- 44 -
The Borrower [ACQ] shall * * * indemnify each Bank
* * * and hold each of them harmless against any and
all losses, liabilities, claims, damages or expenses
incurred by any of them arising out of or by reason of
any investigation, litigation or other proceeding
related to the Acquisition, or the Borrower’s or any
other party’s entering into and performance of this
Agreement * * * including the reasonable fees and
disbursements of counsel incurred in connection with
any such investigation, litigation or other proceeding;
* * *
Although it is clear from the language presented here that ACQ,
and later petitioner as ACQ’s successor, was obligated, it is not
clear whether petitioner was obligated for fees incurred by
Schneider before the Bridge Loan agreement was signed, or only
fees incurred from the date of the Bridge Loan agreement forward.
While it would have been clearer had the agreement specifically
identified past costs, the phrase “related to the Acquisition”
contains no temporal limitations25 and is reasonably read to
cover all costs, including those costs incurred while the
takeover attempt was hostile. Respondent has provided no
evidence or argument to suggest a different reading, and we
accordingly find ACQ assumed responsibility to pay the legal
costs associated with the Commitment Letter.
Thus, Schneider was originally obligated to pay both the
commitment fee and legal fees at issue. Schneider caused ACQ
25 The Bridge Loan agreement defined “Acquisition” as the
ACQ’s acquisition of petitioner’s capital and preferred stock
pursuant to the offer of purchase, dated Mar. 4, 1991, as
supplemented.
Page: Previous 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 NextLast modified: May 25, 2011