is to be avoided. Restatement of Contracts, Second § 202(d) ("the manifestations of intention of the parties to a promise or agreement are interpreted as consistent with each other") and Comment d ("Where the whole can be read to give significance to each part, that reading is preferred . . .").
9. Loral's reading, by contrast, gives equal effect to both paragraph 126.96.36.199 and paragraph 188.8.131.52. Under Loral's interpretation, 184.108.40.206 is not inconsistent with 220.127.116.11 because it addresses a different, unrelated contract requirement, the USAF's requirement that the Group A Kit be removable from the RF-4C aircraft without requiring additional data analysis or testing. Paragraph 18.104.22.168 was not intended to limit or modify in any way AEL's data analysis obligations as set forth in paragraph 22.214.171.124.
10. AEL's position is inconsistent with its actions and representations during the drafting and submission of its bid proposal. AEL made a careful review of each of the data analysis requirements contained in Loral's solicitation. AEL "sanitized" the solicitation, removing those data analysis tasks which, in its view, may have been applicable to the prime contract but which were not necessary for the subcontract. In the course of this "sanitizing," AEL alerted Loral to those data analyses which were unnecessary or should be modified. AEL's careful focus on these analyses strongly suggests that, had AEL believed that CDRLs A039 and A040 should be limited in scope, AEL would have alerted Loral to this conclusion by qualifying its bid proposal. AEL's failure to so qualify its proposal can be read as a manifestation of its intention to fully perform the DADTA described in paragraph 126.96.36.199 at the time it accepted Loral's contract offer in July 1989.
11. AEL's position also is inconsistent with its actions during the negotiation and performance of the contract. AEL's Watson confided to Loral's Kantor in July 1990 that AEL, in preparing its response to Loral's solicitation, had grossly miscalculated the cost of the DADTA. As a result, AEL was under financial pressure. Upon discovering its miscalculation, AEL sought to enforce an interpretation of the contract that shifted responsibility for the analysis back to Loral.
12. AEL bears the burden of proving facts which would establish any remedial rights. British American & Eastern Co., Inc. v. Wirth Ltd., 592 F.2d 75, 78 (2d Cir. 1979) ("New York law . . . clearly places the burden of proof upon the plaintiff"). Therefore, to recover any damages, AEL must establish by a preponderance of the evidence that the contract did not require AEL to perform CDRL's A039 and A040.
13. Under New York law, AEL's burden of proof is shifted to Loral only on the threshold issue of whether AEL anticipatorily repudiated the contract. Bausch & Lomb Inc. v. Sonomed Technology, Inc., 780 F. Supp. 943, 963 (E.D.N.Y. 1992) (it is "well settled under New York law that the party claiming anticipatory repudiation bears burden of proof on the issue"), aff'd in part, rev'd on other grounds, 977 F.2d 720 (2d. Cir.); Record Club of America, Inc. v. United Artists Records, Inc., 890 F.2d 1264, 1275 (2d Cir. 1989).
14. Therefore, though Loral has the burden of proving that AEL anticipatorily repudiated the contract, it does not have the burden of proof with respect to AEL's claim regarding its interpretation of CDRLs A039 and A040.
15. An anticipatory repudiation occurs whenever there is an overt communication of a "positive and unequivocal" intention not to perform. Tenavision, Inc. v. Neuman, 45 N.Y.2d 145, 408 N.Y.S.2d 36, 38, 379 N.E.2d 1166 (N.Y. 1978) (anticipatory repudiation found when party overtly communicated that it would not accept television sets that were subject of contract). Further, the party claiming the anticipatory repudiation must show that the intention not to perform was positive and unequivocal. White & Summers, Uniform Commercial Code, § 6-2 at 172.
16. AEL's letter communicating its intention not to perform the structural analysis constitutes an anticipatory repudiation. Because the contract required AEL to perform the DADTA specified in paragraph 188.8.131.52 on the RF-4C aircraft, AEL's communication on October 25, 1990, stating that it did not intend to perform the DADTA, repudiated the contract. Tenavision, Inc. v. Neuman, 45 N.Y.2d 145, 408 N.Y.S.2d 36, 38, 379 N.E.2d 1166 (N.Y. 1978).
17. In the face of AEL's repudiation, Loral was justified in partially terminating the Contract for default by AEL. Restatement of Contracts, Second § 253(2) ("Where performances are to be exchanged under an exchange of promises, one party's repudiation of a duty to render performance discharges the other party's remaining duties to render performance.")
C. The Delay And Out-Of-Scope Claims
18. Loral's Motion to Exclude Evidence, directed towards AEL's proffered Exhibits 45, 46, 47 and 58, must be granted.
19. The proffered exhibits were compiled from accounting labor runs, which were in turn compiled from time cards submitted by AEL employees. As such, they contain several levels of hearsay and must be excluded unless they meet one of the codified exceptions to the hearsay rule. Fed. R. Evid. 801, 802.
20. AEL asserts that the offered exhibits meet the business records exception, which provides for admission of any:
. . . report . . . made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the ordinary course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the . . . report . . .
Fed. R. Evid. 803(6). The burden of proving the elements of this exception falls on the party seeking admission of the evidence. In re Japanese Elec. Prod. Antitrust Litigation, 723 F.2d 238, 288 (3d Cir. 1983), rev'd in part on other grounds, 475 U.S. 574 (1986). AEL has failed to meet this burden.
21. The AEL employees preparing the exhibits had no personal knowledge of the underlying expenses, nor did those creating the accounting records that the preparers of the exhibits relied upon. For this reason alone, the exhibits do not meet the requirements of Rule 803(6). United States v. Furst, 886 F.2d 558, 572 (3d Cir. 1989), cert. denied, 493 U.S. 1062, 107 L. Ed. 2d 961, 110 S. Ct. 878 (1990). Moreover, AEL prepared the exhibits in question long after the time that the underlying expenses were incurred, and prepared them in anticipation of litigation, not in the regular course of business. Therefore, the exhibits are hearsay and must be excluded. Fed. R. Evid. 801, 803(6).
22. The rule regarding summaries provides:
the contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties . . .