UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Sections 13 and 15(d) of
the Securities Exchange Act of 1934
October 21, 1999
Date of Report (Date of earliest event reported)
FOSTER WHEELER CORPORATION
(Exact Name of Registrant as Specified in its Charter)
New York 1-286-2 13-1855904
(State Of (Commission (IRS Employer
Incorporation) File Number) Identification No.)
Perryville Corporate Park
Service Road East 173
Clinton, N.J. 08809-4000
(Address of Principal Executive Office)
(908) 730-4000
(Registrant's Telephone Number, Including Area Code)
(Not Applicable)
(Former Name or Former Address,
if Changed Since Last Report)
<PAGE>
Item 5. Other Events
On October 21, 1999, the Foster Wheeler Corporation (the "Corporation")
announced that it had reached an agreement with the holders of approximately 80%
in aggregate principal amount of the bonds issued in connection with the
financing of a waste-to-energy plant located in the Village of Robbins, Illinois
(the "Robbins Facility"). Under the agreement, a copy of which is annexed hereto
as Exhibit 99.1, the $320,000,000 aggregate principal amount of existing bonds
will be exchanged for $273,000,000 aggregate principal amount of new bonds,
$113,000,000 of which will be funded by payments from the Corporation, and the
Corporation will exit from its operating role.
Specific elements of the agreement are as follows:
- - The new Corporation-supported bonds will consist of (a) $95,000,000
aggregate principal amount of 7.25% amortizing term bonds, $17,845,000 of
which mature on October 15, 2009 and $77,155,000 of which mature on October
15, 2024 and (b) $18,000,000 aggregate principal amount of 7% accretion
bonds maturing on October 15, 2009 with all interest to be paid at
maturity;
- - The Corporation will continue to operate the Robbins Facility until the
earlier of the sale of the Robbins Facility or October 15, 2001, on a
full-cost reimbursable basis with no operational or performance guarantees;
- - Any remaining obligations of the Corporation under the $55,000,000
additional credit support facility in respect of the existing bonds will be
terminated;
- - The Corporation will continue to prosecute certain pending litigation (the
"Retail Rate Litigation") against various officials of the State of
Illinois; and
- - The Corporation will cooperate with the bondholders in seeking a new
owner/operator for the Robbins Facility.
The Corporation does not expect to incur any further operating losses from the
Robbins Facility since it will be operating the Robbins Facility for the limited
term described above only as custodian for the bondholders and will be fully
reimbursed for all of its costs.
In the fourth quarter of 1999, the Corporation will take a pre-tax charge of
approximately $214,000,000. This charge will fully write off all existing
obligations of the Corporation relating to the Robbins Facility, including the
(a) prepaid lease expense, (b) $20,350,000 of outstanding bonds issued in
conjunction with the equity financing of the Robbins Facility and (c)
transaction expenses. The liability for all of the Corporation-supported bonds
will be recorded at the net present value of $133,350,000. The Corporation is
considered to be the primary obligor on these bonds. The ongoing legal expenses
relating to the Retail Rate Litigation will be expensed as incurred.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(a) Financial Statements:
None.
(b) Pro Forma Financial Information:
None.
(c) Exhibits:
99.1 Restructuring Agreement, dated as of October 15, 1999, among Foster
Wheeler Corporation, RRRP Robbins, Inc., RRRP Illinois, Inc., RRRP
Midwest, Inc., Foster Wheeler Power Systems, Inc., Robbins Resource
Recovery Partners, L.P. and the Bondholders party thereto.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
FOSTER WHEELER CORPORATION
DATE: November 3, 1999 By:/s/ Thomas R. O'Brien
-----------------------------------------
Thomas R. O'Brien
General Counsel and Senior Vice President
Corporate Affairs
[Final Draft: (New York) October 22, 1999]
Robbins Resource Recovery Partners L.P.
c/o Foster Wheeler Robbins, Inc.,
its General Partner
Perryville Corporate Park
Clinton, New Jersey 08809-4000
As of October 15, 1999
Holders of 1994 Bonds (as defined
below), all as listed on
Schedule I attached to this
letter agreement
c/o CIBC World Markets Corp.
