Document/Exhibit Description Pages Size
1: 10-Q Samsonite Corp. - Form 10-Q 27 138K
2: EX-10.1 3rd Amd. to Revolving Credit & Term Loan Agreement 25 50K
3: EX-10.4 Schenley Pension Plan 20 72K
4: EX-10.5 McCrory Pension Plan 20 72K
5: EX-10.6 Purchase Agreement 6 21K
6: EX-21 Subsidiaries of Samsonite 2 7K
7: EX-27 Financial Data Schedule 2 9K
EXHIBIT 10.4
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EXECUTION COPY
SCHENLEY PENSION PLAN
FINAL SETTLEMENT AGREEMENT
This Agreement is made as of June 20, 1996 by and among the PBGC,
McCrory, SCH, the McCrory Principal Subsidiaries, Astrum and the Astrum
Subsidiaries.
RECITALS
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1. McCrory is the contributing sponsor (within the meaning of ERISA Section
4001(a)(13)), and the plan sponsor (within the meaning of ERISA Section
3(16)(B)), of the McCrory Pension Plan.
2. Future benefit accruals were effectively terminated under the Schenley
Pension Plan for salaried employees in 1984 and for hourly employees in 1987,
and over 80% of the Schenley Pension Plan participants were receiving benefits
as of January 1, 1991.
1. SCH is the former contributing sponsor and plan sponsor of the Schenley
Pension Plan and is a member of the McCrory Controlled Group but it no longer
has any material assets or conducts any active business.
1. Since February 26, 1992, McCrory, together with twenty-seven of its
subsidiaries, has been in reorganization proceedings under Chapter 11 of the
Bankruptcy Code.
2. A confirmation hearing on the McCrory Plan of Reorganization has been
scheduled by the Bankruptcy Court for September 30, 1996.
3. On May 12, 1993, the PBGC and the Astrum Subsidiaries entered into an
Interim Extension Agreement under which, inter alia, the Astrum Subsidiaries
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agreed to be secondarily liable for certain funding obligations of the Schenley
Pension Plan and the PBGC agreed to the withdrawal of all claims in the Astrum
Chapter 11 Case. The Interim Extension Agreement has been extended periodically
since May 12, 1993 and has continued in effect through the date hereof (as so
extended,
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the "Interim Extension Agreement").
4. On May 24, 1993, the Bankruptcy Court approved a Compromise and Settlement
Agreement among Astrum, McCrory, SCH and certain other parties (the "Compromise
and Settlement Agreement"), as a result of which, inter alia, (i) McCrory agreed
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to become the contributing sponsor and the plan sponsor of the Schenley Pension
Plan not later than May 25, 1995, restrict its right to make amendments
improving plan benefits, transfer plan sponsorship of the Schenley Pension Plan
to Astrum or one of the Astrum Subsidiaries at their election, and remain
primarily liable for all obligations arising under or with respect to the
Schenley Pension Plan until the date of such transfer, (ii) the Astrum
Controlled Group agreed, during the period prior to May 25, 1995, under
stipulated conditions, to provide McCrory with funds to pay certain required
contributions and PBGC insurance premiums with respect to the Schenley Pension
Plan due prior to the May 25, 1995, and to be primarily liable for certain
contingent liabilities under ERISA Section 4062 with respect to the Schenley
Pension Plan, and (iii) Astrum and McCrory agreed to enter into a definitive
settlement agreement with the PBGC consistent with the allocation of liabilities
under the Compromise and Settlement Agreement.
5. On May 25, 1993, the Bankruptcy Court confirmed the Astrum Plan of
Reorganization. The Astrum Plan Consummation Date occurred on June 8, 1993.
Immediately after the Astrum Plan Consummation Date, Astrum and the Astrum
Subsidiaries ceased to be members of the McCrory Controlled Group.
6. A duly authorized Amendment, Assignment and Assumption Agreement providing
for the transfer of plan sponsorship of the Schenley Pension Plan was executed
as of June 30, 1993 and placed in escrow with the law firm of Rosenman & Colin
in accordance with the provisions of an Escrow Agreement dated as of June 30,
1993 (collectively, the "Escrow Agreements"). Copies of the Escrow Agreements
are annexed hereto as Exhibit 1.
7. On July 14, 1995, Samsonite Corporation merged with and into Astrum
International Corp., Astrum changed its name to Samsonite Corporation, and
McGregor Corporation continued as a wholly-owned subsidiary of Samsonite
Corporation (formerly Astrum International Corp.). On September 12, 1995,
Culligan Water Technologies, Inc., owner of 100% of the stock of Culligan
International Company, was spun off to shareholders pursuant to the terms of a
Distribution Agreement dated July 14, 1995. The Distribution Agreement contains
certain provisions allocating
--
contingent liabilities that may arise under this Agreement between the parties
to the Distribution Agreement, without affecting Culligan International
Company's obligations under the Interim Extension Agreement or this Agreement.
For convenience of reference, except as otherwise specifically provided herein,
the terms "Astrum International Corp.", "Samsonite Corporation", "McGregor
Corporation" and "Culligan International Company", when used herein or defined
herein, refer to the corporations which were so named during the period
immediately prior to July 14, 1995, and their respective successors in interest.
