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Case number 14-7136, A. Huda-Ferrochi vs. Petra International Banking Corporation et al.

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Appellant.

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Mr. Fornichere for the Appellant, Mr. Clark for the Appellee.

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Good morning.

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Please, the Court.

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My name is John Ponnachari, and I represent Petra International Banking Corporation, who is the appellant in this case and the counterplaner below.

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We are appealing for two orders of the district court.

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The summary judgment order entered against PIBC was on the basis of the statute of limitations.

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The basis of the statute was that the instrument on which PIBC was suing, the guarantee and the note

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were non-negotiable, of course.

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We were only claiming that the note had to be negotiable.

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But when the court determined that note was not negotiable because it had a variable rate of interest, then the extended statute under the UCC, when he... You're going a little backwards in this case, aren't you, by starting with that issue?

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I'll start whatever issue you want.

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No, but my point is we never reached that question if we conclude the guarantee only covered

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the indebtedness at the time of the guarantee was a 3.8.

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The original guarantee was 3 points.

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The original note was 3.7.

[00:02:32] Speaker 03:
Sorry, I made it one more.

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If the guarantee only covered the original 3.7, then we don't need to reach the negotiable instrument question.

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That's right, Your Honor.

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You don't.

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Now, the key to that argument, if I understand correctly,

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is your assertion is the word old refers only retrospective to amounts that had been previously advanced by Petra to the company.

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Would you mind if I refer to the company as the company rather than that ridiculous acronym

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So what's the answer to my question?

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Your key is the word old, right?

[00:03:30] Speaker 05:
Well, we make two arguments, Your Honor.

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I don't know if that... That's important.

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The old is an important point.

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Yes, it is, Your Honor.

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You think the word old refers only to past, because it's in the past tense, it refers only to past one.

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Right, Your Honor.

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There's a problem with your argument, isn't there?

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What is it?

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You paid 14 of your brief.

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You say this interpretation of old

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is further buttressed by the language in section 10 of the guarantee that any indebtedness of bar now or hereafter owed to or held by guarantors is hereby subordinate.

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By your own admission, therefore, the word owed is used for future as well as past.

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Only with the word hereafter, Your Honor.

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You only get there if you ignore the word hereafter.

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Well, but it doesn't say now or hereafter loan.

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It says now or hereafter owed.

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So therefore, the word owed is used for future as well as past.

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I don't think it is, Your Honor.

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It certainly is.

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I mean, I don't see how you can argue against that.

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I know you would like to emphasize the hereafter, but I'm just looking at grammar.

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It doesn't say we're after granted.

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We're after loans.

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We're after owed.

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But the use of the different phrasology was to get across the idea in this guarantee that owed alone meant passed.

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And it makes sense, Your Honor, because at the time they did this new loan, there was already $5 million on the books that

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the company owed the bank.

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And so this provision that you're looking at in the sentence in paragraph one of the guarantee refers to the fact that the guarantee is only going to apply to this, and if anything else is loaned, to whatever else is loaned.

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See, the last sentence says it is understood and agreed that this guarantee is limited to the payment of the note and the performance of the obligations under the loan documents and shall not extend to any other sums or obligations owed by the borrower to the lender.

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But at the time this note was done, there was already a prior relationship between the company and the bank, which

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And in fact, as one of the exhibits to this security agreement that was prepared at the same time, they included as an exhibit the prior amount that was owed and not covered.

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You know, and I think in the end, I think the district court recognized this argument.

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This issue came up on the motion to dismiss.

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And then when the district court noticed us that he was going to enter a summary judgment, they gave us a time to respond.

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So we addressed that argument in our papers as well.

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And if you look at what he says in his opinion, 326,

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He says, referring to those arguments we made, but the court need not resolve factual disputes regarding the party's understanding of the guarantees terms, because there is an unambiguous provision.

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And then he went into the variable rate provision.

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So I think that even the court, the district court, recognized there are all kinds of, at a minimum,

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disputed issues of material fact on how to interpret this, particularly in light of paragraph three of this agreement as well.

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Yeah, but if we conclude the guarantee can only reasonably be read the way the appellee asserts.