425 Lexington Avenue
34th Floor
New York, New York 10017
Re: Robbins Resource Recovery Partners, L.P. ("RRRP") Restructuring Agreement
Dear Sirs:
This restructuring agreement (the "Restructuring Agreement") sets forth the
agreement among Foster Wheeler Corporation ("FWC"), RRRP, RRRP Robbins, Inc.
f/k/a Foster Wheeler Robbins, Inc. ( "FWR"), RRRP Illinois, Inc. f/k/a Foster
Wheeler Illinois, Inc. ("FWI"), Foster Wheeler Power Systems, Inc. ("FWPS") and
RRRP Midwest, Inc. f/k/a Foster Wheeler Midwest, Inc. ("FWM" and, collectively
with FWC, RRRP, FWR, FWI and FWPS, and each of their respective successors in
interest, the "FW Parties"), and each of the entities listed on Schedule I
hereto (each, a "Bondholder" and, collectively, the "Bondholders") in its
capacity as the beneficial owner of certain of the currently outstanding (i)
$16,000,000 Village of Robbins, Cook County, Illinois Resource Recovery Revenue
Bonds (Robbins Resource Recovery Partners, L.P. Project) 8.375% Series 1994A
Consenting Term Bonds due October 15, 2010, (ii) $218,550,000 Village of
Robbins, Cook County, Illinois Resource Recovery Revenue Bonds (Robbins Resource
Recovery Partners, L.P. Project) 8.375% Series 1994A Consenting Term Bonds due
October 15, 2016, (iii) $85,200,000 Village of Robbins, Cook County, Illinois
Resource Recovery Revenue Bonds (Robbins Resource Recovery Partners, L.P.
Project) 8.375% Series 1994B Consenting Term Bonds due October 15, 2016, and
(iv) $250,000 Village of Robbins, Cook County, Illinois Resource Recovery
Revenue Bonds (Robbins Resource Recovery Partners, L.P. Project) Series 1994A
(collectively, the "1994 Bonds") issued by the Village of Robbins, Cook County,
Illinois (the "Issuer"), regarding the principal terms and conditions of a
restructuring of the 1994 Bonds and the obligations of the FW Parties in respect
thereof (the "Restructuring") to be effected through a joint prepackaged plan of
reorganization (the "Plan") under Chapter 11 of title 11 of the United States
Code (the "Bankruptcy Code").
Capitalized terms used herein and not otherwise defined shall have the
meaning ascribed to them in the Prepetition Solicitation Memorandum and
Disclosure Statement, dated October 25, 1999, relating to a Joint Prepackaged
Plan of Reorganization Under Chapter 11 of the Bankruptcy Code Proposed by FWR,
RRRP and FWI, a copy of which is annexed hereto (the "Memorandum"). The FW
Parties, together with the Bondholders, are collectively referred to as the
"Parties".
1. Restructuring and Solicitation
(a) The terms and conditions of the Restructuring as agreed among the
Parties are set forth in the Memorandum, the Plan and the Plan
Documents (as defined in the Plan) (collectively, the "Restructuring
Documents"), copies of which are attached hereto and incorporated
herein and made a part of this Restructuring Agreement. References in
this Restructuring Agreement to the term "Restructuring Documents"
include revisions thereto approved by the Consenting Bondholders (as
defined below) in accordance with the terms of Section 4(a) hereof.
(b) Upon the execution of this Restructuring Agreement by each of the FW
Parties and the Bondholders, (i) FWR, FWI and RRRP shall solicit
acceptances of the Restructuring Documents (the "Acceptances") from
the beneficial holders of the 1994 Bonds pursuant to the Memorandum
and (ii) each Bondholder which executes this Restructuring Agreement
shall be obligated hereby to accept the Restructuring Documents, which
Acceptances shall constitute votes to (x) accept the Plan, and (y)
grant the Approvals (as defined in the Memorandum).
(c) If Acceptances are received from the beneficial owners of 1994 Bonds
in number and holding an aggregate amount of claims outstanding in
respect of the 1994 Bonds sufficient to satisfy the requirements of
Section 1126(c) of the Bankruptcy Code (the "Required Holders"), then
FWR, FWI and RRRP shall commence Chapter 11 cases to effectuate the
Restructuring (the "Chapter 11 Cases") and such Acceptances shall be
binding in connection with the Chapter 11 Cases (such Acceptances by
the Required Holders and the approval of the Bankruptcy Court are
collectively referred to as the "Authorizations").
2. Representations of Each Party
Each of the FW Parties hereby represents and warrants severally and not
jointly to each Bondholder and each Bondholder hereby represents and warrants
severally and not jointly to each of the FW Parties that: (i) it is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with all requisite power and authority to carry
on the business in which it is engaged, to own its property, to execute this
Restructuring Agreement and, subject to receipt of the Authorizations, to
consummate the transactions contemplated by this Restructuring Agreement and the
Restructuring Documents; (ii) the execution, delivery and performance of this
Restructuring Agreement and the Restructuring Documents have been duly
authorized by all necessary corporate or other actions; and (iii) no proceeding,
litigation or adversary proceeding before any court, arbitrator or
administrative or governmental body is pending against it which would materially
adversely affect its ability to enter into this Restructuring Agreement or to
perform its obligations under this Restructuring Agreement or the Restructuring
Documents.
