrative Trustees shall have exclusive authority to carry out the purposes of the Issuer Trust. An action taken by the Administrative Trustees in accordance with their powers shall constitute the act of and serve to bind the Issuer Trust and an action taken by the Property Trustee on behalf of the Issuer Trust in accordance with its powers shall constitute the act of and serve to bind the Issuer Trust. In dealing with the Trustees acting on behalf of the Issuer Trust, no person shall be required to inquire into the authority of the Trustees to bind the Issuer Trust. Persons dealing with the Issuer Trust are entitled to rely conclusively on the power and authority of the Trustees as set forth in this Declaration of Trust. (b) Except as expressly set forth in this Declaration of Trust and except if a meeting of the Administrative Trustees is called with respect to any matter over which the Administrative Trustees have power to act, any power of the Administrative Trustees may be exercised by, or with the consent of, any one such Administrative Trustee. (c) Unless otherwise determined by the Administrative Trustees, and except as otherwise required by the Business Trust Act or applicable law, any Administrative Trustee is authorized to execute on behalf of the Issuer Trust any documents which the Administrative Trustees have the power and authority to cause the Issuer Trust to execute pursuant to Section 3.6(b); and (d) an Administrative Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the purposes of signing any documents which the Administrative Trustees have power and authority to cause the Issuer Trust to execute pursuant to Section 3.6. SECTION 3.5 Title to Property of the Issuer Trust. Except as provided in Section 3.8 with respect to the Junior Subordinated Debentures and the Property Account or as otherwise provided in this Declaration of Trust, legal title to all assets of the Issuer Trust shall be vested in the Property Trustee (in its capacity as such) to be held and administered by the Property Trustee in trust for the benefit of the Issuer Trust and the Holders in accordance with this Declaration of Trust. The Holders shall not have legal title to any part of the assets of the Issuer Trust, but shall have an undivided beneficial ownership interest in the assets of the Issuer Trust. SECTION 3.6 Powers and Duties of the Administrative Trustees. The Administrative Trustees shall have the exclusive power, duty and authority to cause the Issuer Trust to engage in the following activities: 14 23 (a) to establish the terms and form of the Preferred Securities and the Common Securities in the manner specified in Section 7.1 and issue and sell the Preferred Securities and the Common Securities in accordance with this Declaration of Trust; provided, however, that the Issuer Trust may issue no more than one series of Preferred Securities and no more than one series of Common Securities, and, provided further, that there shall be no interests in the Issuer Trust other than the Trust Securities, and the issuance of Trust Securities shall be limited to a one-time, simultaneous issuance of both Preferred Securities and Common Securities on the Closing Date; (b) in connection with the issue and sale of the Preferred Securities, at the direction of the Sponsor, to: (i) execute and file an application, prepared by the Sponsor, to the New York Stock Exchange or any other national stock exchange or the NASDAQ Stock Market for listing of any Preferred Securities, the Guarantee and the Junior Subordinated Debentures; (ii) execute and file with the Commission one or more registration statements on the applicable forms prepared by the Sponsor, including any amendments thereto, pertaining to the Preferred Securities, the Guarantee and the Junior Subordinated Debentures; (iii) execute and file any documents prepared by the Sponsor, or take any acts as determined by the Sponsor to be necessary, in order to qualify or register all or part of the Preferred Securities in any State in which the Sponsor has determined to qualify or register such Preferred Securities for sale; and (iv) negotiate the terms of and execute and enter into an underwriting agreement and other related agreements providing for the sale of the Preferred Securities; (c) to acquire the Junior Subordinated Debentures with the proceeds of the sale of the Preferred Securities and the Common Securities; provided, however, that the Administrative Trustees shall cause legal title to the Junior Subordinated Debentures to be held of record in the name of the Property Trustee for the benefit of the Holders of the Preferred Securities and the Holders of the Common Securities; (d) to give the Sponsor and the Property Trustee prompt written notice of the occurrence of any Special Event; provided that the Administrative Trustees shall consult with the Sponsor and the Property Trustee before taking or refraining from taking any action in relation to any such Special Event; 15 24 (e) to establish a record date with respect to all actions to be taken hereunder that require a record date be established, including and with respect to, for the purposes of Section 316(c) of the Trust Indenture Act, Distributions, voting rights, redemptions and exchanges, and to issue relevant notices to the Holders of Preferred Securities and Holders, of Common Securities as to such actions and applicable record dates; (f) to take all actions and perform such duties as may be required of the Administrative Trustees pursuant to the terms of this Declaration of Trust and the Trust Securities; (g) to bring or defend, pay, collect, compromise, arbitrate, resort to legal action or otherwise adjust claims or demands of or against the Issuer Trust ("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has the exclusive power to bring such Legal Action; (h) to employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors and consultants to conduct only those services that the Administrative Trustees have authority to conduct directly, and to and pay reasonable compensation for such services; (i) to cause the Issuer Trust to comply with the Issuer Trust's obligations under the Trust Indenture Act; (j) to give the certificate required by Section 314(a)(4) of the Trust Indenture Act to the Property Trustee, which certificate may be executed by any Administrative Trustee; (k) to incur expenses that are necessary or incidental to carry out any of the purposes of the Issuer Trust; (l) to act as, or appoint another Person to act as, registrar and transfer agent for the Trust Securities; (m) to give prompt written notice to the Holders of the Trust Securities of any notice received from the Debenture Issuer of its election to defer payments of interest on the Junior Subordinated Debentures by extending the interest payment period under the Junior Subordinated Debentures as authorized by the Junior Subordinated Indenture; (n) to take all action that may be necessary or appropriate for the preservation and the continuation of the Issuer Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Securities and the Holders of the Common Securities or to enable the Trust to effect the purposes for which the Issuer Trust was created; 16 25 (o) to take any action, not inconsistent with applicable law, that the Administrative Trustees determine in their discretion to be necessary or desirable in carrying out the purposes and functions of the Issuer Trust as set out in Section 3.3 or the activities of the Issuer Trust as set out in this Section 3.6, including, but not limited to: (i) causing the Issuer Trust not to be deemed to be an Investment Company required to be registered under the Investment Company Act; (ii) causing the Issuer Trust to be classified as a grantor trust for United States federal income tax purposes; and (iii) cooperating with the Debenture Issuer to ensure that the Junior Subordinated Debentures will be treated as indebtedness of the Debenture Issuer for United States federal income tax purposes. (p) to take all action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to the Issuer Trust to be duly prepared and filed by the Administrative Trustees on behalf of the Issuer Trust; and (q) to execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Issuer Trust in all matters necessary or incidental to the foregoing. The Administrative Trustees shall exercise the powers set forth in this Section 3.6 in a manner that is consistent with the purposes and functions of the Issuer Trust set out in Section 3.3, and the Administrative Trustees shall have no power to, and shall not, take any action that is inconsistent with the purposes and functions of the Issuer Trust set forth in Section 3.3. Subject to this Section 3.6, the Administrative Trustees shall have none of the powers or the authority of the Property Trustee set forth in Section 3.8. Any expenses incurred by the Administrative Trustees pursuant to this Section 3.6 shall be reimbursed by the Debenture Issuer. SECTION 3.7 Prohibition of Actions by the Issuer Trust and the Trustees. (a) The Issuer Trust shall not, and the Trustees (including the Property Trustee) shall cause the Issuer Trust not to, engage in any activity other than as required or authorized by this Declaration of Trust. In particular, the Issuer Trust shall not, and the Trustees (including the Property Trustee) shall cause the Issuer Trust not to: 17 26 (i) invest any proceeds received by the Issuer Trust from holding the Junior Subordinated Debentures, but shall distribute all such proceeds to Holders of Trust Securities pursuant to the terms of this Declaration of Trust and of the Trust Securities; (ii) acquire any assets other than as expressly provided herein; (iii) possess Issuer Trust property otherwise than in accordance with the terms of this Declaration of Trust; (iv) make any loans or incur any indebtedness; (v) possess any power or otherwise act in such a way as to vary the Issuer Trust assets; (vi) possess any power or otherwise act in such a way as to vary the terms of the Trust Securities in any way whatsoever (except to the extent expressly authorized in this Declaration of Trust or by the terms of the Trust Securities); (vii) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Issuer Trust other than the Trust Securities; (viii) other than as provided in this Declaration of Trust or by the terms of the Trust Securities, (A) direct the time, method and place of exercising any trust or power conferred upon the Debenture Trustee with respect to the Junior Subordinated Debentures, (B) waive any past default that is waivable under the Junior Subordinated Indenture, (C) exercise any right to rescind or annul any declaration that the principal of all the Junior Subordinated Debentures shall be due and payable, or (D) consent to any amendment, modification or termination of the Junior Subordinated Indenture or the Junior Subordinated Debentures where such consent shall be required unless the Issuer Trust shall have received an opinion of counsel to the effect that such modification will not cause more than an insubstantial risk that the Issuer Trust will be deemed an Investment Company required to be registered under the Investment Company Act, or the Issuer Trust will not be classified as a grantor trust for United States federal income tax purposes; (ix) take any action inconsistent with the status of the Issuer Trust as a grantor trust for United States federal income tax purposes; or 18 27 (x) revoke any action previously authorized or approved by vote of the Holders of the Preferred Securities. SECTION 3.8 Powers and Duties of the Property Trustee. (a) The legal title to the Junior Subordinated Debentures shall be owned by and held of record in the name of the Property Trustee in trust for the benefit of the Issuer Trust and the Holders of the Securities. The right, title and interest of the Property Trustee to the Junior Subordinated Debentures shall vest automatically in each Person who may hereafter be appointed as Property Trustee in accordance with Section 6.6. Such vesting and cessation of title shall be effective whether or not conveyancing documents with regard to the Junior Subordinated Debentures have been executed and delivered. (b) The Property Trustee shall not transfer its right, title and interest in the Junior Subordinated Debentures to the Administrative Trustees or to the Delaware Trustee (unless the Property Trustee also acts as Delaware Trustee). (c) The Property Trustee shall: (i) establish and maintain a segregated non-interest bearing trust account (the "Property Account") in the name of and under the exclusive control of the Property Trustee on behalf of the Holders of the Trust Securities and, upon the receipt of payments of funds made in respect of the Junior Subordinated Debentures held by the Property Trustee, deposit such funds into the Property Account and make payments to the Holders of the Preferred Securities and Holders of the Common Securities from the Property Account in accordance with Section 7.2. Funds in the Property Account shall be held uninvested until disbursed in accordance with this Declaration of Trust. The Property Account shall be an account that is maintained with a banking institution the rating on whose long-term unsecured indebtedness is at least equal to the rating assigned to the Preferred Securities by a "nationally recognized statistical rating organization", within the meaning of Rule 436(g)(2) under the Securities Act; (ii) engage in such ministerial activities as shall be necessary or appropriate to effect the redemption of the Preferred Securities and the Common Securities to the extent the Junior Subordinated Debentures are redeemed or mature; and (iii) upon written notice of dissolution of the Issuer Trust issued by the Administrative Trustees in accordance with the terms of the Trust Securities, engage in such ministerial activities as so directed and 19 28 as shall be necessary or appropriate to effect the distribution of the Junior Subordinated Debentures to Holders of Trust Securities. (d) The Property Trustee shall take all actions and perform such duties as may be specifically required of the Property Trustee pursuant to the terms of this Declaration of Trust and the Trust Securities. (e) The Property Trustee shall take any Legal Action which arises out of or in connection with a Trust Enforcement Event of which a Responsible Officer of the Property Trustee has actual knowledge or the Property Trustee's duties and obligations under this Declaration of Trust or the Trust Indenture Act; provided, however, that if a Trust Enforcement Event has occurred and is continuing and such event is attributable to the failure of the Debenture Issuer to pay interest, principal or other required payments on the Junior Subordinated Debentures on the date such interest, principal or other required payments are otherwise payable (or in the case of redemption, on the redemption date), then a Holder of Preferred Securities may directly institute a proceeding against the Debenture Issuer for enforcement of payment to such Holder of the principal of or interest on Junior Subordinated Debentures having a principal amount equal to the aggregate liquidation amount of the Preferred Securities of such Holder (a "Direct Action") on or after the respective due date specified in the Junior Subordinated Debentures. (f) The Property Trustee shall continue to serve as a Trustee until either: (i) the Issuer Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders of Trust Securities pursuant to the terms of the Trust Securities; or (ii) a Successor Property Trustee has been appointed and has accepted that appointment in accordance with Section 6.6. (g) The Property Trustee shall have the legal power to exercise all of the rights, powers and privileges of a holder of Junior Subordinated Debentures under the Junior Subordinated Indenture and, if a Trust Enforcement Event actually known to a Responsible Officer of the Property Trustee occurs and is continuing, the Property Trustee shall, for the benefit of Holders of the Trust Securities, enforce its rights as holder of the Junior Subordinated Debentures subject to the rights of the Holders pursuant to the terms of such Trust Securities. (h) The Property Trustee may authorize one or more Persons (each, a "Paying Agent") to pay Distributions, redemption payments or liquidation payments on behalf of the Issuer Trust with respect to all Trust Securities and any such Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any Paying Agent may be removed by the Property Trustee at any time and a successor Paying Agent or additional Paying Agents may be appointed at any time by the Property Trustee. 20 29 (i) Subject to this Section 3.8, the Property Trustee shall have none of the duties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 3.6. The Property Trustee shall exercise the powers set forth in this Section 3.8 in a manner that is consistent with the purposes and functions of the Issuer Trust set out in Section 3.3, and the Property Trustee shall have no power to, and shall not, take any action that is inconsistent with the purposes and functions of the Issuer Trust set out in Section 3.3. SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee. (a) The Property Trustee, before the occurrence of any Trust Enforcement Event and after the curing of all Trust Enforcement Events that may have occurred, shall undertake to perform only such duties as are specifically set forth in this Declaration of Trust and no implied covenants shall be read into this Declaration of Trust against the Property Trustee. In case a Trust Enforcement Event has occurred (that has not been cured or waived pursuant to Section 2.6) of which a Responsible Officer of the Property Trustee has actual knowledge, the Property Trustee shall exercise such of the rights and powers vested in it by this Declaration of Trust, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. (b) No provision of this Declaration of Trust shall be construed to relieve the Property Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: (i) prior to the occurrence of a Trust Enforcement Event and after the curing or waiving of all such Trust Enforcement Events that may have occurred: a. the duties and obligations of the Property Trustee shall be determined solely by the express provisions of this Declaration of Trust and the Property Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Declaration of Trust, and no implied covenants or obligations shall be read into this Declaration of Trust against the Property Trustee; and b. in the absence of bad faith on the part of the Property Trustee, the Property Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Property Trustee and conforming to the requirements of this Declaration of Trust; but in the case of any such certificates or opinions that by any 21 30 provision hereof are specifically required to be furnished to the Property Trustee, the Property Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Declaration of Trust; (ii) the Property Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Property Trustee, unless it shall be proved that the Property Trustee was negligent in ascertaining the pertinent facts; (iii) the Property Trustee shall not be liable with respect to any action taken or omitted to be taken by it without negligence, in good faith in accordance with the direction of the Holders of not less than a Majority in Liquidation Amount of the Trust Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Property Trustee, or exercising any trust or power conferred upon the Property Trustee under this Declaration of Trust; (iv) no provision of this Declaration of Trust shall require the Property Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Declaration of Trust or indemnity reasonably satisfactory to the Property Trustee against such risk or liability is not reasonably assured to it; (v) the Property Trustee's sole duty with respect to the custody, safekeeping and physical preservation of the Junior Subordinated Debentures and the Property Account shall be to deal with such property in a similar manner as the Property Trustee deals with similar property for its own account, subject to the protections and limitations on liability afforded to the Property Trustee under this Declaration of Trust and the Trust Indenture Act; (vi) the Property Trustee shall have no duty or liability for or with respect to the value, genuineness, existence or sufficiency of the Junior Subordinated Debentures or the payment of any taxes or assessments levied thereon or in connection therewith; (vii) the Property Trustee shall not be liable for any interest on any money received by it except as it may otherwise agree with the Sponsor. Money held by the Property Trustee need not be 22 31 segregated from other funds held by it except in relation to the Property Account maintained by the Property Trustee pursuant to Section 3.8(c)(i) and except to the extent otherwise required by law; and (viii) the Property Trustee shall not be responsible for monitoring the compliance by the Administrative Trustees or the Sponsor with their respective duties under this Declaration of Trust, nor shall the Property Trustee be liable for any default or misconduct of the Administrative Trustees or the Sponsor. SECTION 3.10 Certain Rights of Property Trustee. (a) Subject to the provisions of Section 3.9: (i) the Property Trustee may conclusively rely and shall be fully 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, sent or presented by the proper party or parties; (ii) any direction or act of the Sponsor or the Administrative Trustees contemplated by this Declaration of Trust shall be sufficiently evidenced by an Officers' Certificate; (iii) whenever in the administration of this Declaration of Trust, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the Sponsor or the Administrative Trustees; (iv) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any rerecording, refiling or registration thereof; (v) before the Property Trustee acts or refrains from acting, it may consult with counsel of its choice or other experts and the written advice or opinion of such counsel and experts with respect to legal 23 32 matters or advice within the scope of such experts' area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion, such counsel may be counsel to the Sponsor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Declaration of Trust from any court of competent jurisdiction; (vi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Declaration of Trust at the request or direction of any Holder, unless such Holder shall have provided to the Property Trustee security and indemnity, reasonably satisfactory to the Property Trustee, against the costs, expenses (including attorneys' fees and expenses and the expenses of the Property Trustee's agents, nominees or custodians) and liabilities that might be incurred by it in complying with such request or direction, including such reasonable advances as may be requested by the Property Trustee; provided that nothing contained in this Section 3.10(a) shall be taken to relieve the Property Trustee, upon the occurrence of an Indenture Event of Default, of its obligation to exercise the rights and powers vested in it by this Declaration of Trust; (vii) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Property Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit; (viii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (ix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders of the Trust Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third 24 33 party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Declaration of Trust, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this Declaration of Trust the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders of the Trust Securities which instructions may only be given by the Holders of the same proportion in liquidation amount of the Trust Securities as would be entitled to direct the Property Trustee under the terms of the Trust Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (iii) shall be protected in conclusively relying on or acting in or accordance with such instructions; (xi) except as otherwise expressly provided by this Declaration of Trust, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Declaration of Trust; (xii) the Property Trustee shall not be liable for any action taken, suffered or omitted to be taken by it without negligence, in good faith and reasonably believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Declaration of Trust; and (xiii) the Property Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder. (b) No provision of this Declaration of Trust shall be deemed to impose any duty or obligation on the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty. 25 34 SECTION 3.11 Delaware Trustee. Notwithstanding any other provision of this Declaration of Trust other than Section 6.1, the Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities of the Administrative Trustees or the Property Trustee described in this Declaration of Trust. Except as set forth in Section 6.1, the Delaware Trustee shall be a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Business Trust Act. SECTION 3.12 Execution of Documents. Unless otherwise determined by the Administrative Trustees, and except as otherwise required by the Business Trust Act, any Administrative Trustee is authorized to execute on behalf of the Trust any documents that the Administrative Trustees have the power and authority to execute pursuant to Section 3.6; provided that, the registration statements referred to in Section 3.6(b)(ii), including any amendments thereto, shall be signed by or on behalf of a majority of the Administrative Trustees. SECTION 3.13 Not Responsible for Recitals or Issuance of Trust Securities. The recitals contained in this Declaration of Trust and the Trust Securities shall be taken as the statements of the Sponsor, and the Trustees do not assume any responsibility for their correctness. The Trustees make no representations as to the value or condition of the property of the Trust or any part thereof. The Trustees make no representations as to the validity or sufficiency of this Declaration of Trust, the Trust Securities, the Junior Subordinated Debentures or the Junior Subordinated Indenture. SECTION 3.14 Duration of Issuer Trust. The Issuer Trust shall exist until terminated pursuant to the provisions of Article 8 hereof. SECTION 3.15 Mergers. (a) The Issuer Trust may not consolidate, amalgamate, merge with or into, or be replaced by, or convey, transfer or lease its properties and assets substantially as an entirety to any corporation or other body, except as described in Section 3.15(b) and (c). (b) The Issuer Trust may, at the request of the Sponsor and with the consent of the Administrative Trustees or, if there are more than two, a majority of the Administrative Trustees and without the consent of the Holders of the Trust Securities, the Delaware Trustee or the Property Trustee, consolidate, amalgamate, merge with or into, or be replaced by or convey, transfer or lease its properties substantially as an entirety to a trust organized as such under the laws of any State; provided, that: 26 35 (i) if the Issuer Trust is not the successor, such successor entity (the "Successor Entity") either: A. expressly assumes all of the obligations of the Issuer Trust with respect to the Trust Securities; or B. substitutes for the Preferred Securities other securities having substantially the same terms as the Preferred Securities (the "Successor Securities") so long as the Successor Securities rank the same as the Preferred Securities rank in priority with respect to Distributions and payments upon liquidation, redemption and otherwise; (ii) the Debenture Issuer expressly appoints a trustee of such Successor Entity that possesses the same powers and duties as the Property Trustee as the holder of the Junior Subordinated Debentures; (iii) the Preferred Securities or any Successor Securities are listed, or any Successor Securities will be listed upon notification of issuance, on any national securities exchange or with any other or organization on which the Preferred Securities are then listed or quoted; (iv) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not cause the Preferred Securities (including any Successor Securities) to be downgraded by any nationally recognized statistical rating organization; (v) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the Holders of the Preferred Securities (including any Successor Securities) in any material respect; (vi) such Successor Entity has a purpose identical to that of the Issuer Trust; (vii) prior to such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease the Sponsor has received an opinion in writing of independent counsel to the Issuer Trust experienced in such matters to the effect that: A. such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the 27 36 rights, preferences and privileges of the Holders of the Preferred Securities (including any Successor Securities) in any material respect; B. following such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease neither the Issuer Trust nor the Successor Entity will be required to register as an Investment Company; and C. following such merger, consolidation, amalgamation or replacement, the Issuer Trust (or the Successor Entity) will continue to be classified as a grantor trust for United States federal income tax purposes; (viii) the Sponsor or any permitted successor or assignee owns all of the Common Securities and guarantees the obligations of such Successor Entity under the Successor Securities at least to the extent provided by the Guarantee; and (ix) such Successor Entity expressly assumes all of the obligations of the Issuer Trust with respect to the Trustees. (c) Notwithstanding Section 3.15(b), the Issuer Trust shall not, except with the consent of Holders of 100% in aggregate liquidation amount of the Trust Securities, consolidate, amalgamate, merge with or into, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to, any other entity or permit any other entity to consolidate, amalgamate, merge with or into, or replace it, if such consolidation, amalgamation, merger, replacement, conveyance, transfer or lease would cause the Issuer Trust or Successor Entity to be classified as other than a grantor trust for United States federal income tax purposes and each Holder of the Trust Securities not to be treated as owning an undivided interest in the Junior Subordinated Debentures. SECTION 3.16 Property Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other similar judicial proceeding relative to the Issuer Trust or any other obligor upon the Trust Securities or the property of the Issuer Trust or