8. Under Title IV of ERISA, the PBGC has authority to make arrangements with
any contributing sponsors and members of their controlled groups who are or may
become liable under Title IV of ERISA for payment of their liability (including
arrangements for deferred payment of amounts of liability to the PBGC accruing
as of the termination date) on such terms and for such periods as the PBGC deems
equitable and appropriate.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is acknowledged by each party hereto, the parties hereto
agree as follows:
1. Definitions
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For purposes of this Agreement:
Astrum means Astrum International Corp., a Delaware corporation, f/k/a
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E-II Holdings Inc.
Astrum Chapter 11 Case means Chapter 11 case number 92-B-43614(CB)
------ ------- -- ----
formerly administered by the Bankruptcy Court.
Astrum Plan Consummation Date means June 8, 1993, the date of the
------ ---- ------------ ----
distribution of new Astrum common stock to creditors in accordance with the
Astrum Plan of Reorganization.
Astrum Plan of Reorganization means the final Second Amended Plan of
------ ---- -- --------------
Reorganization, as modified, and approved by the Bankruptcy Court on May 25,
1993.
Astrum Subsidiaries mean Culligan International Company, a Delaware
------ ------------
corporation, McGregor Corporation, a New York corporation, Samsonite
Corporation, a Delaware corporation and Culligan Water Technologies, Inc., a
Delaware corporation (in any such case, whether or not a subsidiary on the date
this Agreement is executed).
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Bankruptcy Court means the United States Bankruptcy Court for the
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Southern District of New York.
Code means the Internal Revenue Code of 1986, as amended.
----
Controlled Group means, as to any entity, such entity and all related
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entities that, at the relevant time for purposes of this Agreement, are under
common control with such entity (within the meaning of ERISA Sections
4001(a)(14) and 4001(b)(1) and Code Sections 414(b) and (c) and the regulations
promulgated thereunder and, solely for purposes of determining liability under
Code Section 412, Code Sections 414(m) and 414(o)).
ERISA means the Employee Retirement Income Security Act of 1974, as
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amended.
McCrory means McCrory Corporation, a Delaware corporation, a debtor
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and debtor in possession in the McCrory Chapter 11 Case, and all other joint
debtors and debtors in possession in such case. From and after the confirmation
of a plan of reorganization in the McCrory Chapter 11 Case, the term "McCrory"
shall also include all trades or businesses that result from the confirmation of
such a plan.
McCrory Chapter 11 Case means Chapter 11 case numbers 92-B-41133(CB)
------- ------- -- ----
through 92-B-41160(CB) currently being jointly administered in the Bankruptcy
Court.
McCrory Controlled Group means McCrory and all entities that are under
------- ---------- -----
common control with McCrory (within the meaning of ERISA Sections 4001(a)(14)
and 4001(b)(1) and Code Sections 414(b) and (c) and the regulations promulgated
thereunder), as such group may change from time to time, where applicable, in
accordance with Section 7 hereof. As used in this Agreement, the term McCrory
Controlled Group shall mean the group as it exists at the relevant time under
this Agreement.
McCrory Final Settlement Agreement means the McCrory Pension Plan
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Final Settlement Agreement dated the date hereof by and among the PBGC, McCrory,
the McCrory Principal Subsidiaries, Astrum and the Astrum Subsidiaries.
McCrory Plan Consummation Date means the effective date of the McCrory
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Plan of Reorganization.
McCrory Plan of Reorganization means the Amended Joint
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--
Plan of Reorganization proposed by McCrory and filed with the Bankruptcy Court
on February 19, 1993, as subsequently amended from time to time.
McCrory Principal Subsidiaries means J.J. Newberry Co., a Delaware
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corporation, T. G. & Y Stores Co., a Delaware corporation, Mack Realty Company,
a Pennsylvania corporation, Kress-New Providence, Inc., a Delaware corporation
and G.C. Murphy Company, a Pennsylvania corporation.
PBGC means the Pension Benefit Guaranty Corporation, a wholly-owned
----
United States Government corporation established under Section 4002 of ERISA.
SCH means SCH Holding Corp., a Delaware corporation.
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Schenley Pension Plan means the Schenley Industries, Inc. Employees' Retirement
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and Benefit Plan, a defined benefit pension plan subject to Title IV of ERISA.
Term means the term of this Agreement as provided in Section 9 hereof.
----
Unfunded Benefit Liabilities means, as of any date, the amount of
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unfunded benefit liabilities, as such term is defined in ERISA Section
4001(a)(18), of the pension plan to which such term relates.