3. Bondholder Representations
Each Bondholder represents severally and not jointly to each of the FW
Parties that, as of the date of this Restructuring Agreement:
(a) it has the sole ability to vote or cause to be voted no less than the
principal amount of the 1994 Bonds set forth next to such Bondholder's
name on Schedule I attached hereto (with regard to the respective
Bondholders, the "Relevant 1994 Bonds");
(b) it has valid title to the Relevant 1994 Bonds, free and clear of all
liens, security interests and other encumbrances of any kind, other
than liens, security interests and encumbrances which would not
prevent it from performing under this Restructuring Agreement or the
Restructuring Documents; and
(c) it is a sophisticated investor with sufficient knowledge and
experience to evaluate properly the terms and conditions of this
Restructuring Agreement and the Restructuring Documents; it has made
its own analysis and decision to enter into this Restructuring
Agreement and has obtained such independent advice in this regard as
it deemed appropriate; it is an "accredited investor" as such term is
defined in Rule 501(a) of Regulation D under the Securities Act of
1933, as amended; and it has not relied in its analysis or decision on
any other person other than its own independent advisors.
4. Bondholder Covenants and Consents
Each Bondholder agrees, subject to Sections 6 and 7 hereof, that during the
term of this Restructuring Agreement:
(a) it (x) will vote (or cause to be voted) its claims in respect of its
Relevant 1994 Bonds to accept the Plan and the Plan Documents, give
the Approvals, and take (or cause to be taken) such other actions as
may be required by the Restructuring Documents, including, without
limitation execution of the Plan Voting Stipulation, all in accordance
with the terms and conditions set forth in the Restructuring Documents
and (y) notwithstanding any provisions of the Restructuring Documents
to the contrary, will not change or withdraw (or cause to be changed
or withdrawn) such vote(s), provided that the terms of the Plan and
the Plan Documents are substantially consistent with the terms set
forth in the Restructuring Documents, as modified by any revisions
thereto that have been agreed to by such Bondholder (each, a
"Consenting Bondholder") after the date hereof;
(b) it will not (x) support or encourage, directly or indirectly, any
financial restructuring concerning RRRP, FWR, FWI or the 1994 Bonds,
other than as set forth in the Restructuring Documents, or (y) oppose
the confirmation of the Plan or take any action inconsistent with the
Restructuring Documents, provided that the terms of the Restructuring
are substantially consistent with the terms as set forth in the
Restructuring Documents, as modified by any revisions thereto referred
to in Section 4(a);
(c) it will not sell, transfer, pledge, or assign any of the Relevant 1994
Bonds or any voting interest therein during the term of this
Restructuring Agreement, except to an assignee that agrees in writing
prior to such acquisition, pledge or assignment to be bound by all the
terms of this Restructuring Agreement, as if such assignee had
originally executed this Restructuring Agreement with respect to the
Relevant 1994 Bonds being acquired by such assignee. Any sale,
transfer or assignment of the Relevant 1994 Bonds or any voting
interest therein during the term of this Restructuring Agreement that
is not in compliance with the provisions hereof shall be void ab
initio; and
(d) it will consent to the use of Cash Collateral (as defined in 11.
U.S.C. Section 363) by FWR, RRRP and FWI on substantially the terms
and conditions set forth in the order attached hereto, unless modified
with the consents of FWR, RRRP, FWI, CIBC and FWC.
This Restructuring Agreement relates only to the rights of the Bondholders in
their capacity as the beneficial owners of the 1994 Bonds and does not affect or
limit any rights or claims any Bondholder may have in any other capacity, except
as a registered holder thereof.