of such other obligor or their creditors, the Property Trustee (irrespective of whether any Distributions on the Trust Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Property Trustee shall have made any demand on the Issuer Trust for the payment of any past due Distributions) shall be entitled and empowered, to the fullest extent permitted by law, by intervention in such proceeding or otherwise: 28 37 (a) to file and prove a claim for the whole amount of any Distributions owing and unpaid in respect of the Trust Securities (or, if the Trust Securities are original issue discount Trust Securities, such portion of the liquidation amount as may be specified in the terms of such Securities) and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Property Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Property Trustee, its and counsel) and of the Holders allowed in such judicial proceeding, and (b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and 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 Property Trustee and, in the event the Property Trustee shall consent to the making of such payments directly to the Holders, to pay to the Property Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Property Trustee, its agents and counsel, and any other amounts due the Property Trustee. Nothing herein contained shall be deemed to authorize the Property Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement adjustment or compensation affecting the Trust Securities or the rights of any Holder thereof or to authorize the Property Trustee to vote in respect of the claim of any Holder in any such proceeding. ARTICLE 4 SPONSOR SECTION 4.1 Responsibilities of the Sponsor. In connection with the issue and sale of the Preferred Securities, the Sponsor shall have the exclusive right and responsibility to engage in the following activities to the extent the Sponsor determines such activities to be necessary: (a) to prepare for filing by the Issuer Trust with the Commission one or more registration statements on the applicable forms, including any amendments thereto, pertaining to the Preferred Securities, the Guarantee and the Junior Subordinated Debentures; (b) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and to do any and all such acts, other than actions which must be taken by the Issuer Trust, and advise the Issuer Trust of actions it must take, and prepare for execution and filing any documents to be executed and filed by the Issuer 29 38 Trust, as the Sponsor deems necessary or advisable in order to comply with the applicable laws of any such States; (c) to prepare for filing by the Issuer Trust an application to the New York Stock Exchange or any other national stock exchange or the NASDAQ Stock Market for listing upon notice of issuance of any Preferred Securities, the Guarantee and the Junior Subordinated Debentures; and (d) to negotiate the terms of an underwriting agreement and other related agreements providing for the sale of the Preferred Securities. SECTION 4.2 Indemnification and Expenses of the Trustees. The Sponsor, in its capacity as Debenture Issuer, agrees to indemnify the Property Trustee and the Delaware Trustee for, and to hold each of them harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Property Trustee or the Delaware Trustee, as the case may be, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending either of them against or investigating any claim or liability in connection with the exercise or performance of any of their respective powers or duties hereunder; the provisions of this Section 4.2 shall survive the resignation or removal of the Delaware Trustee or the Property Trustee or the termination of this Declaration of Trust. ARTICLE 5 TRUST COMMON SECURITIES HOLDER SECTION 5.1 Debenture Issuer's Purchase of Common Securities. On the Closing Date, the Debenture Issuer will purchase all of the Common Securities issued by the Issuer Trust, for an amount equal to at least 3% of the capital of the Issuer Trust, at the same time as the Preferred Securities are sold. The aggregate stated liquidation amount of Common Securities outstanding at any time shall not be less than 3% of the capital of the Issuer Trust. SECTION 5.2 Covenants of the Common Securities Holder. For so long as the Preferred Securities remain outstanding, the Common Securities Holder will covenant (i) to maintain, directly or indirectly, 100% ownership of the Common Securities, (ii) to cause the Issuer Trust to remain a statutory business trust and not to voluntarily dissolve, wind up, liquidate or be terminated, except as permitted by this Declaration of Trust, (iii) to use its commercially reasonable efforts to ensure that the Issuer Trust will not be 30 39 an investment company for purposes of the Investment Company Act, and (iv) to take no action which would be reasonably likely to cause the Issuer Trust to be classified as an association or a publicly traded partnership taxable as a corporation for United States federal income tax purposes. ARTICLE 6 TRUSTEES SECTION 6.1 Number of Trustees. The number of Trustees initially shall be five, and: (a) at any time before the issuance of any Trust Securities, the Sponsor may, by written instrument, increase or decrease the number of Trustees; and (b) after the issuance of any Trust Securities, the number of Trustees may be increased or decreased by vote of the Holders of a Majority in Liquidation Amount of the Common Securities voting as a class at a meeting of the Holders of the Common Securities or by written consent in lieu of such meeting; provided that the number of Trustees shall at all times be at least three; and provided further that (1) one Trustee (the "Delaware Trustee") shall, in the case of a natural person, be a person who is a resident of the State of Delaware or that, if not a natural person, is an entity which has its principal place of business in the State of Delaware and otherwise meets the requirements of the Business Trust Act and any other applicable law; (2) at least one Trustee shall be an Administrative Trustee who shall be an employee or officer of, or be affiliated with, the Sponsor; and (3) one Trustee shall be the Property Trustee for so long as this Declaration of Trust is required to qualify as an indenture under the Trust Indenture Act, and such Trustee may also serve as Delaware Trustee if it meets the applicable requirements in which event, Section 3.11 shall have no application. SECTION 6.2 [Reserved]. SECTION 6.3 Property Trustee; Eligibility. (a) There shall at all times be one Trustee (which may be the Delaware Trustee) which shall act as Property Trustee which shall: (i) not be an Affiliate of the Sponsor; and (ii) be a corporation organized and doing business under the laws of the United States of America or any State or Territory thereof or of the District of Columbia, or a corporation or other Person permitted by the Commission to act as an institutional trustee 31 40 under the Trust Indenture Act, authorized under such laws to exercise corporate trust owners, having a combined capital and surplus of at least 50 million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, State, Territorial or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the supervising or examining authority referred to above, then for the purposes of this Section 6.3(a)(ii), the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. (b) If at any time the Property Trustee shall cease to be eligible to so act under Section 6.3(a), the Property Trustee shall immediately resign in the manner and with the effect set forth in Section 6.6(c). (c) If the Property Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Property Trustee and the Holder of the Common Securities (as if it were the obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act. (d) The Guarantee shall be deemed to be specifically described in this Declaration of Trust for purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act. SECTION 6.4 Qualifications of Administrative Trustees and Delaware Trustee Generally. Each Administrative Trustee and the Delaware Trustee (unless the Property Trustee also acts as Delaware Trustee) shall be either a natural person who is at least 21 years of age or a legal entity that shall act through one or more Authorized Officers. SECTION 6.5 Initial Administrative Trustees. The initial Administrative Trustees shall be: Richard J. Swift, David J. Roberts and Robert D. Iseman, the business address of all of whom is c/o Foster Wheeler Corporation, Perryville Corporate Park, Clinton, New Jersey 08809. SECTION 6.6 Appointment, Removal and Resignation of Trustees. 32 41 (a) Subject to Section 6.6(b), a Trustee may be appointed or removed without cause at any time: (i) until the issuance of any Trust Securities, by written instrument executed by the Sponsor; (ii) after the issuance of any Trust Securities, by vote of the Holders of a Majority in Liquidation Amount of the Common Securities voting as a class at a meeting of the Holders of the Common Securities; and (iii) if an Event of Default has occurred and is continuing, by a vote of a Majority in Liquidation Amount of the Preferred Securities outstanding; provided, that no Administrative Trustee may be removed by Holders of Preferred Securities pursuant to this clause (iii). (b) The Trustee that acts as Property Trustee shall not be removed in accordance with Section 6.6(a) until a successor Trustee possessing the qualifications to act as Property Trustee under Section 6.3(a) (a "Successor Property Trustee") has been appointed and has accepted such appointment by written instrument executed by such Successor Property Trustee and delivered to the Administrative Trustees and the Sponsor. The Trustee that acts as Delaware Trustee shall not be removed in accordance with Section 6.6(a) until a successor Trustee possessing the qualifications to act as Delaware Trustee under Sections 6.2 and 6.4 (a "Successor Delaware Trustee") has been appointed and has accepted such appointment by written instrument executed by such Successor Delaware Trustee and delivered to the Administrative Trustees and the Sponsor. (c) A Trustee appointed to office shall hold office until his or its successor shall have been appointed, until his death or its dissolution or until his or its removal or resignation. Any Trustee may resign from office (without need for prior or subsequent accounting) by an instrument in writing signed by the Trustee and delivered to the Sponsor and the Trust, which resignation shall take effect upon such delivery or upon such later date as is specified therein; provided, however, that: (i) No such resignation of the Trustee that acts as the Property Trustee shall be effective: a. until a Successor Property Trustee has been appointed and has accepted such appointment by instrument executed by such Successor Property Trustee and delivered to the Issuer Trust, the Sponsor and the resigning Property Trustee; or 33 42 b. until the assets of the Issuer Trust have been completely liquidated and the proceeds thereof distributed to the holders of the Trust Securities; and (ii) no such resignation of the Trustee that acts as the Delaware Trustee shall be effective until a Successor Delaware Trustee has been appointed and has accepted such appointment by instrument executed by such Successor Delaware Trustee and delivered to the Issuer Trust, the Sponsor and the resigning Delaware Trustee. (d) The Holders of the Common Securities shall use their best efforts to promptly appoint a Successor Delaware Trustee or Successor Property Trustee, as the case may be, if the Property Trustee or the Delaware Trustee delivers an instrument of resignation in accordance with this Section 6.6. (e) If no Successor Property Trustee or Successor Delaware Trustee, as the case may be, shall have been appointed and accepted appointment as provided in this Section 6.6 within 60 days after delivery to the Sponsor and the Issuer Trust of an instrument of resignation or removal, the resigning or removed Property Trustee or Delaware Trustee, as applicable, may petition any court of competent jurisdiction for appointment of a Successor Property Trustee or Successor Delaware Trustee, as applicable. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Successor Property Trustee or Successor Delaware Trustee, as the case may be. (f) No Property Trustee or Delaware Trustee shall be liable for the acts or omissions to act of any Successor Property Trustee or Successor Delaware Trustee, as the case may be. SECTION 6.7 Vacancies among Trustees. If an Issuer Trustee ceases to hold office for any reason and the number of Trustees is not reduced pursuant to Section 6.1, or if the number of Trustees is increased pursuant to Section 6.1, a vacancy shall occur. A resolution certifying the existence of such vacancy by the Administrative Trustees or, if there are more than two, a majority of the Administrative Trustees shall be conclusive evidence of the existence of such vacancy. The vacancy shall be filled with a Trustee appointed in accordance with Section 6.6. SECTION 6.8 Effect of Vacancies. The death, resignation, retirement, removal, bankruptcy, dissolution, liquidation, incompetence or incapacity to perform the duties of a Trustee shall not operate to annul the Issuer Trust. Whenever a vacancy in the number of Administrative Trustees shall occur, until such vacancy is filled by the appointment of a Administrative Trustee in accordance with Section 6.6, the Administrative Trustees in office, regardless of their number, shall have all the powers 34 43 granted to the Administrative Trustees and shall discharge all the duties imposed upon the Administrative Trustees by this Declaration of Trust. SECTION 6.9 Meetings. If there is more than one Administrative Trustee, meetings of the Administrative Trustees shall be held from time to time upon the call of any Administrative Trustee. Regular meetings of the Administrative Trustees may be held at a time and place fixed by resolution of the Administrative Trustees. Notice of any in-person meetings of the Administrative Trustees shall be hand delivered or otherwise delivered in writing (including by facsimile, with a hard copy by overnight courier) not less than 48 hours before such meeting. Notice of any telephonic meetings of the Administrative Trustees shall be hand delivered or otherwise delivered in writing (including by facsimile, with a hard copy by overnight courier) not less than 24 hours before a meeting. Notices shall contain a brief statement of the time, place and anticipated purposes of the meeting. The presence (whether in person or by telephone) of a Administrative Trustee at a meeting shall constitute a waiver of notice of such meeting except where a Administrative Trustee attends a meeting for the express purpose of objecting to the transaction of any activity on the ground that the meeting has not been lawfully called or convened. Unless provided otherwise in this Declaration of Trust, any action of the Administrative Trustees may be taken at a meeting by vote of a majority of the Administrative Trustees present (whether in person or by telephone) and eligible to vote with respect to such matter, provided that a Quorum is present, or without a meeting by the unanimous written consent of the Administrative Trustees. In the event there is only one Administrative Trustee, any and all action of such Administrative Trustee shall be evidenced by a written consent of such Administrative Trustee. SECTION 6.10 Delegation of Power. (a) Any Administrative Trustee may, by power of attorney consistent with applicable law, delegate to any natural person over the age of 21 his, her or its power for the purpose of executing any documents contemplated in Section 3.6, including any registration statement or amendment thereto filed with the Commission, or making any other governmental filing. (b) The Administrative Trustees shall have power to delegate from time to time to such of their number or to officers of the Issuer Trust the doing of such things and the execution of such instruments either in the name of the Issuer Trust or the names of the Administrative Trustees or otherwise as the Administrative Trustees may deem expedient, to the extent such delegation is not prohibited by applicable law or contrary to the provisions of the Issuer Trust, as set forth herein. SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Property Trustee, the Delaware Trustee or any Administrative Trustee that is not a natural person may be merged or converted or with such 35 44 Trustee may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of such Trustee shall be the successor of such Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. ARTICLE 7 TERMS OF TRUST SECURITIES SECTION 7.1 General Provisions Regarding Trust Securities. (a) The Administrative Trustees shall on behalf of the Issuer Trust issue one class of preferred securities representing undivided beneficial ownership interests in the assets of the Issuer Trust (the "Preferred Securities") and one class of common securities representing undivided beneficial ownership interests in the assets of the Issuer Trust (the "Common Securities") having such terms as are set forth in Annex I hereto. The Issuer Trust shall issue no securities or other interests in the assets of the Issuer Trust other than the Preferred Securities and the Common Securities. (b) The Certificates shall be signed on behalf of the Issuer Trust by an Administrative Trustee. Such signature shall be the manual or facsimile signature of any Administrative Trustee holding such position at the time of signature. In case an Administrative Trustee of the Issuer Trust who shall have signed any of the Certificates shall cease to be such Administrative Trustee before the Certificates so signed shall be delivered by the Issuer Trust, such Certificates nevertheless may be delivered as though the person who signed such Certificates had not ceased to be such Administrative Trustee; and any Certificate may be signed on behalf of the Issuer Trust by such persons who, at the actual date of execution of such Certificate, shall be the Administrative Trustees of the Issuer Trust, although at the date of the execution and delivery of the Declaration of Trust any such person was not such an Administrative Trustee. Certificates shall be printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Administrative Trustees, as evidenced by their execution thereof, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements as the Administrative Trustees may deem appropriate, or as may be required to comply with any law or with any rule or regulation of any stock exchange on which Trust Securities may be listed, or to conform to usage. A Certificate representing Preferred Securities shall not be valid until authenticated by the manual signature of an authorized signatory of the Property Trustee. Such signature shall be conclusive evidence that such Certificate has been authenticated under this Declaration of Trust. 36 45 Upon a written order of the Issuer Trust signed by one Administrative Trustee, the Property Trustee shall authenticate the Certificates representing Preferred Securities for original issue. The aggregate number of Preferred Securities outstanding at any time shall not exceed the liquidation amount set forth in Section 1(a) of Annex I. The Property Trustee may appoint an authenticating agent acceptable to the Issuer Trust to authenticate Certificates. An authenticating agent may authenticate Certificates whenever the Property Trustee may do so. Each reference in this Declaration of Trust to authentication by the Property Trustee includes authentication by such agent. An authenticating agent has the same rights as the Property Trustee to deal with the Sponsor or an Affiliate of the Sponsor. (c) The consideration received by the Issuer Trust for the issuance of the Trust Securities shall constitute a contribution to the capital of the Issuer Trust and shall not constitute a loan to the Issuer Trust. (d) Upon issuance of the Trust Securities as provided in this Declaration of Trust, the Trust Securities so issued shall be deemed to be validly issued, fully paid and non-assessable beneficial ownership interests in the assets of the Issuer Trust. (e) Every Person, by virtue of having become a Holder or a Preferred Security Beneficial Owner in accordance with the terms of this Declaration of Trust, shall be deemed to have expressly assented and agreed to the terms of, and shall be bound by, this Declaration of Trust and the terms of the Trust Securities, the Guarantee, the Junior Subordinated Indenture and the Junior Subordinated Debentures. (f) The holders of the Trust Securities shall have no preemptive rights. SECTION 7.2 Paying Agent. In the event that any Preferred Securities are not in book-entry only form, the Issuer Trust shall maintain in the Borough of Manhattan, City of New York, State of New York, an office or agency where the Preferred Securities may be presented for payment ("Paying Agent"). The Issuer Trust may appoint the Paying Agent and may appoint one or more additional Paying Agents in such other locations as it shall determine. The term "Paying Agent" includes any additional Paying Agent. The Issuer Trust may change any Paying Agent without prior notice to the Holders. The Issuer Trust shall notify the Property Trustee of the name and address of any Paying Agent not a party to this Declaration of Trust. If the Issuer Trust fails to appoint or maintain another entity as Paying Agent, the Property Trustee shall act as such. The Issuer Trust or any of its Affiliates may act as Paying Agent. Harris Trust and Savings Bank shall initially act as Paying Agent for the Trust Securities. In the event Harris Trust and Savings Bank shall no longer be the Paying Agent, the Administrative Trustees shall appoint a successor (which shall be a bank or trust company acceptable to the Debenture Issuer) to act as Paying 37 46 Agent. The Paying Agent shall be permitted to resign as Paying Agent upon 30 days' written notice to the Property Trustee and the Debenture Issuer. SECTION 7.3 Listing. The Sponsor shall use its reasonable best efforts to cause the Preferred Securities to be listed for quotation on the New York Stock Exchange. SECTION 7.4 Transfer of Trust Securities. (a) Trust Securities may only be transferred, in whole or in part, in accordance with the terms and conditions set forth in this Declaration of Trust and in the terms of the Trust Securities. Any transfer or purported transfer of any Trust Security not made in accordance with this Declaration of Trust shall be null and void. (b) Subject to this Article 7, Preferred Securities shall be freely transferable. (c) The Issuer Trust shall cause to be kept at the Corporate Trust Office of the Property Trustee a register (the register maintained in such office being herein sometimes referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Issuer Trust shall provide for the registration of Preferred Securities and of transfers of Preferred Securities. The Property Trustee is hereby appointed "Security Registrar" for the purpose of registering Preferred Securities and transfers of Preferred Securities as herein provided. (d) Upon surrender for registration of transfer of any Trust Security at an office or agency of the Issuer Trust designated for such purpose, the Issuer Trust shall execute, and the Property Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Trust Securities of any authorized denominations and of a like aggregate principal amount. (e) At the option of the Holder, Trust Securities may be exchanged for other Trust Securities of any authorized denominations and of a like aggregate principal amount, upon surrender of the Trust Securities to be exchanged at such office or agency. Whenever any Trust Securities are so surrendered for exchange, the Issuer Trust shall execute, and in the case of Preferred Securities the Property Trustee shall authenticate and deliver, the Issuer Trust Securities which the Holder making the exchange is entitled to receive. (f) Every Trust Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Issuer Trust or the Property Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Issuer Trust and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing. 38 47 (g) No service charge shall be made for any registration of transfer or exchange of Trust Securities, but the Issuer Trust may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Trust Securities. (h) If the Trust Securities are to be redeemed in part, the Issuer Trust shall not be required (A) to issue, register the transfer of, or exchange any Trust Securities during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of any such Trust Securities selected for redemption under Section 4 of Annex I and ending at the close of business on the day of such mailing, or (B) to register the transfer or exchange of any Trust Security so selected for redemption in whole or in part, except the unredeemed portion of any Trust Security being redeemed in part. SECTION 7.5 Mutilated, Destroyed, Lost or Stolen Certificates. If: (a) any mutilated Certificates should be surrendered to the Administrative Trustees, or if the Administrative Trustees shall receive evidence to their satisfaction of the destruction, loss or theft of any Certificate; and (b) there shall be delivered to the Administrative Trustees such security or indemnity as may be required by them to keep each of them, the Sponsor and the Issuer Trust harmless, then, in the absence of actual notice that such Certificate shall have been acquired by a bona fide purchaser, any Administrative Trustee on behalf of the Issuer Trust shall execute and deliver, in exchange for, or in lieu of, any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like denomination. In connection with the issuance of any new Certificate under this Section 7.5, the Administrative Trustees may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith. Any duplicate Certificate issued pursuant to this Section shall constitute conclusive evidence of an ownership interest in the relevant Trust Securities, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time. SECTION 7.6 Deemed Security Holders. The Trustees may treat the Person in whose name any Certificate shall be registered on the register of the Issuer Trust as the sole holder of such Certificate and of the Trust Securities represented by such Certificate for purposes of receiving Distributions and for all other purposes whatsoever and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such Certificate or in the Trust Securities represented by such Certificate on the part of any Person, whether or not the Issuer Trust shall have actual or other notice thereof. 