of paragraph nine and we've argued that paragraph nine has multiple clauses that require payment of the signed receipts within ten dollars days promptly upon delivery of the film unconditionally but i'd like to focus specifically on the arbitration clause which is part of paragraph mine even more than the payment clauses this directs payment in a way that cannot be reconciled with the requirement that the parties  the release of the film if there's a dispute about whether delivery has occurred the parties are entitled to invoke arbitration and the clause the quester it's a page for seventy five dollars with the agreement provides for is what i can only describe as a work speed arbitration from the notice of arbitration to the issuance of the reward award is required to occur in fourteen business days the arbitrator must declare whether delivery has been effected and if he finds that delivery has been effected he must order sony to make that payment within five days after the award there is no way to paragraph three point one well st of all the language doesn't permit you to graft a requirement onto it it does cross reference all of the paragraph nine sections cross reference paragraph three but all of them have specific deadlines and this one in particular in the arbitration clause has a deadline that you can't wait and i think it's important to recognize what this arbitration clause does the parties have to go through this process essentially and anyone who's been through a high speed arbitration knows what this means you're working round the clock seven days a week for several weeks in order to get that award out and then apparently the drafters of this agreement we're asked to believe said ok now that you've done all of that and done everything you could within just a couple of weeks to get the award out the door and the award says the money must be paid in five days you still have to wait for the release of the movie i don't think three  and the producer it has what i would call a waterfall provision when the payment is made it goes st to impacts then it goes to the guarantor and then if there's anything left over it goes to the producer so it needs to cover all and it defines those two conditions the delivery of the film and the theatrical release payable not later than the use of the term payable is distinct in this usage in the contract it doesn't appear in this usage anywhere else and what i think that means is that these conditions and payable no later then refers to an outside payment date that covers those three entities certainly two of those entities the guarantor and the borrower are not entitled to payment any time before the theatrical release but payable no later then does not preclude an earlier payment to impacts and the significance of that is that all of paragraph nine unequivocally as clearly as the english language can make it does require prompt payment to impacts unconditionally upon the delivery of the movie there is a there is a flexibility in paragraph three point one point one that doesn't require that i'm sorry that permits that payment with respect to impacts even though the other two entities can't take advantage of an now us to distinguish between you know when the timing of the payment should be different depending on who is being mean to it there are two parts of it st there is the overall aspect of paragraph three the waterfall provision unlike paragraph nine which applies only to x in some respects the guarantor plays a role but it's mainly about payment impacts this covers all three dollars because it has the water for provision it says that sony shall pay and then it describes the numbers and then it says eight hundred and fifty five thousand this is in the nd line is payable no later than ten business days after the st date etc so it is payable no later than that is an outside believe is flexible enough just flexible enough to allow it to be harmonized with paragraph nine because this provides permits payable no later than contemplates that there can be an earlier  why isn't the simpler way to harmonize them to so that the cross reference to three the rd of nine point to cross reference to paragraph three means that you have to make the payment when it's due under paragraph three and if it's not due under paragraph three than paragraph nine doesn't require them to make it because it doesn't work your honor paragraph nine says payment within ten days from delivery even if it's pursuant to paragraph three i think i should add and i don't think there's any dispute about this it's very clear that no one expected theatrical release to be happening any time near the delivery of the film it was months down the road could could be years down the road the outside dates for both over a year apart so so it certainly doesn't work under any of the literal language of paragraph nine but again i have to come back to the arbitration clause the arbitration clause and its high speed arbitration and the requirement of a payment within five days after the conclusion of the arbitration head be harmonized because that timing there's there's no way to say all right you've all spent the last three weeks making this arbitration happen and you have to pay it within five days but now we're going to wait a year perhaps to find of the films released oh and by the way notwithstanding the arbitrator's order that you must pay within five days if the movie isn't released in a way that satisfies us then we don't have to pay you what are those two cannot co exist your honor you don't think very much of this argument when you filed your complaint did you know that the complaint seems to offer a view of how this all work works