found that they breached the grammy because we believe that obligation to rebuild which we understand we can't get specific performance for if we if they did not do that the default remedy is that the lease is to be extended and continue for after the conclusion of the prior period until such time as they rebuild or all the extensions are out so i'm sorry on i guess i got ok sorry about that i'm sorry for cutting you off i mean say that the article by using the term shall in connection with rebuilding and restoring the retail building yes mean the attendant was obliged to do  shall as must when it's followed by that phrase and then you have a provision of the lease that says article seven dollars provides and this is a is referred to for those of us who took latin in high school as a non cause notwithstanding any provision contained here in or any other document to the contrary tenant shall have no obligation to construct any improvements upon the premises or open or operate in the premises and those to me are the biggest problems you  have i agree that they are the they're really at the crux of this entire appeal frankly seventy three in ten on and so i'll address those right now and i'll jump the rest of my opening i'll get right to it and that's all fine and good not look forward to doing that aspects of this entire repeal and i think it turns on that because obviously those are the two areas where we significantly disagree with what judge wrote and that's what i want to talk about also eight nine comes into play also but let me get through the st two and let's start with seven three because i think that's really where this all really begins and as you correctly pointed out at the beginning of seven three we have the following statement notwithstanding any provision contained here in any other document to the contrary  obligation to direct any improvements and that's what the small and i'll get to that in a nd upon the premises or open or operating the premises nevertheless the economic consequences of killing open or operators followers and it goes into it and what's critically important here is really what this paragraph does it does two different things it has two different sets of time frames the st time frame which is dealt with in a deals with if they never build it all because they did not have an obligation to build it all if they did build that's what so let me just walk through this one little thing and i'll get directly to that so from my perspective and our perspective if you look in seventy three you really have a section which deals with before you build whether you're going to build or not build and then section b and c which b starts with after the constructing the retail building and opening home depot so forth and same with c so b and c are involved a scenario where you actually built and there was not a there was this period of time where home depot had to make a decision whether they were going to build or not and ultimately obviously they decided to build which from my perspective take say out in the next now let me address your issue because the critical thing here is and if we have to go back to three point two c to look at it for the st instance we have a definition and a definition of improvements with a capital i all right and the whole actually done when it's to as a small it's things that haven't been done yet and that's that and that's pretty close to what you said and that's exactly what you have because if you look at seven dollars which is two sections down  and a dealing with requirements you have within that same sentence both the capital i and the small i and the capital ideals with removal of any improvements which are things that have already been done and the small ideals are things that have not done yet and if you look at the entire agreement including the key sections eighty nine and eleven they all have situations where they use the capital it is a defined term under thirty two dollars and it is not the capital that but it's talking about something that hasn't been done yet i hear hear i hear your honor i understand your position and what i'm trying to say about seventy three sixpence rebuild justices shall it's election rebuild add a sixpence and the election expense means expenses there as election means win because i think it's critical if you look a little four shells in ten point one your honor and if you look down a little further about a line then it says ted it shall and there's no there's no may hear shall within twenty four months from the date of such damage or destruction or within short of a period of time as shall be reasonable use all insurance proceeds to restore a cause restoration of all capital improvements then existing on the premises and it goes it's election to us to me means at their time frame that doesn't mean the have to do it tomorrow they have twenty four months to do it and added selection simply deals with the timing of when they're supposed to do it and that it's expense and it then they had them and then the timing is totally within their control then they can postpone it indefinitely yes and no respectively not react if they do then they're in election then refer to it means it could start tomorrow or they could start in twenty three months are they concerned twenty two months your honor i believe that's what it means i believe it gives them the opportunity saying you've got to figure out when you want to do it but you have to do it  when they are shall is with intent on i just don't think that's a proper reading of it i just don't think that gives construction to the entirety of the agreement so i will just conclude by saying that seven as you say four minutes for real let's hear from parties agreed in this grand late contract notwithstanding means not withstanding no obligation to construct means no obligation to construct an added selection means added selection i think it's with that last point that i any chance of enforcing an obligation