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That's the end of the variable rate question, right?

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I think that's right, Your Honor.

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That's right, Your Honor.

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That's right, Your Honor.

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And that is an argument over what Murray holds.

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That is an argument over what Murray holds, and it's also an argument about, um, collateral, uh, estoppel, Your Honor.

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I'm sorry?

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It's also an argument about estoppel.

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Estoppel?

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Estoppel.

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Why?

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Because in the whereas clause, um, to the guarantee

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The bank indicated that it wasn't going to loan any money unless it was guaranteed with sale.

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You liked Judge Williams' question at the oral argument, didn't you?

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No, fortunately I was sitting down for that question.

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But you liked it.

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I did like it.

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But it didn't carry the court.

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Well, the court didn't rule on that issue.

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No, that's probably why you've got a remand on that, because there must have been a dispute on that question.

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But if one concludes that Murray is on the side of your opponent, that's the end of your case then.

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That's the end of the sealed case.

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And if you rule about on the guarantee.

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That's right, Your Honor.

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Sorry, you go ahead.

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I didn't want to interrupt you.

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Go ahead.

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Did you have more to say to Judge Silberman?

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I'll defer to the presiding judge.

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You don't have to answer me.

[00:09:23] Speaker 05:
I'm sorry.

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Did someone ask a question?

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My hearing's not all that good.

[00:09:26] Speaker 04:
Oh, I'm sorry.

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I didn't want to interrupt.

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I interrupted your answer to Judge Silberman, and I didn't want to do that.

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I'm sorry.

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Did you have anything more to say about that?

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I think.

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About estoppel.

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That was the issue.

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No, there's one other thing I want to say about that, and that is that there's also testimony in the record.

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Do you find that this is ambiguous in any way?

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The only testimony by way of declaration in the record is by the bank manager and an expert we put on, both of whom indicated that this guarantee applied also to future funds.

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Did you say I was going to stop, Your Honor?

[00:10:09] Speaker 04:
Yeah, I want to go back to the question about, I mean, the alternative way to look at this is as you started, right?

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That is, whether this note was negotiable.

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That's right, Your Honor.

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And isn't the problem, don't you have a real problem?

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Because as I understand the case law, the only case law about the state of DC law at the time that this was negotiated,

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only case law held that variable rate instruments were not negotiable, and DC didn't revise its laws to match the change in the commercial code until later.

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That's a big problem for you, isn't it?

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a problem that needs to be addressed, and that's why we tried to do it in our free time.

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But to be fair about that issue.

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Do you agree with me that the only case law about the status of DC law at the time doesn't help you a bit?

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It all says they're non-negotiable, right?

[00:11:21] Speaker 05:
There was one case, but I think that was Dickey, Your Honor.

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Right.

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I'm talking about holdings.

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But I think on the issue of retroactivity, I think it's clearly, if that was an issue that had to be decided, I think it should have been decided in our favor.

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I'm going to stop.

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Can I continue?

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OK.

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Anything else?

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No.

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OK, thank you.

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Thank you all.

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If it please the Court, my name is David Clark and I'm here on behalf of the Appellee.

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The guarantee that my client signed more than 28 years ago was a simple contract under the law of the District of Columbia.

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As this Court stated in the first appeal, the cause of action to enforce that started to run in 1987 when the company declared bankruptcy.

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Because it was a simple contract, it was governed by a three-year statute of limitations, which meant that the bank had three years to do one of three things.

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Either it could sue my client on the guarantee, it could ask him to sign a tolling agreement, or it could ask him to sign a new guarantee.

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It did none of those three things, and as a result, in 1990, its right to enforce the guarantee expired.

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But you don't disagree that if the negotiability argument goes against you, then the statute of limits doesn't go in your favor either?

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I do, Your Honor, because I don't.

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Even the negotiability argument depends ultimately on there being a partial payment on the guarantee as late as 1997.

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That's a factual matter.

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Well, Your Honor, in the counterclaim, it was alleged that that payment took place in October of 1997.

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But then, as you know, Judge Lamberth ultimately entered summary judgment as well against both parties after giving them an ample opportunity to put forward any evidence they had.