2. Liability for Schenley Pension Plan Underfunding, Contributions, and
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Premiums
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In the event Astrum or one of the Astrum Subsidiaries assumes the
sponsorship of the Schenley Pension Plan, as of and after the effective date of
such assumption, no member of the McCrory Controlled Group shall have any
obligation or liability with respect to the Schenley Pension Plan, to the
Schenley Pension Plan or to Astrum or any of the Astrum Subsidiaries (or to any
member of their respective Controlled Groups) or under Title IV of ERISA or
Section 412 of the Code or to the PBGC, other than with respect to (i)
contributions required to have been made to the Schenley Pension Plan under
Section 412 of the Internal Revenue Code and Section 302 of ERISA by the members
of the McCrory Controlled Group pursuant to the terms and conditions of the
Compromise and Settlement Agreement; (ii) fiduciary liability under ERISA; or
(iii) premium liability, and associated penalties and interest, under ERISA
Sections 4006 and 4007 with respect to the Schenley Pension Plan, where, in each
case, such liability arose prior to the effective date of the assumption of
--
the sponsorship of the Schenley Pension Plan by Astrum or one of the Astrum
Subsidiaries. Until Astrum or any of the Astrum Subsidiaries has become the
plan sponsor of the Schenley Pension Plan, McCrory and the members of its
Controlled Group shall be primarily responsible for satisfaction of all
obligations arising under or with respect to the Schenley Pension Plan and,
subject to the provisions of this Agreement, the PBGC shall retain all rights
available to it under any applicable law which is effective during the Term;
provided, however, that the PBGC may not, unless sponsorship of the Schenley
Pension Plan has been transferred to Astrum or one of the Astrum Subsidiaries,
assert any right it may have to terminate the Schenley Pension Plan unless and
until: (i) the PBGC has complied with its obligations under Section 2A below,
and (ii) 40 days have elapsed from the date that the PBGC's liens arose under
Code Section 412(n) without Astrum, any of the Astrum Subsidiaries, or any
member of their respective Controlled Groups having paid the contributions then
due and owing to the Schenley Pension Plan, or made arrangements satisfactory to
the PBGC for the collection of such contributions; provided, further, however,
that the PBGC shall not file an application with a United States District Court
seeking involuntary termination of the Schenley Pension Plan pursuant to ERISA
Section 4042(a)(4) prior to the McCrory Plan Consummation Date if (i) all
contributions required to be made to the Schenley Pension Plan have been timely
made by members of the McCrory Controlled Group, and (ii) the composition of the
McCrory Controlled Group has not changed between the effective date of this
Agreement and the McCrory Plan Consummation Date, with the exception of those
changes resulting from and described in the McCrory Plan of Reorganization.
The following provisions of this Section 2 set forth the rights and
obligations of McCrory, Astrum and the Astrum Subsidiaries and certain
obligations of the PBGC with respect to the Schenley Pension Plan for the period
prior to the effective date of any assumption of sponsorship of such Plan by
Astrum or any of the Astrum Subsidiaries:
A. Astrum and the Astrum Subsidiaries agree to be secondarily liable
for 100% of the contributions required to be made to the McCrory Pension Plan
under Code Section 412 and ERISA Section 302 during the Term. Astrum or one of
the Astrum Subsidiaries will pay or loan to the plan sponsor pursuant to Section
5 hereof, or make arrangements satisfactory to the PBGC for the collection of,
any such contributions, provided (i) an accumulated funding deficiency, as
defined under Code Section 412(a), shall have occurred with respect to such
Plan, and 30 days shall have elapsed without such deficiency having been
--
corrected, (ii) the amount of such deficiency shall be greater than $1,000,000,
(iii) the PBGC shall have made reasonable efforts, as determined within its
discretion, to perfect its available lien rights under Code Section 412(n), or
any successor thereto, against all known members of the McCrory Controlled
Group, and (iv) the PBGC has made a written demand upon Astrum for payment.
B. To the extent that McCrory has failed to make full payment of
premiums, penalties and interest required to be made with respect to the
Schenley Pension Plan under ERISA Sections 4006 and 4007 during the Term, Astrum
or the Astrum Subsidiaries shall make such payments to the PBGC within 30 days
of notice that such amounts are due and owing; provided, however, that the PBGC
shall first have given Astrum and the Astrum Subsidiaries notice of any such
failure and shall first have made reasonable efforts, as determined within its
discretion, to collect such amounts from all known members of the McCrory
Controlled Group.
C. In the event of the termination of the Schenley Pension Plan
during the Term, Astrum and the Astrum Subsidiaries agree to be secondarily
liable to the PBGC for an amount equal to the difference between (i) the total
amount of Unfunded Benefit Liabilities of the Schenley Pension Plan as of the
Plan's termination date, calculated in accordance with ERISA Section 4062 and
the regulations thereunder, together with interest from the Plan termination
date at the rate described at Code Section 6601(a) and (ii) (x) in the case of a
plan amendment, the entire portion of such Plan's benefit liabilities, as such
term is defined in ERISA Section 4001(a)(16), that is attributable to any such
plan amendment that accelerates or increases such benefit liabilities, occurring
after the Astrum Plan Consummation Date, and that affects such Plan's (1)
benefit accrual formula, (2) optional forms of benefits, (3) factors used for
determining actuarial equivalence, (4) early retirement eligibility requirements
or (5) vesting schedule, or (y) in the case of a plan merger, spinoff or
transfer of assets or liabilities, the increase in such Plan's Unfunded Benefit
Liabilities that is attributable to one or more plan mergers, spinoffs or
transfers of assets and liabilities to or from the Schenley Pension Plan
occurring after the Astrum Plan Consummation Date; provided, however, that (1)
the PBGC shall have first exercised all reasonable efforts, as determined within
its discretion, to perfect its available lien rights under ERISA Section 4068
against and to collect liability under ERISA Section 4062 from, all known
members of the plan sponsor's Controlled Group, and (2) pending final resolution
of the PBGC's claims against McCrory and members of the plan sponsor's
Controlled Group, Astrum and the
--
Astrum Subsidiaries shall, pursuant to this Section 2C, pay to the PBGC the
liability under ERISA Section 4062, and the PBGC shall, to the extent of any
such payment by Astrum or an Astrum Subsidiary, assign to Astrum or the relevant
Astrum Subsidiary a portion of its claim against McCrory and members of the plan
sponsor's Controlled Group equal in value to the payment made by Astrum or the
Astrum Subsidiary.
