whole back there the reserve and restrictions on the reserve the reasons for the reserve and then basically selling the deal selling the paper to the trust which is the negative by c w and the oven to the manager and so on there's nothing honor for a lender such as c i b c to make this deal to make the loan fourteen point six million dollars to then sell the loan in this case securitize it in connection with a larger securitization and then permission but yes your honor it for the court to find that there was no contract or relationship here between not only the borrower but also the succeeding lender the ass and any of the loan is it  strikes us as just out of the ordinary and in correct as a matter of law there is in the loan documentation itself a an assignment clause and a successors and assigns clause and specifically says that the lender that the loan documents are binding upon the successors and that signs of both parties and specifically says that any of them brings to the lender refers to the the mortgage documentation to the fact that there will be a service or or service or now of course grand property that was not a party to any specific contract with the services but the services are by definition are the agents of the lend so if the to suggest as the district court held that the servicers were not parties to any contract and effectively could do whatever they wanted in connection with the administration this loan without the threat of being sued for breach of contract strikes us as counterintuitive at best and illogical at worst if the district court's opinion is upheld that effectively renders it impossible for grant ever to have the use its basics it's pretty clear there was a fourteen point six million dollar loan a million nine was held back as a leasing reserve hold back so that as new tenants were coming in to just this twenty five thousand square feet they feet and the district court says that can't be a new approved lease because they thought activists pretty mortgage lease that there could never be satisfaction of condition if wal mart were the tenant that's absolutely correct now the district court's conclusion in that regard judge and that's it was completely incorrect because there is no relation back if one looks at the amendment the lease amendment and the fact that this was an amendment to the lease is very critical and i'll get that point a moment but if one looks at the lease amendment which is part of this record you'll see that at the flying's the effective date of the lease amendment and the effective date of the lease amendment is the last date that somebody signs the document which is all this fourteenth of two thousand and nine so the district court's conclusion that this was that this relates back to the time of the original wal mart lease it finds no support whatsoever in the record and again puts the rabbit in the hat to the extent that will never get this money released now was wrong about the district court's conclusion that condition for the release of the home runs not being satisfied that is  wal mart was in occupancy of this additional space and conducting business from well the record is clear your honor that the master servicer and the special service are believe that the center was one hundred percent occupied but what was wrong with the district court's decision and you go right to the heart of it when you talk about open to the public is that this transaction was can constructed specifically and intentionally as an amendment to the wal mart we yes they readily and easily could have simply signed a new lease agreement and for that sixty two hundred fifty square feet and if they didn't actually open the doors and let people walk through then the district court certainly could be right i would suggest to your honor that the intent underlying it would still be frustrated because here we have the world's greatest tenet the world's greatest credit and it leasing th but that's not what happened here the parties here signed an amendment to the lease so that wal mart had one hundred forty one thousand square feet when they amended that lease they added sixty two hundred  fifty square feet to that one hundred forty one thousand it at that point in time the sixty two hundred fifty square feet lost its character as separate space and became part and parcel of the overall  in there your honor there are pictures in the record that show that but that's not the point the point is that once it became part and parcel of the wal mart space wal mart was open to the public it's in the same shopping center it's right there it's a temporary situation  is that we have to look at the purpose and intent underlying the leasehold back and the purpose and intent of the open to the public provision contained in the document and what was the purpose and the purpose and intent is to make sure that the lender has adequate security and maximizes the value of its collateral and in this case your honor when wal mart the world's greatest credit and signs  way i think wall street your honor it's certainly not on it's certainly not i've been to my knowledge they've never missed a payment on any single lease they've ever had they may close their stores but they still pay the rent but the the purpose is to enhance the value of the collateral and once wal mart signed this lease amendment also in the record you will see a lease expansion agreement and what they were doing was they were taking the hundred forty one thousand square foot store which was a regular wal mart store and they were making it into a super center and the super center is some sort of grand wal mart which has groceries and is a much larger and more profitable store any shopping center in its right mind right economic mind would want to have a wal mart anyone in its right economic mind would want to have a supercenter wal mart because it's a bigger better store attracts more people it has shoppers coming in not only to buy normal things in a wal mart that you would expect in a wal mart but also groceries so that it tracks many many more people so this was not a permanent situation in connection with a lease expansion agreement what they were doing was they were taking over this sixty two hundred fifty square feet by l amendment i think that's a critical component if it were a separate lease i could understand the district was an anomaly to separate these make all difference because if it's a separate lease and you have a separate parcel that stands on its own  improving the lenders collateral this improves the lenders collateral tremendously the record shows that the owner of the center grand properties had the opportunity to lease this store just sixty two hundred fifty square the two other tenants to a five below which is a discount