right because of our recording issues it would be better if you came to the podium how much time did you want to re you have to have a promise on and on each side of the book in order to have consideration for the contract and in this case m t c promised to build she says while everything is fine the other way still operate all it's not it's a good completely different network operator agreement on a completely different network much smaller so there was a wasn't that size so that doesn't take care of what the bankruptcy court did at all we have a much smaller network we have a much smaller revenue source this is  consideration we got was we're going to miss four million dollars for this bin network which is a big opportunity to make money that the the network is much smaller itself and our our our our what we received was the promises from mt seed to perform nothing to the galaxy he says in t c is relieved of his obligations to in the arbitration and it's in the record and c c asked a complete waiver of defense and that was not agreed to that language was not put in these in this guarantee so the defenses that authority to make a determination as to whether the guarantee was what he did it was given to him by m t c the the guarantee provides the m c c with the they can't do that the endl way had to condition proceed the condition proceeding can be waived and she see they should have won it if they kept wanted to challenge that they had the obligation to the went to the into the a modification to any of the obligations and liabilities of the network operator under the network operator agreement or any failure on the part of m c c to real ice upon those obligations so in other words if if if a c s t had an obligation and m t c didn't realize they had an obligation and kind of overlooked it then it then it it still would not relieve the  guarantor of the network operators obligations it's all directed to the net and to really been out waving anything by relieving the network operator of its obligations you would have to have a clause in included in there the only thing this with the only thing the don't be only an item then it is is is they're saying is this is a gap you know it's a standard guarantee and it's the obligations of the network and even if you got it wrong and even if it is a that is a decision for the arbitrate council before you step back and i'd like to ask one question would a ruling in your favor by us leave any room for m t c to go back into the bankruptcy court and argue that there now is no in no way agreement because for the failure of the condition precedent and it's time to renegotiate from the beginning well doesn't eve the room for that argument they could make the argument but i certainly believe they waived it they assented to the a no way finding and it was implemented with the at that point in time with  arbitrary ruling there was no guarantee so thank you you reserve some ti may please the court my name is robert taylor i'm the counsel for mass tech churchill ms decision in the district court to vacate just this portion of the arbitration award was correct this it is our position that a traditional guarantor obloquy or beneficiary relationship was established by two contracts the in a way and the guarantee each of which referred to the other each of which incorporated by reference portions of the other and each of which was dependent on the other axiom makes one point in its main brief that there is that mass tax argument would be much stronger of in a relationship between the two contracts if there was some language in section twelve fourteen which was a language requiring the entire term of the operating agreement the parent company if you solvent and won't be in bankruptcy the the key to this behaving this portion of the award was that it was a problem with the remedy we tend to stay away from the courts tend to stay away from challenging the arbitrator's rationale but if we look at this award in this way tear apart the rationale and just look at the remedy there's a problem with the remedy because the arbitrator doesn't have the authority to fundamentally restructure the parties contractual relationship b rating of the underlying network operator agreement was something that in our view we could have challenged because if you read arctic as five and six of the network operator agreement it doesn't say this contract which was publicly bid has to be renegotiated any time it becomes commercially unreasonable or that the case you couldn't put predatory language in any contract that says everybody shall operate in good faith but in point of fact the rewriting of the network operator agreement was not the major problem because at this point in time as tech could not get a better business deal with holyoke gas and electric their alternative operator which was the draft contract arbitrator pulled these provisions out in the marketplace that's not the problem the problem was that actually it was the bitter for this project they run networks all of the world and they just said we're going to go through a subsidiary they set up a standard corporate structure limited liability subsidiary they limit their liability of rd parties but they maintain their commitment to the project through a guarantee in the language of the guarantee is a judgment as well and i hope it is clear the only way you could misinterpret that language is if you could read it that language says the consideration for this guarantee is some kind of network operating agreement between our subsidiary and you mastic doesn't matter what it says it doesn't matter what it's changed into the whole point of