the st case on the calendar is bank of america the new england quality service you your honor smith please the court i'm shannon bertrand i represent the appellant's known collectively in this matter as any q s also the individual the sole individual defendant kevin l mickey who is in the courtroom  today the bank of america waived its right to claim a default on the basic fixed coverage charge coverage ratio because of the prior dealings of the parties all there had been an implied waiver of that ratio based upon the fact that additional funds had been extended to the two and any q s without an accompanying change in the financial position and the bank knew or should have known that at the time it extended such loans that the ratio could not be met and in fact this would really be an appalling rule for for business because it would mean that any time a lender has and is included in the loan documents these kinds of of of of conditions that you need to maintain ratios and so forth the minute you fall into fall off of them the bank has got to blow the whistle and bring the whole house down and can and can't keep things going and see if you can straighten it out for risk of being held to a forfeited the right to enforce that or and that is precisely what and e q s had hoped the bank would do when they issued an initial notice of default the course of dealings between the parties had involved routine waivers of other  defaults and in light of those retune routine waivers there ben of course of conduct between the two you're saying if you give any waivers with respect to the fault then you can't enforce any other  that's well yes but i'm not suggesting that there can never be a claim of a default i would just know that there had been a previous waiver of a ratio default as you will see in the briefs of the  rd the rd waiver it was waivers and they were specific in writing the rationale yes there had been there had been there had been occasions of waiver which any q s in their dealings with the bank had established as a course of conduct and had relied upon which ties in your honor your honour's with the with the other agreement or with the other argument regarding the preliminary agreement between the parties and e q s had believed that these ratios were not as important due to the fact that there was a preliminary agreement based based on projections based upon alone so called which is a big machine that was actually closed the shredder loan actually was closed the nd component was the financing by the bank of the purchase of five transfer stations in the state of new york and the rd was a wrap around and consolidation of all existing debt of the of the companies which would have provided additional security to the bank and we've provided better terms to the  agreement the preliminary agreement does not bind the parties to the specific agreement at my on material terms not you can have an appointment if there's no remit on price is no agreement on boundaries there had been substantial efforts and actions taken place including appraisals of the transfer stations some environmental hazard reviews and that sort of things there'd been a number of discussions between the bank and any q s regarding these preliminary agreements and all but a preliminary agreement is for does your honor doesn't it doesn't bind the company to a specific agreement but it means you cannot simply walk away without making good faith efforts to finalize the agreement and me appellant position here is that the bank failed to act in good faith when it came in place the loans in special assets group or sag mr macdermot who was the bank's sag officer in charge of the case testified that he never made any attempt to acquaint himself with the relationships between the parties he never made any attempts to work out an agreement with the party he never made any attempt to determine the going forth business his job was simply to get out of the business of any  s and it is submitted that under the terms of under the preliminary agreement that we believe did have substantial material agreement that such sharing and one is your primary evidence and what you're relying to say  piece and that is the main piece of evidence as well as the communications with the parties and as well as in the bank indicates that the the credit approvals records and memoranda were not provided to the to any q s team we certainly agree but what it does show is the bank's intent to get into this preliminary agreement and to make this agreement creating a situation where they were not simply free to walk away without good faith negotiation i just briefly the duress issue is quite extensively briefed regarding m that what your response to that well my my response to that your honor is that was a modification of the existed agreement so it was a different no it was a different matter and it is also evidence of  the bank's attitude started this trick or told that we're not disputing that loan and now you're saying it was under duress and i don't understand that i mean i don't have a good explanation for you to that specific question your hon because the the the duress came which in effect that the entire agreement between the parties because mr card said the shredder loan would also be done at the time that  of that closing in the shredder loan of course was a state was not part of that modification your honor the shredder loan was the biggest component of this agreement and that is why we believe the duress agreement continues to have issues our paper is made clear in the district court correctly found that there was never any waiver of the the key covenant the which i'll call the fixed charge coverage ratio covenant the f c c are covered in a shorthand argue that the waiver of other defaults on other loans to a different borrower somehow amounts to an implied waiver of the bank's right under eight separate credit facilities to assert any defaults and in fact as the court has pointed out earlier this would preclude a bank that we've any kind of any the fault on any aspect of a credit relationship from ever  defaulting that loan on a go forward basis that can't be the law because in reality waivers happen all the time and if and it's certainly something the courts would want to discourage from banks from doing so  out of the water at that point somehow and implicitly what your response meant well it's actually false if the doctor documentary record shows that the the companies emitted numerous compliance certificates at least two of which were after the shredder loan had been made in which they represented to the bank in the bank agreed that they were compliant so the record shows that they did comply that the cut the covenant was achievable and in fact that she did it and represented to the bank that they were in compliance for two quarters after the closing of the shredder so the notion and this goes to their their experts in possibility theory that the covenant was impossible to meet is just and it's and it's the documentary record proves that and i think this record correctly noted that as well they also refer to maturity extensions that occurred throughout their relationship those extensions were all in writing as were all of the covenant waivers they were all documented in writing there was nothing implied about it they went through the credit committee approval process they were all documented properly the extension of the maturity sanctions again were for different loans and were all in writing and all turned before there was any maturity to fall so they weren't even waivers that they they're they're mixing apples and oranges and calling them waivers they were just straight extensions of the maturity so that also cannot be the basis for an implied waiver with respect to their duress claim that he was paraded curse that had a closing but what the defense don't point out that is that and i think the court noted earlier this was a refinance of a preexisting that they were already liable for this debt the sole purpose of the refinance was to benefit the defendants at their request to give them a more flexible payment schedule which they got they took a forty five thousand dollars a month payment and made it essentially a seasonal principal payment where they only had to make principal interest payments for either they were eager to close this loan and they requested it the text messages in the record reflect that mr l nicky was tempering the bank officer with text messages about when are we going to close one of the terms i'm comparing it to a prior loan agreement why is this in there he reviewed the documents in advance of the closing that is crystal clear from the record and factually there's no basis for the claim that that was a direct but ultimately it was a that point there's a rational a clear ratification because they accepted the benefits of the transaction assuming mr only he felt he had been mistreated or maltreated at closing not treated professionally where was the subsequent action to raise that issue to complain what specific terms in that read occupation in that refinance are they complaining about we don't know because they were happy with the terms that there's so it's so how are they harmed there's no possible damages in the fabrication there's no document there's no evidence in the record of the so called tripartite agreement it's a story that they've invented to create the impression that the shredder moanin the subsequent actions relations of the party were all part of some grand plan as the court noted there clearly were discussions there reflected in in various approvals over the years for the defendants to acquire certain real estate five transfer stations in washington county new york that certainly was discussed and their desire to purchase those properties was discussed it's reflected in the approval but as the approvals reflect there were substantial contingencies before we get to a discussion about  of real estate mortgage loan and actual consummation of that one and there were many open terms that would have to be addressed as in the case of any real estate acquisition and as the court noted earlier many of those terms were never never even agreed to they never entered it they never exercised the purchase option that they needed to exercise because they were leasing the properties and they had a purchase option the washing county administrator testified at deposition that they never even exercised the purchase option and any time in this was in april of seventeen with a deposition to place they never agreed on the price they were still not go shooting the price this is nearly two years after the default setting current and we weren't in the middle of extensive litigation they reasonably relied on them and you would expect to have an express reservation of right in an internal bank document that would be logical but the all the other three standards including the the clear terms that you have to have an agreement on the basic terms of the transaction and whether this is typically a transaction that is documented in writing or clearly demonstrate that they do not meet the miller standard and that there is no evidence