39 48 SECTION 7.7 Global Securities. The Preferred Securities may be issued in the form of one or more Global Securities. If the Preferred Securities are to be issued in the form of one or more Global Securities, then the Administrative Trustee on behalf of the Issuer Trust shall execute and the Property Trustee shall authenticate and deliver one or more Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate liquidation amount of all of the Preferred Securities to be issued in the form of Global Securities and not yet cancelled, (ii) shall be registered in the name of the Depositary for such Global Security or Preferred Securities or the nominee of such Depositary, and (iii) shall be delivered by the Property Trustee to such Depositary or pursuant to such Depositary's instructions. Global Securities shall bear a legend substantially to the following effect: "This Preferred Security is a Global Security within the meaning of the Declaration of Trust hereinafter referred to and is registered in the name of The Depository Trust Company, a New York corporation (the "Depositary"), or a nominee of the Depositary. This Preferred Security is exchangeable for Preferred Securities registered in the name of a person other than the Depositary or its nominee only in the limited circumstances described in the Declaration of Trust and no transfer of this Preferred Security (other than a transfer of this Preferred Security as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary) may be registered except in limited circumstances. Unless this Preferred Security Certificate is presented by an authorized representative of the Depositary to FW Preferred Capital Trust I or its agent for registration of transfer, exchange or payment, and any Preferred Security Certificate issued is registered in the name of Cede & Co. or such other name as registered by an authorized representative of the Depositary (and any payment hereon is made to Cede & Co. or to such other entity as is requested by an authorized representative of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein." Preferred Securities not represented by a Global Security and issued in exchange for all or a part of a Global Security pursuant to this Section 7.7 shall be registered in such names and in such authorized denominations as the Depositary shall instruct the Property Trustee. Upon execution and authentication, the Property Trustee shall deliver such Preferred Securities not represented by a Global Security to the persons in whose names such definitive Preferred Securities are so registered. At such time as all interests in Global Securities have been redeemed, repurchased or cancelled, such Global Securities shall be, upon receipt thereof, cancelled by the Property Trustee in accordance with the standing procedures of the Depositary. At any time prior to such cancellation, if any interest in Global Securities is (i) exchanged for Preferred Securities not represented by a Global Security, (ii) redeemed or, cancelled or transferred to a transferee who 40 49 receives Preferred Securities not represented by a Global Security therefor or (iii) any Preferred Security not represented by a Global Security is exchanged or transferred for an interest in a Global Security, the principal amount of such Global Securities shall, in accordance with the standing procedures of the Depositary, be reduced or increased, as the case may be, and an endorsement shall be made on such Global Securities by the Property Trustee to reflect such reduction or increase. The Issuer Trust and the Property Trustee may for all purposes, including the making of payments due on the Preferred Securities, deal with the Depositary as the authorized representative of the Holders for the purposes of exercising the rights of Holders hereunder. The rights of an owner of any beneficial interest in a Global Security shall be limited to those established by law and agreements between such owners and Depositary participants; provided, that no such agreement shall give any rights to any person against the Trust or the Property Trustee without the written consent of the parties so affected. Multiple requests and directions from and votes of the Depositary as Holder of Preferred Securities in global form with respect to any particular matter shall not be deemed inconsistent to the extent they do not represent an amount of Preferred Securities in excess of those held in the name of the Depositary or its nominee. If at any time the Depositary for any Preferred Securities represented by one or more Global Securities notifies the Issuer Trust that it is unwilling or unable to continue as Depositary for such Preferred Securities or if at any time the Depositary for such Preferred Securities shall no longer be eligible to act as such under this Section 7.7, the Issuer Trust shall appoint a successor Depositary with respect to such Preferred Securities. If a successor Depositary for such Preferred Securities is not appointed by the Issuer Trust within 90 days after the Issuer Trust receives such notice or becomes aware of such ineligibility, the Issuer Trust's election that such Preferred Securities be represented by one or more Global Securities shall no longer be effective and the Issuer Trust shall execute, and the Property Trustee will authenticate and deliver, Preferred Securities in definitive registered form, in authorized denominations, in an aggregate liquidation amount equal to the principal amount of the Global Security or Securities representing such Preferred Securities in exchange for such Global Security or Securities. The Issuer Trust may at any time and in its sole discretion determine that the Preferred Securities issued in the form of one or more Global Securities shall no longer be represented by a Global Security or Securities. In such event the Issuer Trust shall execute, and the Property Trustee, shall authenticate and deliver, Preferred Securities in definitive registered form, in authorized denominations, in an aggregate liquidation amount equal to the principal amount of the Global Security or Securities representing such Preferred Securities, in exchange for such Global Security or Securities. Notwithstanding any other provisions of this Declaration of Trust (other than the provisions set forth in Annex I hereto), Global Securities may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the 41 50 Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. Interests of beneficial owners in a Global Security may be transferred or, exchanged for Preferred Securities not represented by a Global Security, and Preferred Securities not represented by a Global Security may be transferred or exchanged for interests in a Global Security in accordance with rules of the Depositary and the provisions of Annex I hereto. ARTICLE 8 DISSOLUTION AND TERMINATION OF TRUST SECTION 8.1 Dissolution and Termination of Issuer Trust. (a) The Issuer Trust shall dissolve upon the earliest of: (i) the bankruptcy of the Holder of the Common Securities or the Sponsor; (ii) the filing of a certificate of dissolution or its equivalent with respect to the Sponsor; the filing of a certificate of cancellation with respect to the Issuer Trust after obtaining the consent of the Holders of at least a Majority in Liquidation Amount of the Trust Securities to the filing of a certificate of cancellation with respect to the Issuer Trust or the revocation of the Sponsor's charter and the expiration of 90 days after the date of revocation without a reinstatement thereof; (iii) the entry of a decree of judicial dissolution of the Sponsor or the Issuer Trust; (iv) the time when all of the Trust Securities shall have been called for redemption and the amounts then due shall have been paid to the Holders in accordance with the terms of the Trust Securities; (v) upon the election of the Administrative Trustees, following the occurrence and continuation of a Special Event pursuant to which the Issuer Trust shall have been dissolved in accordance with the terms of the Trust Securities, and all of the Junior Subordinated Debentures shall have been distributed to the Holders of Trust Securities in exchange for all of the Trust Securities; 42 51 (vi) the time when all of the Administrative Trustees and the Sponsor shall have consented to dissolution of the Issuer Trust provided such action is taken before the issuance of any Trust Securities; or (vii) upon the liquidation of the Issuer Trust in accordance with the terms of the Trust Securities and the distribution of all of the Junior Subordinated Debentures endorsed thereon in exchange for all of the Trust Securities. (b) As soon as is practicable after the occurrence of an event referred to in Section 8.1(a) and upon completion of the winding up and liquidation of the Issuer Trust, the Trustees shall terminate the Issuer Trust by filing a certificate of cancellation with the Secretary of State of the State of Delaware. (c) The provisions of Section 4.2 and Article 9 shall survive the termination of the Issuer Trust. SECTION 8.2 Optional Liquidation of Issuer Trust The Administrative Trustees shall have the right at any time to liquidate the Issuer Trust and cause the Junior Subordinated Debentures to be distributed to the holders of the Trust Securities in liquidation of the Issuer Trust. ARTICLE 9 LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS SECTION 9.1 Liability. (a) Except as expressly set forth in this Declaration of Trust, the Guarantee and the terms of the Trust Securities, the Sponsor: (i) shall not be personally liable for the return of any portion of the capital contributions (or any return thereon) of the Holders of the Trust Securities which shall be made solely from assets of the Issuer Trust; and (ii) shall not be required to pay to the Issuer Trust or to any Holder of Trust Securities any deficit upon dissolution of the Issuer Trust or otherwise. (b) Pursuant to Section 3803(a) of the Business Trust Act, the Holder of the Common Securities shall be entitled to the same limitation of personal liability extended to 43 52 stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware; provided, however, that the Common Securities Holder shall be liable for all of the debts and obligations of the Issuer Trust (other than with respect to the Securities) to the extent not satisfied out of the Issuer Trust's assets. (c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders of the Preferred Securities shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. SECTION 9.2 Exculpation. (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Issuer Trust or any Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Issuer Trust and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Declaration of Trust or by law, except that an Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person's gross negligence or willful misconduct with respect to such acts or omissions. (b) An Indemnified Person shall be fully protected in relying in good faith upon the records of the Issuer Trust and upon such information, opinions, reports or statements presented to the Issuer Trust by any Person as to matters the Indemnified Person reasonably believes are within such other Person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Issuer Trust, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses or any other facts pertinent to the existence and amount of assets from which Distributions to Holders of Trust Securities might properly be paid. SECTION 9.3 Fiduciary Duty. (a) To the extent that, at law or in equity, an Indemnified Person has duties (including fiduciary duties) and liabilities relating thereto to the Issuer Trust or to any other Covered Person, an Indemnified Person acting under this Declaration of Trust shall not be liable to the Issuer Trust or to any other Covered Person for its good faith reliance on the provisions of this Declaration of Trust. The provisions of this Declaration of Trust, to the extent that they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity (other than the duties imposed on the Property Trustee under the Trust Indenture Act), are agreed by the parties hereto to replace such other duties and liabilities of such Indemnified Person. 44 53 (b) Unless otherwise expressly provided herein: (i) whenever a conflict of interest exists or arises between any Covered Persons; or (ii) whenever this Declaration of Trust or any other agreement contemplated herein or therein provides that an Indemnified Person shall act in a manner that is, or provides terms that are, fair and reasonable to the Issuer Trust or any Holder of Trust Securities, the Indemnified Person shall resolve such conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices and any applicable generally accepted accounting practices or principles. In the absence of bad faith by the Indemnified Person, the resolution, action or term so made, taken or provided by the Indemnified Person shall not constitute a breach of this Declaration of Trust or any other agreement contemplated herein or of any duty or obligation of the Indemnified Person at law or in equity or otherwise. (c) Whenever in this Declaration of Trust an Indemnified Person is permitted or required to make a decision: (i) in its "discretion" or under a grant of similar authority, the Indemnified Person shall be entitled to consider such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Issuer Trust or any other Person; or (ii) in its "good faith" or under another express standard, the Indemnified Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Declaration of Trust or by applicable law. SECTION 9.4 Indemnification. (a)(i) The Debenture Issuer shall indemnify, to the full extent permitted by law, any Debenture Issuer Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Issuer Trust) by reason of the fact that he is or was a Debenture Issuer Indemnified Person against expenses (including attorney fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Issuer Trust, and, with respect to any criminal action or proceeding, had no reasonable cause to 45 54 believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Debenture Issuer Indemnified Person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Issuer Trust, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. (ii) The Debenture Issuer shall indemnify, to the full extent permitted by law, any Debenture Issuer Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Issuer Trust to procure a judgment in its favor by reason of the fact that he is or was a Debenture Issuer Indemnified Person against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Issuer Trust and except that no such indemnification shall be made in respect of any claim, issue or matter as to which such Debenture Issuer Indemnified Person shall have been adjudged to be liable to the Issuer Trust unless and only to the extent that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such Court of Chancery or such other court shall deem proper. (iii) Any indemnification under paragraphs (i) and (ii) of this Section 9.4(a) (unless ordered by a court) shall be made by the Debenture Issuer only as authorized in the specific case upon a determination that indemnification of the Debenture Issuer Indemnified Person is proper in the circumstances because he has met the applicable standard of conduct set forth in paragraphs (i) and (ii). Such determination shall be made (1) by the Administrative Trustees by a majority vote of a quorum consisting of such Administrative Trustees who were not parties to such action, suit or proceeding, (2) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Administrative Trustees so directs, by independent legal counsel in a written opinion, or (3) in any event, by the Common Security Holder. (iv) Expenses (including attorneys' fees) incurred by a Debenture Issuer Indemnified Person in defending a civil, criminal, administrative or investigative action, suit or proceeding referred to in paragraphs (i) and (ii) of this Section 9.4(a) shall be paid by the Debenture Issuer in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Debenture Issuer Indemnified Person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Debenture Issuer as authorized in this Section 9.4(a). Notwithstanding the foregoing, no advance shall be made by the Debenture Issuer if a determination is reasonably and promptly made (i) by the Administrative Trustees by a majority vote of a quorum of disinterested Administrative Trustees, (ii) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Administrative Trustees so directs, by independent legal counsel in a written opinion or (iii) in any event, the Common Security Holder, that, based upon the facts known to 46 55 the Administrative Trustees, counsel or the Common Security Holder at the time such determination is made, such Debenture Issuer Indemnified Person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the Issuer Trust, or, with respect to any criminal proceeding, that such Debenture Issuer Indemnified Person believed or had reasonable cause to believe his conduct was unlawful. In no event shall any advance be made in instances where the Administrative Trustees, independent legal counsel or Common Security Holder reasonably determine that such person deliberately breached his duty to the Issuer Trust or the Common or Preferred Security Holders. (v) The indemnification and advancement of expenses provided by, or granted pursuant to, the other paragraphs of this Section 9.4(a) shall not be deemed exclusive of any other rights to which those seeking indemnification and advancement of expenses may be entitled under any agreement, vote of stockholders or disinterested directors of the Debenture Issuer or Preferred Security Holders of the Issuer Trust or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. All rights to indemnification under this Section 9.4(a) (a) shall be deemed to be provided by a contract between the Debenture Issuer and each Debenture Issuer Indemnified Person who serves in such capacity at any time while this Section 9.4(a) is in effect. Any repeal or modification of this Section 9.4(a) shall not affect any rights or obligations then existing. (vi) The Debenture Issuer or the Issuer Trust may purchase and maintain insurance on behalf of any person who is or was a Debenture Issuer Indemnified Person against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Debenture Issuer would have the power to indemnify him against such liability under the provisions of this Section 9.4(a). (vii) For purposes of this Section 9.4(a), references to "the Issuer Trust" shall include, in addition to the resulting or surviving entity, any constituent entity (including any constituent of a constituent) absorbed in a consolidation or merger, so that any person who is or was a director, trustee, officer or employee of such constituent entity, or is or was serving at the request of such constituent entity as a director, trustee, officer, employee or agent of another entity, shall stand in the same position under the provisions of this Section 9.4(a) with respect to the resulting or surviving entity as he would have with respect to such constituent entity if its separate existence had continued. (viii) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 9.4(a) shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a Debenture Issuer Indemnified Person and shall inure to the benefit of the heirs, executors and administrators of such a person. The obligation to indemnify as set forth in this Section 9.4(a) shall survive the resignation or removal of the Delaware Trustee or the Property Trustee or the termination of this Declaration of Trust. (b) The Debenture Issuer agrees to indemnify the (i) Property Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the Property Trustee and the Delaware Trustee, and (iv) 47 56 any officers, directors, shareholders, members, partners, employees, representatives, custodians, nominees or agents of the Property Trustee and the Delaware Trustee (each of the Persons in (i) through (iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified Person harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses (including reasonable legal fees and expenses) of defending itself against or investigating any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligation to indemnify as set forth in this Section 9.4(b) shall survive the satisfaction and discharge of this Declaration of Trust. SECTION 9.5 Outside Businesses. Any Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the activities of the Issuer Trust, and the Issuer Trust and the Holders of Securities shall have no rights by virtue of this Declaration of Trust in and to such independent ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if competitive with the activities of the Issuer Trust, shall not be deemed wrongful or improper. No Covered Person, the Sponsor, the Delaware Trustee or the Property Trustee shall be obligated to present any particular investment or other opportunity to the Issuer Trust even if such opportunity is of a character that, if presented to the Issuer Trust, could be taken by the Issuer Trust, and any Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee may engage or be interested in any financial or other transaction with the Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or act on any committee or body of holders of, securities or other obligations of the Sponsor or its Affiliates. ARTICLE 10 ACCOUNTING SECTION 10.1 Fiscal Year. The fiscal year ("Fiscal Year") of the Issuer Trust shall be the calendar year, or such other year as is required by the Code. SECTION 10.2 Certain Accounting Matters. (a) At all times during the existence of the Issuer Trust, the Administrative Trustees shall keep, or cause to be kept, full books of account, records and supporting 48 57 documents, which shall reflect in reasonable detail, each transaction entered into by the Issuer Trust. The books of account shall be maintained on the accrual method of accounting, in accordance with generally accepted accounting principles, consistently applied. The Issuer Trust shall use the accrual method of accounting for United States federal income tax purposes. (b) The Administrative Trustees shall cause to be duly prepared and delivered to each of the Holders of Trust Securities, an annual United States federal income tax information statement, to the extent required by the Code, containing such information with regard to the Trust Securities held by each Holder as is required by the Code and the Treasury Regulations. (c) The Administrative Trustees shall cause to be duly prepared and filed, an annual United States federal income tax return, on Form 1041 or such other form as may be required by United States federal income tax law, and any other income tax returns required to be filed by or on behalf of the Issuer Trust with any state or local taxing authority. SECTION 10.3 Banking. The Issuer Trust shall maintain one or more bank accounts in the name and for the sole benefit of the Issuer Trust; provided, however, that all payments of funds in respect of the Junior Subordinated Debentures held by the Property Trustee shall be made directly to the Property Account and no other funds of the Issuer Trust shall be deposited in the Property Account. The sole signatories for such accounts shall be designated by the Administrative Trustees; provided, however, that the Property Trustee shall designate the signatories for the Property Account. SECTION 10.4 Withholding. The Issuer Trust and the Administrative Trustees shall comply with all withholding requirements under United States federal, state and local law. The Issuer Trust shall request, and each Holder shall provide to the Issuer Trust, such forms or certificates as are necessary to establish any applicable exemption from withholding with respect to such Holder, and any representations and forms as shall reasonably be requested by the Issuer Trust to assist it in determining the extent of, and in fulfilling, its withholding obligations. The Administrative Trustees shall file any required forms with applicable jurisdictions and, unless an exemption from withholding is properly established by a Holder, shall remit amounts withheld with respect to the Holder to applicable jurisdictions. To the extent that the Issuer Trust is required to withhold and pay over any amounts to any authority with respect to Distributions or allocations to any Holder, the amount withheld shall be deemed to be a Distribution in the amount of the withholding to the Holder. In the event of any claimed overwithholding, Holders shall be limited to an action against the applicable jurisdiction. If an amount required to be withheld is not withheld from actual Distributions made, the Issuer Trust may reduce subsequent Distributions by the amount of such required withholding. 49 58 ARTICLE 11 AMENDMENTS AND MEETINGS SECTION 11.1 Amendments. (a) Except as otherwise provided in this Declaration of Trust or by any applicable terms of the Trust Securities, this Declaration of Trust may only be amended by a written instrument approved and executed by the Sponsor and (i) each Administrative Trustee (or, if there are more than two Administrative Trustees, a majority of the Administrative Trustees) and (ii) the Property Trustee if the amendment affects the rights, powers, duties, obligations or immunities of the Property Trustee; and (iii) by the Delaware Trustee if the amendment affects the rights, powers, duties, obligations or immunities of the Delaware Trustee. (b) No amendment shall be made, and any such purported amendment shall be void and ineffective: (i) unless, in the case of any proposed amendment, the Property Trustee shall have first received an Officers' Certificate from each of the Issuer Trust and the Sponsor to the effect that such amendment is permitted by, and conforms to, the terms of this Declaration of Trust (including the terms of the Trust Securities); (ii) unless, in the case of any proposed amendment which affects the rights, powers, duties, obligations or immunities of the Property Trustee, the Property Trustee shall have first received: a. an Officers' Certificate from each of the Issuer Trust and the Sponsor that such amendment is permitted by, and conforms to, the terms of this Declaration of Trust (including the terms of the Trust Securities); and b. an opinion of counsel (who may be counsel to the Sponsor or the Issuer Trust) that such amendment is permitted by, and conforms to, the terms of this Declaration of Trust (including the terms of the Trust Securities); and (iii) to the extent the result of such amendment would be to: a. cause the Issuer Trust to be classified other than as a grantor trust for United States federal income tax purposes; 50 59 b. reduce or otherwise adversely affect the powers of the Property Trustee in contravention of the Trust Indenture Act; or c. cause the Issuer Trust to be deemed to be an Investment Company required to be registered under the Investment Company Act. (c) At such time after the Issuer Trust has issued any Trust Securities that remain outstanding, any amendment that would (i) adversely affect the powers, preferences or special rights of the Holders of such Trust Securities, whether by way of amendment to the Declaration of Trust or otherwise, (ii) result in the dissolution, winding-up or termination of the Issuer Trust other than pursuant to the terms of this Declaration of Trust, (iii) change the amount or timing of any distribution of the Trust Securities or otherwise adversely affect the amount of any distribution required to be made in respect of the Trust Securities as of a specified date or (iv) restrict the right of a Holder of Trust Securities to institute suit for the enforcement of any such payment on or after such date, then the Holders of the Trust Securities voting together as a single class will be entitled to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of each of the Holders of the Trust Securities affected thereby; provided that, if any amendment or proposal referred to in clause (i) above would adversely affect only the Preferred Securities or the Common Securities, then only the affected class will be entitled to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of a Majority in Liquidation Amount of such class of Trust Securities affected thereby. (d) This Section 11.1 shall not be amended without the consent of all of the Holders of the Trust Securities. (e) Articles 4 and 5 shall not be amended without the consent of the Holders of a Majority in Liquidation Amount of the Common Securities. (f) The rights of the Holders of the Common Securities under Article 6 to increase or decrease the number of, and appoint and remove Trustees shall not be amended without the consent of the Holders of a Majority in Liquidation Amount of the Common Securities. (g) Notwithstanding Section 11.1(c), this Declaration of Trust may be amended without the consent of the Holders of the Preferred Securities to: (i) cure any ambiguity; (ii) correct or supplement any provision in this Declaration of Trust that may be defective or inconsistent with any other provision of this Declaration of Trust; 51 60 (iii) add to the covenants, restrictions or obligations of the Sponsor; (iv) to conform to any change in Rule 3a-5 or written change in interpretation or application of Rule 3a-5 by any legislative body, court, government agency or regulatory authority which amendment does not have a material adverse effect on the rights, preferences or privileges of the Holders; or (v) to modify, eliminate and add to any provision of this Declaration of Trust to ensure that the Issuer Trust will be classified as a grantor trust for United States federal income tax purposes at all times that any Trust Securities are outstanding or to ensure that the Issuer Trust will not be required to register as an Investment Company under the Investment Company Act; provided, however, that such modification, elimination or addition would not adversely affect in any material respect the rights, privileges or preferences of any Holder of the Trust Securities. SECTION 11.2 Meetings of the Holders of Trust Securities; Action by Written Consent. (a) Meetings of the Holders of any class of Trust Securities may be called at any time by the Administrative Trustees (or as otherwise provided in the terms of the Trust Securities) to consider and act on any matter on which Holders of such class of Trust Securities are entitled to act under the terms of this Declaration of Trust, the terms of the Trust Securities or the rules of any stock exchange on which the Preferred Securities are then listed or admitted for trading. The Administrative Trustees shall call a meeting of the Holders of such class if directed to do so by the Holders of at least 10% in Liquidation Amount of such class of Trust Securities. Such direction shall be given by delivering to the Administrative Trustees one or more notices in writing stating that the signing Holders of Trust Securities wish to call a meeting and indicating the general or specific purpose for which the meeting is to be called. Any Holders of Trust Securities calling a meeting shall specify in writing the Certificates held by the Holders of Trust Securities exercising the right to call a meeting and only those Trust Securities specified shall be counted for purposes of determining whether the required percentage set forth in the second sentence of this paragraph has been met. (b) Except to the extent otherwise provided in the terms of the Trust Securities, the following provisions shall apply to meetings of Holders of Trust Securities: (i) notice of any such meeting shall be given to all the Holders of Trust Securities having a right to vote thereat at least 7 days and not more than 60 days before the date of such meeting. Whenever a vote, consent or approval of the Holders of Trust Securities is permitted or required under this Declaration of Trust or the rules of 52 61 any stock exchange on which the Preferred Securities are then listed or admitted for trading, such vote, consent or approval may be given at a meeting of the Holders of Trust Securities. Any action that may be taken at a meeting of the Holders of Trust Securities may be taken without a meeting if a consent in writing setting forth the action so taken is signed by the Holders of Trust Securities owning not less than the minimum amount of Trust Securities in liquidation amount that would be necessary to authorize or take such action at a meeting at which all Holders of Trust Securities having a right to vote thereon were present and voting. Prompt notice of the taking of action without a meeting shall be given to the Holders of Trust Securities entitled to vote who have not consented in writing. The Administrative Trustees may specify that any written ballot submitted to the Trust Security Holders for the purpose of taking any action without a meeting shall be returned to the Issuer Trust within the time specified by the Administrative Trustees; (ii) each Holder of a Trust Security may authorize any Person to act for it by proxy on all matters in which such Holder is entitled to participate, including waiving notice of any meeting, or voting or participating at a meeting. No proxy shall be valid after the expiration of 11 months from the date thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the Holder executing such proxy. Except as otherwise provided herein, all matters relating to the giving, voting or validity of proxies shall be governed by the General Corporation Law of the State of Delaware relating to proxies, and judicial interpretations thereunder, as if the Issuer Trust were a Delaware corporation and the Holders of the Trust Securities were stockholders thereof; (iii) each meeting of Holders of Trust Securities shall be conducted by the Administrative Trustees or by such other Person that the Administrative Trustees may designate; and (iv) unless the Business Trust Act, this Declaration of Trust, the terms of the Trust Securities, the Trust Indenture Act or the listing rules of any stock exchange on which the Preferred Securities are then listed for trading, otherwise provides, the Administrative Trustees, in their sole discretion, shall establish all other provisions relating to meetings of Holders of Trust Securities, including notice of the time, place or purpose of any meeting at which any matter is to be voted on by any Holders of Trust Securities, waiver of any such 53 62 notice, action by consent without a meeting, the establishment of a record date, quorum requirements, voting in person or by proxy or any other matter with respect to the exercise of any such right to vote. ARTICLE 12 REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE SECTION 12.1 Representations and Warranties of the Property Trustee. The Property Trustee represents and warrants to the Issuer Trust and to the Sponsor at the date of this Declaration of Trust, and each Successor Property Trustee represents and warrants to the Issuer Trust and the Sponsor at the time of the Successor Property Trustee's acceptance of its appointment as Property Trustee that: (a) the Property Trustee is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Declaration of Trust; (b) the Property Trustee satisfies the requirements set forth in Section 6.3(a); (c) the execution, delivery and performance by the Property Trustee of this Declaration of Trust has been duly authorized by all necessary corporate action on the part of the Property Trustee. This Declaration of Trust has been duly executed and delivered by the Property Trustee, and it constitutes a legal, valid and binding obligation of the Property Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law); (d) the execution, delivery and performance of this Declaration of Trust by the Property Trustee does not conflict with or constitute a breach of the articles of association or incorporation, as the case may be, or the by-laws (or other similar organizational documents) of the Property Trustee; and (e) no consent, approval or authorization of, or registration with or notice to, any State or federal banking authority is required for the execution, delivery or performance by the Property Trustee of this Declaration of Trust. 