please the court robert basal from the base ball group represent probably next plasticware peroration the appellant and i start my presentation with concessions prime makes concedes the credibility of testimony as being credible the court didn't specifically find that but referring to their testimony there's certainly no indication that the court has different q so we accept that view we also except evidentiary rulings but every evidence we wanted to get in it was either in by consent or the judge allowed it and the reason that these concessions or of course is that once these concessions are made there is no reason to give deference to any of the fact finding done by the trial court the trial court observe these witnesses and although they didn't make a specific ruling on things they relied on their testimony and that's fine what determines this appeal or matters of law there are matters of law for example on the first prong that i have to prove dollars in cash went out the door at the end of december two thousand what he back to try and actually nothing came back  so i don't understand what the significance of that is that given the district judges finding that trying endo was not insolvent at the time and didn't expect to be insolvent at the time you're surely not arguing that every share  purchase is automatically a fraudulent conveyance if exxon mobil repurchase is a thousand dollars worth of shares tomorrow and gets no value at all it's not a fraudulent conveyance so i don't understand why the critical question here isn't whether trying to was insolvent or expected to become insolvent you put it well and the district judge found against you on the facts on those questions that is correct but i have to take it in sequence your honor first of repurchase is a billion dollars worth of it's own shares in the market and gets nothing in exchange but it's solvent so that's not a fraudulent conveyance and that's the finding of the district court to try and do a solvent at the and expected to remain so ok then i have to prove the next ruling problem of the fraud for constructive role which is that the time of the transfer that they with the findings of the trial because mr packer sent out a letter was also reflected in even l stating that we are going to impose seventy five day terms on all of our creditors our vendors not only for the invoices that had already been issued but invoices issued in the future so did they intend to incur debts after the redemption of course they were buying product one i gather it's on concede that it is conceded that the money prime x is trying to recover was money trial court articulate trial court found that a crime x knew what it was doing and extended credit after trying to said that this is our new truck when page nine the trial court articulated this way which i agree implement it's seventy five day turnaround so whether we sued or not at the time any crime accept that point could have said that's not a not an acceptable term of dealing we are not extending any further credit but he didn't prime expert continued extending credit that's correct in the normal commercial world that's agreement to the terms i disagree that that's agreement that that the invoices are being paid when they are due there were influences do the next week for example in january early january of two thousand and ten this tracker comes to us at the end of december and says we're not going to pay those in recover that amount that was due on the day trying to said we're changing our payment terms or it's trying to recover credit extended after trying to get that that seems to me of absolutely critical point in this statute protect protect both current and future creditors so prime x was wearing two hats they were not suing as a current creditor at the time of your honor that because we didn't sue because we didn't stop paying to stop supplying the materials point credit that somehow these invoices were no longer doing their interpretation is correct then just by not paying your bills when they are due by by way of contract and then seeing what happens you are now paying them when really a matter or of interpretation of the language of the statu have course also had an issue of proximate cause and we only get the proximate cause if i overcome your argument that these invoices were not paid when they were it was not intended to be paid when they are  or excuse me and and that contract couldn't have been more clear that the term loan could be used for general company purposes seven point five million dollars the trial court never made a finding of fact and they the trunk were just said that the executives of try and the believed that that wasn't a proper usage but the issue of war is for the court to contract interpretation could that seven million dollars have been used to pay vendors such as crime x in addition there was one point four million dollars just of cash didn't come from the loan proceeds that was meant to pay the expenses of this retention certainly that cash could have been use for generally general come purposes it was cash for the company so now we come up with eight point four million dollars in funds that were use for other than company purposes there was no company purpose the company try and they got nothing and certainly the company's creditors got nothing so when you have a company that supposedly failed and either thirteen months or seventeen months can do on how you read the court's opinion after expending eight point four million dollars and change on this retention and the cause of the compan company had eight point four million