3. Discontinuance of Controlled Group Relationships
-------------- -- ---------- ----- -------------
No provision of this Agreement, and no action pursuant to this
Agreement by Astrum or any of the Astrum Subsidiaries, shall cause any member of
the Astrum Controlled Group to be treated as part of the McCrory Controlled
Group, or of the Controlled Group of any entity (other than a member of the
Astrum Controlled Group) which is the plan sponsor of the Schenley Pension Plan,
as of any date which is on or after the Astrum Plan Consummation Date, for
purposes of any provision of ERISA or the Code, including without limitation,
action by Astrum or any of the Astrum Subsidiaries that causes any of them to
become the contributing sponsor or the plan sponsor maintaining the Schenley
Pension Plan, provided, however, that if Astrum or any of the Astrum
Subsidiaries becomes the plan sponsor of the Schenley Pension Plan, such party
and its Controlled Group shall be subject to any and all applicable provisions
of Titles I and IV of ERISA, including liability provisions thereof, as of the
date of assumption of plan sponsorship, notwithstanding this Section 3.
4. Lien Rights
-----------
A. Unless and until Astrum or any of the Astrum Subsidiaries has
become the plan sponsor or contributing sponsor of the Schenley Pension Plan,
the PBGC shall have no statutory lien rights against any member of the Astrum
Controlled Group on or after the Astrum Plan Consummation Date and no lien
rights shall arise under this Agreement against any members of the Astrum
Controlled Group. The making of contributions pursuant to this Agreement by
Astrum or any of the Astrum Subsidiaries prior to transfer of sponsorship of the
Schenley Pension Plan shall not, in and of itself, cause any such contributing
party to become or be treated as the plan sponsor or contributing sponsor of the
Schenley Pension Plan.
B. The parties hereto acknowledge that statutory lien rights arising
under Section 412(n) of the Code and Section 4068 may only be imposed against
the assets of the McCrory Controlled Group with respect to the Schenley Pension
Plan (i) under Code
--
Section 412(n), in the event, and to the extent, that such lien rights have
accrued prior to the effective date of the assumption of the sponsorship of the
Schenley Pension Plan by Astrum or one of the Astrum Subsidiaries, and (ii)
under ERISA Section 4068, in the event the Schenley Pension Plan is terminated
prior to the effective date of the assumption of the sponsorship of the Schenley
Pension Plan by Astrum or one of the Astrum Subsidiaries.
5. Satisfaction of Contribution
Obligations; Commercially Reasonable Terms
----------- ------------ ---------- -----
A. Prior to the date on which Astrum or any of the Astrum
Subsidiaries has become the contributing sponsor or the plan sponsor of the
Schenley Pension Plan, Astrum or any one of the Astrum Subsidiaries may elect to
satisfy any obligation to make any contributions required to be made to the
Schenley Pension Plan under this Agreement by loaning the amount thereof to the
plan sponsor, or any member of the plan sponsor's Controlled Group, under
circumstances requiring the proceeds of such loan to be contributed to the
Schenley Pension Plan.
B. If the Schenley Pension Plan is terminated, during or after the
Term of this Agreement, then the terms of satisfaction of liability due upon
plan termination (including interest) shall be made (i) under commercially
reasonable terms prescribed by the PBGC under ERISA (S) 4062(b)(2), to the
extent such liability exceeds 30% of the collective net worth of any liable
party and its Controlled Group, or (ii) under alternative arrangements agreed to
by the PBGC under ERISA (S) 4062(b)(3).
6. Assignment of Lien Rights
---------- -- ---- ------
If Astrum or any of the Astrum Subsidiaries becomes the plan sponsor
of the Schenley Pension Plan, the PBGC agrees that, to the extent permitted by
law, it will direct (under Code Section 412(n)(5) or any successor or similar
Code provision) such plan sponsor to perfect and enforce any lien created under
Section 412(n)(1) of the Code with respect to the Schenley Pension Plan;
provided, however, that (i) such lien shall only apply to obligations of the
McCrory Controlled Group which continue in accordance with the first sentence of
Section 2 hereof; and (ii) the PBGC will be furnished as soon as practicable
with notice of any challenge to such lien rights.