54 63 SECTION 12.2 Representations and Warranties of the Delaware Trustee. The Delaware Trustee represents and warrants to the Issuer Trust and to the Sponsor at the date of this Declaration of Trust, and each Successor Delaware Trustee represents and warrants to the Trust and the Sponsor at the time of the Successor Delaware Trustee's acceptance of its appointment as Delaware Trustee that: (a) the Delaware Trustee satisfies the requirements set forth in Section 6.1 and has the power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Declaration of Trust and, if it is not a natural person, is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) the Delaware Trustee has been authorized to perform its obligations under the Certificate of Trust and this Declaration of Trust. This Declaration of Trust, under Delaware law, constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law); and (c) no consent, approval or authorization of, or registration with or notice to, any State or federal banking authority is required for the execution, delivery or performance by the Delaware Trustee of this Declaration of Trust. ARTICLE 13 MISCELLANEOUS SECTION 13.1 Notices. All notices provided for in this Declaration of Trust shall be in writing, duly signed by the party giving such notice, and shall be delivered, telecopied or mailed by registered or certified mail, as follows: (a) if given to the Issuer Trust, in care of the Administrative Trustees at the Issuer Trust's mailing address set forth below (or such other address as the Issuer Trust may give notice of to the Property Trustee, the Delaware Trustee and the Holders of the Trust Securities): c/o Foster Wheeler Corporation Perryville Corporate Park Clinton, New Jersey 08809 Attention: Corporate Counsel 55 64 Telecopy No: (908) 730-5300 (b) if given to the Delaware Trustee, at the mailing address set forth below (or such other address as the Delaware Trustee may give notice of to the Administrative Trustees, the Property Trustee and the Holders of the Trust Securities): Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, Delaware 19890 Attention: Corporate Trustee Administration Telecopy No: (302) 651-1576 (c) if given to the Property Trustee, at its Corporate Trust Office at the address set forth below (or such other address as the Property Trustee may give notice of to the Administrative Trustees, the Delaware Trustee and the Holders of the Trust Securities): Harris Trust and Savings Bank 311 West Monroe Street 12th Floor Chicago, Illinois 60606 Attention: Carolyn Potter Telecopy No.: (312) 461-3525 (d) if given to the Common Securities Holder, at the mailing address of the Sponsor set forth below (or such other address as the Holder of the Common Securities may give notice of to the Property Trustee, the Delaware Trustee and the Issuer Trust): Foster Wheeler Corporation Perryville Corporate Park Clinton, New Jersey 08809 Attention: Corporate Counsel Telecopy No.: (908) 730-5300 (e) if given to any Holder, at the address set forth on the register of the Issuer Trust. All such notices shall be deemed to have been given when received in person, telecopied with receipt confirmed or mailed by first class mail, postage prepaid except that if a notice or other document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver. 56 65 SECTION 13.2 Governing Law. This Declaration of Trust and the rights of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware. SECTION 13.3 Intention of the Parties. It is the intention of the parties hereto that the Issuer Trust be classified for United States federal income tax purposes as a grantor trust. The provisions of this Declaration of Trust shall be interpreted in a manner consistent with such classification. SECTION 13.4 Headings. Headings contained in this Declaration of Trust are inserted for convenience of reference only and do not affect the interpretation of this Declaration of Trust or any provision hereof. SECTION 13.5 Successors and Assigns. Whenever in this Declaration of Trust any of the parties hereto is named or referred to, the successors and assigns of such party shall be deemed to be included, and all covenants and agreements in this Declaration of Trust by the Sponsor and the Trustees shall bind and inure to the benefit of their respective successors and assigns, whether so expressed. SECTION 13.6 Partial Enforceability. If any provision of this Declaration of Trust or the application of such provision to any Person or circumstance, shall be held invalid, the remainder of this Declaration of Trust, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby. SECTION 13.7 Counterparts. This Declaration of Trust may contain more than one counterpart of the signature page and this Declaration of Trust may be executed by the affixing of the signature of each of the Trustees to one of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page. 57 66 IN WITNESS WHEREOF, the undersigned have caused these presents to be executed as of the day and year first above written. FOSTER WHEELER CORPORATION, as Sponsor By: ----------------------------------------- Name: Title: HARRIS TRUST AND SAVINGS BANK as Property Trustee By: ----------------------------------------- Name: Title: WILMINGTON TRUST COMPANY as Delaware Trustee By: ----------------------------------------- Name: Title: --------------------------------------------- Richard J. Swift, as Administrative Trustee --------------------------------------------- David J. Roberts, as Administrative Trustee --------------------------------------------- Robert D. Iseman, as Administrative Trustee 58 67 ANNEX I TERMS OF PREFERRED SECURITIES AND COMMON SECURITIES Pursuant to Section 7.1 of the Amended and Restated Declaration of Trust, dated as of _____ __, 1998 (as amended from time to time, the "Declaration of Trust"), the designation, rights, privileges, restrictions, preferences and other terms and provisions of the Preferred Securities and the Common Securities are set out below (each capitalized term used but not defined herein has the meaning set forth in the Declaration of Trust or, if not defined in such Declaration of Trust, as defined in the Prospectus referred to below): 1. Designation and Number. (a) Preferred Securities. Preferred Securities of the Issuer Trust with an aggregate liquidation amount with respect to the assets of the Issuer Trust of ($ ) and a liquidation amount with respect to the assets of the Issuer Trust of $25 per Preferred Security, are hereby designated for the purposes of identification only as the "__% Preferred Securities, Series I" (the "Preferred Securities"). The Certificates evidencing the Preferred Securities shall be substantially in the form of Exhibit A to the Declaration of Trust, with such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice or to conform to the rules of any stock exchange on which the Preferred Securities are listed. (b) Common Securities. Common Securities of the Issuer Trust with an aggregate liquidation amount with respect to the assets of the Issuer Trust of ($ ) and a liquidation amount with respect to the assets of the Issuer Trust of $25 per common security, are hereby designated for the purposes of identification only as the "__% Common Securities, Series I" (the "Common Securities"). The Certificates evidencing the Common Securities shall be substantially in the form of Exhibit B to the Declaration of Trust, with such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice. 2. Distributions. (a)(i) Holders of Trust Securities shall be entitled to receive cumulative cash Distributions at the rate per annum of ____% of the stated liquidation amount of $25 per Trust Security. The amount of Distributions payable for any period shall be computed (i) for any full quarterly distribution period on the basis of a 360-day year of twelve 30-day months, (ii) for any period shorter than a full quarterly distribution period for which Distributions are computed, on the basis of a 30-day month and (iii) for periods of less than a month, the actual number of days elapsed per 30-day month. Subject to subparagraph (b) of this paragraph, Distributions shall be made on the Preferred Securities and the Common Securities on a Pro Rata basis. Distributions on the Trust Securities shall, from the date of original issue, accrue and be cumulative and shall be payable quarterly, in arrears, on each _______, _________, ___________ __ and ___________ __, commencing ___________ __, ____, when, as and if available for payment, by the Property Trustee, except as otherwise described below. Distributions are payable only to the I-1 68 extent that payments are made in respect of the Junior Subordinated Debentures held by the Property Trustee and to the extent that the Issuer Trust has funds available for the payment of such Distributions in the Property Account. The Debenture Issuer has the right under the Junior Subordinated Indenture to defer payments of interest on the Junior Subordinated Debentures by extending the interest payment period at any time and from time to time for a period not exceeding 20 consecutive quarterly periods (each an "Extension Period"), provided that no Extension Period shall end on a day other than an interest payment date for the Junior Subordinated Debentures or shall extend beyond the date of the maturity of the Junior Subordinated Debentures. As a consequence of any Extension Period, Distributions will also be deferred. During any Extension Period, quarterly Distributions will continue to accrue with interest thereon (to the extent permitted by applicable law) at a rate of ____% per annum, compounded quarterly during any such Extension Period. At the end of the Extension Period, all accrued and unpaid Distributions (but only to the extent payments are made in respect of the Junior Subordinated Debentures held by the Property Trustee and to the extent the Property Trustee has funds available therefore) will be payable to the Holders of the Trust Securities in whose names the Trust Securities are registered in the Security Register on the record date relating to the Distribution Date on which the Extension Period ends. Prior to the termination of any such Extension Period, the Debenture Issuer may further defer payments of interest by further extending such Extension Period; provided that such Extension Period together with all such previous and further extensions within such Extension Period may not exceed 20 consecutive quarterly periods or extend beyond the maturity date of the Junior Subordinated Debentures. Upon the termination of any Extension Period and the payment of all amounts then due, the Debenture Issuer may commence a new Extension Period, subject to the above requirements. The Company shall give written notice to the Administrative Trustees, the Property Trustee and the Debenture Trustee of its selection of such Extension Period at least one Business Day before the earlier of (i) the next succeeding date on which Distributions on the Trust Securities issued by the Issuer Trust are payable, or (ii) the date the Issuer Trust is required to give notice of the record date, or the date such Distributions are payable, to any national securities exchange or interdealer quotation system or to holders of the Preferred Securities issued by the Issuer Trust, but in any event at least one Business Day before such record date. (ii) Distributions not paid on the scheduled payment date will accumulate and compound quarterly at the rate of ____% per annum ("Compounded Distributions"). "Distributions" shall mean ordinary cumulative distributions together with any Compounded Distributions. (iii) If and to the extent that the Debenture Issuer makes a payment of interest, premium and/or principal on the Junior Subordinated Debentures held by the Property Trustee (the amount of any such payment being a "Payment Amount"), the Property Trustee shall make a Pro Rata distribution of the Payment Amount to Holders, subject to subparagraph (b) of this paragraph. (iv) Distributions shall be payable to the Holders thereof as they appear on the register of the Issuer Trust as of the close of business on the relevant record dates. While the Preferred Securities are represented by one or more Global Securities, the relevant record dates shall be the close of business on the Business Day next preceding such Distribution payment date, unless a different regular record date is established or provided for the corresponding interest payment date on the Junior Subordinated Debentures. The relevant record dates for the I-2 69 Common Securities shall be the same as for the Preferred Securities. If the Preferred Securities shall not continue to be represented by one or more Global Securities, the relevant record dates for the Preferred Securities shall be selected by the Administrative Trustees and shall be at least one Business Day prior to the relevant payment dates. At all times, the Distribution payment dates shall correspond to the interest payment dates on the Junior Subordinated Debentures. Distributions payable on any Trust Securities that are not punctually paid on any Distribution payment date, as a result of the Debenture Issuer having failed to make a payment under the Junior Subordinated Debentures, shall cease to be payable to the Person in whose name such Trust Securities are registered on the relevant record date, and such defaulted Distribution will instead be payable to the Person in whose name such Trust Securities are registered on the special record date or other specified date determined in accordance with the Declaration of Trust. If any date on which Distributions are payable on the Trust Securities is not a Business Day, then payment of the Distribution payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay), except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, with the same force and effect as if made on such payment date. (v) Distributions will be made by check mailed to the Holders entitled thereto in accordance with clause (iv) above at the addresses listed on the register of the Issuer Trust; provided that so long as the Preferred Securities are represented by one or more Global Securities, Distributions in respect thereof may be made by wire transfer of immediately available funds to an account designated by the Depositary. (vi) In the event that there is any money or other property held by or for the Issuer Trust that is not accounted for hereunder, such property shall be distributed Pro Rata among the Holders of the Trust Securities. (b) Payment of Distributions on, and payment of the Redemption Price upon a redemption of, the Preferred Securities and the Common Securities, as applicable, shall be made Pro Rata based on the liquidation amount of such Preferred Securities and Common Securities; provided, however, that if on any date on which amounts payable on distribution or redemption, an Indenture Event of Default shall have occurred and be continuing, no payment of any Distribution on, or Redemption Price of, any of the Common Securities, and no other payment on account of the redemption, liquidation or other acquisition of such Common Securities, shall be made unless payment in full in cash of all accumulated and unpaid Distributions on all of the outstanding Preferred Securities for all Distribution periods terminating on or prior thereto, or, in the case of amounts payable on redemption, the full amount of the Redemption Price for all of the outstanding Preferred Securities then called for redemption, shall have been made or provided for, and all funds available to the Property Trustee shall first be applied to the payment in full in cash of all Distributions on, or the Redemption Price of, the Preferred Securities then due and payable. The Issuer Trust shall issue no securities or other interests in the assets of the Issuer Trust other than the Preferred Securities and the Common Securities. 3. Liquidation Distribution Upon Dissolution. I-3 70 (a) In the event of any voluntary or involuntary liquidation, dissolution, or winding-up of the Issuer Trust (each a "Liquidation"), the Holders of the Preferred Securities on the date of the Liquidation will be entitled to receive, out of the assets of the Issuer Trust available for distribution to Holders of Trust Securities after satisfaction of the Issuer Trusts' liabilities to creditors, if any, payment in cash or other immediately available funds in an amount equal to the aggregate of the stated liquidation amount of $25 per Trust Security plus accumulated and unpaid Distributions thereon to the date of payment (such amount being the "Liquidation Distribution"), unless, in connection with such Liquidation, Junior Subordinated Debentures in an aggregate stated liquidation amount equal to the aggregate stated liquidation amount of, with a distribution rate identical to the distribution rate of, and accrues and unpaid distributions equal to accumulated and unpaid Distributions on, such Trust Securities shall be distributed on a Pro Rata basis to the Holders of the Trust Securities in exchange for such Trust Securities. (b) If, upon any such Liquidation, the Liquidation Distribution can be paid only in part because the Issuer Trust has insufficient assets available to pay in full the aggregate Liquidation Distribution, then the amounts payable directly by the Issuer Trust on the Trust Securities shall be paid on a Pro Rata basis. The Holders of the Common Securities will be entitled to receive distributions upon any such Liquidation Pro Rata with the Holders of the Preferred Securities except that if an Indenture Event of Default has occurred and is continuing, the Preferred Securities shall have a preference over the Common Securities with regard to such distributions. 4. Redemption of Trust Securities (a)(i) Upon the repayment or redemption, in whole or in part, of the Junior Subordinated Debentures held by the Issuer Trust, whether at the stated maturity of the Junior Subordinated Debentures or upon earlier redemption as provided in the Junior Subordinated Indenture, the proceeds from such repayment or redemption shall be simultaneously applied Pro Rata (subject to subparagraph (b) of paragraph 2 of this Annex) to redeem Trust Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Junior Subordinated Debentures so repaid or redeemed at the Redemption Price. Holders shall be given not less than 30 nor more than 60 days notice of such redemption in accordance with subparagraph (b) of this paragraph. (ii) The Administrative Trustees may at any time, elect to dissolve the Issuer Trust upon not less than 30 nor more than 60 days' notice and, after satisfaction of liabilities to creditors, if any, cause the Junior Subordinated Debentures to be distributed to the holders of the Trust Securities in liquidation of the Issuer Trust. (iii) On the date fixed for any distribution of Junior Subordinated Debentures, upon dissolution of the Issuer Trust, (x) the Trust Securities will no longer be deemed to be outstanding and (y) certificates representing Trust Securities will be deemed to represent the Junior Subordinated Debentures having an aggregate principal amount equal to the stated liquidation amount of, and bearing accrued and unpaid distributions equal to accrued and unpaid distributions on, such Trust Securities until such certificates are presented to the Sponsor or its agent for transfer or reissuance. I-4 71 (b) The procedure with respect to redemptions and distributions of Junior Subordinated Debentures shall be as follows: (i) Notice of any redemption of, or notice of distribution of Junior Subordinated Debentures in exchange for, the Trust Securities (a "Redemption/Distribution Notice"), which notice shall be irrevocable, will be given by the Issuer Trust by mail to each Holder of Trust Securities to be redeemed or exchanged not fewer than 30 nor more than 60 days before the date fixed for redemption or exchange thereof which, in the case of a redemption, will be the date fixed for redemption of the Junior Subordinated Debentures. For purposes of the calculation of the date of redemption or exchange and the dates on which notices are given pursuant to this paragraph, a Redemption/Distribution Notice shall be deemed to be given on the day such notice is first mailed by first-class mail, postage prepaid, to Holders of Trust Securities. Each Redemption/Distribution Notice shall be addressed to the Holders of Trust Securities at the address of each such Holder appearing in the register of the Issuer Trust. No defect in the Redemption/Distribution Notice or in the mailing of either thereof with respect to any Holder shall affect the validity of the redemption or exchange proceedings with respect to any other Holder. (ii) In the event that fewer than all the outstanding Trust Securities are to be redeemed, then the aggregate liquidation amount of such Trust Securities to be redeemed shall be allocated Pro Rata (subject to subparagraph (b) of paragraph 2 of this Annex and as described in clause (iii) of this subparagraph (b) below) among the Preferred Securities and the Common Securities, it being understood that, in respect of Preferred Securities registered in the name of and held of record by the Depositary or its nominee (or any successor clearing agency or its nominee), the distribution of the proceeds of such redemption will be made to each clearing agency participant (or person on whose behalf such nominee holds such securities) in accordance with the procedures applied by such agency or nominee. The particular Preferred Securities to be redeemed shall be selected on a Pro Rata basis not more than 60 days prior to the redemption date by the Property Trustee from the outstanding Preferred Securities not previously called for redemption, by lot or by such method as the Property Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to $25 or an integral multiple of $25 in excess thereof) of the liquidation amount of the Preferred Securities. The Property Trustee shall promptly notify the Preferred Securities registrar in writing of the Preferred Securities selected for redemption and, in the case of any Preferred Securities selected for partial redemption, the liquidation amount thereof to be redeemed. The Issuer Trust may not redeem the Trust Securities in part unless all accumulated and unpaid Distributions to the date of redemption have been paid in full on all Trust Securities than outstanding. For all purposes of this Declaration of Trust, unless the context otherwise requires, all provisions relating to the redemption of Preferred Securities shall relate, in the case of any Preferred Security redeemed or to be redeemed only in part, to the portion of the aggregate liquidation amount of Preferred Securities which has been or is to be redeemed. (iii) Subject to the Issuer Trust's fulfillment of the notice requirements set forth in subparagraph (b)(i) above, if Trust Securities are to be redeemed, then (i) with respect to Preferred Securities represented by one or more Global Securities, by 12:00 noon, New York City time, on the redemption date (provided that the Debenture Issuer has paid the Property Trustee a sufficient amount of cash in connection with the related redemption or maturity of the Junior Subordinated Debentures), the Property Trustee will deposit irrevocably with the I-5 72 Depositary or its nominee (or successor Depositary or its nominee) funds sufficient to pay the applicable Redemption Price with respect to the Preferred Securities and will give the Depositary irrevocable instructions and authority to pay the Redemption Price to the Holders of the Preferred Securities and (ii) with respect to Trust Securities not represented by one or more Global Securities (provided that the Debenture Issuer has paid the Property Trustee a sufficient amount of cash in connection with the related redemption or maturity of the Junior Subordinated Debentures), the Issuer Trust will irrevocably deposit with the Paying Agent for such Preferred Securities funds sufficient to pay the applicable Redemption Price and will give the Paying Agent irrevocable instructions and authority to pay the Redemption Price to the Holders thereof upon surrender of their certificates evidencing the Preferred Securities. If any date fixed for redemption of Trust Securities is not a Business Day, then payment of the Redemption Price payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day falls in the next calendar year, such payment will be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date fixed for redemption. If payment of the Redemption Price in respect of any Trust Securities is improperly withheld or refused and not paid either by the Property Trustee or by the Sponsor as guarantor pursuant to the Guarantee, Distributions on such Trust Securities will continue to accrue at the then applicable rate from the original redemption date to the actual date of payment, in which case the actual payment date will be considered the date fixed for redemption for purposes of calculating the Redemption Price. For these purposes, the applicable Redemption Price shall not include Distributions which are being paid to Holders who were Holders on a relevant record date. If a Redemption/Distribution Notice shall have been given and funds deposited or paid as required, then immediately prior to the close of business on the date of such deposit or payment, Distributions will cease to accrue on the Trust Securities called for redemption and all rights of Holders of such Trust Securities so called for redemption will cease, except the right of the Holders to receive the Redemption Price, but without interest on such Redemption Price, and from and after the date fixed for redemption, such Trust Securities will cease to be outstanding. Neither the Administrative Trustees nor the Issuer Trust shall be required to register or cause to be registered the transfer of any Trust Securities that have been called for redemption, except in the case of any Trust Securities being redeemed in part, any portion thereof not to be redeemed. (iv) Subject to the foregoing and applicable law (including, without limitation, United States federal securities laws), the Debenture Issuer or its subsidiaries may at any time and from time to time purchase outstanding Preferred Securities by tender, in the open market or by private agreement. 