undisputed fact with specific statutory hundred percent ownership would be with t l the ethic about the contract was very specific no details part of deal was that the deal g with a choir percent of the beneficial interest but if you look at both the amendment to the original reduction agreement and you look at the closing they are all signs simultaneously all contain the identical language and they are all is the profits and financial benefits to be received by any any of these come feel which at that time the contemplated tough company affiliate was five percent of the value of any property distribution received by a company affiliate from company now there is also the i e condominium s language of the first as opposed to the very specific language of the second and third element caddick is that those two camps were quite careful to say that in the payments defined would be exclusive to reimburse us that is costs advance essentially the payments to be calculated would be met  paragraph two and her paragraphs three or very explicit in this case there is no reference to subject to a mortgage liens or any transfer in a manner where essentially the asset is transferred but they're maintaining no it was now the issues to come up with a transfer like this or n one of which is getting to that is the value prop we get back to this next value much time is is spent belsize have pointed out the fact that if you own one hundred percent of the beneficial this mission one of the problems here is that if you look at it at the time it was draft one of the concerns and one of the reasons it was drafted this way so that it was the value of security and then prints for it pay down some or all of the mortgage sell it for value or even a short fall on the mortgage and value of the transfer of the building it's in again looking at this much of the apple lease approach is to look at this in light but that wasn't but in part to keep them from doing it but his your client walks their interest in the property well they didn't retain an interesting problem but i mean there this contract in this these terms doesn't that still give the rights to any distribution in the future of even after this merger it klute but the problem is we don't know that's why this condition was put in  i understand what you're saying and basically it says yes it came to the argument pellets are making as well yeah you told me not to use the car i used it but i didn't reckon so oh fall but the problem who are the people are they the same work and they now make distributions to other people payments to other paper services who have these interests that are independent of t l g because now instead of the known quantity we have new ownership of this asset and that's why where it looking at where it's easy to get confused was written and frankly it would appear that the provision was intended to in part keep this from happening because this is the most court found and those cases were in fact based on the fact that there was a transfer in missouri statute is express that the effect over the word is to transfer all the property of merging into true without without further transaction specifically referenced as without deed or any further action by operation ownership very different status when this transaction was originally entered into and the wait was in team to function with  had specifically define a fact now to get if we don't look at how and what that says is ok we're not going to you if you transfer the property we're not going to look behind it we're not going to look at what mortgages we're not going to look at what you did with the money if you like to do that then that's it was twenty five profit as it's defined in the dictionary it was not a market rate specific events each of which gave rise to a different percentage a different calculation and both the original agreement and all provided for that when they did the deal they said to the penny if it exceeds that we get a dollar for dollar still questions saying that there are indeed payments made to the other two categories but this particular event generating a value sufficient to generate the maximum payout share of voiding in the cess of the of not and there are really just two issues for this court to decide first did the merger constitute property distribution under the parties agreement and second if so what was the value of that distribution the trial court never reached the second issue distribution under the agreement made us brief speak in terms of receipt and transfer and at one point plaintiff state of the sole issue was whether a transfer occurred but that's not what the real issue is in this case the issue is whether  property distribution under the agreement as intended by the parties and we contend that there was not now the first issue i'd like to address is the issue of kind of millions one of the things that mr randall kind of glossed over in his initial argument  didn't get to until the very end it is the parent the reference i e condominium units the agreement provides that the famous going to specify percentage of the value of any property distributions parentheses i e condominium unit condos were the only property referenced in the contract they were the only property contemplated by the parties when the contract was signed the words in the parent that it all are words of limitation and enumeration and they shed light on what the parties meant by property distribution in this case the parties intended to compensate the plaintiffs only if park site decided to distribute individual condos to a company affiliate in lieu of selling them to the general public and the undisputed evidence shows that they didn't do that no condos were distributed here the i e university e g argument this is actually a pretty important argument because we're looking at what the parties meant by specification and limitation not as an example they use other references when they're trying to specify an example for instance they used e g they use words such as including and including but not limited to and they also use the very clear wording of for example that wording is actually used in the second pay out provision in the payout agreements so there's no question that the parties knew how to specify an example in their agreement but here they intentionally chose i parkside and as the sole member it was also the self sole owner of parks property so this alleged transfer of property it was really fictional nothing transferred anywhere and no property was distributed and importantly didn't receive any economic benefit from this merger now the plaintiffs claim that the l l c was the technical owner of the property stuff and members and while the l l c may have been the technical owner of the property because