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And the affidavit that they put forward from the manager of the bank does not state what the date of that payment was.

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And we think it's quite notable that even though that date... Is that an issue before the Court of Appeals now?

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Do we decide on that issue?

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I mean, the trial judge didn't reach it, but I believe the appellate court is free to... To make a factual determination?

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...affirm on any basis.

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On a factual determination?

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Well, it's not a factual determination.

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On summary judgment, the question is, what is the evidence that's in the record?

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And there was no evidence in the affidavit as to the date of that payment.

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Now, having said that, I think it's quite clear that this was not a negotiable instrument.

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And I think, Judge Silberman, you very much put your finger on it.

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I think, ultimately, the bank's argument puts much more weight than it will bear on the past tense of that word owed.

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And not only is it too much weight for the reasons you pointed out, which is that word owed is used elsewhere to talk about

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future debts, but you have to read that whole sentence, and that sentence really has two entirely different functions.

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This is on page 156 of the record.

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The first half of the sentence is an affirmative statement of what the guarantee is limited to, and then the second half of the sentence is a carve-out, if you will, that tells you some things it doesn't apply to.

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And regardless of whether the carve-out

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extends to future amounts loaned or not, the first half of the sentence is absolutely fatal to their position in our view, which is it is understood and agreed that this guarantee is limited to the payment of the note, defined term, and the performance of the obligations under the loan documents, defined term.

[00:15:29] Speaker 02:
And note is defined on this very page as the piece of paper of even date herewith

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that evidences the loan of $3.7 million, period.

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It doesn't say an amendment's in the future.

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And they realize that's a problem because they then try to point you to a definition in a different document that did include that.

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But to our mind, that really just nails the point home because what it shows is that the draftsman who drafted these documents knew full well how to refer to amendments when that's what he wanted to do.

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and he does not think about that here.

[00:16:04] Speaker 04:
What about paragraph three?

[00:16:06] Speaker 02:
Your Honor, paragraph three and four solve what you might call the Rawlinson problem.

[00:16:13] Speaker 02:
What paragraphs... What problem?

[00:16:15] Speaker 02:
The Rawlinson problem.

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I'm referring to the United States versus Rawlinson, which was a case that the court referred to in the first opinion.

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What three and then four as well say is that as guarantor, I'm giving you permission to go ahead and modify the arrangement with the plaintiff, with the company, however you wish.

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And if you do that, it's not going to let me off the hook.

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Now, that's an answer to the argument that was made in Rawlinson.

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There, you had a guarantor and you had a company.

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And for some period of years, the bank kept giving extensions to the company and giving it more time and forbearance.

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And then ultimately, after any number of years, it sued the guarantor.

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And the guarantor said, well, wait a minute.

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When you did all of that, giving all of that forbearance to the real borrower, you let me off the hook.

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And in Rawlinson, this court looked at language very similar to 3 and 4 and said that, no, that's the answer to that.

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You gave the lender permission to do this.

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So 3 and 4 accomplished that.

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And so that we concede that the original $3.7 million

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Mr. Ferrucchi was not let off the hook by subsequent modifications.

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But there's no language in three or four, we don't think, that can fairly be read to say, but if you choose to lend more money to the same borrower, we are automatically on the hook for that, without you coming back to ask us to sign another guarantee.

[00:17:47] Speaker 03:
I think you make a very good point.

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May I ask you a question as a little puzzle?

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This case came to the Court of Appeals before.

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It was remanded back for what purpose?

[00:17:59] Speaker 02:
Your Honor, we believe it was remanded for a narrow, very narrow purpose and that it escaped those bounds ultimately.

[00:18:06] Speaker 03:
Why aren't you, why didn't you argue the law of the case indicates that it was inappropriate to extend the remand, as the plaintiffs have, to an entirely new theory?

[00:18:22] Speaker 02:
Well, we certainly argued to Judge Lamberth that that was the case.

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You didn't argue it here, so let's wait.

[00:18:27] Speaker 04:
Well, wasn't it that I had that same reaction that Judge Slurbin did?

[00:18:32] Speaker 04:
Not surprising.