7. Transactions Involving Membership Changes
--
in the Astrum and McCrory Controlled Groups
-- --- ------ --- ------- ---------- ------
The PBGC, Astrum, the Astrum Subsidiaries, and each known member of the McCrory
Controlled Group shall be given no fewer than 60 days' (if practicable, but in
no event less than 30 days') notice by McCrory or Astrum, as appropriate, prior
to the consummation of any transaction as a result of which (i) Astrum or any of
the Astrum Subsidiaries would exit the Astrum Controlled Group, (ii) McCrory or
any of the McCrory Principal Subsidiaries would exit the McCrory Controlled
Group, or (iii) there would be a sale or other divestiture of the assets of one
or more of such entities (or of the stock or assets of any other member of the
McCrory Controlled Group to which the stock or assets of McCrory or a McCrory
Principal Subsidiary has been transferred ("McCrory Transferee")) involving 30%
or more of the assets of any one of such entity's total asset value, as
determined (for purposes of clauses (ii) and (iii) in accordance with generally
accepted accounting principles. For purposes of the preceding sentence, the
rights and obligations established by this Agreement shall not be valued as
assets. Unless notice is given to the PBGC as provided herein, the obligations
under this Agreement during the Term shall continue to apply to any of the
Astrum Subsidiaries or any of the McCrory Principal Subsidiaries leaving the
Astrum and McCrory Controlled Groups, as applicable, unless the PBGC otherwise
gives its written consent. Upon receipt of such notice, the PBGC shall determine
whether or not the proposed transaction would result in its possible long-run
loss reasonably being expected to increase unreasonably, in a manner consistent
with its prevailing practice. The PBGC will complete its analysis within 30 days
of receipt of such notice, provided that Astrum and the Astrum Subsidiaries, or
McCrory and the McCrory Principal Subsidiaries, as the case may be, comply with
reasonable information requests. Unless the PBGC determines, in a manner
consistent with its prevailing practice and by the expiration of such period or
within 30 days of the date on which all such information has been provided in
response to its requests, that the transaction would reasonably be expected to
increase its long-run loss unreasonably, the obligations of such entity to the
PBGC under this Agreement shall cease to apply to the entity leaving the Astrum,
or McCrory, Controlled Group, as applicable. The PBGC shall provide written
notice of any such determination within 7 days of the period referenced in the
preceding sentence under this Section to Astrum and the Astrum Subsidiaries, or
to McCrory and the McCrory Principal Subsidiaries, as applicable.
Notwithstanding any other provision of this Agreement, the obligations imposed
on McCrory and the McCrory Principal Subsidiaries (and any McCrory Transferee)
under this Section 7 shall be inapplicable unless the acquiror of the stock or
transferee of the assets of the corporation exiting the
--
Controlled Group bears a relationship to the transferor which is a relationship
specified in Code Section 267(b), taking into account the application of Code
Section 267(c).
8. Effective Date
--------------
This Agreement shall be effective immediately upon the later of (i)
delivery of fully executed counterparts to all parties in the manner provided in
Section 13 hereof, and (2) the issuance of an order by the Bankruptcy Court in
the McCrory Chapter 11 Case approving this Agreement.
9. Term of Agreement; Survival of Certain Astrum Obligations; Involuntary
-----------
Termination
-----------
A. Subject to Section 9B hereof, this Agreement shall expire on the
date which is the earlier to occur of (i) the effective date on which
sponsorship of the Schenley Pension Plan has been assumed by Astrum or any of
the Astrum Subsidiaries, or (ii) the later to occur of (I) the end of McCrory's
first complete fiscal year which ends more than three years from the McCrory
Plan Consummation Date or (II) the first date on which the ratio of McCrory's
consolidated earnings before interest and taxes for the three consecutive fiscal
years immediately preceding the date of determination, to consolidated total
interest expense for each of such years, equals or exceeds 2.5 to 1.0; provided
that (1) McCrory has then satisfied all funding requirements applicable to
McCrory under Code Section 412 with respect to the Schenley Pension Plan and (2)
all loans from Astrum or any of the Astrum Subsidiaries with respect to the
Schenley Pension Plan shall have been repaid or otherwise extinguished (it being
understood that all loans made prior to the date hereof from Astrum, any of the
Astrum Subsidiaries or any member of the Astrum Controlled Group with respect to
the Schenley Pension Plan are extinguished). Such term shall not be extended
thereafter without the written consent of each party which would be subject to
continuing obligations as a result of the extension. If fewer than all required
parties consent to an extension, the extension shall be effective only as to
those parties whose consent has been provided.
B. The obligations imposed and the rights conferred under Sections 2,
3, 4, 5, 6, 9B, 10, 11, 14 and 15 hereof shall survive the termination of this
Agreement.
C. The PBGC agrees that it shall not consider the expiration of this
Agreement in any determination involving an involuntary termination of the
Schenley Pension Plan under ERISA Section 4042(a)(4).