5. FW Parties Covenants
Subject to the FW Parties' right to terminate the Restructuring Agreement
pursuant to Section 6 hereof and receipt by FWC of the consent of the lenders
under the Senior Credit Facilities (as hereinafter defined):
(a) each of the FW Parties agrees that during the term of this
Restructuring Agreement it will use its best efforts to effectuate the
Restructuring on the terms and conditions and pursuant to the relevant
deadlines established in this Restructuring Agreement and the
Restructuring Documents, including, but not limited to, executing any
documents or instruments necessary to effectuate the Restructuring;
provided, however, that the FW Parties shall not be required to file
the Chapter 11 Cases unless they have received Acceptances from at
least the Required Holders; and
(b) subject to the receipt by FWR, RRRP and FWI of Acceptances from the
Required Holders:
(i) if prior to the Petition Date there are insufficient funds in any
fund, account, or sub-account established under the 1994
Indenture to pay the outstanding fees and expenses of the
professionals of the Debtors, the Steering Committee, the Trustee
and the Village and to provide such professionals with reasonable
retainers for the pendency of the Chapter 11 Cases, then FWC
shall loan to the Debtors at such time up to one million dollars
to fund such deficits, which amount shall be repaid to FWC
pursuant to Section 5.04(b)(i)(C)(iii) of the Second Amended
Indenture, or, if the Second Amended Indenture does not become
effective by the time limit set forth in Section 6(a)(i)(x)
hereof, then such amounts shall be repaid pursuant to Section
5.04(b)(i)(B)(1)(iv) of the 1994 Indenture; and
(ii) if on the Effective Date there are insufficient funds in any
fund, account, subaccount established under either the 1994
Indenture or the Second Amended Indenture to pay Administrative
Claims, Priority Tax Claims and Classified Priority Claims under
the Plan, then FWC shall loan to the Debtors up to one million
dollars, less any amounts advanced pursuant to section (b)(i) of
this paragraph 5, to fund such deficits, which amount shall be
repaid to FWC pursuant to Section 5.04(b)(i)(C)(iii) of the
Second Amended Indenture.
6. Termination
(a) Each Bondholder's obligations hereunder shall terminate upon the
occurrence of any Termination Event (as defined below) set forth in
any of the subparagraphs of this Section 6(a), other than subparagraph
(v), unless the occurrence of such Termination Event is waived in
writing by such Bondholder. The FW Parties' obligations hereunder
shall terminate upon the occurrence of any Termination Event set forth
in any of the subparagraphs of this Section 6(a), other than
subparagraph (iii), unless the occurrence of such Termination Event is
waived in writing by the FW Parties.
For the purposes hereof, a "Termination Event" shall occur:
(i) at the earlier of (x) 5:00 p.m. (New York City time) on the date
that is the first anniversary of the date of this Restructuring
Agreement or (y) the Effective Date of the Plan;
(ii) if FWR, RRRP and FWI commence the Chapter 11 Cases at any time
without (x) FWR, RRRP and FWI having received Acceptances from at
least the Required Holders, (y) the Issuer (A) having passed the
1999 Exchange Bond Ordinance (as defined in the Second Amended
Indenture) and (B) having executed the Plan Voting Stipulation
and those Exhibits hereto to which it is a party, or (z) FWC
having received the consents of the lenders under the Senior
Credit Facilities necessary to effect the Restructuring.
"Senior Credit Facilities" means (a) the $270,000,000 Revolving
Credit Agreement, dated as of February 12, 1999, among FWC, the
guarantors signatory thereto (Foster Wheeler USA Corporation,
Foster Wheeler Energy International, Inc. and Foster Wheeler
Energy Corporation), the lenders signatory thereto, Bank of
America National Trust and Savings Association, as administrative
agent, First Union National Bank, as syndication agent, and ABN
AMRO Bank, N.V., as documentation agent, and ABN AMRO Bank, N.V.,
First Union Capital Markets, Greenwich NatWest Structured Finance
Inc. and TD Securities (USA) Inc., as arrangers and (b) the
$90,000,000 Short Term Revolving Credit Agreement, dated as of
February 12, 1999, among FWC, the guarantors signatory thereto
(Foster Wheeler USA Corporation, Foster Wheeler Energy
International, Inc. and Foster Wheeler Energy Corporation), the
lenders signatory thereto, Bank of America National Trust and
Savings Association, as administrative agent, First Union
National Bank, as syndication agent, and ABN AMRO Bank, N.V., as
documentation agent, arranged by NationsBank Montgomery
Securities LLC as lead arranger, and ABN AMRO Bank, N.V., First
Union Capital Markets, Greenwich NatWest Structured Finance Inc.
and TD Securities (USA) Inc., as arrangers.
