Purchase Agreement - Samsonite Corp., Artemis America Partnership and Apollo Investment Fund LP
PURCHASE AGREEMENT
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THIS PURCHASE AGREEMENT, dated as of June 13, 1996, by and between, on
the one hand, SAMSONITE CORPORATION ("Purchaser"), a Delaware corporation having
an address at 11200 East 45th Avenue, Denver, Colorado 80239, and, on the other
hand, ARTEMIS AMERICA PARTNERSHIP and APOLLO INVESTMENT FUND, L.P. (together,
"Apollo," and together with Purchaser, the "Parties"), having an address at 1301
Avenue of the Americas, New York, New York 10019.
RECITALS
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WHEREAS, pursuant to an Indenture dated as of July 1, 1987 (the
"Indenture"), E-II Holdings Inc. ("E-II"), the predecessor in interest to
Purchaser, issued 12.85% Senior Subordinated Notes due 1997, in the original
principal amount of $750,000,000 (the "Old Notes").
WHEREAS, on September 1, 1990, E-II defaulted on a semi-annual payment
of interest due under the Indenture, and thereafter E-II failed to make any
other payments of interest under the Indenture or to cure such defaults.
WHEREAS, the Indenture provided for the payment of interest on overdue
installments of interest, to the extent permitted by law.
WHEREAS, on July 15, 1992 (the "Consent Date"), E-II consented to the
commencement of a bankruptcy case under chapter 11 of title 11 of the United
States Code (the "Bankruptcy Code).
WHEREAS, E-II proposed its Second Amended Plan of Reorganization,
dated February 17, 1993 (the "Plan"), which provided that, inter alia, on or
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after the Effective Date of the Plan (as defined therein), each holder of Old
Notes (except for E-II and its affiliates) would receive, on account of the
principal, interest and interest on overdue interest due and owing on such Old
Notes as of the Consent Date, certain distributions of cash and new securities
issued by reorganized E-II.
WHEREAS, immediately prior to the hearing scheduled to consider
confirmation of the Plan, certain subordinated creditors of E-II objected to the
Plan to the extent it called for a distribution to be made to holders of Senior
Notes on account of compound interest.
WHEREAS, Harris Trust and Savings Bank, the indenture trustee under
the Indenture (the "Indenture Trustee"), opposed this objection to the Plan.
WHEREAS, by order of the Bankruptcy Court for the Southern District of
New York, dated May 25, 1993, the Plan, as
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modified, was confirmed without resolving the dispute over compound interest,
resolution of which dispute was reserved for a later day.
WHEREAS, on June 8, 1993 (the "Effective Date"), the Plan was
consummated and distributions commenced to holders of the Old Notes.
WHEREAS, as of the Effective Date of the Plan, $526,998,000.00 in
principal amount of Old Notes were held by parties other than E-II and its
affiliates, with Apollo (or its predecessors) holding Old Notes with a principal
face amount of $128,600,000.00.
WHEREAS, except for the right, if any, to receive compound interest,
Apollo has received the full amount of distributions it is entitled to receive
on account of its Old Notes.
WHEREAS, Purchaser, as the successor in interest to E-II, is
responsible for payment of the compound interest due and owing to the holders of
Old Notes as of the Consent Date, in the event it is determined by final order
that the holders of Old Notes are entitled to receive such interest.
WHEREAS, as of the date hereof, the Bankruptcy Court has not issued a
ruling on the compound interest dispute.
WHEREAS, Purchaser proposes to purchase, and Apollo proposes to sell,
any and all rights, claims and interests, if any, Apollo may have to receive
compound interest on account of its holdings of Old Notes, upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as
follows:
1. COMPOUND INTEREST
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"Compound Interest" shall mean: any and all interest on overdue and
unpaid interest on the Old Notes, determined as of the Consent Date and pursuant
to the Indenture, that would be payable to holders of Old Notes as of the
Effective Date (except for E-II and its affiliates), in the event it is
determined by final order that the holders of Old Notes are entitled to receive
such compound interest. For the purposes of this Purchase Agreement, Compound
Interest shall be deemed to be $16,400,000.00.
