that issues we believe for the court to sustain and to agree with the trustee on the successor issue it's clear that you have to allow the trustee to high the do one of two things either read into the definition of success or read into the definition of shearson in the in this agreement the word successor or else tinker with the binding effect clause and say it also means you get all the benefits neither of which are what the language of the agreement says and you have to do that in the face of the history that the word successor was struck from the four or five precedents but not a successor for purposes of subordination is that the argument correct we certainly contend it's a successor in fact the trustee argues that it's something else the same but i don't think that really goes to your honor's point yes  as a successor for purposes of this argument paragraph eleven at the end of the agreement extends the obligation to successors it's one of the three places in the agreement where the word successors appears the other two places where the successor a benefit for l b i in this situation because that language is not in there if i understand your honor there is no successor benefit for l b i am not sure i heard the employees ears i'm saying in other words if you're reading section eleven to say that  doesn't involve benefits only involves obligations why would the employee's heirs be entitled to benefits under the e c e s e p agreements that's my question because the section eleven because the obligation to pay continues the employees haven't changed the employees or the are the same people what is changed as to well in the binding effect caused is an heir to the employee why would the heir to the employee necessarily get the benefit if it's supposed to reach section eleven the way you're suggesting because the contract says that expressly that's the text of the error does succeed to the benefits whereas the contract does not say that the subordination clause which let me are free to paragraph nine paragraph nine has two places where the word successor appears both of them are clawback back causes relating to shearson successors having a right of clawback in the next following sub and five became part of a plan he explains in detail what was going on there was a deep concern about successor entities for reasons having to do with what had happened in the early eighty's mid eighty's and what was happening at the time these individuals were going to put half of their earned income per year for four years into this plan so he says in so many words i'm sorry to interrupt he says in so many words management directed the lawyers to do this did they do it as perfectly as i would like no referred be clear again in section eleven because that's really what i'm focused on common in contracts all the time for parties to say th  agreement binds both of us and our successors and that includes obligations and benefits that you don't go essentially if we reach section eleven the way you're saying that every time she or sin is mentioned you have to say ok this is an obligation she missing how many times in that agreement one hundred dollars right over one hundred think that's right every time you have to say ok it's an obligation is a benefit and then try to make a determination of whether or not this has some binding effect on success or is that really what is stated by that language what we've covered in the breeze for a couple of things as to the other one hundred references there's no parsing that's needed because there are no ongoing quote unquote benefits to cher's and to be it just it doesn't work that way the two places where it matters are the two clawback provisions but coming back to your point about paragraph eleven could it be read that way i would submit that it can't in light of the full context of the rest of what this agreement says and the fact that the word successor was struck from the definition very advisedly in contrast to earlier documents but if you were to think that that's the right reading then i'd submit this court can't take away two hundred and seventy million dollars of pensions from these people on the ground that it's an ambiguous lee the case the paragraph eleven has to mean words different from what it says on the page that you have if as i understand your thought your judge bianco it is that in paragraph one hundred and eleven should be reading into that the words the benefits the continuation but those words aren't there whereas standard drafting causes you are it's not binding one party if it was only binding one party successors then you might have an argument potentially that this only deals with obligations it's binding both parties if you binding both parties and all of the reading anything into say that it binds them in every respect with respect to the reply just obligations as opposed to benefits it binds them to duties but what kay said you have that were courts require this additional language that you're suggesting would in order to apply to benefits and agree well that goes to the question of whether or not it's an ambiguity it's not a case but as as a document as a whole this agreement reads seamlessly the way that we argue that it reads if you trace through where the word successors appears it has meaning and it gives meaning to all of the terms in a way that's logical if you infer benefits or the kind of extension of all of the rights benefits etc just out of the binding effect clause then you have a whole series of  left we detail these i think it page thirty seven through thirty nine of our initial very long footnote there could be more but that is that kind of reading essentially is textually nonsensical because it means beneficiaries and heirs then are deemed to have succeeding really duplicative benefits that's not a clear sensible reading of the document as a whole if you think that that's what was meant or could be what was meant then i think this court is obligated to send us back for discovery and trial as to the construction of an agreement that's ambiguous because i think the worst you can fairly find against  this document is that it as it is ambiguous and the cascade allows you to look at the junior's affidavit as the context because the guy who signed it on behalf of the company says we told the lawyers to have exclude successors from subordination risk we said that you have that in front of you and that has to be given meaning you can only not give it meaning if you turned a blind eye to it saying that this agreement is so clearly not what we said that it is so clearly on the text not what mr says that it's an ambiguous and you will not look at what you near says and i think that would be wrong thank you hear from the other side both parties agree is new york would look st to the language of the agreement if we look at the language of the agreement would submit that it unambiguously makes clear that these claims are a subordinated be irrevocably subordinated and see that in the event of a simple liquidation exactly like this one the claimants do not recover until the claims of and subordinated general clark creditors have been satisfied or provided for we submit there's no ambiguity in any of that language that there were corporate changes that occurred in the in the th or twenty five intervening years there were there were sales and there were mergers but as the bankruptcy court correctly found based on the undisputed records from that certified records from the delaware secretary of state  when when requesting all documents of all filings related to lehman brothers and we get this set of documents that shows that in any merger either shearson lehman brothers inc at the time or post name change lehman brothers and was always the surviving entity in any merger and the law is clear that the surviving entity in a merger gets the rights and the obligations of the entities that entered into that merger otherwise what we have his name changes which everyone agrees are not relevant except that they are they're legally success i do think there i do think that colloquially one can say successor that's true your honor but i don't think in terms of having any legal effect it in no way is a successor that inherits the obligations of shares in lehman brothers but doesn't but those laws that a successor corporation inherits the rights and obligations of its predecessor it's not that it inherits the obligations but