the subsidiary is to just create a vehicle that will limit their liability to rd parties and so what it says is given if you change the underlying network operator agreement we're always going to be here now the arbitrator would have had the authority theoretically to rescind the entire contractual arrangement but what can happen even in arbitration is you can't walk into an arbitration with this kind of a tripartite contractual structure as a public agency running a public safety related network and have a situation in which the operator claims breach of the underlying contract now the guarantor theoretically in order to avoid having to pay on the guarantee could as a matter of common law cert to francis of the underlying contract in part he has obligations that are guaranteed that's not the problem here the problem here is that the arbitrator didn't invalidate or boy the underlying contract the material breach of the network operator agreement by mass tech is not addressed in the guarantee a guarantee is a guarantee of the subsidiaries obligations if we were to bring claims against the guarantor as we did and the guarantor had to pay out it would have the right to recoup in damages monies that it paid out in a situation where masthead had had breached that's what the law bonds and in fact that's what the arbitrator provided and that's what  hated the arbitration award shortly after it was finalized in one of the things that we tried to do here was to do as little violence to the arbitration award as we could and comply with it as much as we could consistent with the has no authority to rewrite contracts to begin with that was part of the record when this arbitration started the whole claim to reform the contracts now it may be that was directed towards the network operator rayment but the concept was generic that was dropped from their pleadings and everyone agreed that they could repeat could rewrite the contract and in the final priest just before the closing arguments no argument was made the contract should be reformed as we pointed out in the brief it was just mentioned  in closing argument but the other line of cases that question one cited was that you can't ignore plain contract language and that goes to the language of the guarantee arguably he was also ignoring language in the network operator agreement it's almost as if and i think it's true judge helmond looked at this situation from three or four different angles it's a fairly unusual situation but he looked at it from three or four different angles and they all put it in the same direction the arbitrator can't do this he's running a  you are contracting with actually not our subsidiary it is going to sense you're basically saying whatever deal you make with our subsidiary will guarantee it that's a fundamental aspect of the contract structure because nobody would have ever negotiated with a subsidiary in bankruptcy that has six employees and one hundred thousand dollars in the bank as their document to seventy i think in the bankruptcy court the disclosure of the reorganization shows it was a it's a sh and they would not reach the responsibility threshold for a public contract like this so what guarantee basically says it's both we've set up a subsidiary to limit our liability mainly to rd parties and this is standard in all tripartite relationships of this type and we're putting a cap on the guarantee four million dollars but basically we're here and we're not going to go anywhere no matter what happens as we mourn is our subsidiary has any obligations at all under the network operator agreement we're going to guarantee those obligations and that was fundamental to the contract structure here and what the voiding of the guarantee did was it it obliterated can you go back to two point three and two  is that right yes so so does an average trader have certain authority to figure out what to do if there's a breach by m t c of the guarantee doesn't express and you limitations on well he's got to read the guarantee strickly if it doesn't address it he can't reach out and say i'm going to void the guarantee on account of a material breach my mastectomy one of the things that are drafter of this type of guarantee would not do is say look you can invalidate a guarantee in the event the beneficiary breaches it's a one way guarantee and the simple reason for that is that the guarantee becomes useless if in fact the subsidiary can just claim breach and then the guarantor says well my guarantee is invalid now i'm not saying they would have no defenses to the implementation of the guarantee but the key problem here is that the arbitrator and are going to war in future all he cured the failure of consideration for the underlying network operator remit in theory he required t repayment of the three million nine hundred thousand they haven't reached the cap on the guarantee tried to return things to the status quo arguably and certainly it was our view he did not have the authority to do any of that however we could live with the rewrite of the network operator agreement it was a rewrite of one initial terms what we cannot live with is the prospect of for the next five years people out in western massachusetts being unable to get nine hundred and eleven service because the network goes down  maintenance hasn't been done over the course of a period of months and instead of having a large public company like axia responsible for the network and incentivized to operate it which is what they promise we just have a shell that cannot do and if there is anything that is central to the case law it's a book if you agree to arbitration so then