[00:18:34] Speaker 04:
But didn't this enter the case through an amended counterclaim that the court accepted?

[00:18:42] Speaker 02:
It did.

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The judge exercised his discretion, in our view, to go outside the channel that this court had set.

[00:18:49] Speaker 04:
But you're not arguing that was an abuse of discretion.

[00:18:51] Speaker 02:
You could have appealed that.

[00:18:53] Speaker 02:
We could have.

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We felt that his decision was so correct on so many different grounds that it was really not necessary or appropriate for us to be here disagreeing with anything he did.

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But yes, I do believe that they got a second bite at the apple that this Court did not intend

[00:19:10] Speaker 02:
when it sent the case back the first time.

[00:19:12] Speaker 02:
It sent the case back, in our view, to plead and prove the existence of a novation, a new contract supported by separate consideration, and there was no such thing.

[00:19:22] Speaker 04:
Which of your arguments do you think is the strongest for affirmance, if we were going to affirm?

[00:19:28] Speaker 04:
Is it the one you and Judge Silverman have just been talking about, about the clarity of the note, or is it the non-negotiable

[00:19:35] Speaker 02:
I certainly believe we're correct on both of them.

[00:19:39] Speaker 02:
I think the argument based on the text of the agreement is simpler and more straightforward.

[00:19:45] Speaker 02:
I think you need to look at a broader range of materials.

[00:19:50] Speaker 02:
I mean, I will address that other point.

[00:19:52] Speaker 02:
I think you're correct that at best the law was unsettled.

[00:19:56] Speaker 02:
around the country at the time this was... But was it unsettled in the district?

[00:20:01] Speaker 02:
Not in the district.

[00:20:02] Speaker 02:
In the district, and I do apologize for counting Judge Keel as three different judges.

[00:20:06] Speaker 02:
I realize now he's just one judge.

[00:20:08] Speaker 04:
Yeah, he's just one judge.

[00:20:10] Speaker 03:
He's very productive.

[00:20:13] Speaker 02:
He's the equivalent of three.

[00:20:14] Speaker 02:
I know he does, and I do apologize for that factual error.

[00:20:17] Speaker 02:
But the fact is, is that the law in the District of Columbia, and frankly it still is,

[00:20:24] Speaker 02:
today in the sense that after the amendment, I think he suggested at least in that footnote in a later opinion that he thought it would not be applied retroactively.

[00:20:34] Speaker 02:
And I think the comparison to Maryland, which DC does look to sometimes in the absence of DC authority is very telling because the appellant themselves brought it up.

[00:20:45] Speaker 02:
What happened there is that the General Assembly of Maryland adopted the UCC change.

[00:20:51] Speaker 02:
Judge Hargrove then ruled it was not retroactive.

[00:20:55] Speaker 02:
They are very critical of that decision, but that's what he said.

[00:20:58] Speaker 02:
And then the General Assembly of Maryland came back a second time and essentially overruled Judge Hargrove and held it is retroactive and said that in so many words.

[00:21:09] Speaker 02:
And under the test that applies in the District of Columbia, where there is a real strong presumption against retroactivity when the statute is silent, it requires that sort of compelling evidence.

[00:21:20] Speaker 02:
And what they have adduced, which is you can find statements among the people who drafted the UCC change that they thought it was consistent with past law, falls far short from meeting the Holfstanger, I think it is, test in the District of Columbia for applying the statute retroactively.

[00:21:44] Speaker 02:
Ultimately, I think we prevail on either prong.

[00:21:48] Speaker 02:
But as Judge Silberman pointed out right off the bat, the appellant has to convince you on both of them in order for it to make a difference.

[00:21:56] Speaker 01:
Can I just ask about the first one really quickly, which is under the paragraph one on page 156, the critical language you focus on that says,

[00:22:06] Speaker 01:
that the guarantees limited to the payment of the note and that performs the obligation under the loan documents and shall not extend to any other amounts or any other sums or obligations owed by the borrower to the lender.

[00:22:14] Speaker 01:
So why doesn't that reference to other sums or obligations owed refer to other sums or obligations that aren't within the four corners of this, that they're other things?