5. Voting Rights of Preferred Securities. (a) Except as provided under Section 11.1 of the Declaration of Trust and this paragraph 5 and as otherwise required by the Business Trust Act, the Trust Indenture Act and other applicable law, the Holders of the Preferred Securities shall have no voting rights. (b) Subject to the requirement of the Property Trustee obtaining a tax opinion in certain circumstances set forth in subparagraph (d) below, the Holders of a Majority in Liquidation Amount of the Preferred Securities voting separately as a class have the right to direct the time, method and place of conducting any proceeding for any remedy available to the I-6 73 Property Trustee, or to direct the exercise of any trust or power conferred upon the Property Trustee under the Declaration of Trust, including the right to direct the Property Trustee, as Holder of the Junior Subordinated Debentures, to (1) exercise the remedies available to it under the Junior Subordinated Indenture as a Holder of the Junior Subordinated Debentures; (2) consent to any amendment or modification of the Indenture or the Junior Subordinated Debentures where such consent shall be required or (3) waive any past default and its consequences that is waivable under Section 5.08 of the Junior Subordinated Indenture; provided, however, that if an Indenture Event of Default has occurred and is continuing, then the Holders of 25% of the aggregate Liquidation Amount of the Preferred Securities may direct the Property Trustee to declare the principal of and interest on the Junior Subordinated Debentures due and payable; provided, further, that where a consent or action under the Junior Subordinated Indenture would require the consent or act of the Holders of more than a majority of the aggregate principal amount of Junior Subordinated Debentures affected thereby, only the Holders of that percentage of the aggregate stated Liquidation Amount of the Preferred Securities which is at least equal to the percentage required under the Junior Subordinated Indenture may direct the Property Trustee to give such consent to take such action. (c) If the Property Trustee fails to enforce its rights under the Junior Subordinated Debentures after a Holder of Preferred Securities has made a written request, such Holder of Preferred Securities may, to the extent permitted by applicable law, institute a legal proceeding directly against the Debenture Issuer to enforce the Property Trustee's rights under the Junior Subordinated Indenture without first instituting any legal proceeding against the Property Trustee or any other person or entity. In addition, if a Trust Enforcement Event has occurred and is continuing and such event is attributable to the failure of the Debenture Issuer to make any interest, principal or other required payments when due under the Junior Subordinated Indenture, then a Holder of Preferred Securities may directly institute a Direct Action against the Debenture Issuer on or after the respective due date specified in the Junior Subordinated Debentures. (d) Notwithstanding anything to the contrary herein, the Company shall have the right to set off any payment it would otherwise be required to make in respect of any Trust Security to the extent the Company has theretofore made, or is concurrently on the date thereof making, a payment under the Guarantee or in connection with a Direct Action. (e) The Property Trustee shall notify all Holders of the Preferred Securities of any notice of any Indenture Event of Default received from the Debenture Issuer with respect to the Junior Subordinated Debentures. Such notification shall state that such Indenture Event of Default also constitutes a Trust Enforcement Event. Except with respect to directing the time, method, and place of conducting a proceeding for a remedy, the Property Trustee shall be under no obligation to take any of the actions described in subparagraph (b)(1) and (2) above unless the Property Trustee has obtained an opinion of independent tax counsel to the effect that the Issuer Trust will not fail to be classified as a grantor trust for United States federal income tax purposes as a result of such action, and each Holder will be treated as owning an undivided beneficial ownership interest in the Junior Subordinated Debentures. (f) In the event the consent of the Property Trustee, as the Holder of the Junior Subordinated Debentures, is required under the Junior Subordinated Indenture with respect to any amendment or modification of the Junior Subordinated Indenture, the Property Trustee shall request the direction of the Holders of the Trust Securities with respect to such amendment or I-7 74 modification and shall vote with respect to such amendment or modification as directed by not less than 66-2/3% of the aggregate liquidation amount of the Trust Securities voting together as a single class; provided, however, that where a consent under the Junior Subordinated Indenture would require the consent of the Holders of more than a majority of the aggregate principal amount of the Junior Subordinated Debentures, the Property Trustee may only give such consent at the direction of the Holders of at least the same proportion in aggregate stated liquidation amount of the Trust Securities. The Property Trustee shall not take any such action in accordance with the directions of the Holders of the Trust Securities unless the Property Trustee has obtained an opinion of independent tax counsel to the effect that the Issuer Trust will not be classified as other than a grantor trust for United States federal income tax purposes as a result of such action, and each Holder will be treated as owning an undivided beneficial ownership interest in the Junior Subordinated Debentures. (g) A waiver of an Indenture Event of Default with respect to the Junior Subordinated Debentures will constitute a waiver of the corresponding Trust Enforcement Event. (h) Any required approval or direction of Holders of Preferred Securities may be given at a separate meeting of Holders of Preferred Securities convened for such purpose, at a meeting of all of the Holders of Trust Securities or pursuant to written consent. The Administrative Trustees shall cause a notice of any meeting at which Holders of Preferred Securities are entitled to vote, or of any matter upon which action by written consent of such Holders is to be taken, to be mailed to each Holder of record of Preferred Securities. Each such notice shall include a statement setting forth the following information: (i) the date of such meeting or the date by which such action is to be taken; (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of such matter upon which written consent is sought; and (iii) instructions for the delivery of proxies or consents. (i) No vote or consent of the Holders of Preferred Securities shall be required for the Issuer Trust to redeem and cancel Preferred Securities or distribute Junior Subordinated Debentures in accordance with the Declaration of Trust and the terms of the Trust Securities. (j) Notwithstanding that Holders of Preferred Securities are entitled to vote or consent under any of the circumstances described above, any of the Trust Securities that are owned at such time by the Debenture Issuer, the Trustees or any entity directly or indirectly controlled by, or under direct or indirect common control with, the Debenture Issuer or any Trustee, shall not be entitled to vote or consent and shall, for purposes of such vote or consent, be treated as if such Trust Securities were not outstanding. (k) Holders of the Preferred Securities shall have no rights to appoint or remove the Trustees, who may be appointed, removed or replaced solely by the Common Securities Holder. (l) If an Indenture Event of Default has occurred and is continuing, the Property Trustee and the Delaware Trustee may be removed at such time by a Majority in Liquidation Amount of the Preferred Securities. I-8 75 6. Voting Rights of Common Securities. (a) Except as provided under Sections 6.1(b) or 11.1 of the Declaration of Trust, this paragraph or as otherwise required by the Business Trust Act, the Trust Indenture Act or other applicable law or by the Declaration of Trust, the Holders of the Common Securities will have no voting rights. (b) The Holders of the Common Securities shall be entitled, in accordance with Article 6 of the Declaration of Trust, to vote to appoint, remove or replace any Trustee or to increase or decrease the number of Trustees. (c) Subject to Section 2.6 of the Declaration of Trust and only after all Trust Enforcement Events with respect to the Preferred Securities have been cured, waived, or otherwise eliminated and subject to the requirement of the Property Trustee obtaining a tax opinion in certain circumstances set forth in this subparagraph (c), the Holders of a Majority in Liquidation Amount of the Common Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Property Trustee, or direct the exercise of any trust or power conferred upon the Property Trustee under the Declaration of Trust (in each case, only as it relates to the Common Securities), including the right to direct the Property Trustee, as Holder of the Junior Subordinated Debentures, to (1) exercise the remedies available to it under the Junior Subordinated Indenture as a Holder of the Junior Subordinated Debentures, (2) consent to any amendment or modification of the Junior Subordinated Indenture or the Junior Subordinated Debentures where such consent shall be required or (3) waive any past default and its consequences that is waivable under Section 5.08 of the Junior Subordinated Indenture; provided, however, that where a consent or action under the Junior Subordinated Indenture would require the consent or act of the Holders of more than a majority of the aggregate principal amount of Junior Subordinated Debentures affected thereby, only the Holders of the percentage of the aggregate stated Liquidation Amount of the Common Securities which is at least equal to that percentage required under the Junior Subordinated Indenture may direct the Property Trustee to have such consent or take such action. Except with respect to directing the time, method, and place of conducting a proceeding for a remedy, the Property Trustee shall be under no obligation to take any of the actions described in subparagraphs(c)(i) and (ii) above unless the Property Trustee has obtained an opinion of independent tax counsel to the effect that, as a result of such action, for United States federal income tax purposes the Issuer Trust will not fail to be classified as a grantor trust and each Holder will be treated as owning an undivided beneficial ownership interest in the Junior Subordinated Debentures. (d) If the Property Trustee fails to enforce its rights under the Junior Subordinated Debentures after a Holder of Common Securities has made a written request, such Holder of Common Securities may, to the extent permitted by applicable law, directly institute a legal proceeding directly against the Debenture Issuer to enforce the Property Trustee's rights under the Junior Subordinated Debentures without first instituting any legal proceeding against the Property Trustee or any other person or entity. (e) A waiver of an Indenture Event of Default with respect to the Junior Subordinated Debentures will constitute a waiver of the corresponding Trust Enforcement Event. I-9 76 (f) Any required approval or direction of Holders of Common Securities may be given at a separate meeting of Holders of Common Securities convened for such purpose, at a meeting of all of the Holders of Trust Securities or pursuant to written consent. The Administrative Trustees will cause a notice of any meeting at which Holders of Common Securities are entitled to vote, or of any matter on which action by written consent of such Holders is to be taken, to be mailed to each Holder of record of Common Securities. Each such notice will include a statement setting forth the following information: (i) the date of such meeting or the date by which such action is to be taken; (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of such matter upon which written consent is sought; and (iii) instructions for the delivery of proxies or consents. (g) No vote or consent of the Holders of the Common Securities will be required for the Issuer Trust to redeem and cancel Common Securities or to distribute Junior Subordinated Debentures in accordance with the Declaration of Trust and the terms of the Trust Securities. 7. Amendments to Declaration of Trust and Junior Subordinated Indenture. (a) In addition to any requirements under Section 11.1 of the Declaration of Trust, if any proposed amendment to the Declaration of Trust provides for, or the Administrative Trustees otherwise propose to effect, (i) any amendment that would adversely affect the rights, privileges or preferences of any Holder of the Trust Securities, whether by way of amendment to the Declaration of Trust or otherwise, or (ii) the dissolution, winding-up or termination of the Issuer Trust, other than as described in Section 8.1 of the Declaration of Trust, then the Holders of Trust Securities, voting together as a single class, will be entitled to vote on such amendment or proposal (but not on any other amendment or proposal) and such amendment or proposal shall not be effective except with the approval of the Holders of at least a Majority in Liquidation Amount of the Trust Securities, affected thereby; provided, however, that if any amendment or proposal referred to in clause (i) above would adversely affect only the Preferred Securities or only the Common Securities, then only the affected class will be entitled to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of a Majority in Liquidation Amount of such class of Trust Securities. (b) In the event the consent of the Property Trustee as the holder of the Junior Subordinated Debentures is required under the Junior Subordinated Indenture with respect to any amendment, modification or termination of the Junior Subordinated Indenture or the Junior Subordinated Debentures, the Property Trustee shall request the written direction of the Holders of the Trust Securities with respect to such amendment, modification or termination and shall vote with respect to such amendment, modification or termination as directed by a Majority in Liquidation Amount of the Trust Securities voting together as a single class; provided, however, that where a consent under the Junior Subordinated Indenture would require the consent of the holders of a Super Majority, the Property Trustee may only give such consent at the direction of the Holders of at least the proportion in liquidation amount of the Trust Securities which the relevant Super Majority represents of the aggregate principal amount of the Junior Subordinated Debentures outstanding; provided, further, that the Property Trustee shall not take any action in accordance with the directions of the Holders of the Trust Securities under this subparagraph (b) unless the Property Trustee has obtained an opinion of nationally recognized independent tax counsel experienced in such matters to the effect that for the purposes of United States Federal I-10 77 income tax the Issuer Trust will not be classified as other than a grantor trust on account of such action. 8. Pro Rata. A reference in these terms of the Trust Securities to any payment, distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder of Trust Securities according to the aggregate Liquidation Amount of the Trust Securities held by the relevant Holder in relation to the aggregate Liquidation Amount of all Trust Securities outstanding unless, in relation to a payment, a Trust Enforcement Event has occurred, in which case any funds available to make such payment shall be paid first to each Holder of the Preferred Securities pro rata according to the aggregate liquidation amount of Preferred Securities held by the relevant Holder relative to the aggregate liquidation amount of all Preferred Securities outstanding, and only after satisfaction of all amounts owed to the Holders of the Preferred Securities, to each Holder of Common Securities pro rata according to the aggregate liquidation amount of Common Securities held by the relevant Holder relative to the aggregate liquidation amount of all Common Securities outstanding. In any such proration the Issuer Trust may make such adjustments as may be appropriate in order that only Trust Securities in authorized denominations shall be redeemed. 9. Ranking. The Preferred Securities rank pari passu with the Common Securities and payment thereon shall be made Pro Rata with the Common Securities except that, if a Trust Enforcement Event has occurred the rights of Holders of the Common Securities to payment in respect of Distributions and payments upon liquidation, redemption and otherwise are subordinated to the rights to payment of the Holders of the Preferred Securities. 10. Acceptance of Guarantee and Junior Subordinated Indenture. Each Holder of Preferred Securities and Common Securities, by its acceptance thereof, agrees to the provisions of the Guarantee and to the provisions of the Junior Subordinated Indenture, respectively, including the subordination provisions therein. 11. No Preemptive Rights. The Holders of the Trust Securities shall have no preemptive rights to subscribe for any additional securities. 12. Miscellaneous. These terms constitute a part of the Declaration of Trust. The Sponsor will provide a copy of the Declaration of Trust, the Guarantee, and the Junior Subordinated Indenture to a Holder without charge on written request to the Sponsor at its principal place of business. I-11 78 EXHIBIT A [IF THE PREFERRED SECURITY IS TO BE A GLOBAL SECURITY, INSERT THE FOLLOWING: This Preferred Security is a Global Security within the meaning of the Declaration of Trust hereinafter referred to and is registered in the name of The Depository Trust Company, a New York corporation (the "Depositary"), or a nominee of the Depositary. This Preferred Security is exchangeable for Preferred Securities registered in the name of a person other than the Depositary or its nominee only in the limited circumstances described in the Declaration of Trust and no transfer of this Preferred Security (other than a transfer of this Preferred Security as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary) may be registered except in limited circumstances. Unless this Preferred Security Certificate is presented by an authorized representative of the Depositary to the issuer or its agent for registration of transfer, exchange or payment, and any Preferred Security Certificate issued is registered in the name of Cede & Co. or such other name as registered by an authorized representative of the Depositary (and any payment hereon is made to Cede & Co. or to such other entity as is requested by an authorized representative of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.] A-1 79 Certificate No. Number of Preferred Securities: CUSIP No. ______ Certificate Evidencing Preferred Securities of FW Preferred Capital Trust __ ____% Preferred Securities, Series I (liquidation amount $25 per Preferred Security) FW Preferred Capital Trust __, a statutory business trust formed under the laws of the State of Delaware (the "Issuer Trust"), hereby certifies that Cede & Co. (the "Holder") is the registered owner of ___ preferred securities of the Issuer Trust representing undivided beneficial ownership interests in the assets of the Issuer Trust designated the ____% Preferred Securities, Series I (liquidation amount $25 per Preferred Security) (the "Preferred Securities"). The Preferred Securities are transferable on the register of the Issuer Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer as provided in the Declaration of Trust (as defined below). The designation, rights, privileges, restrictions, preferences and other terms and provisions of the Preferred Securities represented hereby are issued and shall in all respects be subject to the provisions of the Amended and Restated Declaration of Trust of the Issuer Trust, dated as of _____ __, ____ (as the same may be amended from time to time (the "Declaration of Trust"), among FOSTER WHEELER CORPORATION, as Sponsor, Richard J. Swift, David J. Roberts and Robert D. Iseman, as Administrative Trustees, HARRIS TRUST AND SAVINGS COMPANY as Property Trustee, and WILMINGTON TRUST COMPANY, as Delaware Trustee. Capitalized terms used herein but not defined shall have the meaning given them in the Declaration of Trust. The Holder is entitled to the benefits of the Guarantee to the extent described therein. The Sponsor will provide a copy of the Declaration of Trust, the Guarantee and the Junior Subordinated Indenture to a Holder without charge upon written request to the Sponsor at its principal place of business. Upon receipt of this certificate, the Holder is bound by the Declaration of Trust and is entitled to the benefits thereunder. By acceptance, the Holder agrees to treat, for United States federal income tax purposes, the Junior Subordinated Debentures as indebtedness and the Preferred Securities as evidence of undivided indirect beneficial ownership interests in the Junior Subordinated Debentures. A-2 80 IN WITNESS WHEREOF, the Issuer Trust has executed this certificate this ____ day of ____, ____. FW PREFERRED CAPITAL TRUST __ By: -------------------------- Name: Title: Administrative Trustee This is one of the Trust Securities referred to in the within-mentioned Declaration of Trust. HARRIS TRUST AND SAVINGS BANK, as Property Trustee By: -------------------------- Name: Title: A-3 81 [FORM OF REVERSE OF SECURITY] Each Preferred Security will be entitled to receive cumulative cash Distributions at a rate per annum of ____% of the stated liquidation amount of $25 per Preferred Security. Distributions not paid on the scheduled payment date will accumulate and compound quarterly at the rate of % per annum ("Compound Distributions"). The term "Distributions" as used herein shall mean ordinary cumulative distributions together with any Compound Distributions. A Distribution is payable only to the extent that payments are made in respect of the Junior Subordinated Debentures held by the Property Trustee and to the extent the Property Trustee has funds available therefor. The Distribution Amount payable for each Distribution Period will be calculated as provided in the Declaration of Trust. Except as otherwise described below, Distributions on the Preferred Securities will be cumulative, will accrue from the date of original issuance and will be payable quarterly in arrears on the ____ day of ______, ______, _______ and _______ of each year, commencing on _______ __, ____ to the Holders thereof as they appear on the books and records of the Issuer Trust on the relevant record dates. While the Preferred Securities are represented by one or more Global Securities, the relevant record dates shall be the close of business on the Business Day next preceding such Distribution payment date unless a different regular record date is established or provided for the corresponding interest payment date on the Junior Subordinated Debentures. If the Preferred Securities shall not continue to remain represented by one or more Global Securities, the relevant record dates for the Preferred Securities shall be selected by the Administrative Trustees and shall be at least one Business Day prior to the relevant payment dates. The Debenture Issuer has the right under the Junior Subordinated Indenture to defer payments of interest on the Junior Subordinated Debentures by extending the interest payment period at any time and from time to time for a period not exceeding 20 consecutive quarterly periods (each an "Extension Period"), provided that no Extension Period shall end on a day other than an interest payment date for the Junior Subordinated Debentures or shall extend beyond the date of the maturity of the Junior Subordinated Debentures. As a consequence of any Extension Period, Distributions will also be deferred. During any Extension Period, quarterly Distributions will continue to accrue with interest thereon (to the extent permitted by applicable law) at a rate of ____% per annum, compounded quarterly during any such Extension Period. At the end of the Extension Period, all accrued and unpaid Distributions (but only to the extent payments are made in respect of the Junior Subordinated Debentures held by the Property Trustee and to the extent the Property Trustee has funds available therefore) will be payable to the Holders of the Trust Securities in whose names the Trust Securities are registered in the Security Register on the record date relating to the Distribution Date on which the Extension Period ends. Prior to the termination of any such Extension Period, the Debenture Issuer may further defer payments of interest by further extending such Extension Period; provided that such Extension Period together with all such previous and further extensions within such Extension Period may not exceed 20 consecutive quarterly periods or extend beyond the maturity date of the Junior Subordinated Debentures. Upon the termination of any Extension Period and the payment of all amounts then due, the Debenture Issuer may commence a new Extension Period, subject to the above requirements. The Administrative Trustees shall have the right at any time to dissolve and liquidate the Issuer Trust and cause the Junior Subordinated Debentures to be distributed to the Holders of the Trust Securities in liquidation of the Issuer Trust. A-4 82 The Preferred Securities shall be redeemable as provided in the Declaration of Trust. A-5 83 ASSIGNMENT FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred Security Certificate to: ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________ (Insert assignee's social security or tax identification number) ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ __________________________ (Insert address and zip code of assignee) and irrevocably appoints ________________________________________________________________________________ ________________________________________________________________________________ ___________________________________________________________ agent to transfer this Preferred Security Certificate on the books of the Issuer Trust. The agent may substitute another to act for him or her. Date: _______________________ Signature: __________________ (Sign exactly as your name appears on the other side of this Preferred Security Certificate) Signature Guarantee*: ___________________________________ - -------- ** Signature must be guaranteed by an "eligible guarantor institution" that is a bank, stockbroker, savings and loan association or credit union meeting the requirements of the Registrar, which requirements include membership or participation in the Securities Transfer Agents 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 and Exchange Act of 1934, as amended. A-6 84 EXHIBIT B THIS CERTIFICATE IS NOT TRANSFERABLE Certificate No. Number of Common Securities: ____ Certificate Evidencing Common Securities of FW Preferred Capital Trust I Common Securities (liquidation amount $25 per Common Security) FW Preferred Capital Trust I, a statutory business trust formed under the laws of the State of Delaware (the "Issuer Trust"), hereby certifies that FOSTER WHEELER CORPORATION (the "Holder") is the registered owner of common securities of the Issuer Trust representing an undivided beneficial ownership interest in the assets of the Issuer Trust designated the ____% Common Securities (liquidation amount $25 per Common Security) (the "Common Securities"). The Common Securities are not transferable and any attempted transfer thereof shall be void. The designation, rights, privileges, restrictions, preferences and other terms and provisions of the Common Securities represented hereby are issued and shall in all respects be subject to the provisions of the Amended and Restated Declaration of Trust of the Trust, dated as of _____ __, ____ (as the same may be amended from time to time, the "Declaration of Trust"), among FOSTER WHEELER CORPORATION as Sponsor, Richard J. Swift, David J. Roberts and Robert D. Iseman, as Administrative Trustees, HARRIS TRUST AND SAVINGS BANK, as Property Trustee and WILMINGTON TRUST COMPANY, as Delaware Trustee. The Holder is entitled to the benefits of the Guarantee to the extent described therein. Capitalized terms used herein but not defined shall have the meaning given them in the Declaration of Trust. The Sponsor will provide a copy of the Declaration of Trust, the Guarantee and the Junior Subordinated Indenture to the Holder without charge upon written request to the Sponsor at its principal place of business. Upon receipt of this certificate, the Holder is bound by the Declaration of Trust and is entitled to the benefits thereunder. By acceptance, the Holder agrees to treat, for United States federal income tax purposes, the Junior Subordinated Debentures as indebtedness and the Common Securities as evidence of an undivided indirect beneficial ownership interest in the Junior Subordinated Debentures. B-1 85 IN WITNESS WHEREOF, the Issuer Trust has executed this certificate this ____ day of _______, ____. FW PREFERRED CAPITAL TRUST __ By: ------------------------- Name: Title: Administrative Trustee B-2 86 [FORM OF REVERSE OF SECURITY] Each Common Security will be entitled to receive cumulative Distributions at a rate per annum of ____% of the stated liquidation amount of $25 per Common Security. Distributions not paid on the scheduled payment date will accumulate and compound quarterly at the rate of % per annum ("Compound Distributions"). The term "Distributions" as used herein shall mean ordinary cumulative distributions together with any Compound Distributions. A Distribution is payable only to the extent that payments are made in respect of the Junior Subordinated Debentures held by the Property Trustee and to the extent the Property Trustee has funds available therefor. The Distribution Amount payable for each Distribution Period will be calculated as provided in the Declaration of Trust. Except as otherwise described below, distributions on the Common Securities will be cumulative, will accrue from the date of original issuance and will be payable quarterly in arrears on the ____ day of ____, _______, _______ and _______ of each year, commencing on _______ __, ______, to Holders of record on _______ __ or _______ __, as the case may be. The Debenture Issuer has the right under the Junior Subordinated Indenture to defer payments of interest on the Junior Subordinated Debentures by extending the interest payment period at any time and from time to time for a period not exceeding 20 consecutive quarterly periods (each an "Extension Period"), provided that no Extension Period shall end on a day other than an interest payment date for the Junior Subordinated Debentures or shall extend beyond the date of the maturity of the Junior Subordinated Debentures. As a consequence of any Extension Period, quarterly Distributions will also be deferred. During any Extension Period, quarterly Distributions will continue to accrue with interest thereon (to the extent permitted by applicable law) at a rate of ____% per annum compounded quarterly during any such Extension Period. At the end of the Extension Period, all accrued and unpaid Distributions (but only to the extent payments are made in respect of the Junior Subordinated Debentures held by the Institutional Trustee and to the extent the Property Trustee has funds available therefor) will be payable to the Holders of the Trust Securities in whose names the Trust Securities are registered in the Security Register on the record date relating to the Distribution Date on which the Extension Period ends. Prior to the termination of any such Extension Period, the Debenture Issuer may further defer payments of interest by further extending such Extension Period; provided that such Extension Period together with all such previous and further extensions within such Extension Period may not exceed 20 consecutive quarterly periods or extend beyond the maturity date of the Junior Subordinated Debentures. Upon the termination of any Extension Period and the payment of all amounts then due, the Debenture Issuer may commence a new Extension Period, subject to the above requirements. The Administrative Trustees shall have the right at any time to dissolve and liquidate the Issuer Trust and cause the Junior Subordinated Debentures to be distributed to the holders of the Trust Securities in liquidation of the Issuer Trust. The Common Securities shall be redeemable as provided in the Declaration of Trust. B-3 EX-4.11 9 FORM OF GUARANTEE AGREEMENT 1 EXHIBIT 4.11 - -------------------------------------------------------------------------------- GUARANTEE AGREEMENT FW Preferred Capital Trust __ Dated as of _____ ___, 1998 - -------------------------------------------------------------------------------- 2 CROSS REFERENCE TABLE* Section of Trust Section of Indenture Act of Guarantee 1939, as amended Agreement 310(a)..................................................................4.1(a) 310(b).............................................................2.8; 4.1(c) 310(c)............................................................Inapplicable 311(a)..................................................................2.2(b) 311(b)..................................................................2.2(b) 311(c)............................................................Inapplicable 312(a).............................................................2.2(a); 2.9 312(b).............................................................2.2(b); 2.9 312(c).....................................................................2.9 313(a).....................................................................2.3 313(b).....................................................................2.3 313(c).....................................................................2.3 313(d).....................................................................2.3 314(a).....................................................................2.4 314(b)............................................................Inapplicable 314(c).....................................................................2.5 314(d)............................................................Inapplicable 314(e).....................................................................2.5 314(f)............................................................Inapplicable 315(a)..........................................................3.1(d); 3.2(a) 315(b)..................................................................2.7(a) 315(c)..................................................................3.1(c) 315(d)..................................................................3.1(d) 316(a).............................................................2.6; 5.4(a) 316(b).................................................................... 