chain two of arrives and they could at least to a mom and pop pizza shop they declined to do that because it enhanced their value and the value therefore of the collateral for the lender to have wal mart take over this space and wal mart is now taking a score of one hundred forty one thousand taking over the sixty two hundred fifty feet taking over the fashion bug space at the end of this year and they will have with the dishes that they're going to add on in excess of one hundred eighty some thousand square feet and the shopping center that enhances the value of the center that enhances the value of the collateral just from the four corners of the of the least i think that's incorrect or are i think that it was the district court was duty bound to gather the intent from the four corners of the document in the context of  through and therefore you need to look at what's going on and what's going on here your honor is the borrower if you look at the money should be released the lender thought the money should be recently released and i think that's a critical component c i v see the original loan the  original lender was asked by the master service or wells fargo wrote and said we're confused by these documents they're complicated we're not quite sure what they mean here's our analysis what do you think and they wrote back and said we think the money should be released the master service well fargo then wrote an analysis saying we recommend release of the money so the borrower the lender and the master serves are all said we should release the money who said they the more your honour's movies the court my name is ryan moon and i represent the tell us in this case as the court noted on the appellate argument that the key factor in this case is did grant comply with the conditions that they didn't comply with was that they take actual possession and occupancy of the premises now they argue that signing the lease is occupancy but that's not the case because under the approved tenants occupancy conditions it refers to signing a lease that's one of the parts of it the second part is taking actual possession and this is what was in that six thousand six hundred square feet there was a through in there the place was completely empty except for at the time the inspection was done and i tended the inspection your honor there were two pallets of ice melt within that space and you're talking about a six thousand square foot space with two pounds of ice melt and from that the appellant is claiming that it's used for storage but but in the course of discovery the subpoena walmart itself and specifically asked what do you do with this space and this part of the record matzot in the senior director of real estate  for wal mart's admitted that that will ration saying specifically wal mart has not utilized the vacant retail space to support its retail operations in any manner nor has it used the vacant retail space for any type of stor it's helpful to look at the other leases in the retail space and then that in that regard the other leases referred to a condition in the lease that requires them not to you of ice melt alone do not end up meeting the requirements of the approved tenant occupancy conditions because it says specifically that the tenant must be conducting business with the public from the space the mys it's not you're open to the conducting business with the public from the space and that's important because the space is completely empty it's unfinished there's no lights or signage to the exteriors windows are covered over with brown paper there certainly not selling ice melt to the public in fact the doors are locked or in business hours no customers come into the place so in that regard based on the evidence in the actual condition of the property during the inspection it's clear requirements but they were they said you know what it's wal mart let's make an exception but it wasn't their decision to make it was c w capitols decision to make grant also pointed to and email from c i b c the original lender under the law that also said wh here what that well the judge was looking at all the evidence and saying that there's as a matter of law granted not comply with the requirements under the mortgage now wells fargo opinion  deviate from the terms of the mortgage because wal mart was not conducting business from the public was using it with the public from the space that deviation under the pooling and servicing agreement which is the only contract that binds  lender to the service or is both the master and the special requires the deviations from the mortgage need both vaster and special service or approvals so ultimately this hold back in the release of funds has to be determined by c w and that was their job as a special service was to determine special service or have a financial incentive and not release the home back on no your honor and i know that there's there was some argument relieves that but declarations of that in support of the motion  greg akins one of the vice presidents at c w capital so that they don't make any money they specifically don't make any money with respect to hold back but even more so with respect to this loan because it's a performing loan c w capital doesn't make any money more specifically the trusts the pool of mortgages within the trust where the mortgage is contained but there's no incentive for c w to keep the holdback in fact six my early why if you're what happens is all those mortgages are pooled within a trust and those interest and payments get pooled in the trust that eventually get paid out to the certificate holders but c w capital is the service service it's essentially like providing a service and they get paid for the grant they're collecting interest on that entire amount so in a sense you could say that they're receiving interest on money that they haven't dispersed yet but that's specifically what the the agreement requires and and as your honor pointed out earlier this is a standard agreement in situations like this where there's a open space that needs to be leased up the lender typically provides an incentive to the of the landowner to get businesses into their space and you know have them conduct business so they can generate revenue and contribute to the viability of the entire center and i think that's wal mart was conducting business with the public from the defending the district court's opinion with respect to the finding that the lease amendment related back to the original signing and therefore could not be a new approved lease on the view well i think there's million every square foot and have the business been conducted from every square foot but they'd still not be entitled to it because the amended leases well i mean if you had the business if you had the