you're you're settled with it but there's something unusual in this case in that the arbitration clause itself said that all the issues in the arbitration will be decided in in other ways says the guarantee will be continuing in absolute charge made in full force effect in effect until all obligations of network operator out of the network operator agreement have been fulfill that means regardless of what they are or what they turn out to be or what people change them to be or what an arbitrator decides they should be actually is saying i'm always going to be here and even if the subsidiary claims that preached i may argue with you over whether i had to perform but no one is going to come back and tell you that for the remainder of the contract you have to just live with our subsidiary in our guarantee is go there are a number of things the arbitrator could have done consistent with massachusetts law i mean this is way out there as far as massachusetts was concerned we don't normally concern ourselves with the rationale of an arbitration award and i come back to that distinction between why is that a material breach of a guarantee a term of the guarantee is sometimes or it right that's not crazy aftermath it says no i wasn't referring to that that notion i was referring more to the car the whole concept of a public agency bids a contract which it out it gets signed up through a subsidiary and there's a breach claim by the subsidiary and then what winds up happening is both parties the subsidiary and the parent go into court on the same day and try it winds up in arbitration and instead of assessing damages for breach which is what you would expect or alternatively under massachusetts for rescinding the contracts and providing that remedy was there was no finding of fraud or the supreme taishan the arbitrator sort of decided to fashion his own remedy and rewrite the one contract the underlying contract and say you remain bond buy that for five years and the guarantee while you've repeated but it's gone that does enormous violence to the basic contract structure that was a stablished and let's take it to the other extreme i would m t c had provided no ca ice whatsoever hadn't performed at all you would still say the guarantee is rock solid well no failure of consideration there there would be a an argument in that instance for recision of the entire contractual arrangement and there's no question that in that situation an arbitrator court could find circumstance why are we in a position to draw the line someplace else it would be permissible to find a failure of consideration only for both contracts one could not find a failure of consideration for one contract and not the other and fashion different remedies now if we assume here that the arbitrator found a failure of consideration but the only thing it cracked me from running away from it's in front of us is the guarantee well no it's not that simple because the guarantee itself refers to the underlying network operator agreement it is impossible to view a tripartite contractual so let me ask you the question that i asked your brother which is that if we rule in his favor  you the opportunity to argue in the bankruptcy court that there needs to be a completely new green negotiation because the contract itself is out then away we probably would try that but i'm not sure that it would be excess ok why not because under these circumstances i'm not sure there's a rule of law that would apply but i don't think the bagby profit people radical there were some elements of practicality in the judgments that we made about whether to challenge and both for and if there's criticism of that it's should be directed at me because why use the why is the failure of consumer action the relevant now because and the better answer to judge how this question maybe is i don't know it's we tried we considered challenging in both jurisdictions but that creates a conundrum where you have the bankruptcy court not knowing what the district court would do and how can i challenge the guarantee in the district court if i'm still challenging the whole underlying network operator agreement so i made a judgment that the most economical and the most likely to do minimal collateral damage to other creditors in the bankruptcy there were a variety of considerations and we made the judgment that we should just live with the rewrite of the contract out by raised the one issue we felt we could not lose on which was he can't he can't explode the contractual relationship and make us contract with the subsidiary for the next five years he just can't do it thank you thank you s demand for remedy our contract is with empty seat and our contract it was billiard consideration for that because they didn't build what they said they were going to be we wouldn't have taken the to to guarantee four million dollars if they were going to build a tiny little network to put in a sustained itself and ended m t c theory we signed a guarantee no matter what they do we can never get relief from anything they didn't have to build it they could they could just take take casey testes money and say to us well you got to pay only guaranteed forever that's that's just not the law and all of these issues they were given to the arbitrator to decide by m c c their questions of fact questions of law and the remedies were for the arbitrator no court can substitute in their own judgment and if there's a close call and even a legal error it doesn't matter even if it's silly the findings of fact this court is bound to respect the arbitrator's decision and can substitute its own decision thank you thank you both