5.3 316(c)........................................................... Inapplicable 317(a)....................................................................2.10 317(b)............................................................Inapplicable 318(a)..................................................................2.1(b) - -------- * This Cross-Reference Table does not constitute part of the Agreement and shall not have any bearing upon the interpretation of any of its terms or provisions. 3 TABLE OF CONTENTS Page ---- ARTICLE 1 INTERPRETATION AND DEFINITIONS.......................1 SECTION 1.1 Interpretation and Definitions............................1 ARTICLE 2 TRUST INDENTURE ACT............................5 SECTION 2.1 Trust Indenture Act; Application..........................5 SECTION 2.2 Lists of Holders of Trust Securities......................5 SECTION 2.3 Reports by Guarantee Trustee..............................5 SECTION 2.4 Periodic Reports to Guarantee Trustee.....................6 SECTION 2.5 Evidence of Compliance with Conditions Precedent..........6 SECTION 2.6 Guarantee Event of Default; Waiver........................6 SECTION 2.7 Guarantee Event of Default; Notice........................6 SECTION 2.8 Conflicting Interests.....................................7 SECTION 2.9 Disclosure of Information.................................7 SECTION 2.10 Guarantee Trustee May File Proofs of Claim...............7 ARTICLE 3 POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE.............................7 SECTION 3.1 Powers and Duties of Guarantee Trustee....................7 SECTION 3.2 Certain Rights of Guarantee Trustee.......................9 SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee....11 ARTICLE 4 GUARANTEE TRUSTEE............................11 SECTION 4.1 Guarantee Trustee; Eligibility...........................11 SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustee....................................12 -i- 4 Page ---- ARTICLE 5 GUARANTEE................................13 SECTION 5.1 Guarantee................................................13 SECTION 5.2 Waiver of Notice and Demand..............................13 SECTION 5.3 Obligations Not Affected.................................13 SECTION 5.4 Rights of Holders........................................14 SECTION 5.5 Guarantee of Payment.....................................15 SECTION 5.6 Subrogation..............................................15 SECTION 5.7 Independent Obligations..................................15 ARTICLE 6 LIMITATION OF TRANSACTIONS; SUBORDINATION................16 SECTION 6.1 Limitation of Transactions...............................16 SECTION 6.2 Ranking..................................................16 ARTICLE 7 TERMINATION...............................17 SECTION 7.1 Termination..............................................17 ARTICLE 8 INDEMNIFICATION.............................17 SECTION 8.1 Exculpation..............................................17 SECTION 8.2 Indemnification..........................................17 ARTICLE 9 MISCELLANEOUS..............................18 SECTION 9.1 Successors and Assigns...................................18 SECTION 9.2 Amendments...............................................18 SECTION 9.3 Notices..................................................18 SECTION 9.4 Benefit..................................................19 SECTION 9.5 Governing Law............................................19 -ii- 5 GUARANTEE AGREEMENT This GUARANTEE AGREEMENT (the "Guarantee"), dated as of _____ ___, 1998, is executed and delivered by Foster Wheeler Corporation, a New York corporation (the "Guarantor"), and Harris Trust and Savings Bank, as trustee (the "Guarantee Trustee"), for the benefit of the Holders (as defined herein) from time to time of the Trust Securities (as defined herein) of FW Preferred Capital Trust __, a Delaware statutory business trust (the "Issuer Trust"). W I T N E S S E T H : WHEREAS, pursuant to the Declaration of Trust (as defined herein), the Issuer Trust is issuing on the date hereof $______ aggregate liquidation amount of preferred securities, having a liquidation amount of $25 per security and designated the ___% Preferred Securities, Series I of the Issuer Trust (the "Preferred Securities") and $__________ aggregate liquidation amount of common securities, having a liquidation amount of $25 per security and designated the ___% Common Securities, Series I of the Issuer Trust (the "Common Securities" and, together with the Preferred Securities, the "Trust Securities"); WHEREAS, as incentive for the Holders to purchase the Trust Securities, the Guarantor desires irrevocably and unconditionally to agree, to the extent set forth in this Guarantee, to pay to the Holders of the Trust Securities the Guarantee Payments (as defined herein) and to make certain other payments on the terms and conditions set forth herein; and that if a Trust Enforcement Event (as defined herein) has occurred and is continuing, the rights of holders of the Common Securities to receive Guarantee Payments under this Guarantee are subordinated to the rights of Holders of Preferred Securities to receive Guarantee Payments under this Guarantee. NOW, THEREFORE, in consideration of the purchase by each Holder of Trust Securities, which purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee for the benefit of the Holders. ARTICLE 1 INTERPRETATION AND DEFINITIONS SECTION 1.1 Interpretation and Definitions. In this Guarantee, unless the context otherwise requires: (a) capitalized terms used in this Guarantee but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1; (b) a term defined anywhere in this Guarantee has the same meaning throughout; 6 2 (c) all references to "the Guarantee" or "this Guarantee" are to this Guarantee as modified, supplemented or amended from time to time; (d) all references in this Guarantee to Articles, Sections and Recitals are to Articles, Sections and Recitals of this Guarantee, unless otherwise specified; (e) unless otherwise defined in this Guarantee, a term defined in the Trust Indenture Act has the same meaning when used in this Guarantee; (f) a reference to the singular includes the plural and vice versa and a reference to any masculine form of a term shall include the feminine form of a term, as applicable; and (g) the following terms have the following meanings: "Affiliate" has the same meaning as given to that term in Rule 405 of the Securities Act of 1933, as amended, or any successor rule thereunder. "Business Day" has the meaning specified in the Declaration of Trust. "Common Securities" has the meaning specified in the Recitals hereto. "Corporate Trust Office" means the principal office of the Guarantee Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of execution of this Guarantee is located at 311 West Monroe Street, 12th floor, Chicago, Illinois, 60606. "Covered Person" means a Holder or beneficial owner of Trust Securities. "Declaration of Trust" means the Amended and Restated Declaration of Trust, dated as of _____ ___, 1998, as amended, modified or supplemented from time to time, among the trustees of the Issuer Trust named therein, the Guarantor, as sponsor, and the Holders, from time to time, of undivided beneficial ownership interests in the assets of the Issuer Trust. "Global Security" means a fully registered, global Preferred Security. "Guarantee Event of Default" means a default by the Guarantor on any of its payment or other obligations under this Guarantee. "Guarantee Payments" means the following payments or distributions, without duplication, with respect to the Trust Securities, to the extent not paid by or on behalf of the Issuer Trust: (i) any accumulated and unpaid Distributions (as defined in the Declaration of Trust) that are required to be paid on such Trust Securities to the extent the Issuer Trust has sufficient funds available therefor at the time, (ii) the redemption price, including all 7 3 accumulated and unpaid Distributions to the date of redemption, with respect to any Trust Securities called for redemption by the Issuer Trust, to the extent the Issuer Trust shall have sufficient funds available therefor at the time or (iii) upon a voluntary or involuntary dissolution, winding-up or termination of the Issuer Trust (other than in connection with the distribution of Junior Subordinated Debentures to the Holders in exchange for Trust Securities as provided in the Declaration of Trust), the lesser of (a) the aggregate of the liquidation amount and all accumulated and unpaid Distributions on the Trust Securities to the date of payment, to the extent the Issuer Trust has sufficient funds available therefor and (b) the amount of assets of the Issuer Trust remaining available for distribution to Holders in liquidation of the Issuer Trust (in either case, the "Liquidation Distribution"). "Guarantee Trustee" means Harris Trust and Savings Bank, until a Successor Guarantee Trustee has been appointed and has accepted such appointment pursuant to the terms of this Guarantee and thereafter means each such Successor Guarantee Trustee. "Holder" means any holder of Trust Securities, as registered on the books and records of the Issuer Trust; provided, however, that, in determining whether the Holders of the requisite percentage of Preferred Securities have given any request, notice, consent or waiver hereunder, "Holder" shall not include the Guarantor or any Affiliate of the Guarantor or any other obligor on the Preferred Securities; and provided further, that in determining whether the Holders of the requisite liquidation amount of Preferred Securities have voted on any matter provided for in this Guarantee, then for the purpose of such determination only (and not for any other purpose hereunder), if the Preferred Securities remain in the form of one or more Global Certificates (as defined in the Declaration of Trust), the term "Holders" shall mean the holder of the Global Certificate acting at the direction of the Beneficial Owners (as defined in the Declaration of Trust). "Indemnified Person" means the Guarantee Trustee, any Affiliate of the Guarantee Trustee, or any officers, directors, shareholders, members, partners, employees, representatives, nominees, custodians or agents of the Guarantee Trustee. "Junior Subordinated Debentures" means the series of junior subordinated deferrable interest debentures to be issued by the Guarantor designated the ____% Junior Subordinated Deferrable Interest Debentures, Series I held by the Property Trustee (as defined in the Declaration of Trust) of the Issuer Trust. "Junior Subordinated Indenture" means the Junior Subordinated Indenture, dated as of _____ ___, 1998, between the Guarantor and Harris Trust and Savings Bank, as trustee, as amended and supplemented by any indenture supplemental thereto pursuant to which the Junior Subordinated Debentures are to be issued to the Property Trustee (as defined in the Declaration of Trust). "Majority in Liquidation Amount" means, except as provided in the terms of the Preferred Securities or by the Trust Indenture Act, Holder(s) of outstanding Trust Securities, 8 4 voting together as a single class, or, as the context may require, Holders of outstanding Preferred Securities or Holders of outstanding Common Securities, voting separately as a class, who are the record owners of more than 50% of the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accumulated and unpaid Distributions to the date upon which the voting percentages are determined) of all outstanding Trust Securities of the relevant class. In determining whether the Holders of the requisite amount of Trust Securities have voted, Trust Securities which are owned by the Guarantor or any Affiliate of the Guarantor or any other obligor on the Trust Securities shall be disregarded for the purpose of any such determination. "Officers' Certificate" means, with respect to any Person, a certificate signed on behalf of such Person by two Authorized Officers (as defined in the Declaration of Trust) of such Person. Any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Guarantee shall include: (a) a statement that each officer signing the Officers' Certificate has read the covenant or condition and the definitions relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by each officer on behalf of such Person in rendering the Officers' Certificate; (c) a statement that each such officer has made such examination or investigation as, in such officer's opinion, is necessary to enable such officer on behalf of such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether or not in the opinion of each such officer acting on behalf of such Person, such condition or covenant has been complied with. "Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature. "Preferred Securities" has the meaning specified in the Recitals hereto. "Redemption Price" has the meaning specified in the Declaration of Trust. "Responsible Officer" means, with respect to the Guarantee Trustee, any officer with direct responsibility for the administration of this Guarantee and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of that officer's knowledge of and familiarity with the particular subject. 9 5 "Successor Guarantee Trustee" means a successor Guarantee Trustee possessing the qualifications to act as Guarantee Trustee under Section 4.1. "Trust Enforcement Event" in respect of the Trust Securities means an Event of Default (as defined in the Junior Subordinated Indenture) has occurred and is continuing in respect of the Junior Subordinated Debentures. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended from time to time, or any successor legislation. "Trust Securities" has the meaning specified in the Recitals hereto. ARTICLE 2 TRUST INDENTURE ACT SECTION 2.1 Trust Indenture Act; Application. (a) This Guarantee is subject to the provisions of the Trust Indenture Act that are required to be part of this Guarantee and shall, to the extent applicable, be governed by such provisions. (b) If and to the extent that any provision of this Guarantee limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control. SECTION 2.2 Lists of Holders of Trust Securities. (a) The Guarantor shall provide the Guarantee Trustee (i) except while the Preferred Securities are represented by one or more Global Securities at least one Business Day prior to the date for payment of Distributions, a list, in such form as the Guarantee Trustee may reasonably require, of the names and addresses of the Holders of the Trust Securities (a "List of Holders") as of the record date relating to the payment of such Distributions, and (ii) at any other time, within 30 days of receipt by the Guarantor of a written request from the Guarantee Trustee for a List of Holders as of a date no more than 15 days before such List of Holders is given to the Guarantee Trustee; provided that the Guarantor shall not be obligated to provide such List of Holders at any time the List of Holders does not differ from the most recent List of Holders given to the Guarantee Trustee by the Guarantor. The Guarantee Trustee shall preserve, in as current a form as is reasonably practicable, all information contained in Lists of Holders given to it, provided that the Guarantee Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders. (b) The Guarantee Trustee shall comply with its obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act. SECTION 2.3 Reports by Guarantee Trustee. Within 60 days after May 15 of each year (commencing with the year of the first anniversary of the issuance of the Trust 10 6 Securities), the Guarantee Trustee shall provide to the Holders of the Trust Securities such reports as are required by Section 313 of the Trust Indenture Act (if any) in the form and in the manner provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall also comply with the requirements of Section 313(d) of the Trust Indenture Act. SECTION 2.4 Periodic Reports to Guarantee Trustee. The Guarantor shall provide to the Guarantee Trustee such documents, reports and information as required by Section 314(a) (if any) of the Trust Indenture Act and the compliance certificate required by Section 314(a) of the Trust Indenture Act in the form, in the manner and at the times required by Section 314(a) of the Trust Indenture Act. SECTION 2.5 Evidence of Compliance with Conditions Precedent. The Guarantor shall provide to the Guarantee Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Guarantee that relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) may be given in the form of an Officers' Certificate. SECTION 2.6 Guarantee Event of Default; Waiver. The Holders of a Majority in Liquidation Amount of the Trust Securities may, by vote or written consent, on behalf of the Holders of all of the Trust Securities, waive any past Guarantee Event of Default and its consequences. Upon such waiver, any such Guarantee Event of Default shall cease to exist, and any Guarantee Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Guarantee, but no such waiver shall extend to any subsequent or other default or Guarantee Event of Default or impair any right consequent thereon. SECTION 2.7 Guarantee Event of Default; Notice. (a) The Guarantee Trustee shall, within 90 days after the occurrence of a Guarantee Event of Default, transmit by mail, first class postage prepaid, to the Holders of the Trust Securities, notices of all Guarantee Events of Default actually known to a Responsible Officer of the Guarantee Trustee, unless such defaults have been cured before the giving of such notice; provided, that the Guarantee Trustee shall be protected in withholding such notice if and so long as a Responsible Officer of the Guarantee Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of the Trust Securities. (b) The Guarantee Trustee shall not be deemed to have knowledge of any Guarantee Event of Default unless the Guarantee Trustee shall have received written notice thereof or a Responsible Officer of the Guarantee Trustee charged with the administration of the Declaration of Trust shall have obtained actual knowledge thereof; as used herein, the term "actual knowledge" means the actual fact or statement of knowing, without any duty to make any investigation with regard thereto. 11 7 SECTION 2.8 Conflicting Interests. The Declaration of Trust shall be deemed to be specifically described in this Guarantee for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act. SECTION 2.9 Disclosure of Information. The disclosure of information as to the names and addresses of the Holders of the Trust Securities in accordance with Section 312 of the Trust Indenture Act, regardless of the source from which such information was derived, shall not be deemed to be a violation of any existing law, or any law hereafter enacted which does not specifically refer to Section 312 of the Trust Indenture Act, nor shall the Guarantee Trustee be held accountable by reason of mailing any material pursuant to a request made under Section 312(b) of the Trust Indenture Act. SECTION 2.10 Guarantee Trustee May File Proofs of Claim. Upon the occurrence of a Guarantee Event of Default, the Guarantee Trustee is hereby authorized to (a) recover judgment, in its own name and as trustee of an express trust, against the Guarantor for the whole amount of any Guarantee Payments remaining unpaid and (b) file such proofs of claim and other papers or documents as may be necessary or advisable in order to have its claims and those of the Holders of the Trust Securities allowed in any judicial proceedings relative to the Guarantor, its creditors or its property. ARTICLE 3 POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE SECTION 3.1 Powers and Duties of Guarantee Trustee. (a) This Guarantee shall be held by the Guarantee Trustee on behalf of the Issuer Trust for the benefit of the Holders of the Trust Securities, and the Guarantee Trustee shall not transfer this Guarantee to any Person except a Holder of Trust Securities exercising his or her rights pursuant to Section 5.4(b) or to a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its appointment to act as Successor Guarantee Trustee. The right, title and interest of the Guarantee Trustee in and to this Guarantee shall automatically vest in any Successor Guarantee Trustee, and such vesting and succession of title shall be effective whether or not conveyance documents have been executed and delivered pursuant to the appointment of such Successor Guarantee Trustee. (b) If a Guarantee Event of Default actually known to a Responsible Officer of the Guarantee Trustee has occurred and is continuing, the Guarantee Trustee shall enforce this Guarantee for the benefit of the Holders of the Trust Securities. (c) The Guarantee Trustee, before the occurrence of any Guarantee Event of Default and after the curing of all Guarantee Events of Default that may have occurred, shall 12 8 undertake to perform only such duties as are specifically set forth in this Guarantee, and no implied covenants shall be read into this Guarantee against the Guarantee Trustee. In case a Guarantee Event of Default has occurred (that has not been cured or waived pursuant to Section 2.6) and is actually known to a Responsible Officer of the Guarantee Trustee, the Guarantee Trustee shall exercise such of the rights and powers vested in it by this Guarantee, and use the same degree of care and skill in its exercise thereof, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. (d) No provision of this Guarantee shall be construed to relieve the Guarantee Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) prior to the occurrence of any Guarantee Event of Default and after the curing or waiving of all such Guarantee Events of Default that may have occurred: (A) the duties and obligations of the Guarantee Trustee shall be determined solely by the express provisions of this Guarantee, and the Guarantee Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Guarantee, and no implied covenants or obligations shall be read into this Guarantee against the Guarantee Trustee; and (B) in the absence of bad faith on the part of the Guarantee Trustee, the Guarantee Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Guarantee Trustee and conforming to the requirements of this Guarantee; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Guarantee Trustee, the Guarantee Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Guarantee; (ii) the Guarantee Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Guarantee Trustee, unless it shall be proved that the Guarantee Trustee was negligent in ascertaining the pertinent facts upon which such judgment was made; (iii) the Guarantee Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a Majority in Liquidation Amount of the Trust Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee, or exercising any trust or power conferred upon the Guarantee Trustee under this Guarantee; and 13 9 (iv) no provision of this Guarantee shall require the Guarantee Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Guarantee Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Guarantee or if the Guarantee Trustee shall have reasonable grounds for believing that an indemnity, reasonably satisfactory to the Guarantee Trustee, against such risk or liability is not reasonably assured to it under the terms of this Guarantee. SECTION 3.2 Certain Rights of Guarantee Trustee. (a) Subject to the provisions of Section 3.1: (i) The Guarantee Trustee may conclusively rely, and shall be fully 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, sent or presented by the proper party or parties; (ii) Any direction or act of the Guarantor contemplated by this Guarantee shall be sufficiently evidenced by an Officers' Certificate; (iii) Whenever, in the administration of this Guarantee, the Guarantee Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Guarantee Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the Guarantor; (iv) The Guarantee Trustee shall have no duty to see to any recording, filing or registration or any instrument (or any rerecording, refiling or re-registration thereof); (v) Before the Guarantee Trustee acts or refrains from acting, it may consult with counsel, and the written advice or opinion of such counsel with respect to legal matters shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion. Such counsel may be counsel to the Guarantor or any of its Affiliates and may include any of its employees. The Guarantee Trustee shall have the right at any time to seek instructions concerning the administration of this Guarantee from any court of competent jurisdiction; 14 10 (vi) The Guarantee Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Guarantee at the request or direction of any Holder, unless such Holder shall have provided to the Guarantee Trustee such security and indemnity, reasonably satisfactory to the Guarantee Trustee, against the costs, expenses (including attorneys' fees and expenses and the expenses of the Guarantee Trustee's agents, nominees or custodians) and liabilities that might be incurred by it in complying with such request or direction, including such reasonable advances as may be requested by the Guarantee Trustee; provided, that nothing contained in this Section 3.2(a)(vi) shall be taken to relieve the Guarantee Trustee, upon the occurrence of a Guarantee Event of Default, of its obligation to exercise the rights and powers vested in it by this Guarantee; (vii) The Guarantee Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Guarantee Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit; (viii) The Guarantee Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, nominees, custodians or attorneys, and the Guarantee Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (ix) Any action taken by the Guarantee Trustee or its agents hereunder shall bind the Holders, and the signature of the Guarantee Trustee or its agents alone shall be sufficient and effective to perform any such action. No third party shall be required to inquire as to the authority of the Guarantee Trustee to so act or as to its compliance with any of the terms and provisions of this Guarantee, both of which shall be conclusively evidenced by the Guarantee Trustee's or its agent's taking such action; (x) Whenever in the administration of this Guarantee the Guarantee Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Guarantee Trustee (i) may request written instructions from the Holders of a Majority in Liquidation Amount of the Trust Securities, (ii) may refrain from enforcing such remedy or right or taking such other action until such written instructions are received, and (iii) shall be protected in conclusively relying on or acting in accordance with such written instructions. (xi) the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder; and 15 11 (xii) the permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty. (b) No provision of this Guarantee shall be deemed to impose any duty or obligation on the Guarantee Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Guarantee Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Guarantee Trustee shall be construed to be a duty. SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee. The recitals contained in this Guarantee shall be taken as the statements of the Guarantor, and the Guarantee Trustee does not assume any responsibility for their correctness. The Guarantee Trustee makes no representations as to the legality, validity or sufficiency of this Guarantee. ARTICLE 4 GUARANTEE TRUSTEE SECTION 4.1 Guarantee Trustee; Eligibility. (a) There shall be at all times a Guarantee Trustee which shall: (i) not be an Affiliate of the Guarantor; and (ii) be a corporation organized and doing business under the laws of the United States of America or any state or territory thereof or of the District of Columbia, or a corporation or other Person permitted by the Trust Securities and Exchange Commission to act as an institutional trustee under the Trust Indenture Act, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least 50 million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state, territorial or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the supervising or examining authority referred to above, then, for the purposes of this Section 4.1(a)(ii), the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. (b) If at any time the Guarantee Trustee shall cease to be eligible to so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the manner and with the effect set out in Section 4.2(c). 16 12 (c) If the Guarantee Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee and Guarantor shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act. SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustee. (a) Subject to Section 4.2(b), unless a Guarantee Event of Default shall have occurred and be continuing, the Guarantee Trustee may be appointed or removed with or without cause at any time by the Guarantor. (b) The Guarantee Trustee shall not be removed in accordance with Section 4.2(a) until a Successor Guarantee Trustee has been appointed and has accepted such appointment by written instrument executed by such Successor Guarantee Trustee and delivered to the Guarantor. (c) The Guarantee Trustee appointed to office shall hold such office until a Successor Guarantee Trustee shall have been appointed or until its removal or resignation. The Guarantee Trustee may resign from office (without need for prior or subsequent accounting) by an instrument in writing executed by the Guarantee Trustee and delivered to the Guarantor, which resignation shall not take effect until a Successor Guarantee Trustee has been appointed and has accepted such appointment by instrument in writing executed by such Successor Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee Trustee. (d) If no Successor Guarantee Trustee shall have been appointed and accepted appointment as provided in this Section 4.2 within 30 days after delivery to the Guarantor of an instrument of removal or resignation, the removed or resigning Guarantee Trustee may petition any court of competent jurisdiction for appointment of a Successor Guarantee Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Successor Guarantee Trustee. (e) No Guarantee Trustee shall be liable for the acts or omissions to act of any Successor Guarantee Trustee. (f) Upon termination of this Guarantee or removal or resignation of the Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay to the Guarantee Trustee all amounts owing for fees and reimbursement of expenses which have accrued to the date of such termination, removal or resignation. 