--
10. Remedies of PBGC
-------- -- ----
A. Provided Astrum and the Astrum Subsidiaries have complied with
their obligations under this Agreement, then unless and until Astrum or one of
the Astrum Subsidiaries has assumed sponsorship of the Schenley Pension Plan,
this Agreement sets forth the exclusive remedies of the PBGC against the members
of the Astrum Controlled Group. Unless Astrum or one of the Astrum Subsidiaries
has assumed sponsorship of the Schenley Pension Plan, the PBGC's remedies
against Astrum and the Astrum Subsidiaries shall not be enlarged or diminished
by any law which is enacted after the date of this Agreement. Without any
limitation on the rights conferred under the first two sentences of this Section
10, if any such law is enacted, Astrum and the Astrum Subsidiaries agree not to
assert the benefits of any provision of such law which diminishes the rights of
the PBGC from its rights as they exist hereunder on the effective date of this
Agreement, and the PBGC agrees not to assert the benefits of any provision of
such law which enlarges the rights of the PBGC from its rights as they exist
hereunder on the effective date of this Agreement. This Agreement sets forth the
exclusive remedies of the PBGC against the members of the McCrory Controlled
Group following the date the sponsorship of the Schenley Pension Plan is assumed
by Astrum or one of the Astrum Subsidiaries and the PBGC's remedies shall not be
enlarged or diminished with respect thereto by any law which is enacted after
the date of this Agreement, to the extent such law would result in the
imposition of any obligation or liability on members of the McCrory Controlled
Group following the assumption of the Schenley Pension Plan by Astrum or one of
the Astrum Subsidiaries which would not have been imposed under the law as it
exists on the date of this Agreement. Each member of the McCrory Controlled
Group agrees not to assert the benefits of any provisions of such law which
diminishes the rights of the PBGC with respect to the foregoing from its rights
as they exist hereunder on the effective date of this Agreement, and the PBGC
agrees not to assert the benefits of any such law which enlarges the rights of
the PBGC as they exist hereunder on the effective date of this Agreement.
B. Section 10A hereof shall not limit (i) the PBGC's rights against
McCrory or any member of the McCrory Controlled Group during the period McCrory
or any member of the McCrory Controlled Group acts as the plan sponsor of the
Schenley Pension Plan, (ii) except with respect to the rights of Astrum and the
Astrum Subsidiaries conferred under provisions which survive the termination of
this Agreement, the PBGC's rights against Astrum, the Astrum Subsidiaries or any
member of their respective Controlled Groups, after the date on which Astrum or
any of the Astrum Subsidiaries has assumed sponsorship of the Schenley
--
Pension Plan, (iii) any party's liability under Section 4069 of ERISA, subject
to and limited by Section 10C and Section 15 hereof, (iv) any party's liability
for premiums under Sections 4006 and 4007 of ERISA, (v) any party's fiduciary
liability under Title I or IV of ERISA, or (vi) the applicability to any party
of the provisions of Code Section 412.
C. In the event that the Schenley Pension Plan terminates within five
years of sponsorship thereof being transferred to Astrum or one of the Astrum
Subsidiaries pursuant to the terms of this Agreement, no party to such transfer
shall be deemed to have as a principal purpose in effecting such transfer the
evasion of liability under Section 4069 of ERISA or any successor provision
thereto.
11. Limitation on Astrum Liability
---------- -- ------ ---------
No member of the Astrum Controlled Group shall have any liability to
the PBGC, or to any other party, entity or person, with respect to any successor
pension plan to the Schenley Pension Plan which is or may be adopted or, except
as set forth in the McCrory Final Settlement Agreement, with respect to any
other employee benefit plan, compensation arrangement or payroll practice, at
any time maintained or contributed to by any member of the McCrory Controlled
Group, whether or not such plan, arrangement or practice is covered by ERISA.
12. Actuarial & Financial Information
--------- - --------- -----------
A. During the Term, McCrory shall provide to the PBGC and, with
respect to the information described in subparagraphs (i) and (ii), to Astrum,
(i) copies of all actuarial plan valuations with respect to the Schenley Pension
Plan within ten days after McCrory's receipt thereof, (ii) copies of all IRS
Forms 5500 with respect to the Schenley Pension Plan within ten days after the
filing thereof with the Internal Revenue Service, and (iii) copies of all
information filed by McCrory with the Securities Exchange Commission within ten
days after the filing thereof with the Securities Exchange Commission. The
provision of such information may be accomplished by electronic transmission.
Nothing in this Agreement shall limit the obligations of McCrory and the McCrory
Controlled Group under Code Section 412 or ERISA Sections 4010 or 4043 or the
regulations thereunder, unless the same information has previously been provided
pursuant to the requirements of this Section 12A.
B. Unless such information has previously been provided pursuant to
Section 12A hereof, McCrory shall provide to
--
Astrum a copy of each notice required to be filed during the term of this
Agreement pursuant to Code Section 412(n) or ERISA Sections 4010 or 4043 not
later than the time such notices are required to be provided to the PBGC.