(iii)if any of the FW Parties shall have disclaimed in writing its
intention to pursue the Restructuring or has otherwise materially
breached this Restructuring Agreement and shall not have cured
any such breach within 30 days of receiving written notice
thereof;
(iv) if any of FWR, FWI or RRRP is the subject of an involuntary
petition or other proceedings under any insolvency statute in any
jurisdiction (other than the Chapter 11 Cases and other than an
involuntary proceeding commenced by a holder of 1994 Bonds (a
"1994 Bondholder"), an affiliate of any 1994 Bondholder, or any
person acting at the direction of a 1994 Bondholder or an
affiliate of a 1994 Bondholder); provided, however, that the
filing of an involuntary petition under the Bankruptcy Code shall
not be deemed to be a Termination Event if the Effective Date of
the Plan occurs on or before the date set forth in Section
6(a)(i)(x) above;
(v) if any of the Bondholders shall have disclaimed in writing its
intention to pursue the Restructuring or has otherwise materially
breached this Restructuring Agreement and shall not have cured
any such breach within 30 days of receiving written notice
thereof; or
(vi) upon a Determination of Taxability (as defined in the 1994
Indenture).
(b) Upon the occurrence of a Termination Event (other than as set forth in
subparagraph (v) of Section 6(a)), each Bondholder, in its sole
discretion and without limiting its other rights, may change or
withdraw (or cause to be changed or withdrawn) any votes previously
cast by it in favor of the Plan and Plan Documents and revoke any
consents given in connection therewith. None of the FW Parties will
contest any such decision by a Bondholder to change or withdraw its
vote or to oppose approval of the Plan and Plan Documents by reason of
such Termination Event, and will consent to any motion filed by a
Bondholder (in such capacity) under Federal Rule of Bankruptcy
Procedure 3018(a).
(c) This Restructuring Agreement may be terminated by any of the FW
Parties if (i) one or more Bondholders have withdrawn or changed their
votes and consents pursuant to Section 4(a) or Section 6(b) or have
breached this Restructuring Agreement, and as a result there are no
longer Acceptances by at least the Required Holders or (ii) FWC does
not receive the consents of the lenders under the Senior Credit
Facilities necessary to effect the Restructuring.
(d) None of the Bondholders shall have any liability to any other Party
hereto or to any other person in respect of any termination of this
Restructuring Agreement in accordance with the terms hereof,
including, without limitation, Section 10 hereof, other than a
termination in accordance with subparagraph (a)(v) of this Section 6.
None of the FW Parties shall have any liability to any other Party
hereto or to any other person in respect of any termination of this
Restructuring Agreement in accordance with the terms hereof, other
than a termination in accordance with subparagraph (a)(iii) of this
Section 6 and in which case FWC shall continue to be obligated under
Section 5(ii) hereof.
7. Further Acquisition of Securities
This Restructuring Agreement shall in no way be construed to preclude any
Bondholder from acquiring additional 1994 Bonds. However, any such additional
1994 Bonds so acquired by any Bondholder shall automatically be deemed to be
Relevant 1994 Bonds of such Bondholder and to be subject to all of the terms of
this Restructuring Agreement. This Restructuring Agreement shall in no way be
construed to preclude any Bondholder from acquiring any other claims against or
securities of any of the FW Parties. However, each Bondholder severally and not
jointly agrees that it will vote or exercise (or cause to be voted or exercised)
any such claims or additional securities in favor of the Restructuring for so
long as this Restructuring Agreement remains in effect (subject to receipt of
appropriate solicitation materials). The 1994 Bonds and the 1999 Bonds will not
be traded on an established securities market, as such phrase is defined in
Section 1273 of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder, during the 60 day period ending 30 days after the issue
date of the 1999 Bonds pursuant to the bankruptcy proceeding in connection with
the issuance of the 1999 Bonds.
8. Suspension of Obligations
The Bondholders hereby agree during the pendency of this Restructuring
Agreement that, except for rights expressly provided to the Bondholders in the
Plan and the Plan Documents as attached to this Restructuring Agreement or as
amended pursuant to Section 9 hereof, they will, except with respect to interest
payable on the 1994 Bonds on October 15, 1999: (a) forbear (the "Forbearance")
from taking any action in connection with the non-payment of any and all
interest payments required to be paid on the 1994 Bonds; (b) not make, pursue,
or enforce any claims or demands, and instruct the Trustee not to make, pursue,
or enforce any claims or demands, against any FW Party on account of any claims,
damages, or advance payments thereof payable under the Existing Operating
Agreement (including, without limitation, any "Performance Damages" or "Advance
Damages" (as such terms are defined in the Existing Operating Agreement)), the
Additional Credit Support Facility Agreement between RRRP and FWC, dated as of
September 15, 1996, or any guarantees thereof (the "Standstill"); (c) instruct
the Trustee not to take any action to accelerate or otherwise pursue remedies in
connection with any actions prohibited pursuant to the Forbearance and/or the
Standstill; and (d) support any motions or pleadings which any of the FW Parties
may file with the Bankruptcy Court having jurisdiction over the Chapter 11 Cases
or with any court of competent jurisdiction seeking to obtain any order or
orders extending the Forbearance and/or the Standstill to additional holders of
the 1994 Bonds. The FW Parties hereby agree during the pendency of this
Restructuring Agreement that, except for rights expressly provided to the FW
Parties in the Plan and Plan Documents as attached to this Restructuring
Agreement or as amended pursuant to Section 9 hereof, they will not take any
actions in connection with the 1994 Bonds.