[00:22:24] Speaker 01:
In other words, it's not talking about other sums owed pursuant to this arrangement.

[00:22:31] Speaker 01:
It's other sums that are already owed.

[00:22:33] Speaker 02:
Well, that is one of the things it refers to.

[00:22:36] Speaker 02:
We think it was also intended to refer to amounts that might hereafter be owed.

[00:22:43] Speaker 02:
But in any event, the first half of that sentence makes it very clear that whether the carve-out is that broad or not, the basic statement of what's being guaranteed is limited to those defined terms.

[00:22:57] Speaker 02:
And if you go through the definitions of note and loan documents, they just keep coming back to even date here with $3.7 million.

[00:23:06] Speaker 02:
And ultimately, the only sentence anywhere in any of these documents where my client guaranteed anything is the first sentence of paragraph one.

[00:23:16] Speaker 02:
And again, it is tied very much to the defined term.

[00:23:19] Speaker 01:
That's their definitions argument on the defined definition.

[00:23:21] Speaker 02:
They're back to definitions.

[00:23:22] Speaker 02:
They all come back to a loan of $3.7 million.

[00:23:26] Speaker 02:
And then it refers to documents of even date herewith.

[00:23:30] Speaker 02:
that advance and secure that debt or that evidence that debt.

[00:23:37] Speaker 02:
And again, there is a definition of note in another document that is much broader than that that includes amendments.

[00:23:45] Speaker 02:
So the person who drafted this clearly knew how to do that.

[00:23:48] Speaker 02:
Let me real quickly just turn to the

[00:23:51] Speaker 02:
under seal point.

[00:23:53] Speaker 02:
Murray is the controlling case.

[00:23:56] Speaker 02:
There is no case that's cited by the appellants in which anybody has ever been deemed to have sealed a document unless there was an attestation right above the signatures that said the undersigned hereby execute and seal and somebody at least seal it.

[00:24:16] Speaker 02:
The farthest the DC court has ever gone

[00:24:19] Speaker 02:
is to say that if there's an attestation like that and the first party who signs does it with a seal, we will infer that the party who then signed below that also meant for it to be a sealed document.

[00:24:32] Speaker 02:
But Murray, there was an attestation.

[00:24:35] Speaker 02:
There was a very clear statement at the top of the very page that had the signature lines that said the undersigned are signing this under seal.

[00:24:43] Speaker 02:
And yet neither of them wrote the word seal next to their signature or stamped it or did anything.

[00:24:48] Speaker 02:
And Murray, despite that very clear evidence of intent, said that's not a sealed document, because there's nothing down below that follows up the attestation.

[00:24:58] Speaker 02:
This case is Murray-like, doesn't even get as far as Murray, because here there is no attestation clause.

[00:25:07] Speaker 02:
There is a statement of what the lender's intent was, perhaps, back in the whereas, as though I would question,

[00:25:14] Speaker 02:
If their intent was it to be sealed, how come the person who drafted it didn't put an attestation above the signature lines?

[00:25:21] Speaker 02:
But in any event, there is not the slightest evidence in this document that, in fact, the guarantor was delivering a sealed document.

[00:25:30] Speaker 02:
And if it really was the key to their intent that they not make the loan without that, they shouldn't have closed the loan.

[00:25:37] Speaker 02:
And there's no estoppel here, because nobody was misled.

[00:25:41] Speaker 02:
All you have to do is look at the last page of the guarantee.

[00:25:44] Speaker 02:
It's not under seal.

[00:25:46] Speaker 02:
There's no attestation, and there's no seal.

[00:25:49] Speaker 02:
So nobody was misled that would give rise to an estoppel.

[00:25:55] Speaker 02:
So unless the court has any other questions, that would be my presentation.

[00:26:00] Speaker 04:
OK, thank you.

[00:26:01] Speaker 02:
Thank you very much, Your Honor.

[00:26:02] Speaker 04:
Counselor, he had time left, right?

[00:26:03] Speaker 04:
OK, go ahead.

[00:26:15] Speaker 05:
Your Honor, I just want to make two or three really quick comments.

[00:26:18] Speaker 03:
I've talked to you about the second sentence.