13. Bankruptcy Approval and Disclosure
---------- -------- --- ----------
McCrory shall seek Bankruptcy Court approval of this Agreement within
10 business days of the execution of this Agreement. McCrory agrees that, in the
event the McCrory Plan of Reorganization is not amended to incorporate the terms
of this Agreement, any order confirming the McCrory Plan of Reorganization shall
expressly provide for the incorporation of this Agreement into the McCrory Plan
of Reorganization, and shall further provide that this Agreement supersedes any
language in the McCrory Plan of Reorganization relating to the Schenley Pension
Plan and the claims of the PBGC, including, but not limited to, Sections 5.03,
6.09, 6.10, 9.03, 12.01, 15.01, 17.01, and 17.08 thereof.
14. Representations and Warranties
--------------- --- ----------
The parties represent and warrant to each other (i) that they have
been fully informed and have full knowledge of the terms, conditions and effects
of this Agreement; (ii) that they have been represented by legal counsel of
their choice throughout all negotiations preceding their execution of this
Agreement and have received the advice of their attorneys in entering into this
Agreement; (iii) that they, either personally or through independently retained
attorneys, have fully investigated to their satisfaction all facts surrounding
the controversies and disputes compromised by this Agreement and are fully
satisfied with the terms and effects of this Agreement; (iv) that no promise or
inducement has been offered or made to any of them except as expressly stated in
this Agreement, and that this Agreement is executed without reliance on any
statement or representation by anyone other than the representations expressed
in this Agreement; (v) that all parties (including the PBGC and in the case of
McCrory, subject to Bankruptcy Court approval) have full authority to enter into
this Agreement and that it constitutes a legal, valid, and binding obligation
enforceable against each such party in accordance with its terms. Each party
recognizes and acknowledges that every other party has relied on each of the
foregoing warranties and representations in entering into this Agreement and
that the representations and warranties shall survive the execution of the
Agreement.
15. McCrory's Plan of Reorganization
--------- ---- -- --------------
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Provided that McCrory has made all required contributions to the
Schenley Pension Plan and paid all PBGC premiums with respect thereto; and that
the Schenley Pension Plan has not terminated, the PBGC agrees that (i) it will
not file any objection to the confirmation of the McCrory Plan of
Reorganization, (ii) on or immediately prior to the McCrory Plan Consummation
Date, it will withdraw all claims it filed in the McCrory Chapter 11 case; and
(iii) it will not at any time assert that, or seek to establish liability under
Section 4062 or 4069 of ERISA or any successor provisions thereto on the basis
that, a principal purpose of the filing of the McCrory Chapter 11 Case or the
McCrory Plan of Reorganization was the evasion of liability under Title IV of
ERISA.
16. General Provisions
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A. This Agreement and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with the laws of the
state of New York without regard to its conflict of law rules, except to the
extent such laws are preempted by federal law. Following the McCrory Plan
Consummation Date, the United States District Courts shall have exclusive
jurisdiction over the parties hereto for purposes of enforcing the terms hereof
and resolving any disputes hereunder.
B. This Agreement constitutes the entire final agreement and
understanding with respect to the liability of the parties to the PBGC for the
Schenley Pension Plan and the other matters provided for herein, and no other
agreement or understanding exists except as expressly set forth herein. This
Agreement supersedes all previous understandings related to the subject matter
hereof, other than the Compromise and Settlement Agreement, insofar as it sets
forth the rights and obligations of Astrum and McCrory and the members of each
of their respective Controlled Groups, and the Escrow Agreements. The parties
hereto agree that as among Astrum, the Astrum Subsidiaries and McCrory, except
with respect to the provisions hereof delineating the circumstances under which
members of the Astrum Controlled Group shall be secondarily liable for certain
liabilities relating to the Schenley Pension Plan (the "Secondary Liability
Provisions", nothing in this Agreement is intended to modify the terms and
conditions of the Compromise and Settlement Agreement and in the event and to
the extent that the terms and conditions set forth herein, other than the
Secondary Liability Provisions, conflict with those set forth in the Compromise
and Settlement Agreement, the Compromise and Settlement Agreement shall govern.
Nothing in Section 6 of the Compromise and Settlement Agreement shall be
construed to modify, amend, or otherwise alter any party's liability to the PBGC
under the terms of this Agreement or ERISA.
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C. This Agreement shall not be modified or amended, except by written
instrument signed by the parties hereto.
D. McCrory agrees to take all reasonable steps to insure that the
Schenley Pension Plan and its related trust continue to meet the applicable
requirements for qualification and exemption from taxation under Sections 401(a)
and 501(a) of the Code, and to obtain a current favorable IRS determination
letter.
E. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be given by personal service, by
delivering the same to a recognized express delivery service or by depositing
the same in the United States certified mail, returned receipt requested,
postage prepaid, addressed as follows:
To Samsonite Corporation:
D. Michael Clayton, Esq.
General Counsel
Samsonite Corporation
11200 East 45th Avenue
Denver, CO 80239
with a copy to:
Myron Trepper, Esq.
Willkie Farr & Gallagher
153 E. 53rd Street
New York, NY 10022-4677
To Culligan Water Technologies, Inc.:
General Counsel
Culligan Water Technologies, Inc.