there was only one member cases that stuff the effect of a statutory merger i'm contractual language and granted the contractual language in those cases is not identical to what we're talking about here but in each of those cases the courts found that a merger did not constitute be a transfer for purposes of the contractual provisions at issue and we think those cases are flexible to the to the facts here as well so let's talk about the purpose of the agreement as this court knows agreements are to be construed in accordance with their purposes and that words are not to be construed in a vacuum or in isolation the purpose of the agreements was to allow the plaintiffs to share in any profits or financial benefits that were actually received by a company affiliate with respect to that property so if t l gmo peck didn't actually receive any profits or financial benefits from the fictionally transferred property there's nothing for plaintiffs to sharing the payout received from the merger and instead of identify one they kind of sidestep this requirement and say banks don't require an economic benefit that's irrelevant but that ignores the fundamental purpose of the agreement us also argue that the agreements themselves defined what constitute a profit or an economic benefit but that's not really what the agreements did the agreements listed three identified categories of transactions that could trigger a  arguing about whether the merger constituted a property just we believe that in order to answer that question you have to look to the purpose of the agreement i guess and the purpose was to allow the plaintiffs to share in financial benefits that was a risk they voluntarily undertook with respect to this conditional future payout liability they specifically acknowledged that in the agreements flat out in the agreements they said we understand that under five project may not go forward and we may not receive anything other than the fair indeed minimum amount that's specifically in the agreements so it may seem illogical at first on the surface that they would agree to limit that condo's the first provision but the fact remains they players are m also like to point out that it's equally illogical for my client to agree to this conditional payout liability indefinitely but that's what the freemans provide my clients are on the hook but this conditional payout liability from now until eternity or until the next month pay out share is paid out that's the parties bargain that's the agreement that they made just like the parties agreed to play a property distribution to conjure units and both parties agree that th distribution and i'm sure the agreement summary judgment will still offer in favor of my clients because that alleged distribution had no value the agreement requires a percentage payout of a certain percentage of the value of the property distribution the undisputed evidence presented to the trial court shows that at the time of the merger the property was uninhabitable under local building so and it was over in comfort by dad far in excess of the market value there was more than thirteen point six million dollars in debt and only eleven point five million dollars in an income very market values of property so the property was underwater there's no question about that because the value of the property distribution transaction but the contract doesn't say market value that also doesn't say net value but the common understanding of the term value wouldn't count for any income during that if the person receiving the property have to pay transfer of a operational property and assumption of debt lots of other things that don't fit within the technical definition of market value that the parties intended to look to the market value they certainly knew that my what i market value meant and they could have used the term market value for say chose not to now use of the term market value rather than that value also ignores the fact that in this transaction at issue that we're looking at not only did the property transfer but so did the debt that was on that property it was all one in the same part of the exact same transaction not separate so all of the debts on the property came to t l c motet at the same time the property did factoring in the debt on the property and the computation of value was also in accord with the purpose of the agreement to get the purpose of the agreement if he interpreted the contract and again the purpose here was to allow the plaintiffs to share in the benefits actually received by company affiliate because tells you mopac inherited not only the property but also that overwhelming debt on the property that debt impacted and dictated the amount of financial benefits  actually received by t l c i'm ok because that debt far exceeded the property value of the property was essentially worthless at the time of the murder and there was no value in this transaction so we believe the value of any  robbery distribution as a result of murder would have been zero and it would not have triggered a payout obligation so for that additional reason we think summary judgment was properly entered and favor of the defendant triggered a payout obligation and so interest was approving not going to spend a lot of time on this i just want to say that first we don't think that the merger triggered a payout obligation so any payments that have been made to date would be allocated to principal not interest secondly we don't the parties never intended for a fictional transfer of property merger to trigger any payout obligation as a property destroyed the parties never intended for the contract to trigger a payout obligation where the fictionally transfer proper is defined by the kind and the reason it's used as value of the property rather than that that has met value is used in at least three instance was because of something that whole alluded she said well you know the building is sitting there empty and doesn't have anything and now it has thirteen million dollars what might what would what the parties were trained to do this was part were made company a feeling its members were made the reason both sides brought up yes they did bring up these hundred percent ownership but it is for this very concerned council's argument raises very concern that this provision is here thirteen million dollars but it's it's not worth anywhere near that what we're at the money go these the interpretation we have was for to avoid that very tight intricate accounting and allocation it's straightforward transfer the property to a company confess and i think i made a mistake and in theory they are confusing i would point out just as an example in one of the instances cited as an example of how e g was used it was seller and his agent sk