dollars plus the interest they paid into the eight point five million dollar loss would not have affected the company at all let alone the seventy five days was it is still running you know we have been paid yet so the intervening cause identified by the court was not intervening at all these in a timely manner had nothing to do with whatever happened in december of two thousand and ten or for june of two thousand and eleven it had to do with what was going on when those bills were due roughly june through  july or august of two fails so the judge identified the wrong intervening cause but again that intervening cause would have never happened if they had applied the term loan as permitted under the term loan provisions and again there's an integration clause in the term loan that says your understanding it's your agreements royal discussions don't matter unless you put it in writing that you're changing this and then the words of the contract control so at and by the way it was out the door the first day anyhow so there was no chance for anybody to make the alteration in writing  is dedicated to the proposition that this court should favorably consider the opinions of mr barrett the expert and as they put in the brief mr barrows credibility it was under intense fire at trial and there was an eighty plus page post trial briefing of which much of it was dedicated to mr barrows testimony difference between n l l c and its members consider them it all of his opinions as one unit so furious any money that went out from one of the from the company to one of the equity owners wouldn't hurt the company as the term was understood by mr barrow because they were all in together so that was one critical flaw another one was there was an issue about minority discounts when they were trying to come up with some reason why there was equivalent value mr barrow opined that a willing b not expect a minority disc when buying a minority share because of these particular shares were coming out a majority holding well why would a buyer care where they were coming from the buyer was buying a minority thirteen units out of a hundred he surely is going to expect a minority discount it doesn't matter to the minority purchaser whether they came from the majority or where they came from one of the minority i mean this was just you know beyond what one would expect of an expert in an economic case so we set out more fully believe that this court should now credit mr barrow with having valid opinions truthful testimony there's just no guidance for this quarter because there was  no consideration of his testimony or is opinions belong to the extent that the court looked at this intervening act and that the company would have failed as the court found in two thousand and eleven whatever it was that came from the capital valuation the solvency report that i allowed in by consent it was a report that was produced in a prior litigation but it is a bench trial in the fact that after syria and i decided not to fight about evidence issues everything came including mr burroughs entire report the trial court had before and not just mr burroughs testimony but his lengthy report with seventy or eighty exhibits surely if the trial court found him credible and relied upon we would have heard them so i would use this this consideration to continue the policy if you will of the trial court and not credit mr burroughs testimony or opinions because that was done thank you thank you by saying this case has nothing to do with factual findings or expert witness testimony it's all about legal issues but the transitions into attacking the credibility of mr baer that's obviously not a consistent position because here to attack credibility we're looking at a clear standard and he's e p saying to you not whether you should weigh in on credibility but whether you should grant the appropriate deference to the circuit court's finding and credibility in the circuit court's factual findings the circuit court district the district court i'm sorry i'm sorry  but in addition i think they're taking what i find to be a stretch of a position they're saying that the district court did not make any findings as to the credibility of this expert testimony and make no mistake expert testimony was a huge part of this case it took up the majority of the witness testimony time and it seems to be that they're saying well the judge did not make any credibility findings or find mr berrill credible or credible because she did not specifically say soul in her decision but to be very clear if you read her decision she she heard her reasoning tracks almost exactly what mr berrill said for example on page eighteen of the decision around eighteen excuse  me excuse me the page seventeen is eighteen of their appendix ph seventeen of the decision that's where she's talking about the issue of causation and i want porter to exactly but she in this essence says it is her finding that the redemption did not cause the nonpayment a year later but instead the catastrophic failure of the s a s relationship is what caused it and when she explains that the reasoning she provides is exactly what mr barrow testified to at trial he went through a lengthy analysis where her decision and the only person who provided that testimony was mr beer art so i think there can be no question that she found his testimony to be credible and she made factual findings consistent with the facts on which he relied  could see she distinguished that with the testimony of prime access expert mr zak she said i find him to be not very persuasive she said i find that he