-159-
agreement.108 See Exhibit 173-J, J001736. Mr. Geary testified
that he wanted to make it clear that the manager (i.e., Mr.
Lerner) consented to the transfers “because they were what was
being planned.” Before closing on the transaction with CDR, Mr.
Lerner executed a consent giving effect to Mr. Geary’s comments.
The consent was predated “____________, 1996.”109 We infer from
Mr. Geary’s comments and this consent that there was an
understanding on the part of Mr. Lerner that Generale Bank and
CLIS would exercise their put rights at the earliest possible
point, on December 31, 1996.
iii. Negotiation and Drafting Process
Petitioner suggests that the “intensity and duration of the
negotiations” between the Ackerman group and CDR connotes
substance to the banks’ purported partnering with SMP. In
support of this suggestion, petitioner points to the numerous
drafts of the letter agreement, the side letter agreement,
supplementary terms, the exchange and contribution agreement, the
108 Mr. Geary’s comments were faxed to Mr. Lerner and his
representatives at Shearman & Sterling.
109 When questioned about the date on the consent, Mr. Lerner
testified that the consent was part and parcel of the banks’ put
rights. “It allowed them to implement the put if it were
exercised. Notice it was undated. And as part of the
implementation of the put, if they were to exercise it, it was
requested that I sign this.” When pressed about the “1996” date
on each of the consents, Mr. Lerner testified that “I would say
it’s undated.”
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