<PAGE> 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
------------------------
<TABLE>
<S> <C>
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)
</TABLE>
------------------------
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.
<PAGE> 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.
<PAGE> 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
<PAGE> 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
<PAGE> 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:
<TABLE>
<CAPTION>
FISCAL
QUARTER
ENDED
- --------- FISCAL YEAR
MARCH 27, --------------------------------
1998 1997 1996 1995 1994 1993
- --------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
2.11 0.73 2.64 2.13 3.38 3.26
</TABLE>
3
<PAGE> 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
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<PAGE> 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
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<PAGE> 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.
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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,
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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.
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"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
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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
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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
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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
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(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.
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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
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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)
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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.
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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.
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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
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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.
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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
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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.
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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
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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
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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
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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.
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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
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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
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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
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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.
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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.
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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
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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
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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
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<PAGE> 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.
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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.
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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.
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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:
<TABLE>
<S> <C>
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............................................. $ *
=======
</TABLE>
- ---------------
* 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
<PAGE> 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:
<TABLE>
<S> <C>
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
</TABLE>
II-2
<PAGE> 41
<TABLE>
<S> <C>
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)
</TABLE>
- ---------------
* 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
<PAGE> 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
<PAGE> 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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/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
</TABLE>
II-5
<PAGE> 44
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Director June 23, 1998
- ---------------------------------------------
John E. Stuart
*By: /s/ RICHARD J. SWIFT
---------------------------------------
Richard J. Swift
</TABLE>
II-6
<PAGE> 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
<PAGE> 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
<PAGE> 47
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
- ------- ------- ------------
<S> <C> <C>
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
</TABLE>
II-9
<PAGE> 48
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
- ------- ------- ------------
<S> <C> <C>
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)
</TABLE>
- ---------------
* To be filed by amendment or on Form 8-K.
II-10
<PAGE> 1
EXHIBIT 4.2
================================================================================
FOSTER WHEELER CORPORATION
------------------------------
------------------------------
JUNIOR SUBORDINATED INDENTURE
Dated as of ___ __, 1998
------------------------------
HARRIS TRUST AND SAVINGS BANK
as Trustee
------------------------------
================================================================================
<PAGE> 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.
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
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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
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<PAGE> 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.
<PAGE> 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.
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"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.
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<PAGE> 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.
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<PAGE> 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
<PAGE> 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
<PAGE> 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.
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<PAGE> 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
<PAGE> 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
<PAGE> 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.
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<PAGE> 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
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<PAGE> 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.
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<PAGE> 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
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<PAGE> 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
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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.
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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.
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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,
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(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
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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)
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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
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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
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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
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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
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(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
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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,
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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-
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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
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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;
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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
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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-
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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-
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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
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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.
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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
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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
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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;
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(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
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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.
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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
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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.
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(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-
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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.
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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
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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.
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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
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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
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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;
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(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.
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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-
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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
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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
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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
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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.
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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.
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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
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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
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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;
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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.
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<PAGE> 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
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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.
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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.
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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
<PAGE> 1
EXHIBIT 4.3
FIRST SUPPLEMENTAL INDENTURE
between
FOSTER WHEELER CORPORATION
and
HARRIS TRUST AND SAVINGS BANK
Dated as of _________, _________
<PAGE> 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
<PAGE> 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
<PAGE> 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:
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
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<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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]
<PAGE> 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
<PAGE> 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]
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 1
EXHIBIT 4.8
- --------------------------------------------------------------------------------
AMENDED AND RESTATED DECLARATION OF TRUST
FW Preferred Capital Trust I
Dated as of _____ __, 1998
- --------------------------------------------------------------------------------
<PAGE> 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.
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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;
<PAGE> 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
<PAGE> 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
<PAGE> 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.
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"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
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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.
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"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).
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"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
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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.
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(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
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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
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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
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(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.
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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:
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(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;
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(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;
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(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:
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(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
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(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
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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.
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(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
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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
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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
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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
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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.
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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:
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(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
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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:
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(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
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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
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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
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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.
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(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
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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
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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
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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.
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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
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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.
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(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.
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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
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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
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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;
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(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
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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.
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(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
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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
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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)
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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
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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.
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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;
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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;
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(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
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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
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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.
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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
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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.
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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.
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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
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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
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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
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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.
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(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.
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(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
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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
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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
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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.
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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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 82
The Preferred Securities shall be redeemable as provided in the
Declaration of Trust.
A-5
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 1
EXHIBIT 4.11
- --------------------------------------------------------------------------------
GUARANTEE AGREEMENT
FW Preferred Capital Trust __
Dated as of _____ ___, 1998
- --------------------------------------------------------------------------------
<PAGE> 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.
<PAGE> 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-
<PAGE> 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-
<PAGE> 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;
<PAGE> 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
<PAGE> 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,
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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.
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"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
<PAGE> 10
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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.
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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
<PAGE> 12
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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
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(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;
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(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
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(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).
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(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.
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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;
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(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
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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.
<PAGE> 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.
<PAGE> 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
<PAGE> 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
<PAGE> 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.
<PAGE> 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:
<PAGE> 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
<PAGE> 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.
<PAGE> 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
<PAGE> 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
<PAGE> 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)
<PAGE> 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
<PAGE> 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
<PAGE> 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
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C> <C>
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
================
</TABLE>
3
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
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
================
</TABLE>
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
<PAGE> 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)
<PAGE> 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
<PAGE> 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
<PAGE> 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
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C> <C>
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
================
</TABLE>
3
<PAGE> 5
LIABILITIES
<TABLE>
<CAPTION>
<S> <C> <C>
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
================
</TABLE>
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
<PAGE> 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)
<PAGE> 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
<PAGE> 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
<PAGE> 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
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C> <C>
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
================
</TABLE>
3
<PAGE> 5
LIABILITIES
<TABLE>
<CAPTION>
<S> <C> <C>
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
================
</TABLE>
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
<PAGE> 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)
<PAGE> 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
<PAGE> 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
<PAGE> 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
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C> <C>
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
=================
</TABLE>
3
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
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
================
</TABLE>
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
<PAGE> 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)
<PAGE> 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
<PAGE> 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
<PAGE> 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
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C> <C>
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
================
</TABLE>
3
<PAGE> 5
LIABILITIES
<TABLE>
<CAPTION>
<S> <C> <C>
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
================
</TABLE>
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