9. Amendments
Except as otherwise provided herein, this Restructuring Agreement may not
be modified, amended or supplemented except in writing signed by each of the
signing Parties or their assignees.
10. Several and Not Joint
Notwithstanding anything herein to the contrary, or in any document or
instrument executed and delivered in connection herewith, the Parties agree that
the representations, warranties, obligations, liabilities and indemnities of
each Bondholder hereunder shall be several and not joint, and no Bondholder
shall have any liability hereunder for any breach by any other Bondholder of any
obligation of such Bondholder set forth herein.
11. Publicity
The Parties agree that all public announcements of the entry into or the
terms and conditions of this Restructuring Agreement shall be mutually
acceptable to each of the FW Parties and the Bondholders; provided, however,
that nothing herein shall prevent FWC from making any public disclosure as may
be required by law or regulation.
12. No Third Party Beneficiaries; Separate Responsibilities
This Restructuring Agreement is only for the benefit of the undersigned
Parties and nothing in this Restructuring Agreement, expressed or implied, is
intended or shall be construed to confer upon any person or entity, other than
such persons or entities, any rights or remedies under or by reason of, and no
person or entity, other than such persons or entities, is entitled to rely in
any way upon, this Restructuring Agreement.
13. Governing Law; Jurisdiction
This Restructuring Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to any
conflicts of law provision which would require the application of the law of any
other jurisdiction. By its execution and delivery of this Restructuring
Agreement, each of the Parties hereby irrevocably and unconditionally agrees for
itself that, subject to the following sentence, any legal action, suit or
proceeding against it with respect to any matter under or arising out of or in
connection with this Restructuring Agreement or for the recognition or
enforcement of any judgment rendered in any such action, suit or proceeding, may
be brought in any state or federal court of competent jurisdiction in New York
County, State of New York. Nothing in this section shall limit the authority of
the Bankruptcy Court to hear any matter arising under, arising in or related to
the Chapter 11 Cases.
14. Waiver of Jury Trial
THE PARTIES HERETO WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY JURISDICTION IN
ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN THE
PARTIES UNDER THIS RESTRUCTURING AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT
OR OTHERWISE.
15. Specific Performance
It is understood and agreed by the Parties that money damages would not be
a sufficient remedy for any breach of this Restructuring Agreement by any of the
Parties and each of the non-breaching Parties shall be entitled to specific
performance and injunctive or other equitable relief as a remedy of any such
breach.
16. Survival
Notwithstanding (i) the sale of the Relevant 1994 Bonds in accordance with
Section 4(c), or (ii) the termination of each Bondholder's and each of the FW
Parties' obligations hereunder in accordance with Section 6 hereof, the
agreements and obligations of the Bondholders and the FW Parties in Sections
6(b), and 13-15 shall survive such termination and shall continue in full force
and effect for the benefit of the applicable Parties in accordance with the
terms hereof.
17. Headings
The headings of the Sections, paragraphs and subsections of this
Restructuring Agreement are inserted for convenience only and shall not affect
the interpretation hereof.
18. Successors and Assigns
This Restructuring Agreement shall bind and enure to the benefit of the
Parties and their respective successors, assigns, heirs, executors,
administrators and representatives.
19. Prior Negotiations
This Restructuring Agreement (including the Restructuring Documents)
constitutes the entire agreement between the Parties with respect to the subject
matter hereof except as otherwise expressly agreed in writing executed by or on
behalf of all of the Parties hereto, and supersedes all prior agreements,
understandings, negotiations and discussions with respect to the subject matter
hereof. There are no promises, undertakings, representations or warranties by
any of the Parties not expressly set forth or referred to herein or therein.
20. Counterparts
This Restructuring Agreement (and any modifications, amendments,
supplements or waivers in respect hereof) may be executed in one or more
counterparts by manual or facsimile signature of each undersigned Party, and all
such counterparts shall be deemed to constitute one and the same instrument.