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2. PURCHASE AND SALE
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Apollo agrees to sell and convey to Purchaser and Purchaser agrees to
purchase from Apollo, for the Purchase Price (as defined below) and upon the
terms and conditions herein set forth, the following: (i) all remaining rights,
claims and interests, if any, Apollo may have on account of or arising from its
Old Notes held as of the Effective Date, which Old Notes were tendered to the
Indenture Trustee in return for distributions under the Plan, including any
right to the Compound Interest; and (ii) any distributions made or payable to
Apollo on account of such rights, claims or interests, including any
distributions under the Plan on account of its Old Notes (collectively, the
"Property").
3. CONSTRUCTIVE TRUST
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Apollo agrees that, in the event Apollo receives Property, value or
other consideration, in any form, on or after the date hereof, on account of or
arising from Apollo's rights, claims or interests in the Old Notes, such
Property, value or other consideration shall be segregated and deemed to be held
in constructive trust for the benefit of Purchaser, and Apollo shall notify
Purchaser by facsimile transmission and overnight mail immediately after receipt
of such Property of the amount and nature of the Property received, and as soon
as practicable, transfer such Property, value or other consideration to
Purchaser.
4. COOPERATION
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Apollo agrees to use its reasonable best efforts, and to otherwise
provide Purchaser with reasonable cooperation and assistance, to ensure that
Purchaser receives the benefits of this Purchase Agreement, including any
reasonable assistance required of Apollo to permit Purchaser at Purchaser's
expense to re-register Apollo's Old Notes into the name of Purchaser on the
securities register maintained by the Indenture Trustee.
5. PURCHASE PRICE
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(a) The Purchase Price for the sale of Apollo's Property shall be
calculated as the dollar amount equal to: (i) five percent (5%) multiplied by
(ii) the proportion of (x) the principal face amount of Old Notes held by the
Apollo as of the Effective Date to (y) the aggregate principal face amount of
all Old Notes outstanding as of the Effective Date (excluding Old Notes held by
E-II or its affiliates), multiplied by (iii) the Compound Interest.
(b) Apollo. The Purchase Price payable to Apollo hereunder is
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$200,099.43.
(c) The Purchase Price shall be paid no later than ten
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(10) business days following the date on which this Purchase Agreement is last
executed below.
6. SUCCESSORS AND ASSIGNS
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This Purchase Agreement shall be binding upon and shall inure to the
benefit of all successors, assigns, and heirs of the Parties, including without
limitation any chapter 7, chapter 11 or equivalent trustee in bankruptcy.
7. AUTHORITY
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Each Party hereby represents and warrants that he or it enters into
this Purchase Agreement voluntarily and without coercion or duress, that he or
it has been fully advised and represented by counsel in connection with this
matter, and that he or it has the power and authority to enter into this
Purchase Agreement and has not heretofore assigned or transferred or purported
to assign or transfer, in whole or in part, to any other person, corporation or
any other entity, in any manner, including but not limited to assignment or
transfer by subrogation or by operation of law, the Property sold herein.
8. GOVERNING LAW
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This Purchase Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to its conflict
of law principles and rules.
9. COUNTERPARTS
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This Purchase Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together shall
constitute a single agreement.
IN WITNESS WHEREOF, the Parties have caused this Purchase Agreement to
be duly executed.
SAMSONITE CORPORATION
By: /s/ Thomas R. Sandler
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Thomas R. Sandler
Chief Financial Officer and
Treasurer
11200 East 45th Avenue
Denver, Colorado 80239
(313) 373-6100
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APOLLO INVESTMENT FUND, L.P.
By:APOLLO ADVISORS, L.P.
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its General Partner
By:APOLLO CAPITAL MANAGEMENT, INC.
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its General Partner
By: /s/ Robert H. Falk
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Robert H. Falk
Vice President
1301 Avenue of the Americas
New York, New York 10019
(212) 261-4000
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LION ADVISORS, L.P., as as attorney-in-
fact and representative for ARTEMIS
AMERICA PARTNERSHIP (successor to
Artemis Finance SNC)
By:LION CAPITAL MANAGEMENT, INC.
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its General Partner
By: /s/ Robert H. Falk
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Robert H. Falk
Vice President
1301 Avenue of the Americas
New York, New York 10019
(212) 261-4000
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