17 13 ARTICLE 5 GUARANTEE SECTION 5.1 Guarantee. The Guarantor irrevocably and unconditionally agrees to pay in full to the Holders the Guarantee Payments (without duplication of amounts theretofore paid by the Issuer Trust), as and when due, regardless of any defense, right of set-off or counterclaim that the Issuer Trust may have or assert. The Guarantor's obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Holders or by causing the Issuer Trust to pay such amounts to the Holders. Notwithstanding anything to the contrary herein, the Guarantor shall retain all of its rights under the Junior Subordinated Indenture to (i) extend the interest payment period on the Junior Subordinated Debentures and the Guarantor shall not be obligated hereunder to make any Guarantee Payments during any Extension Period (as defined in the certificate evidencing the Junior Subordinated Debentures) with respect to the Distributions (as defined in the Declaration of Trust) on the Trust Securities, and (ii) change the maturity date of the Junior Subordinated Debentures to the extent permitted by the Junior Subordinated Indenture. SECTION 5.2 Waiver of Notice and Demand. The Guarantor hereby waives notice of acceptance of this Guarantee and of any liability to which it applies or may apply, presentment, demand for payment, any right to require a proceeding first against the Issuer Trust or any other Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands. SECTION 5.3 Obligations Not Affected. The obligations, covenants, agreements and duties of the Guarantor under this Guarantee shall be absolute and unconditional and shall remain in full force and effect until the entire liquidation amount of all outstanding Trust Securities shall have been paid and such obligation shall in no way be affected or impaired by reason of the happening from time to time of any event, including without limitation, the following, whether or not with notice to, or the consent of, the Guarantor: (a) The release or waiver, by operation of law or otherwise, of the performance or observance by the Issuer Trust of any express or implied agreement, covenant, term or condition relating to the Trust Securities to be performed or observed by the Issuer Trust; 18 14 (b) The extension of time for the payment by the Issuer Trust of all or any portion of the Distributions, Redemption Price, Liquidation Distribution or any other sums payable under the terms of the Trust Securities or the extension of time for the performance of any other obligation under, arising out of, or in connection with the Trust Securities (other than an extension of time for payment of Distributions, Redemption Price, Liquidation Distribution or other sum payable that results from the extension of any interest payment period on the Junior Subordinated Debentures or any change to the maturity date of the Junior Subordinated Debentures permitted by the Junior Subordinated Indenture); (c) Any failure, omission, delay or lack of diligence on the part of the Property Trustee or the Holders to enforce, assert or exercise any right, privilege, power or remedy conferred on the Property Trustee or the Holders pursuant to the terms of the Trust Securities, or any action on the part of the Issuer Trust granting indulgence or extension of any kind; (d) The voluntary or involuntary liquidation, dissolution, sale of any collateral, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of debt of, or other similar proceedings affecting, the Issuer Trust or any of the assets of the Issuer Trust; (e) Any invalidity of, or defect or deficiency in, the Trust Securities; (f) The settlement or compromise of any obligation guaranteed hereby or hereby incurred; or (g) Any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a guarantor, it being the intent of this Section 5.3 that the obligations of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances. There shall be no obligation on the part of the Guarantee Trustee or the Holders to give notice to, or obtain consent of the Guarantor or any other Person with respect to the happening of any of the foregoing. No setoff, counterclaim, reduction or diminution of any obligation, or any defense of any kind or nature that the Guarantor has or may have against any Holder shall be available hereunder to the Guarantor against such Holder to reduce the payments to it under this Guarantee. SECTION 5.4 Rights of Holders. (a) The Holders of at least a Majority in Liquidation Amount of the Trust Securities have the right to direct the time, method and place of conducting any proceeding for 19 15 any remedy available to the Guarantee Trustee in respect of this Guarantee or to direct the exercise of any trust or power conferred upon the Guarantee Trustee under this Guarantee. (b) If the Guarantee Trustee fails to enforce this Guarantee, then any Holder of Trust Securities may, subject to the subordination provisions of Section 6.2, institute a legal proceeding directly against the Guarantor to enforce the Guarantee Trustee's rights under this Guarantee without first instituting a legal proceeding against the Issuer Trust, the Guarantee Trustee or any other person or entity. In addition, if the Guarantor has failed to make a Guarantee Payment, a Holder of Trust Securities may, subject to the subordination provisions of Section 6.2, directly institute a proceeding against the Guarantor for enforcement of the Guarantee for such payment to the Holder of the Trust Securities of the principal of or interest on the Junior Subordinated Debentures on or after the respective due dates specified in the Junior Subordinated Debentures, and the amount of the payment will be based on the Holder's pro rata share of the amount due and owing on all of the Trust Securities. The Guarantor hereby waives any right or remedy to require that any action on this Guarantee be brought first against the Issuer Trust or any other person or entity before proceeding directly against the Guarantor. SECTION 5.5 Guarantee of Payment. This Guarantee creates a guarantee of payment and not of collection. SECTION 5.6 Subrogation. The Guarantor shall be subrogated to all (if any) rights of the Holders of Trust Securities against the Issuer Trust in respect of any amounts paid to such Holders by the Guarantor under this Guarantee; provided, however, that the Guarantor shall not (except to the extent required by mandatory provisions of law) be entitled to enforce or exercise any right that it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Guarantee, if at the time of any such payment, any amounts are due and unpaid under this Guarantee. If any amount shall be paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees to hold such amount in trust for the Holders and to pay over such amount to the Guarantee Trustee for the benefit of the Holders. SECTION 5.7 Independent Obligations. The Guarantor acknowledges that its obligations hereunder are independent of the obligations of the Issuer Trust with respect to the Trust Securities, and that the Guarantor shall be liable as principal and as debtor hereunder to make Guarantee Payments pursuant to the terms of this Guarantee notwithstanding the occurrence of any event referred to in subsections 5.3(a) through 5.3(g), inclusive, hereof. 20 16 ARTICLE 6 LIMITATION OF TRANSACTIONS; SUBORDINATION SECTION 6.1 Limitation of Transactions. So long as any Trust Securities remain outstanding, if (i) there shall have occurred an event of default under the Junior Subordinated Indenture with respect to the Junior Subordinated Debentures, (ii) there shall be a Guarantee Event of Default or (iii) the Guarantor shall have given notice of its election of an Extension Period as provided in the certificate evidencing the Junior Subordinated Debentures and shall not have rescinded such notice, or such Extension Period or any extension thereof shall be continuing, then the Guarantor shall not, and shall not permit any subsidiary of the Guarantor, to (x) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any of the Guarantor's capital stock, (y) make any payment of principal, interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Guarantor that rank on a parity with or junior in interest to the Junior Subordinated Debentures or (z) make any guarantee payments with respect to any guarantee by the Guarantor of the debt securities of any subsidiary of the Guarantor if such guarantee ranks on a parity with or junior in interest to the Junior Subordinated Debentures (other than (a) dividends or distributions by the Corporation by way of its issuance of its common stock, (b) payments under this Guarantee, (c) any declaration of a dividend in connection with the implementation of a shareholders' rights plan, or the issuance of stock under any such plan in the future, or the redemption or repurchase of any such rights pursuant thereto, and (d) purchases of common stock related to the issuance of common stock or rights under any of the Guarantor's benefit plans). SECTION 6.2 Ranking. This Guarantee will constitute an unsecured obligation of the Guarantor and will rank (i) subordinate and junior in right of payment to all other liabilities of the Guarantor, (ii) on a parity with the most senior preferred or preference stock now or hereafter issued by the Guarantor and with any guarantee now or hereafter entered into by the Guarantor in respect of any preferred securities of any Affiliate of the Guarantor and (iii) senior to the Guarantor's common stock. In addition, at all times such obligations will be structurally subordinated to the liabilities and obligations of the Guarantor's subsidiaries. If a Trust Enforcement Event has occurred and is continuing under the Declaration of Trust, the rights of the holders of the Common Securities to receive Guarantee Payments hereunder shall be subordinated to the rights of the Holders of the Preferred Securities to receive Guarantee Payments under this Guarantee. 21 17 ARTICLE 7 TERMINATION SECTION 7.1 Termination. This Guarantee shall terminate upon (i) full payment of the Redemption Price of all Trust Securities, (ii) distribution of the Junior Subordinated Debentures to the Holders of all the Trust Securities or (iii) full payment of the amounts payable in accordance with the Declaration of Trust upon liquidation of the Issuer Trust. Notwithstanding the foregoing, this Guarantee will continue to be effective or will be reinstated, as the case may be, if at any time any Holder of Trust Securities must restore payment of any sums paid under the Trust Securities or under this Guarantee. ARTICLE 8 INDEMNIFICATION SECTION 8.1 Exculpation. (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Guarantor or any Covered Person for any loss, damage, liability, expense or claim incurred by reason of any act or omission performed or omitted by such Indemnified Person in good faith in accordance with this Guarantee and in a manner that such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Guarantee or by law, except that an Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person's negligence or willful misconduct with respect to such acts or omissions. (b) An Indemnified Person shall be fully protected in relying in good faith upon the records of the Guarantor and upon such information, opinions, reports or statements presented to the Guarantor by any Person as to matters the Indemnified Person reasonably believes are within such other Person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Guarantor, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the existence and amount of assets from which Distributions to Holders of Trust Securities might properly be paid. SECTION 8.2 Indemnification. The Guarantor agrees to indemnify each Indemnified Person for, and to hold each Indemnified Person harmless against any loss, liability or expense incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance or 22 18 administration of the trust or trusts hereunder, including the costs and expenses (including reasonable legal fees and expenses) of defending itself against, or investigating, any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligation to indemnify as set forth in this Section 8.2 shall survive the termination of this Guarantee. ARTICLE 9 MISCELLANEOUS SECTION 9.1 Successors and Assigns. All guarantees and agreements contained in this Guarantee shall bind the successors, assigns, receivers, trustees and representatives of the Guarantor and shall inure to the benefit of the Holders of the Trust Securities then outstanding. SECTION 9.2 Amendments. Except with respect to any changes that do not materially adversely affect the rights of the Holders (in which case no consent of the Holders will be required), this Guarantee may not be amended without the prior approval of the Holders of not less than 66-2/3% of the aggregate liquidation amount of the Trust Securities. The provisions of Section 11.2 of the Declaration of Trust with respect to meetings of, and action by written consent of, the Holders of the Trust Securities apply to the giving of such approval. SECTION 9.3 Notices. All notices provided for in this Guarantee shall be in writing, duly signed by the party giving such notice, and shall be delivered by hand, telecopied or mailed by registered or certified mail, as follows: (a) If given to the Guarantee Trustee, at the Guarantee Trustee's mailing address set forth below (or such other address as the Guarantee Trustee may give notice of to the Guarantor and the Holders of the Trust Securities): Harris Trust and Savings Bank 311 West Monroe Street 12th floor Chicago, Illinois 60606 Attention: Indenture Trust Division Telecopy no.: (312) 461-2531 23 19 (b) If given to the Guarantor, at the Guarantor's mailing addresses set forth below (or such other address as the Guarantor may give notice of to the Guarantee Trustee and the Holders of the Trust Securities): Foster Wheeler Corporation Perryville Corporate Park Clinton, New Jersey 08809 Attention: Corporate Counsel Telecopy no.: (908) 730-5300 (c) If given to any Holder of Trust Securities, at the address set forth on the books and records of the Issuer Trust. All such notices shall be deemed to have been given when received in person, telecopied with receipt confirmed, or mailed by first class mail, postage prepaid, except that if a notice or other document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver. SECTION 9.4 Benefit. This Guarantee is solely for the benefit of the Holders of the Trust Securities and, subject to Section 3.1(a), is not separately transferable from the Trust Securities. SECTION 9.5 Governing Law. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF. 24 20 IN WITNESS WHEREOF, this Guarantee is executed as of the day and year first above written. FOSTER WHEELER CORPORATION, as Guarantor By: ---------------------------- Name: Title: HARRIS TRUST AND SAVINGS BANK, as Guarantee Trustee By: ---------------------------- Name: Title: EX-5.1 10 OPINION OF WHITE & CASE LLP 1 Exhibit 5.1 [WHITE & CASE LLP LETTERHEAD] June 22, 1998 Foster Wheeler Corporation Perryville Corporate Park Clinton, New Jersey 08809 Dear Sirs: We refer to the Registration Statement Nos. 333-52369 and 333-52369-01 through 02 on Form S-3, as heretofore or hereafter amended (the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), in the form in which it is to be filed by Foster Wheeler Corporation, a New York corporation ("Foster Wheeler") and by FW Preferred Capital Trust I and FW Preferred Capital II, each a Delaware business trust (the "Issuer Trusts"), with the Securities and Exchange Commission (the "Commission"), relating to up to $300,000,000 aggregate principal amount or initial offering price of (A) Foster Wheeler's (i) debt securities consisting of debentures, notes or other unsecured evidences of indebtedness (the "Debt Securities") which may be either senior debt securities or subordinated debt securities, to be issued from time to time pursuant to the terms of an Indenture between Foster Wheeler and Harris Trust and Savings Bank (the "Senior Indenture") or pursuant to a Junior Subordinated Indenture between Foster Wheeler and Harris Trust and Savings Bank (the "Junior Subordinated Indenture"); (ii) shares of preferred stock (the "Preferred Stock") the specific titles, rights and terms of which will be set forth in a Certificate of Designation which may be filed or incorporated by reference as an exhibit to the Registration Statement (each a "Certificate of Designation"), which may be issued in the form of depositary receipts (the "Depositary Shares") which will represent a fraction of a share of Preferred Stock which Depositary Shares may be issued under a Deposit Agreement, a form of which may be filed or incorporated by reference as an exhibit to the Registration Statement (the "Deposit Agreement"); (iii) shares of common stock (the "Common Stock"); (iv) warrants to purchase securities of the Company as shall be designated by the Company at the time of the offering thereof (the "Warrants") pursuant to Warrant Agreements, forms of which may be filed or 2 FOSTER WHEELER CORPORATION Page 2 incorporated by reference as exhibits to the Registration Statement (the "Warrant Agreements"); and (v) Foster Wheeler's Guarantees (the "Guarantees") with respect to the Preferred Securities (defined below), in the case of (i), (ii), (iii) and (iv) above, in amounts, at prices and on terms to be determined at the time of the offering; and (B) the Issuer Trusts' preferred securities (the "Preferred Securities"). The Debt Securities, the Preferred Stock, the Depositary Shares, the Common Stock, the Warrants and the Guarantees are collectively referred to as the "Securities." The Securities are to be sold directly to purchasers or through agents or underwriters, including the underwriter listed on the cover page of the Prospectus forming part of the Registration Statement. The issuance and terms of the Securities to be offered and sold by Foster Wheeler are to be authorized and approved and the manner of sale is to be determined in additional proceedings proposed to be taken by Foster Wheeler's Board of Directors or a duly authorized committee thereof. We have examined the originals, or photostatic or certified copies, of such records of Foster Wheeler, certificates of officers of Foster Wheeler and of public officials and such other documents as we have deemed relevant and necessary as the basis for the opinion set forth below. We have relied upon such certificates of officers of Foster Wheeler and of public officials and statements and information furnished by officers of Foster Wheeler with respect to the accuracy of material factual matters contained therein which were not independently established by us. In such examination we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as photostatic or certified copies, and the authenticity of the originals of such copies. Based upon our examination described above, subject to the assumptions stated, and subject to such proposed additional proceedings being taken prior to the issuance of the Securities, to the terms of the Securities being otherwise in compliance with then applicable law, and to the extent applicable to the Securities to be issued, to the authorization, execution and delivery of the Indenture, the Junior Subordinated Indenture, Deposit Agreement and Warrant Agreements, and the authorization, execution, filing and recording of one or more Certificates of Designation, it is our opinion that the Securities, upon issuance and sale by Foster Wheeler as contemplated in the Registration Statement and any amendments and prospectus supplements thereto, will have been duly authorized by Foster Wheeler and with respect to the Common Stock and the Preferred Stock upon delivery thereof against payment therefor, validly issued, fully paid and non-assessable, and that the Debt Securities, the Depositary Shares and the Warrants, when duly executed, authenticated, issued and delivered against payment therefor in accordance with the Indenture, the Junior Subordinated Indenture, Deposit Agreement or Warrant Agreements, will constitute legally binding obligations of Foster Wheeler. 3 FOSTER WHEELER CORPORATION Page 3 We consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm appearing under the caption "Legal Matters" in the Prospectus forming part of the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission. Very truly yours, WHITE & CASE LLP TBG:MOS EX-23.1 11 CONSENT OF INDEPENDENT ACCOUNTANTS 1 Exhibit 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the registration statement of Foster Wheeler Corporation, FW Preferred Capital Trust I and FW Preferred Capital Trust II on Form S-3 of our report, dated January 27, 1998, on our audits of the consolidated financial statements of Foster Wheeler Corporation and Subsidiaries as of December 26, 1997 and December 27, 1996, and for each of the three years in the period ended December 26, 1997, which report is incorporated by reference in Foster Wheeler Corporation's Annual Report on Form 10-K for the year ended December 26, 1997. We also consent to the reference to our firm under the caption "Experts" in the registration statement. Coopers & Lybrand L.L.P. New York, New York June 22, 1998 EX-25.1 12 T-1 RE: JUNIOR SUBORDINATED DEBENTURES 1 Exhibit 25.1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM T-1 Statement of Eligibility Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) ______ HARRIS TRUST AND SAVINGS BANK (Name of Trustee) Illinois 36-1194448 (State of Incorporation) (I.R.S. Employer Identification No.) 111 West Monroe Street, Chicago, Illinois 60603 (Address of principal executive offices) Carolyn C. Potter, Harris Trust and Savings Bank, 311 West Monroe Street, Chicago, Illinois, 60606 312-461-2531 phone 312-461-3525 facsimile (Name, address and telephone number for agent for service) FOSTER WHEELER CORPORATION (Name of obligor) New York 13-1855904 (State of Incorporation) (I.R.S. Employer Identification No.) Perryville Corporate Park Clinton, New Jersey 08809 (Address of principal executive offices) Junior Subordinated Debentures (Title of indenture securities) 2 1. GENERAL INFORMATION. Furnish the following information as to the Trustee: (a) Name and address of each examining or supervising authority to which it is subject. Commissioner of Banks and Trust Companies, State of Illinois, Springfield, Illinois; Chicago Clearing House Association, 164 West Jackson Boulevard, Chicago, Illinois; Federal Deposit Insurance Corporation, Washington, D.C.; The Board of Governors of the Federal Reserve System, Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. Harris Trust and Savings Bank is authorized to exercise corporate trust powers. 2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee, describe each such affiliation. The Obligor is not an affiliate of the Trustee. 3. thru 15. NO RESPONSE NECESSARY 16. LIST OF EXHIBITS. 1. A copy of the articles of association of the Trustee is now in effect which includes the authority of the trustee to commence business and to exercise corporate trust powers. A copy of the Certificate of Merger dated April 1, 1972 between Harris Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which constitutes the articles of association of the Trustee as now in effect and includes the authority of the Trustee to commence business and to exercise corporate trust powers was filed in connection with the Registration Statement of Louisville Gas and Electric Company, File No. 2-44295, and is incorporated herein by reference. 2. A copy of the existing by-laws of the Trustee. A copy of the existing by-laws of the Trustee was filed in connection with the Registration Statement of Commercial Federal Corporation, File No. 333-20711, and is incorporated herein by reference. 3. The consents of the Trustee required by Section 321(b) of the Act. (included as Exhibit A on page 2 of this statement) 4. A copy of the latest report of condition of the Trustee published pursuant to law or the requirements of its supervising or examining authority. (included as Exhibit B on page 3 of this statement) 1 3 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the laws of the State of Illinois, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 6th day of May, 1998. HARRIS TRUST AND SAVINGS BANK By: /s/ C. Potter ----------------------------- C. Potter Assistant Vice President EXHIBIT A The consents of the trustee required by Section 321(b) of the Act. Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that reports of examinations of said trustee by Federal and State authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor. HARRIS TRUST AND SAVINGS BANK By: /s/ C. Potter ----------------------------- C. Potter Assistant Vice President 2 4 EXHIBIT B Attached is a true and correct copy of the statement of condition of Harris Trust and Savings Bank as of December 31, 1997, as published in accordance with a call made by the State Banking Authority and by the Federal Reserve Bank of the Seventh Reserve District. [LOGO OMITTED] HARRIS BANK Harris Trust and Savings Bank 111 West Monroe Street Chicago, Illinois 60603 of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of business on December 31, 1997, a state banking institution organized and operating under the banking laws of this State and a member of the Federal Reserve System. Published in accordance with a call made by the Commissioner of Banks and Trust Companies of the State of Illinois and by the Federal Reserve Bank of this District. Bank's Transit Number 71000288
THOUSANDS ASSETS OF DOLLARS Cash and balances due from depository institutions: Non-interest bearing balances and currency and coin ................................. $ 1,252,381 Interest bearing balances ......................... $ 598,062 Securities: ................................................ a. Held-to-maturity securities $ 0 b. Available-for-sale securities $ 3,879,399 Federal funds sold and securities purchased under agreements to resell $ 71,725 Loans and lease financing receivables: Loans and leases, net of unearned income .......... $ 8,813,821 LESS: Allowance for loan and lease losses ........ $ 99,678 ----------------- Loans and leases, net of unearned income, allowance, and reserve (item 4.a minus 4.b)...... $ 8,714,143 Assets held in trading accounts ............................ $ 136,538 Premises and fixed assets (including capitalized leases) ........................... $ 221,312 Other real estate owned .................................... $ 642 Investments in unconsolidated subsidiaries and associated companies ..................................... $ 103 Customer's liability to this bank on acceptances outstanding ............................... $ 46,480 Intangible assets .......................................... $ 279,897 Other assets ............................................... $ 653,101 ---------------- TOTAL ASSETS $15,853,783 ================
3 5
LIABILITIES Deposits: In domestic offices ..................................... $8,926,635 Non-interest bearing .............................. $3,692,891 Interest bearing .................................. $5,233,744 In foreign offices, Edge and Agreement subsidiaries, and IBF's $1,763,669 Non-interest bearing .............................. $ 22,211 Interest bearing .................................. $1,741,458 Federal funds purchased and securities sold under agreements to repurchase in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's: Federal funds purchased & securities sold under agreements to repurchase ................................. $2,693,600 Trading Liabilities 82,861 Other borrowed money: ...................................... a. With remaining maturity of one year or less $ 601,799 b. With remaining maturity of more than one year $ 0 Bank's liability on acceptances executed and outstanding $ 46,480 Subordinated notes and debentures .......................... $ 325,000 Other liabilities .......................................... $ 134,309 ---------------- TOTAL LIABILITIES $14,574,353 ================ EQUITY CAPITAL Common stock ............................................... $ 100,000 Surplus .................................................... $ 601,026 a. Undivided profits and capital reserves ................. $ 573,416 b. Net unrealized holding gains (losses) on available-for-sale securities .......................... $ 4,988 ---------------- TOTAL EQUITY CAPITAL $ 1,279,430 ================ Total liabilities, limited-life preferred stock, and equity capital ....................................... $15,853,783 ================