[00:26:24] Speaker 03:
But of course, your opponent's even stronger argument is the first sentence of the guarantee one.

[00:26:36] Speaker 03:
It is understood and agreed that this guarantee is limited to the payment of the note and the performance of the obligations under the loan documents.

[00:26:47] Speaker 03:
What about that?

[00:26:48] Speaker 05:
Your Honor, my opponent is arguing to look at this in a vacuum.

[00:26:55] Speaker 05:
This guarantee was given as part of a single transaction where there are two other documents.

[00:27:00] Speaker 05:
And I think that the common law of contracts, especially when there's integrated documents, is that you read them all together.

[00:27:07] Speaker 03:
Well, even if you do so, note and loan are defined in this document.

[00:27:12] Speaker 05:
I think that's just shorthand, Your Honor, so they don't have to

[00:27:15] Speaker 05:
you know, keep on saying what the amount of money is.

[00:27:18] Speaker 03:
So we should not consider the definition in this document because it's shorthand.

[00:27:24] Speaker 05:
No, I think you should consider note in the context of the entire transaction.

[00:27:30] Speaker 03:
This document and the others.

[00:27:32] Speaker 03:
The definition of note in this document should not control.

[00:27:35] Speaker 03:
It's only shorthand.

[00:27:39] Speaker 05:
The definition of note, Your Honor, I think is given in another document.

[00:27:44] Speaker 03:
Well, it's given here, too.

[00:27:49] Speaker 05:
I don't see that, Your Honor.

[00:27:50] Speaker 05:
Sorry.

[00:27:52] Speaker 03:
Am I forgetting that?

[00:27:54] Speaker 03:
Doesn't his note and law define in this document?

[00:27:59] Speaker 05:
No.

[00:28:00] Speaker 05:
Right.

[00:28:01] Speaker 05:
To be evidenced by a promissory note of even day herewith.

[00:28:04] Speaker 05:
Note.

[00:28:06] Speaker 05:
It isn't defined?

[00:28:08] Speaker 05:
I just read what it was.

[00:28:11] Speaker 05:
I don't see it defines anyplace else.

[00:28:16] Speaker 03:
Well, I have to ask Council when you sit down.

[00:28:18] Speaker 05:
I thought I remembered it was defined in the... No, it's defined in the credit facility agreement that was made the same date as this and the same day as the promissory note.

[00:28:28] Speaker 05:
All three documents came out of a single transaction.

[00:28:31] Speaker 05:
And so I think they ought to be read together, Your Honor.

[00:28:36] Speaker 05:
But, you know, in any event, the only other point I wanted to make about what this document covers

[00:28:43] Speaker 05:
is at 287 of the record is an exhibit to the facility agreement that indicates what the prior indebtedness is.

[00:28:53] Speaker 03:
And the last point I want to make is on paragraph... Let me ask one other question with respect to the guaranteed language of paragraph one.

[00:29:02] Speaker 03:
Your argument is that language should be read to include future sums lent on the principal sums.

[00:29:13] Speaker 03:
So if there was a sum of a hundred million dollars lent by the bank to the company, that would be covered by the guarantee.

[00:29:25] Speaker 03:
If there was an amendment to the note, which there are, all that would... So if there was a hundred million dollars lent by the bank to the company, that would be subject to the guarantee.

[00:29:39] Speaker 03:
The guarantee would cover that.

[00:29:41] Speaker 05:
Provide, yes, provided there was a written amendment to the note, which... I don't understand why, why does it have to be a written amendment to the note?

[00:29:52] Speaker 05:
Because the money that we say is covered by this note is contained in twelve amendments to it that are in writing and science.

[00:29:59] Speaker 03:
Okay, let's assume there is a written amendment to the note.

[00:30:02] Speaker 03:
Okay.

[00:30:03] Speaker 03:
And so it's a hundred million dollars in that.

[00:30:05] Speaker 03:
That, the guarantee would cover that.

[00:30:07] Speaker 05:
Yes, Your Honor, because of paragraph three.

[00:30:09] Speaker 04:
Well, yeah, now you go on to paragraph three.