21. Notice Provisions
All notices, requests, claims, demands and other communications hereunder
shall be in writing and shall be given (and shall be deemed to have been duly
given upon receipt) by hand delivery, by confirmed facsimile, or by registered
or certified mail (postage prepaid, return receipt requested) to the respective
Parties as follows:
<PAGE>
If to each Bondholder:
To the address set forth
for each Bondholder on
Schedule I attached hereto
with copies to:
CIBC World Markets Corp. McDermott, Will & Emery
425 Lexington Avenue, 3rd Floor 227 West Monroe Street
New York, New York 10017 Chicago, Illinois 60606-5096
Attn.: J.T. Atkins Attn.: David D. Cleary, Esq.
Facsimile: (212) 885-4916 Facsimile: (312) 984-7700
If to RRRP:
Robbins Resource Recovery Partners, L.P.
Perryville Corporate Park
Service Road East 173
Clinton, New Jersey 08809-4000
Attn.: General Counsel
Facsimile: (908) 713-2953
If to FWC:
Foster Wheeler Corporation
Perryville Corporate Park
Service Road East 173
Clinton, New Jersey 08809-4000
Attn.: General Counsel
Facsimile: (908) 713-2953
If to FWPS:
Foster Wheeler Power Systems, Inc.
Perryville Corporate Park
Service Road East 173
Clinton, New Jersey 08809-4000
Attn.: General Counsel
Facsimile: (908) 713-2953
If to FWR:
RRRP Robbins, Inc.
Perryville Corporate Park
Service Road East 173
Clinton, New Jersey 08809-4000
Attn.: General Counsel
Facsimile: (908) 713-2953
If to FWI:
RRRP Illinois, Inc.
Perryville Corporate Park
Service Road East 173
Clinton, New Jersey 08809-4000
Attn.: General Counsel
Facsimile: (908) 713-2953
If to FWM:
RRRP Midwest, Inc.
Perryville Corporate Park
Service Road East 173
Clinton, New Jersey 08809-4000
Attn.: General Counsel
Facsimile: (908) 713-2953
with respect to FWC and FWPS, in each case with copies to:
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Attn.: Andrew DeNatale, Esq.
Facsimile: (212) 354-8113
with respect to FWR, RRRP, FWI and FWM, in each case with copies to:
Greenberg Traurig
222 Delaware Avenue
15th Floor
Wilmington, Delaware 19899
Attn.: Scott D. Cousins, Esq.
Facsimile: (302) 655-4899
<PAGE>
22. Further Assurances
Subject to all legal and regulatory restrictions, from and after the date
hereof, each of the Parties covenants and agrees to execute and deliver all such
agreements, instruments and documents and to take all such further actions as
the Parties may reasonably deem necessary from time to time (at the requesting
Party's expense) to carry out the intent and purposes of this Restructuring
Agreement and to consummate the transactions contemplated hereby.
23. Consideration
It is hereby acknowledged by the Parties hereto that no monetary
consideration has been paid to the holders of the 1994 Bonds for this
Restructuring Agreement and that all consideration to be received by the holders
of the 1994 Bonds for this Restructuring Agreement is set forth in this
Restructuring Agreement and the Restructuring Documents.
24. Confirmation
Please confirm your agreement with the foregoing by signing and returning
the enclosed copy of this Restructuring Agreement to the undersigned.
Very truly yours,
ROBBINS RESOURCE RECOVERY PARTNERS, L.P.,
by RRRP Robbins, Inc.,
its general partner
By:/s/Peter D. Rose
--------------------------------------
Name: Peter D. Rose
Title: Vice President
Accepted and Agreed as
of the date first written above
FOSTER WHEELER CORPORATION RRRP ROBBINS, INC.
By:/s/Steven I. Weinstein By:/s/Peter D. Rose
------------------------------- --------------------------------------
Name: Steven I. Weinstein Name: Peter D. Rose
Title: Vice President and Title: Vice President
Deputy General Counsel
<PAGE>
RRRP ILLINOIS, INC. FOSTER WHEELER POWER SYSTEMS, INC.
By:/s/Peter D. Rose By:/s/ Peter D. Rose
------------------------------- --------------------------------------
Name: Peter D. Rose Name: Peter D. Rose
Title: Vice President Title: Vice President
RRRP MIDWEST, INC.