overlooked key facts she said i find that he had flaws in his analysis so she is directly criticizing saying i'm not finding to be credible the expert testimony provided by prime access expert and then her reasoning tracks almost exactly the testimony and presentation of our expert so i think there because be no question that she made credibility determinations and she made fact findings consistent with the facts which mr buell relied and those of course cannot be overturned unless there's clear a it was primarily focused on causation at least from our standpoint as you saw from both the decision and from our brief latest expert didn't address the issue of causation he made no attempt to tie the redemption that occurred in december two thousand and nine with the nonpayment that occurred a year that occurred a year later he made no attempt to address whether the intervening s a s failure played any part in the nonpayment and he certainly didn't say anything about the fact that prime x or excuse me try prime x over nine million dollars almost everything that was old at the time of the redemption but except for ten thousand dollars he didn't address any of that ok mr barrow did and that was the causation analysis and that took up the bulk of the trial but there were there was one other pretty key issue and that was reasonably equivalent value both the experts provided extensive testimony and reasonably equivalent value mr zak that he didn't do any of his own analysis instead he relied on two prior  internal appraisals that try and they had acquired and he attacked those he tried to poke holes in that and that's where the judge said i found that not to be credible he's making a state mistakes in his analysis he's ignoring key facts mr adopted it so when mr when attorney basal says she that the court made no finding on reasonably quickly by that's just not true she she she rejected the analysis of their expert she adopted the analysis of our expert so once again you have a situation where she's hearing competing expert testimony based upon disputed factual issues she's finding in our favor that's a clear error standard  if you're you know what constitutes not paid when do was one day late as a ten day etc ok and i agree with them i haven't seen any case law on this but there was testimony at trial on this issue mr barrow is a former c f o of a company and he testified that it is very common for companies particularly small to mid sized companies like try and to adjust their payment terms because they will have cash flow issues throughout a given year he said it's very common to extend it from thirty to fifty this whatever it might be and as mr beazley admitted this it happened before the credit agreement said thirty days but the average in this was said this was in evidence at trial the average over the last i think your fifteen months was something like sixty two days and if you compare the time period right after the redemption i think the average time then was around seventy to that same time period year before the recent thing like a four to five day difference in the amount of time they were getting paid mr b also this is very common very common people were being paid when they were passed do you remember statute doesn't talk just about is it technically cats do or not the statute says let's try and incurring debts that it believed or should have believed it would not be able to pay when it came when they came due so you have a very subjective analysis there you have to look at what a try end up believe at the time or what should they have played and this goes into another very key piece of evidence trying to have to put together a projection of how they were going to be paying their bills after the redemption that was put into evidence mr buell discussed that extensively and it projected they would be able to continue paying their bills in a relatively timely manner and in fact that is what happened after the redemption including nine million dollars paid to prime x so given those facts and given that testimony it was not clear error for the court to conclude that at the time they did the redemption try and have believed they're saying that that causation comes down to an analysis of the contract and does the term general company purposes mean trying to could have used this to pay short term debt vendors including vendors like crime  well first off that's a that's a very narrow view of the causation analysis the causation analysis and i'll repeat it all here is that for every bit much it was much broader it involved a detailed look at all the factors in play what happened during that year that actual world versus should have been a world comparison ok and in addition it it required a fairly extensive analysis of well you know mr baseball likes to say hey there was an eight point five million dollars shortfall from s a s there's eight point four million from the redemption diesel's kind of match up you could just use the money but it's not nearly that simple because it involves certain assumptions i mean if they don't do the redemption you have to assume they're still going to get this money going to get the new loan that provides the financing ok to that the loan all allow this term loan money to be used to pay vendors and that's the issue or the narrow issue they want you to focus on but three you have to assume that this money would have been available one year later when it was necessary to pay because it wasn't a one year later that that tranda ran out of money and couldn't pay their vendors including primus wasn't just right next so it's a much broader