- 42 -
When the Bridge Loan agreement was signed (on May 30, 1991),
ACQ agreed to pay a commitment fee on any funds not disbursed.
The fee was set at the same level as the fee in the Commitment
Letter. Nothing in the Bridge Loan agreement obligated ACQ to
assume Schneider’s obligation to pay the fee under the Commitment
Letter, nor did the Bridge Loan agreement expressly relieve
Schneider of its obligation under the Commitment Letter to pay a
commitment fee until the funds were disbursed. Thus, from May
30, when the Bridge Loan agreement was signed, until June 12,
when the Bridge Loan was disbursed, both ACQ (under the Bridge
Loan agreement) and Schneider (under the Commitment Letter) were
legally obligated to pay a commitment fee equal to 0.3 percent of
the undisbursed funds.23
Respondent asserts he is challenging only the commitment fee
incurred by Schneider under the Commitment Letter; i.e., the fee
provided in the Commitment Letter covering the period from
February 18 through June 12, 1991. Thus, respondent contends, he
is not challenging the deduction of any fees owed under the
Bridge Loan agreement (for which ACQ was the obligor). We
disagree. Since both Schneider and ACQ were obligated for a
commitment fee equal to 0.3 percent of undisbursed funds for the
23 The Term Loan also provided for a commitment fee to be
paid with respect to any undisbursed funds, but none was paid
because execution of the loan documents and disbursement occurred
on the same day.
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