[00:30:11] Speaker 04:
What's your reaction to what counsel said about paragraph three when I asked him about it?

[00:30:17] Speaker 05:
Your Honor, I think if you read paragraph three the way my brother wants you to read it, you don't need paragraph four.

[00:30:25] Speaker 05:
It does the same thing.

[00:30:26] Speaker 05:
But I want to stress

[00:30:29] Speaker 05:
This isn't the Rawlinson problem.

[00:30:30] Speaker 05:
Rawlinson is right on point on paragraph 3.

[00:30:34] Speaker 05:
Language almost identical to this language in the Rawlinson case was quoted by the court there in the context of saying that the lender and the bank could change the amount of the loan based on this authority, and it would not trigger the statute of limitations.

[00:30:58] Speaker 05:
So I think whoever's... I think Rawlinson is right on point, but it goes that way.

[00:31:04] Speaker 05:
All right.

[00:31:05] Speaker 05:
Thank you, Your Honor.

[00:31:06] Speaker 04:
All right.

[00:31:06] Speaker 04:
Thank you.

[00:31:06] Speaker 04:
Both the cases... Wait, wait, wait.

[00:31:09] Speaker 03:
Hold on.

[00:31:09] Speaker 03:
Excuse me.

[00:31:10] Speaker 03:
Yeah.

[00:31:11] Speaker 03:
Go ahead.

[00:31:13] Speaker 03:
Your response to the $100 million hypothetical is that this language would apply in any other agreement.

[00:31:25] Speaker 03:
We should interpret it the same way.

[00:31:28] Speaker 03:
Is that correct?

[00:31:29] Speaker 03:
If another case came up, we should interpret this language exactly the way you say it, right?

[00:31:35] Speaker 03:
No matter what bank we're talking about and what bar we're talking about.

[00:31:40] Speaker 03:
Is that correct?

[00:31:41] Speaker 05:
Yes.

[00:31:42] Speaker 03:
So that any guarantor would be hit the same way you're arguing this guarantor is, right?

[00:31:50] Speaker 05:
If you agree to it.

[00:31:51] Speaker 03:
This language.

[00:31:52] Speaker 05:
This language, no language, it's in the credit facility agreement.

[00:31:56] Speaker 03:
The problem with that argument is that down below your expert witness said this language should be interpreted especially in this situation because your adversary, in this case, controlled the corporation.

[00:32:15] Speaker 03:
But your answer to my question would be, it would be the same whether the guarantor controlled the corporation or not.

[00:32:22] Speaker 03:
So a guarantor with this language would be stuck with $100 million added no matter whether or not he or she had control.

[00:32:31] Speaker 03:
Your Honor.

[00:32:31] Speaker 03:
Is that correct?

[00:32:34] Speaker 05:
If he signed the same document.

[00:32:35] Speaker 03:
Okay.

[00:32:36] Speaker 03:
So the controlling aspect, which you relied on down below.

[00:32:42] Speaker 05:
No, he didn't say it only applies here.

[00:32:45] Speaker 05:
He said it especially applies here.

[00:32:47] Speaker 03:
Okay.

[00:32:47] Speaker 03:
Thank you.

[00:32:48] Speaker 05:
Did you have another question?

[00:32:49] Speaker 05:
Your Honor, you have to read this with all the other documents that are part of the same transaction.

[00:32:54] Speaker 05:
Okay.

[00:32:55] Speaker 04:
We got it.

[00:32:56] Speaker 04:
Thank you.

[00:32:57] Speaker 04:
Do you want to... Sure.

[00:33:00] Speaker 03:
Yeah, go ahead.

[00:33:01] Speaker 03:
Yeah, I thought the definition was in the... I can't... My eyes are getting the difficulty and I can't read this.

[00:33:10] Speaker 02:
No, no, I'll use a magnifying glass.

[00:33:15] Speaker 02:
That's what I thought.

[00:33:17] Speaker 02:
Oh yes, here it is.

[00:33:22] Speaker 03:
I've got it.

[00:33:23] Speaker 03:
I thought I had it earlier.

[00:33:26] Speaker 03:
Thank you.

[00:33:27] Speaker 03:
Okay, thank you both.