in no evidence at trial on that issue ok and i'm looking at page seventeen of the decision the judge says plaintiff produce no evidence to confirm its contention that quote greater company court would include playing suppliers all they are offering now is lawyer argument but at trial we did put it evidence both mr samak and mr kid whose credibility has been conceded testified that it was their understanding that the additional seven million dollars for the term loan could only be used for the redemption it could not be used for general company purposes remember this was a essentially a two part loan twenty eight million total twenty one for operating expenses and a revolving line seven million earmark for the term loan ok they both testified that they understood they could only use the seven million dollars for the turmel not to pay bender such as prime x the banker burke kid the lead banker with fifty or this is the company who is giving us the money he confirmed that he said the term loan could only be used to pay the redemption it couldn't be used to pay general company operations like paying vendors ok so the judge had evidence before it that it did interpret that language that did say no this is what we all understood it to mean ok so so again there was evidence on which the judge reasonably relied and it was not clear  for her to conclude i'm going to reject prime x s preferred interpretation and i'm going to stead go with what the witnesses testify to but even if we for a moment assume let's let's take their interpretation let's say that the confit that the the loan agreement would have allowed the seven million to be used to pay general company you know pay vendor such as primus let's call it that there still are two barriers that prevent crime x from from getting home  first is that the contract said the money being loan was tied to receive a balls and in judge crabb addressed this issue in her decision and what that that why that's critically important is that by the time the money was needed by the time trying to would have needed these extra funds to pay people like prime x the receiving calls had dropped dramatically the s a s had failed they were ordering new product and what receivables were out there were too old they were too aged to count any more so by that point trying to could have had a line of twenty one million twenty eight million or hundred twenty eight million but the bank wasn't going to give them the money because the bank at that point knew you're no longer a good credit risk you don't have the receiver balls to back this up so they can't get over that point the way they just put it in a rainy day fund i'm thinking that perhaps a year from now we who knows what might happen we might need it well this they try that are going to trial and judge crabbe century said you can't you can't seriously be suggesting that managers of a company have that out that a fiduciary duty goes that far but you have an obligation to just periodic lee grab additional money and set it aside in a rainy day fund as she rightly said the only way you can win on that argument is if you can show that at the time they're getting that money or have the opportunity to they have a reason to believe they're going to need it in other words in this case the way that plays out is the only way that primates can win on the argument that they should just take in the money and set it aside as if they can also show that at the time of the redemption at the time they were getting the money trying the management knew or should have known that the s a s business was never going to come back that they were in fact going to have this catastrophic loss of their best customers and that they were in fact going to need this money down the line but there was abundant testimony on that issue facts from both sides and the court made very clear factual findings that curt zammit and the other management to try and  that that that's not what they believe and that's not what they should have believed that they did appropriate due diligence they spoke to the folks in the supply chain whether it's s a s or the upstream supplier i d p s that the folks at fifty third will birkhead and their internal legal and due diligence team also explore the sense and they all concluded we we think that the slowdown is going to be temporary we believe the business is going to come back there's all sorts of reasons to believe this is a healthy supply chain and with that factual finding in place there's and i don't think you should because that does it wasn't supported by the evidence they still cannot get hormone causation because they can't establish that they had an obligation to keep that money so unless your honour's have any further questions or any questions at all i have nothing net thank you when i conceded credibility to all those witnesses i wasn't just saying that the evidence they gave that hurt me came in all of it comes  testified that the company was not paying their bills when they became due as of january two thousand and ten so this notion that there was no evidence in the record about was tied to receive a bill that's absolutely incorrect by looking at the loan documents the term loan the seven million dollars seven point five million dollar term was not tied to  long as the loan was it loan agreement was in effect it had no relationship to receive a as for is whether the judge made a fine there was no evidence in the testified there there see if c f o quickly testified fed general company purposes meant paying the vendors the money that was owed to them i mean it's almost common sense