those obligations can somehow change their very nature from subordinated to un subordinated and particularly in a case here where you're a broker dealer and subject in that capital requirements and there was a very important reason that those claims were subordinated but even if that even if that weren't the case a successor gets the rights and obligations of its predecessor because of that  section of the contract section eleven that talks about it being binding on successors is not even necessary and a lot of contract drafting techs say that it's not it's not strictly a necessary clause because contracts are binding on successors that's what successors are but here the drafters removed any doubt because they made they made very clear that the contract is binding on both the on both the successors of shearson and the heirs of the employees and so we submit that unambiguously the contract very clearly states that the claims were always subordinated and it states very explicitly how they are to be handled in a civil liquidation like this one and that's that they are to be subordinated if i could just turn to one other point that we do take st of all we don't we have of course it's our position that the agreement is clear and that it's not proper to go looking at other deferred compensation agreements the question can be answered by looking at this one but we do take issue with the idea that there was this very knowing careful deletion of the word successor from prior agreements if your honour's do look at those prior agreements you'll see they have a whole section one that define dozens and dozens of terms that just doesn't appear in the agreement so it's if if your  provisions yes yes your honor we do admit that those those agreements those sections would read the same way with or without the successor language i mean we have i think that's the only plan reading of the contract but what it doesn't mean you can't use the provision you can't use the doctrine of express who has to put ambiguity into this agreement where there isn't any to begin with and that's the n y u case that we cite in our brief and so it is it is true that actions include the word successor and they don't have to i would note that one of those sections also includes the phrase employee and his arizona signs which you also don't have to because of the section eleven so it's not it's not a drafting error we're not asking you to read the terms any differently than what they say but we do acknowledge that the effect would be the same in those two sections whether or not it used the word successors but that's not a reason to read the other one hundred and thirty times that shearson is used in the agreement without successors to only mean have held st of all that the agreements are plain on their face that they do subordinate and then they turn to the question of whether the claims then become an subordinated in the event of a material breach of the agreement whether that be either by lehman brothers during the term of the contract or the implied rejection that occurred the implied breach that occurs when the trustee rejects these contracts if they are executor ory and as as both courts below correctly held courts in force provisions of the contract in favor of breaching that benefit reaching parties all the time we cited cases where that happens with limitations on damages provisions arbitration clauses form selection clauses and it and at least one of those cases regarding a form selection clause the court specifically addressed the argument here which is that there the plaintiffs have a way to defend and breach they can't enforce the form selection clause and the court said no that's not correct we enforce we enforce clauses like that all the time more directly on point we have we also have cases where there were subordination clauses and the plaintiff sued and won and the court said yes you win you're entitled to your judgment but it still subordinated the subordination clause doesn't go away just because there is a breach in the brief which in this case is subordinated to the rejection case and make clear that the contract doesn't go away or vaporizer disappear it is a breach we fully admit that but for all the same reasons we have in section two that the breach doesn't  thank you it's a form of speed dating i guess with this many issues apologize to go over my time a bit  fitzpatrick make clear that response to judge bianca's question would you say about the word successor in the claw back provision well they don't have to be there that should tell this court this agreement is a minimum ambiguous and needs to be sent back for a proper construction because it is right before the section on subordination where the words successor don't appear supplies somebody some associate at a law firm mr thinks it was the wilkie firm made changes to this agreement there's a person who went in and struck the word successors in the place where he had appeared in all prior instances all part iterations of virtually identical agreement for similar plans some human did that and they did it for a reason you can't say it is done by happenstance i don't believe you can fairly conclude that and if it is not done by happenstance then you've got to send this back because people shouldn't lose their pensions over trying to jam a square peg in a round hole or is it a round peg in a square hole i can't remember but the language when you try to parse it doesn't work and you don't have to parse one hundred and thirty references to shearson because most of them are irrelevant to the question of rights versus burdens somebody changed the document because they were told to already said intend that and if it's not be so subordinate it would have been many much clearer ways of articulating that we just we just don't see i  submit this year to your honor you've seen many agreements that are not perfectly done in one thousand nine hundred and five this is not a three hundred million dollars loan deal it's being done by lawyers outside the reading of investment bankers and wall street professionals who are given a general instruction it's being done by the folks who do employee benefits and deferred compensation agreements and they didn't include all of the language that your honor says is indicia of what was intended as junior's tells you it was intended is clearly in the agreement because the word was struck from the definition and it was left in in the three places where it matters again what i have written a differently of course is it perfect no but is it at least not ambiguously what the trustee says it is it is not an ambiguously what the trustee says i don't not believe you can in this case and deprive these people their pensions in the face of their having discussed this issue management having discussed this issue to come out the way we say drafting for them to an subordinate comes within a huge thing for purposes that regulation not not really so because at the time the money was put in huge money for each individual probably i've tried to calculated by thirty dollars to forty million dollars in  and five over four years that money grew over the next twenty five years which is how you get to a one billion dollars of expectancy cut back to two hundred and seventy million dollars on the books in the year two thousand and eight at the time of the bankruptcy but no it would not have been a an earth shaking thing it was a benefit let me take a step back and over time you asked question the way these plans were constructed was it was a profit for  wasn't a benefit from lehman to the employees although it was a benefit for the employees it was profitable because up until nine hundred and eighty six tax law changes when there was an up submit a substantial change in the tax law these plans allowed companies to sponsor the thing borrow take life insurance policies out on the employees borrow heavily against them borrowed to the hilt in a tax advantaged manner the company effect had a tax play where it made money through the borrowing and a tax rebates is as i understand it on the on the insurance policies all eventually owing some money down the down the road by comparison the effect on the net capital regulations yes it was a benefit these plans were always structured that way but it wasn't a big needle mover even at that time are we having our touch on the material 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