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point “Your Company guarantees that it will have this letter
signed by MERLIN GERIN [i.e., MGSA], TELEMECANIQUE [i.e., TESA]”
and at another “Your Company guarantees compliance with this
provision by all the subsidiaries in which it has a controlling
interest”, indicating that “Your Company” does not include
Schneider subsidiaries. Finally, in the section entitled “GROUPE
SCHNEIDER’S COMMITMENTS”, the Commitment Letter states
Your Group agrees * * * not to proceed to acquire new
interests other than those of [petitioner] * * * in net
annual amounts greater than its annual consolidated
available cash flow.
* * * * * * *
To permit our two Banks to monitor this commitment on
the part of your Group, your Company and S.P.E.P. will
provide them * * * with all the necessary accounting
data.
This further demonstrates “Your Company” and “Your Group” are not
interchangeable terms. Moreover, ACQ had not been created at the
time the Commitment Letter was signed (it was organized 10 days
later), and although it is referenced as NEWCO in the Commitment
Letter, no provision requires NEWCO to pay the commitment fee.
Finally, although ACQ was created well before the Commitment
Letter was amended to increase the loan commitment to $1.125
billion on May 13, 1991, the amendment does not obligate ACQ to
pay the commitment fee. We conclude that Schneider, not
petitioner, was obligated to pay the commitment fee due under the
Commitment Letter.
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