I, Pamela Piarowski, Vice President of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief. PAMELA PIAROWSKI 1/30/98 We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and, to the best of our knowledge and belief, has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and the Commissioner of Banks and Trust Companies of the State of Illinois and is true and correct. EDWARD W. LYMAN, ALAN G. McNALLY, RICHARD E. TERRY Directors. 4 EX-25.2 13 T-1 RE: FW PREFERRED CAPITAL TRUST I 1 Exhibit 25.2 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM T-1 Statement of Eligibility Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) ______ HARRIS TRUST AND SAVINGS BANK (Name of Trustee) Illinois 36-1194448 (State of Incorporation) (I.R.S. Employer Identification No.) 111 West Monroe Street, Chicago, Illinois 60603 (Address of principal executive offices) Carolyn C. Potter, Harris Trust and Savings Bank, 311 West Monroe Street, Chicago, Illinois, 60606 312-461-2531 phone 312-461-3525 facsimile (Name, address and telephone number for agent for service) FW PREFERRED CAPITAL TRUST I (Name of obligor) Delaware - (State of Incorporation) (I.R.S. Employer Identification No.) c/o Foster Wheeler Corporation Perryville Corporate Park Clinton, New Jersey 08809 (Address of principal executive offices) Preferred Securities (Title of indenture securities) 2 1. GENERAL INFORMATION. Furnish the following information as to the Trustee: (a) Name and address of each examining or supervising authority to which it is subject. Commissioner of Banks and Trust Companies, State of Illinois, Springfield, Illinois; Chicago Clearing House Association, 164 West Jackson Boulevard, Chicago, Illinois; Federal Deposit Insurance Corporation, Washington, D.C.; The Board of Governors of the Federal Reserve System, Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. Harris Trust and Savings Bank is authorized to exercise corporate trust powers. 2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee, describe each such affiliation. The Obligor is not an affiliate of the Trustee. 3. thru 15. NO RESPONSE NECESSARY 16. LIST OF EXHIBITS. 1. A copy of the articles of association of the Trustee is now in effect which includes the authority of the trustee to commence business and to exercise corporate trust powers. A copy of the Certificate of Merger dated April 1, 1972 between Harris Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which constitutes the articles of association of the Trustee as now in effect and includes the authority of the Trustee to commence business and to exercise corporate trust powers was filed in connection with the Registration Statement of Louisville Gas and Electric Company, File No. 2-44295, and is incorporated herein by reference. 2. A copy of the existing by-laws of the Trustee. A copy of the existing by-laws of the Trustee was filed in connection with the Registration Statement of Commercial Federal Corporation, File No. 333-20711, and is incorporated herein by reference. 3. The consents of the Trustee required by Section 321(b) of the Act. (included as Exhibit A on page 2 of this statement) 4. A copy of the latest report of condition of the Trustee published pursuant to law or the requirements of its supervising or examining authority. (included as Exhibit B on page 3 of this statement) 1 3 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the laws of the State of Illinois, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 6th day of May, 1998. HARRIS TRUST AND SAVINGS BANK By: /s/ C. Potter ----------------------------- C. Potter Assistant Vice President EXHIBIT A The consents of the trustee required by Section 321(b) of the Act. Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that reports of examinations of said trustee by Federal and State authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor. HARRIS TRUST AND SAVINGS BANK By: /s/ C. Potter ----------------------------- C. Potter Assistant Vice President 2 4 EXHIBIT B Attached is a true and correct copy of the statement of condition of Harris Trust and Savings Bank as of December 31, 1997, as published in accordance with a call made by the State Banking Authority and by the Federal Reserve Bank of the Seventh Reserve District. [LOGO OMITTED] HARRIS BANK Harris Trust and Savings Bank 111 West Monroe Street Chicago, Illinois 60603 of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of business on December 31, 1997, a state banking institution organized and operating under the banking laws of this State and a member of the Federal Reserve System. Published in accordance with a call made by the Commissioner of Banks and Trust Companies of the State of Illinois and by the Federal Reserve Bank of this District. Bank's Transit Number 71000288
THOUSANDS ASSETS OF DOLLARS Cash and balances due from depository institutions: Non-interest bearing balances and currency and coin ................................. $ 1,252,381 Interest bearing balances ......................... $ 598,062 Securities: ................................................ a. Held-to-maturity securities $ 0 b. Available-for-sale securities $ 3,879,399 Federal funds sold and securities purchased under agreements to resell $ 71,725 Loans and lease financing receivables: Loans and leases, net of unearned income .......... $ 8,813,821 LESS: Allowance for loan and lease losses ........ $ 99,678 ----------------- Loans and leases, net of unearned income, allowance, and reserve (item 4.a minus 4.b)...... $ 8,714,143 Assets held in trading accounts ............................ $ 136,538 Premises and fixed assets (including capitalized leases) ........................... $ 221,312 Other real estate owned .................................... $ 642 Investments in unconsolidated subsidiaries and associated companies ..................................... $ 103 Customer's liability to this bank on acceptances outstanding ............................... $ 46,480 Intangible assets .......................................... $ 279,897 Other assets ............................................... $ 653,101 ---------------- TOTAL ASSETS $15,853,783 ================
3 5 LIABILITIES
Deposits: In domestic offices ..................................... $8,926,635 Non-interest bearing .............................. $3,692,891 Interest bearing .................................. $5,233,744 In foreign offices, Edge and Agreement subsidiaries, and IBF's $1,763,669 Non-interest bearing .............................. $ 22,211 Interest bearing .................................. $1,741,458 Federal funds purchased and securities sold under agreements to repurchase in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's: Federal funds purchased & securities sold under agreements to repurchase ................................. $2,693,600 Trading Liabilities 82,861 Other borrowed money: ...................................... a. With remaining maturity of one year or less $ 601,799 b. With remaining maturity of more than one year $ 0 Bank's liability on acceptances executed and outstanding $ 46,480 Subordinated notes and debentures .......................... $ 325,000 Other liabilities .......................................... $ 134,309 ---------------- TOTAL LIABILITIES $14,574,353 ================ EQUITY CAPITAL Common stock ............................................... $ 100,000 Surplus .................................................... $601,026 a. Undivided profits and capital reserves ................. $ 573,416 b. Net unrealized holding gains (losses) on available-for-sale securities .......................... $ 4,988 ---------------- TOTAL EQUITY CAPITAL $ 1,279,430 ================ Total liabilities, limited-life preferred stock, and equity capital ....................................... $15,853,783 ================
I, Pamela Piarowski, Vice President of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief. PAMELA PIAROWSKI 1/30/98 We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and, to the best of our knowledge and belief, has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and the Commissioner of Banks and Trust Companies of the State of Illinois and is true and correct. EDWARD W. LYMAN, ALAN G. McNALLY, RICHARD E. TERRY Directors. 4 EX-25.3 14 T-1 RE: FW PREFERRED CAPITAL TRUST II 1 Exhibit 25.3 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM T-1 Statement of Eligibility Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) ______ HARRIS TRUST AND SAVINGS BANK (Name of Trustee) Illinois 36-1194448 (State of Incorporation) (I.R.S. Employer Identification No.) 111 West Monroe Street, Chicago, Illinois 60603 (Address of principal executive offices) Carolyn C. Potter, Harris Trust and Savings Bank, 311 West Monroe Street, Chicago, Illinois, 60606 312-461-2531 phone 312-461-3525 facsimile (Name, address and telephone number for agent for service) FW PREFERRED CAPITAL TRUST II (Name of obligor) Delaware - (State of Incorporation) (I.R.S. Employer Identification No.) c/o Foster Wheeler Corporation Perryville Corporate Park Clinton, New Jersey 08809 (Address of principal executive offices) Preferred Securities (Title of indenture securities) 2 1. GENERAL INFORMATION. Furnish the following information as to the Trustee: (a) Name and address of each examining or supervising authority to which it is subject. Commissioner of Banks and Trust Companies, State of Illinois, Springfield, Illinois; Chicago Clearing House Association, 164 West Jackson Boulevard, Chicago, Illinois; Federal Deposit Insurance Corporation, Washington, D.C.; The Board of Governors of the Federal Reserve System, Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. Harris Trust and Savings Bank is authorized to exercise corporate trust powers. 2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee, describe each such affiliation. The Obligor is not an affiliate of the Trustee. 3. thru 15. NO RESPONSE NECESSARY 16. LIST OF EXHIBITS. 1. A copy of the articles of association of the Trustee is now in effect which includes the authority of the trustee to commence business and to exercise corporate trust powers. A copy of the Certificate of Merger dated April 1, 1972 between Harris Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which constitutes the articles of association of the Trustee as now in effect and includes the authority of the Trustee to commence business and to exercise corporate trust powers was filed in connection with the Registration Statement of Louisville Gas and Electric Company, File No. 2-44295, and is incorporated herein by reference. 2. A copy of the existing by-laws of the Trustee. A copy of the existing by-laws of the Trustee was filed in connection with the Registration Statement of Commercial Federal Corporation, File No. 333-20711, and is incorporated herein by reference. 3. The consents of the Trustee required by Section 321(b) of the Act. (included as Exhibit A on page 2 of this statement) 4. A copy of the latest report of condition of the Trustee published pursuant to law or the requirements of its supervising or examining authority. (included as Exhibit B on page 3 of this statement) 1 3 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the laws of the State of Illinois, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 6th day of May, 1998. HARRIS TRUST AND SAVINGS BANK By: /s/ C. Potter ----------------------------- C. Potter Assistant Vice President EXHIBIT A The consents of the trustee required by Section 321(b) of the Act. Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that reports of examinations of said trustee by Federal and State authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor. HARRIS TRUST AND SAVINGS BANK By: /s/ C. Potter ----------------------------- C. Potter Assistant Vice President 2 4 EXHIBIT B Attached is a true and correct copy of the statement of condition of Harris Trust and Savings Bank as of December 31, 1997, as published in accordance with a call made by the State Banking Authority and by the Federal Reserve Bank of the Seventh Reserve District. [LOGO OMITTED] HARRIS BANK Harris Trust and Savings Bank 111 West Monroe Street Chicago, Illinois 60603 of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of business on December 31, 1997, a state banking institution organized and operating under the banking laws of this State and a member of the Federal Reserve System. Published in accordance with a call made by the Commissioner of Banks and Trust Companies of the State of Illinois and by the Federal Reserve Bank of this District. Bank's Transit Number 71000288
THOUSANDS ASSETS OF DOLLARS Cash and balances due from depository institutions: Non-interest bearing balances and currency and coin ................................. $ 1,252,381 Interest bearing balances ......................... $ 598,062 Securities: ................................................ a. Held-to-maturity securities $ 0 b. Available-for-sale securities $ 3,879,399 Federal funds sold and securities purchased under agreements to resell $ 71,725 Loans and lease financing receivables: Loans and leases, net of unearned income .......... $ 8,813,821 LESS: Allowance for loan and lease losses ........ $ 99,678 ----------------- Loans and leases, net of unearned income, allowance, and reserve (item 4.a minus 4.b)...... $ 8,714,143 Assets held in trading accounts ............................ $ 136,538 Premises and fixed assets (including capitalized leases) ........................... $ 221,312 Other real estate owned .................................... $ 642 Investments in unconsolidated subsidiaries and associated companies ..................................... $ 103 Customer's liability to this bank on acceptances outstanding ............................... $ 46,480 Intangible assets .......................................... $ 279,897 Other assets ............................................... $ 653,101 ---------------- TOTAL ASSETS $15,853,783 ================
3 5 LIABILITIES
Deposits: In domestic offices ..................................... $8,926,635 Non-interest bearing .............................. $3,692,891 Interest bearing .................................. $5,233,744 In foreign offices, Edge and Agreement subsidiaries, and IBF's $1,763,669 Non-interest bearing .............................. $ 22,211 Interest bearing .................................. $1,741,458 Federal funds purchased and securities sold under agreements to repurchase in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's: Federal funds purchased & securities sold under agreements to repurchase ................................. $2,693,600 Trading Liabilities 82,861 Other borrowed money: ...................................... a. With remaining maturity of one year or less $ 601,799 b. With remaining maturity of more than one year $ 0 Bank's liability on acceptances executed and outstanding $ 46,480 Subordinated notes and debentures .......................... $ 325,000 Other liabilities .......................................... $ 134,309 ---------------- TOTAL LIABILITIES $14,574,353 ================ EQUITY CAPITAL Common stock ............................................... $ 100,000 Surplus .................................................... $ 601,026 a. Undivided profits and capital reserves ................. $ 573,416 b. Net unrealized holding gains (losses) on available-for-sale securities .......................... $ 4,988 ---------------- TOTAL EQUITY CAPITAL $ 1,279,430 ================ Total liabilities, limited-life preferred stock, and equity capital ....................................... $15,853,783 ================
I, Pamela Piarowski, Vice President of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief. PAMELA PIAROWSKI 1/30/98 We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and, to the best of our knowledge and belief, has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and the Commissioner of Banks and Trust Companies of the State of Illinois and is true and correct. EDWARD W. LYMAN, ALAN G. McNALLY, RICHARD E. TERRY Directors. 4 EX-25.4 15 T-1 RE: SECURITIES ISSUED BY CAPITAL TRUST I 1 Exhibit 25.4 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM T-1 Statement of Eligibility Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) ______ HARRIS TRUST AND SAVINGS BANK (Name of Trustee) 36-1194448 Illinois (I.R.S. Employer (State of Incorporation) Identification No.) 111 West Monroe Street, Chicago, Illinois 60603 (Address of principal executive offices) Carolyn C. Potter, Harris Trust and Savings Bank, 311 West Monroe Street, Chicago, Illinois, 60606 312-461-2531 phone 312-461-3525 facsimile (Name, address and telephone number for agent for service) FW PREFERRED CAPITAL TRUST I FOSTER WHEELER CORPORATION (Name of obligor) (Name of guarantor) Delaware New York (State of Incorporation) (State of Incorporation) - 13-1855904 (I.R.S. Employer Identification (I.R.S. Employer Identification No.) No.) c/o Foster Wheeler Corporation Perryville Corporate Park Perryville Corporate Park Clinton, New Jersey 08809 Clinton, New Jersey 08809 (Address of principal executive (Address of principal executive offices) offices) Guarantee (Title of indenture securities) 2 1. GENERAL INFORMATION. Furnish the following information as to the Trustee: (a) Name and address of each examining or supervising authority to which it is subject. Commissioner of Banks and Trust Companies, State of Illinois, Springfield, Illinois; Chicago Clearing House Association, 164 West Jackson Boulevard, Chicago, Illinois; Federal Deposit Insurance Corporation, Washington, D.C.; The Board of Governors of the Federal Reserve System, Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. Harris Trust and Savings Bank is authorized to exercise corporate trust powers. 2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee, describe each such affiliation. The Obligor is not an affiliate of the Trustee. 3. thru 15. NO RESPONSE NECESSARY 16. LIST OF EXHIBITS. 1. A copy of the articles of association of the Trustee is now in effect which includes the authority of the trustee to commence business and to exercise corporate trust powers. A copy of the Certificate of Merger dated April 1, 1972 between Harris Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which constitutes the articles of association of the Trustee as now in effect and includes the authority of the Trustee to commence business and to exercise corporate trust powers was filed in connection with the Registration Statement of Louisville Gas and Electric Company, File No. 2-44295, and is incorporated herein by reference. 2. A copy of the existing by-laws of the Trustee. A copy of the existing by-laws of the Trustee was filed in connection with the Registration Statement of Commercial Federal Corporation, File No. 333-20711, and is incorporated herein by reference. 3. The consents of the Trustee required by Section 321(b) of the Act. (included as Exhibit A on page 2 of this statement) 4. A copy of the latest report of condition of the Trustee published pursuant to law or the requirements of its supervising or examining authority. (included as Exhibit B on page 3 of this statement) 1 3 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the laws of the State of Illinois, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 6th day of May, 1998. HARRIS TRUST AND SAVINGS BANK By: /s/ C. Potter ----------------------------- C. Potter Assistant Vice President EXHIBIT A The consents of the trustee required by Section 321(b) of the Act. Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that reports of examinations of said trustee by Federal and State authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor. HARRIS TRUST AND SAVINGS BANK By: /s/ C. Potter ----------------------------- C. Potter Assistant Vice President 2 4 EXHIBIT B Attached is a true and correct copy of the statement of condition of Harris Trust and Savings Bank as of December 31, 1997, as published in accordance with a call made by the State Banking Authority and by the Federal Reserve Bank of the Seventh Reserve District. [LOGO OMITTED] HARRIS BANK Harris Trust and Savings Bank 111 West Monroe Street Chicago, Illinois 60603 of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of business on December 31, 1997, a state banking institution organized and operating under the banking laws of this State and a member of the Federal Reserve System. Published in accordance with a call made by the Commissioner of Banks and Trust Companies of the State of Illinois and by the Federal Reserve Bank of this District. Bank's Transit Number 71000288
THOUSANDS ASSETS OF DOLLARS Cash and balances due from depository institutions: Non-interest bearing balances and currency and coin ................................. $ 1,252,381 Interest bearing balances ......................... $ 598,062 Securities: ................................................ a. Held-to-maturity securities $ 0 b. Available-for-sale securities $ 3,879,399 Federal funds sold and securities purchased under agreements to resell $ 71,725 Loans and lease financing receivables: Loans and leases, net of unearned income .......... $ 8,813,821 LESS: Allowance for loan and lease losses ........ $ 99,678 ----------------- Loans and leases, net of unearned income, allowance, and reserve (item 4.a minus 4.b)...... $ 8,714,143 Assets held in trading accounts ............................ $ 136,538 Premises and fixed assets (including capitalized leases) ........................... $ 221,312 Other real estate owned .................................... $ 642 Investments in unconsolidated subsidiaries and associated companies ..................................... $ 103 Customer's liability to this bank on acceptances outstanding ............................... $ 46,480 Intangible assets .......................................... $ 279,897 Other assets ............................................... $ 653,101 ---------------- TOTAL ASSETS $15,853,783 =================
3 5
LIABILITIES Deposits: In domestic offices ..................................... $8,926,635 Non-interest bearing .............................. $3,692,891 Interest bearing .................................. $5,233,744 In foreign offices, Edge and Agreement subsidiaries, and IBF's $1,763,669 Non-interest bearing .............................. $ 22,211 Interest bearing .................................. $1,741,458 Federal funds purchased and securities sold under agreements to repurchase in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's: Federal funds purchased & securities sold under agreements to repurchase ................................. $2,693,600 Trading Liabilities 82,861 Other borrowed money: ...................................... a. With remaining maturity of one year or less $ 601,799 b. With remaining maturity of more than one year $ 0 Bank's liability on acceptances executed and outstanding $ 46,480 Subordinated notes and debentures .......................... $ 325,000 Other liabilities .......................................... $ 134,309 ---------------- TOTAL LIABILITIES $14,574,353 ================ EQUITY CAPITAL Common stock ............................................... $ 100,000 Surplus .................................................... $ 601,026 a. Undivided profits and capital reserves ................. $ 573,416 b. Net unrealized holding gains (losses) on available-for-sale securities .......................... $ 4,988 ---------------- TOTAL EQUITY CAPITAL $ 1,279,430 ================ Total liabilities, limited-life preferred stock, and equity capital ....................................... $15,853,783 ================
I, Pamela Piarowski, Vice President of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief. PAMELA PIAROWSKI 1/30/98 We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and, to the best of our knowledge and belief, has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and the Commissioner of Banks and Trust Companies of the State of Illinois and is true and correct. EDWARD W. LYMAN, ALAN G. McNALLY, RICHARD E. TERRY Directors. 4 EX-25.5 16 T-1 RE: SECURITIES ISSUED BY CAPITAL TRUST II 1 Exhibit 25.5 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM T-1 Statement of Eligibility Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) ______ HARRIS TRUST AND SAVINGS BANK (Name of Trustee) Illinois 36-1194448 (State of Incorporation) (I.R.S. Employer Identification No.) 111 West Monroe Street, Chicago, Illinois 60603 (Address of principal executive offices) Carolyn C. Potter, Harris Trust and Savings Bank, 311 West Monroe Street, Chicago, Illinois, 60606 312-461-2531 phone 312-461-3525 facsimile (Name, address and telephone number for agent for service) FW PREFERRED CAPITAL TRUST II FOSTER WHEELER CORPORATION (Name of obligor) (Name of guarantor) Delaware New York (State of Incorporation) (State of Incorporation) - 13-1855904 (I.R.S. Employer Identification (I.R.S. Employer Identification No.) No.) c/o Foster Wheeler Corporation Perryville Corporate Park Perryville Corporate Park Clinton, New Jersey 08809 Clinton, New Jersey 08809 (Address of principal executive (Address of principal executive offices) offices) Guarantee (Title of indenture securities) 2 1. GENERAL INFORMATION. Furnish the following information as to the Trustee: (a) Name and address of each examining or supervising authority to which it is subject. Commissioner of Banks and Trust Companies, State of Illinois, Springfield, Illinois; Chicago Clearing House Association, 164 West Jackson Boulevard, Chicago, Illinois; Federal Deposit Insurance Corporation, Washington, D.C.; The Board of Governors of the Federal Reserve System, Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. Harris Trust and Savings Bank is authorized to exercise corporate trust powers. 2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee, describe each such affiliation. The Obligor is not an affiliate of the Trustee. 3. thru 15. NO RESPONSE NECESSARY 16. LIST OF EXHIBITS. 1. A copy of the articles of association of the Trustee is now in effect which includes the authority of the trustee to commence business and to exercise corporate trust powers. A copy of the Certificate of Merger dated April 1, 1972 between Harris Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which constitutes the articles of association of the Trustee as now in effect and includes the authority of the Trustee to commence business and to exercise corporate trust powers was filed in connection with the Registration Statement of Louisville Gas and Electric Company, File No. 2-44295, and is incorporated herein by reference. 2. A copy of the existing by-laws of the Trustee. A copy of the existing by-laws of the Trustee was filed in connection with the Registration Statement of Commercial Federal Corporation, File No. 333-20711, and is incorporated herein by reference. 3. The consents of the Trustee required by Section 321(b) of the Act. (included as Exhibit A on page 2 of this statement) 4. A copy of the latest report of condition of the Trustee published pursuant to law or the requirements of its supervising or examining authority. (included as Exhibit B on page 3 of this statement) 1 3 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the laws of the State of Illinois, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 6th day of May, 1998. HARRIS TRUST AND SAVINGS BANK By: /s/ C. Potter ----------------------------- C. Potter Assistant Vice President EXHIBIT A The consents of the trustee required by Section 321(b) of the Act. Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that reports of examinations of said trustee by Federal and State authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor. HARRIS TRUST AND SAVINGS BANK By: /s/ C. Potter ----------------------------- C. Potter Assistant Vice President 2 4 EXHIBIT B Attached is a true and correct copy of the statement of condition of Harris Trust and Savings Bank as of December 31, 1997, as published in accordance with a call made by the State Banking Authority and by the Federal Reserve Bank of the Seventh Reserve District. [LOGO OMITTED] HARRIS BANK Harris Trust and Savings Bank 111 West Monroe Street Chicago, Illinois 60603 of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of business on December 31, 1997, a state banking institution organized and operating under the banking laws of this State and a member of the Federal Reserve System. Published in accordance with a call made by the Commissioner of Banks and Trust Companies of the State of Illinois and by the Federal Reserve Bank of this District. Bank's Transit Number 71000288
THOUSANDS ASSETS OF DOLLARS Cash and balances due from depository institutions: Non-interest bearing balances and currency and coin ................................. $ 1,252,381 Interest bearing balances ......................... $ 598,062 Securities: ................................................ a. Held-to-maturity securities $ 0 b. Available-for-sale securities $ 3,879,399 Federal funds sold and securities purchased under agreements to resell $ 71,725 Loans and lease financing receivables: Loans and leases, net of unearned income .......... $ 8,813,821 LESS: Allowance for loan and lease losses ........ $ 99,678 ----------------- Loans and leases, net of unearned income, allowance, and reserve (item 4.a minus 4.b)...... $ 8,714,143 Assets held in trading accounts ............................ $ 136,538 Premises and fixed assets (including capitalized leases) ........................... $ 221,312 Other real estate owned .................................... $ 642 Investments in unconsolidated subsidiaries and associated companies ..................................... $ 103 Customer's liability to this bank on acceptances outstanding ............................... $ 46,480 Intangible assets .......................................... $ 279,897 Other assets ............................................... $ 653,101 ---------------- TOTAL ASSETS $15,853,783 ================
3 5 LIABILITIES
Deposits: In domestic offices ..................................... $8,926,635 Non-interest bearing .............................. $3,692,891 Interest bearing .................................. $5,233,744 In foreign offices, Edge and Agreement subsidiaries, and IBF's $1,763,669 Non-interest bearing .............................. $ 22,211 Interest bearing .................................. $1,741,458 Federal funds purchased and securities sold under agreements to repurchase in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's: Federal funds purchased & securities sold under agreements to repurchase ................................. $2,693,600 Trading Liabilities 82,861 Other borrowed money: ...................................... a. With remaining maturity of one year or less $ 601,799 b. With remaining maturity of more than one year $ 0 Bank's liability on acceptances executed and outstanding $ 46,480 Subordinated notes and debentures .......................... $ 325,000 Other liabilities .......................................... $ 134,309 ---------------- TOTAL LIABILITIES $14,574,353 ================ EQUITY CAPITAL Common stock ............................................... $ 100,000 Surplus .................................................... $ 601,026 a. Undivided profits and capital reserves ................. $ 573,416 b. Net unrealized holding gains (losses) on available-for-sale securities .......................... $ 4,988 ---------------- TOTAL EQUITY CAPITAL $ 1,279,430 ================ Total liabilities, limited-life preferred stock, and equity capital ....................................... $15,853,783 ================
I, Pamela Piarowski, Vice President of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief. PAMELA PIAROWSKI 1/30/98 We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and, to the best of our knowledge and belief, has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and the Commissioner of Banks and Trust Companies of the State of Illinois and is true and correct. EDWARD W. LYMAN, ALAN G. McNALLY, RICHARD E. TERRY Directors. 4 -----END PRIVACY-ENHANCED MESSAGE-----