to build but judgers mom as you pointed out it really doesn't make sense in context to read it as when it elects to because the contract  proceeds it must rebuild the building to as good a condition as before it must continue to pay rent so there's also really know how the less you need any manner meaning left to read into it out of selection really the only the agreement goes to the trouble of spelling out the meaning of improvements with a capital on right and it's used with a capital on a lower case i in the notwithstanding clause what what do you make of that well to me when i see a departure from the normal the normally capitalized usage you want to since that there is a purpose and i think it is that three dollars c defined capital i mprovements as the premises plus improvements so i think the only reason to use the lower case side seven dollars is to just to avoid the writer's silly reading that home depot has no obligation to construct premises upon the premises if if they had used upper case i that would be the full meaning of that defined term as it is that would be a silly thing that have to point out and the salient point here is that home depot ha no obligation to construct improvements upon the promise us this notwithstanding clause really could not be broader with respect to home depot's obligation to build this is what notwithstanding clauses do standing any provision that may be slightly broader it's it notwithstanding any provision to the contrary the overall tenor of this agreement absolves home depot of an obligation to rebuild absolved from people of any obligation to build in the st place we can also point to section eight point four negotiated this document as stadiums pointed out over a year and a half a very competent counsel and they thought through what might happen if home depot exercised its option not to build or not to be built and they wrote we would ask you to affirm based on the broad notwithstanding clause based on the fact that ten point one gets home depot the election whether to rebuild or not capital i don't question for you  the least transaction in constructing the improvements capital by and performing tenants obligations got out about it's really the in constructing the improvements they're clearly they're not constructing the premises so what what could that they're well it's defined in three dollars as improvements plus the premises so i think the only sensible way to read it is the improvement  ts pointing out that maybe the distinction you dream is peterson doesn't really work but it's not clear to me for the reasons you know explain to your adversary  about the reading as a point nine his rating doesn't really work either the more i look at it if i try to make sense of all the lower case and upper case as i can't draw a meaningful distinction it looks to me like maybe it's just sloppy drafting well she's judge but it's certainly a negotiated document as j d and correctly pointed out a lot went into this and what we have here is what we have here this week says what it says the important point is that it is completely sensible it is our reading of seven point three that harmonizes with the entire contract the entirety of home depot's overriding obligation not to rebuild or build it stadiums it was who's reading requires you to rewrite multiple phone of this contract not only do we have to rewrite our limit this very broad notwithstanding clause you have to rewrite or limit section eight point four which says that home depot has the right but not the obligation to rebel and you have to creatively rewrite section ten dollars to delete or significantly restrict the phrase that election to the point is meaningless an absurdity that will not do the court is required to make as much sense as many provisions as is possible and we what home depot's reading of this contract yeah i agree with all that i guess my only point was it did not appear to me that if you read the entirety of the contract and you read every reference to capitalize improvements versus a lowercase improvement you could really end up drawing a meaning call distinction between the two is that possible that's certainly possible destroyed or damaged people will probably either one repair the building to rebuild the new building or three raise the building i see that  require anything more there tiles to do that without any further consequence that's with this he says raising of any damage building but they still do your honor and even if they do that they still have the obligation i believe under the ground lease which is to either rebuild if they don't in their op they're obligated to pay and they continue forward by paying through the sightly and safe condition it does not provide a home depot is required to rebuild at any point after deciding to raise the retail building and i still think it's harmonious provision contained herron or any other document to the contrary tension on the obligation to instruct any improvements and that's and that's what it says with the small they didn't have an obligation to build it all i agree but they did build so once they built this is merely a all this if you don't build you don't have the obligation but once you do you're subject to the other terms of the agreement and that's what i believe this says you have to meet the control contract as a whole and i believe that's critically important likewise eleven again nothing for them to give us because they haven't done it and again the concept here is under three to an eighty five they were we were getting the rights to the building that was one of the go shoot in terms of the asset the big box was a very significant thing here and that was one of the major things the gauche is part of the entirely which needs to be read together so if they don't rebuild we don't get the asset which was part of the consideration for this agreement as it was negotiated so i think it's critically important to stand that we didn't get the benefit of the