One Culligan Parkway
Northbrook, Illinois 60062
with a copy to:
Myron Trepper, Esq.
Willkie Farr & Gallagher
153 E. 53rd Street
New York, NY 10022-4677
To McGregor Corporation:
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General Counsel
McGregor Corporation
Seventeenth Floor
1330 Avenue of the Americas
New York, NY 10019
with a copy to:
Myron Trepper, Esq.
Willkie Farr & Gallagher
153 E. 53rd Street
New York, NY 10022-4677
To the PBGC:
Office of the General Counsel
Pension Benefit Guaranty Corporation
Suite 340
1200 K Street, N.W.
Washington, DC 20005-4026
with a copy to:
Corporate Finance and Negotiations Department
Pension Benefit Guaranty Corporation
Suite 270
1200 K Street, N.W.
Washington, DC 20005-4026
To McCrory or any of the McCrory Principal Subsidiaries:
McCrory Corporation
Attn: Paul Weiner
667 Madison Avenue
12th Floor
New York, NY 10021
with a copy to:
Brad Eric Scheler, Esq. and
Donald P. Carleen, Esq.
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, NY 10004
or to such other address as any party hereto may designate to the other. Each
party shall use its best efforts to confirm receipt
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of any notice from the other.
F. The failure of any party to this Agreement to enforce at any time
any of the provisions of this Agreement or to exercise any option under this
Agreement shall in no way be construed to be a waiver of such provision or
option, and shall in no way affect the validity of this Agreement or the right
of any party to enforce each and every one of its provisions or options. Any
remedies hereunder for breach of this Agreement or default in any party's
obligations hereunder are cumulative, and the exercise of one shall not be
deemed to be a waiver of the right to exercise any other under this Agreement or
otherwise.
G. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
or provisions of this Agreement, which shall remain in full force and effect.
H. This Agreement shall inure to the benefit of, and may be enforced
solely by, and be enforceable against, the parties hereto, and, in each case,
their respective successors and permitted assigns, including any purchaser of
substantially all the assets of McCrory or any of the McCrory Principal
Subsidiaries, Astrum or any of the Astrum Subsidiaries, and the members of each
of their respective Controlled Groups and any trustee succeeding to the rights
of any of the foregoing parties pursuant to Chapter 11 of the Bankruptcy Code or
pursuant to the conversion of any Chapter 11 case to a case under Chapter 7 of
the Bankruptcy Code.
I. The parties agree to execute such further agreements and other
documents as may be necessary to effectuate this Agreement.
J. This Agreement may be executed in any number of identical
counterparts, each of which shall be an original as against the party who signed
it, and all of which shall constitute one and the same instrument. No party to
this Agreement shall be bound by it until a counterpart has been executed by
each party hereto.
K. The parties shall each bear their own costs, expenses and
professional fees incurred in connection with the preparation and negotiation of
this Agreement and in the performance of each party's respective obligations
hereunder.
L. Nothing contained herein shall cause any claim of the PBGC to be
or become a secured or priority claim against McCrory solely by reason of
McCrory's execution and delivery of
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this Agreement and nothing contained herein shall limit or otherwise affect the
PBGC's right to assert priority claims against McCrory in any proceeding under
the Federal Bankruptcy Law.
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be duly executed and delivered by their respective duly authorized
officers as of the day and year first written above.
PENSION BENEFIT GUARANTY CORPORATION
By: /s/ Authorized Person
---------------------------------
SAMSONITE CORPORATION
By: /s/ D. Michael Clayton
---------------------------------
CULLIGAN WATER TECHNOLOGIES, INC.
By: /s/ Authorized Person
------------------------------------
CULLIGAN INTERNATIONAL COMPANY
By: /s/ Authorized Person
------------------------------------
McGREGOR CORPORATION
By: /s/ D. Michael Clayton
------------------------------------
McCRORY CORPORATION
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By /s/ Paul Weiner
------------------------------------
J.J. NEWBERRY CO.
By: /s/ Paul Weiner
-----------------------------------
T. G. & Y. STORES CO.
By: /s/ Paul Weiner
-----------------------------------
MACK REALTY COMPANY
By: /s/ Paul Weiner
------------------------------------
KRESS-NEW PROVIDENCE, INC.
By: /s/ Paul Weiner
------------------------------------
G.C. MURPHY COMPANY
By: /s/ Paul Weiner
------------------------------------
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Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘10-Q’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 9/30/96 | | 1 | | | | | None on these Dates |
| Filed on: | | 9/10/96 |
| For Period End: | | 7/31/96 |
| | 6/20/96 | | 1 |
| | 9/12/95 | | 2 |
| | 7/14/95 | | 2 | | 3 |
| | 5/25/95 | | 2 |
| | 6/30/93 | | 2 |
| | 6/8/93 | | 2 | | 3 |
| | 5/25/93 | | 2 | | 3 |
| | 5/24/93 | | 2 |
| | 5/12/93 | | 1 |
| | 2/19/93 | | 5 |
| | 2/26/92 | | 1 |
| List all Filings |
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