By:/s/Peter D. Rose
-------------------------------
Name: Peter D. Rose
Title: Vice President
<PAGE>
PRUDENTIAL MUNICIPAL BOND FUND HIGH
INCOME SERIES
By: The Prudential Investment
Corporation, as Investment Advisor
By:/s/Peter J. Allegrini
--------------------------------------
Name: Peter J. Allegrini
Its: Vice President
Principal Amount: $14,000,000
[Restructuring Agreement]
<PAGE>
FRANKLIN HIGH YIELD TAX-FREE INCOME FUND
By:/s/Thomas J. Kenny
--------------------------------------
Name: Thomas J. Kenny
Title: SVP
Principal Amount of 1994 Bonds
Beneficially Owned: $202,375,000.00
<PAGE>
VAN KAMPEN TAX FREE HIGH INCOME FUND*
By:/s/Peter W. Hegel
--------------------------------------
Name: Peter W. Hegel
Its: Vice President
Principal Amount: $11,000,000
*As provided for in Section 8.1 of the Agreement and Declaration of Trust of the
Van Kampen Tax Free Trust (the "Trust") dated as of May 10, 1995 and further
amended (under which the Trust is organized as a business trust under the laws
of the State of Delaware and the Van Kampen Tax Free High Income Fund (the
"Series") is organized as a series of the Trust), the shareholders, trustees,
officers, employees, and other agents of the Trust and the Series shall not
personally be bound by or liable for the matters set forth hereunder, nor shall
resort be had to their private property for the satisfaction of any obligation
or claim hereunder. A Certificate of Trust referring to the Agreement and
Declaration of Trust of the Trust is on file with the Secretary of State of
Delaware.
<PAGE>
VAN KAMPEN MUNICIPAL INCOME FUND*
By:/s/Peter W. Hegel
--------------------------------------
Name: Peter W. Hegel
Its: Vice President
Principal Amount: $10,500,000
*As provided for in Section 8.1 of the Agreement and Declaration of Trust of the
Van Kampen Tax Free Trust (the "Trust") dated as of May 10, 1995 and further
amended (under which the Trust is organized as a business trust under the laws
of the State of Delaware and the Van Kampen Municipal Income Fund (the "Series")
is organized as a series of the Trust), the shareholders, trustees, officers,
employees, and other agents of the Trust and the Series shall not personally be
bound by or liable for the matters set forth hereunder, nor shall resort be had
to their private property for the satisfaction of any obligation or claim
hereunder. A Certificate of Trust referring to the Agreement and Declaration of
Trust of the Trust is on file with the Secretary of State of Delaware.
<PAGE>
VAN KAMPEN HIGH YIELD MUNICIPAL FUND*
By:/s/Peter W. Hegel
--------------------------------------
Name: Peter W. Hegel
Its: Vice President
Principal Amount: $4,100,000
*As provided for in Section 8.1 of the Agreement and Declaration of Trust of the
Van Kampen Tax-Exempt Trust (the "Trust") dated as of May 10, 1995, as amended
and restated as of June 21, 1995 and subsequently amended (under which the Trust
is organized as a business trust under the laws of the State of Delaware and the
Van Kampen High Yield Municipal Fund (the "Series") is organized as a series of
the Trust), the shareholders, trustees, officers, employees, and other agents of
the Trust and the Series shall not personally be bound by or liable for the
matters set forth hereunder, nor shall resort be had to their private property
for the satisfaction of any obligation or claim hereunder. A Certificate of
Trust referring to the Agreement and Declaration of Trust of the Trust is on
file with the Secretary of State of Delaware.
<PAGE>
VAN KAMPEN INVESTMENT GRADE MUNICIPAL
TRUST*
By:/s/Peter W. Hegel
--------------------------------------
Name: Peter W. Hegel
Its: Vice President
Principal Amount: $500,000
*As provided for in Section 5.5 of the Declaration of Trust as amended of the
Van Kampen Investment Grade Municipal Trust (the "Trust") (under which the Trust
is organized as an unincorporated business trust under the laws of the
Commonwealth of Massachusetts), the shareholders, trustees, officers, employees,
and other agents of the Trust shall not personally be bound by or liable for the
matters set forth herein, nor shall resort be had to their private property for
the satisfaction of any obligation or claim hereunder.
<PAGE>
Capital Research and Management Company
on behalf of
AMERICAN HIGH INCOME MUNICIPAL BOND FUND
By:/s/Michael Downer
--------------------------------------
Name: Michael J. Downer
Its: Secretary
Principal Amount: $
<PAGE>
[EXHIBITS TO RESTRUCTURING AGREEMENT
INTENTIONALLY OMITTED]
