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Sunday, June 18, 2006

Ind. Decisions - Still more on: While the Supreme Court considers its decision in the toll road case . . .

A Fort Wayne News-Sentinel editorial Thursday (see ILB entry here) ended with this:

Yes, the consortium has the option of backing out of the deal if litigation is still pending on June 30. But if this deal is as good as everybody keeps saying it is, the company will not be in a hurry to opt out. If it does, maybe we should have second thoughts, too.
So is June 30th not the "drop-dead date"? The ILB took a look at the Lease Agreement, p. 22:
Section 2.2 Closing. (a) The closing of the transaction shall take place on June 30, 2006 or such other date agreed to in writing by the IFA and the Concessionaire.
Section 2.4 sets out the conditions that must have been met before the Concessionaire is obligated to complete the agreement. One is:
(vi) the IFA shall have delivered to the concessionaire (A) a legal opinion of counsel to the IFA, in substantially the form attached hereto in Schedule 2.4(a) ...".

(d) Termination. This Agreement may be terminated at any time prior to the Closing ... (ii) by either the IFA or Concesionaire, upon notice to the other party, if (A) any governmental authority of competent jurisdiction shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting this Transaction, and such order, decree, ruling or other action has become final and nonappealable; ... or (B) the Closing shall not have occurred as of 11:59 PM on June 30, 2006.

I take this to mean there is no "drop dead" date. The parties may close after June 30th if they so agree.

Re the opinion letter that IFA counsel must deliver to Concessionaire before closing -- the form does not seem to be available, but presumably one of the items is that there is no outstanding litigation. And of course if litigation "restraining, enjoining or otherwise prohibiting this Transaction" has become final and nonappealable before the June 30th date, Concessionaire can walk away form the deal.

So, back to the News-Sentinel editorial, which says "if this deal is as good as everybody keeps saying it is, the company will not be in a hurry to opt out." If that is the case, how hard should it be for the parties to agree to move the closing date from June 30 date to, say, July 30th?

It seems somehow unseemly that the executive and legislative branches of government have passed a law and negotiated an unprecedented deal that places before the judicial branch of government important questions that may well impact the future course of the State, without adequate time to fully consider the implications thereof.

Posted by Marcia Oddi on June 18, 2006 05:25 PM
Posted to Ind. Sup.Ct. Decisions