entire space rented  out under separate leases but if you're saying if wal mart decided i'm going to rent out the entire twenty five thousand jeep it empty or in your case conduct business i think the argument is much stronger and i think the critical condition that wasn't  this conducting business with the public from the space and on that point to go back to what i was saying earlier in february of two thousand and nine grand made a request for dispersement related to a pizza shop incidentally that ranted about twelve hundred square feet of space the request was made in february two thousand and nine but the lease was entered between grand in the pizza shop in may of two thousand and eight so the question is why wait nine months the reason is because until february two thousand and nine the pizza shop wasn't conducting business once it was the request was made twenty eight twenty days later the service released half a million dollars for a pizza shop so there's no there's no evidence of the record with respect to course of feeling that the service or wants to keep the money it's just has to comply with the mortgage provisions and when brad made the request in august it was well aware of the conditions having made a request for a least six compared to wal mart i mean there's really no comparison with respect to the businesses but i think that just proves the point even further because they were willing to release these funds grant is argue there were there were some you know  now under the more you to disperse that request is defined as a defined term that's the written request for money and it dispersement separately defined as the actual payment of money and the key languish in the in that provision that i just referred to which is one point to a g of mortgage is that it says at least doesn't mean you're going to you're going to analyze a dispersant request within ten days if they wanted it to be within ten days they certainly would have said with then they said at least which means you have more than ten days now if grant had taken months and serious you know you would take months and months and months to to process this request maybe there would be some some argument about not meet the approved occupancy conditions and they specifically cited the condition that they were conducting business with the public from the space so those twenty three days from the time the c w received it to the time that they actually denied the of this lease with wal mart of their own accord it was their own decision they were represented by counsel when they were in but when they were to go shooting with wal mart and certainly when they were trying to get the release grant is run by sophisticated you know business persons who have over sixty years experience in the real estate development industry none of the defendants were involved in this process with wal mart or the negotiations with wal mart they were just basically what they were given at the end of the day and it wal mart was conducting business from the space and what were they doing to their business it was part and parcel of one hundred forty seven thousand five hundred square feet that they had leased it was no different from any space they had in the back it was no different from a warehouse that they had in the store but you're honors i think have zeroed in on the issue and that is what was the purpose and this lease not only this lease amendment was not executed in a vacuum it was executed in the context of a lease expansion agreement so that the lender well knew exactly what was being done here this was part of the expansion that was going to ultimately an bigger but ultimate result in one hundred eighty one thousand square foot wal mart store which is going to take over about twelve thousand of this quote of the real estate use and the men th because it was an amendment to the wal mart lease and the wal mart lease was this huge ground lease where the entire store that's sixty two hundred fifty square feet lost its character as separate space and b consent action plan and in that they say that wal mart has full rights to the space under the leafs the space cannot be marketed to the outside wal mart is paying full unabated rent and pro rated expenses and no outside costs are associated with tenant improvements or leasing commissions also an important point is there was no t i expense that the landlord was always there have he i tenant improvement expense th landlord was going to have to incur then it goes on to say that wells fargo is master servicers recommending approval of this transaction now this was a lease the lease amendment that was submitted to both wells fargo and c w for their approval not in connection with release of the hold back but for simple approval of the lease and when they approved  that the debt service coverage ratio was met however a month later when she was doing the analysis for the release of the holdback she found that it wasn't met and she used all kinds of incorrect analyses she used the wrong dates for the five guys lease she used the wrong dates for the wal mart lease she considered it to be a principal and amortizing loan principal an interest when in fact it was interest only those analyses which were diametrically opposed to that which she didn't the context of the lease approved that resulted in her finding that there was no d s t are met and we are a financial incentive for the actual service or  not this really we believe there is your honor we have filed a motion to supplement the record to include the entire p s a which is that servicing agreement section three point one one of that agreement specifically deals with compensation to the both the master service her and the special service or i believe the special service there is in section b excuse me the other document that i want to point out of the court is that because your time yes over is in fact the document prepared by page barker which is prepared on ten six two thousand and nine saying due date ten twenty eight consent review summary and in it she says  upon our conversation with mike mccoy who was their lawyer the first amendment to the lease that was approved is part of the ground lease that has been in place since two thousand and seven wal mart is paying ground rent for a one hundred  forty two thousand square foot pad site and which is part of the collateral and is open for business to the public has a let me ask you about that i guess and i'm literally figure out what this looks like to go into sixty two hundred yes repeat no you are the three stores in between and you stores in two stores in between which are now obliterated because it's all becoming more and parcel of the whole thing but under the district court's analysis because it's other real estate it was