that's pretty different from what you're saying now well that the complaint had the concept in our crowd papers have the concept that the three point one point one wasn't a matter of obligation it was a matter of timing it really doesn't work and i think what's significant about it is judge the judge or tero recognized that it didn't work he recognized that the core argument on our side really was payment on delivery nothing more or less the way he put it in his order was this this is it page webvan of the review of the excerpts he wrote before turning to the two primary disputes and the principal dispute on summary judgment was the interpretation of the theatrical release clause no question about that but before turning to the two crime or disputes the court must st address the contention by plaintive that the theatrical release is irrelevant and that the delivery payments are due simply because delivery has occurred he understood that that was and had to be our core contention and we began our argument in the district court with paragraph one dollar that says that delivery is the payment obligation is conditioned only on the timely delivery of the film this represents obviously a different view of the case and i know  that counsel is going to say that we took opposite different position in the court just as your honor has i would say that it's more of a difference in emphasis than a difference in substance and and maybe the most important aspect of paragraph nine is what so many has not said about it we argued in depth we spent a lot of our opening brief talking about paragraph nine and why it's clauses mandate payment upon delivery there very little emphasis on paragraph three which clearly says these are discusses payments and you're saying no all of the meat of everything is contained in paragraph nine which is a separate issue arbitration i mean you're right there's some tension between the two but it seems to me that the natural inclination is to go back to where payment is defined and what the payment is laid out your payable argument is an interesting one but it is still seems to kind of just read out this whole theatrical release provision and i doesn't make sense why they would put that in there you're saying that that was just a date for a backdrop it seems to clearly be contemplated as that's when the that's when the payment that has to happen before the payments due well your honor i think there's no question that at the parties had to do it over again this agreement yuppy drafted there but paragraph not  multiple places it says payment within ten days of delivery and yes it says in accordance with paragraph three it doesn't say three one point one and paragraph three also has language that says here's how you make the payment here's the account to wire the funds to it just says in accordance with paragraph three so it says you must pay one of these paragraphs has to yield and there is nothing in paragraph nine that yield as a base on the basis of the just plain english language reading that paragraph three can yield because it serves a different purpose if you know if all we had was paragraph three so would have the better of the case there's no question about it but we have more than paragraphs well but i think i mean that that sort of the problem i have is the paragraph nine says i mean the depression tory statement is whether mandatory delivery or complete delivery has been affected shall be determined in accordance with the procedures testified in this paragraph so that seems to be addressing when mandatory delivery happens it doesn't talk  theatrical release at all and then when you get into paragraph three it's you know this is when everything's due and when it has to be paid and i just i feel like you're reading paragraph three out of it and i understand your argument but you've got a right to reserve some time but i would ask your honor to read through paragraph nine hundred and eighty up it's much more paragraph eight is how to make delivery paragraph nice as what happens when you do it what be under the deal structures sony acquired the foreign distribution rights to the film and the value of foreign distribution rights in a film like this was relatively small increases greatly when you generate buzz and critical acclaim in the u s market which markets and that's why payment was only required to be made after the qualifying u s theatrical release occurred now that was everyone's understanding until this appeal now impacts argues for the st time that political case law they're one in the same if an obligation is due to occur after something else occurs before that by definition is a condition precedent so that legal argument was faulty but the underlying premise of that argument and infection rates below was still that the qualifying theatrical release had to occur before the payment was made whether you can classify that as a condition precedent or as an issue of timing so the issue in this appeal is distinctly different it is a binary issue under this contract under the parole evidence under the judicial admissions is the payment due before or after the qualifying us the us release now with respect to that question it might just so i'm understanding their argument my guess is as he did the language in three point one point one says the money is paid a ball no later than ten business days after both of these conditions are met if there's no theatrical release would not follow that the payments not payable well i don't want to do mr meadows jump for him but my understanding is well certainly that's our position but it's not payable if there's no and as you also point out this provision section three dollars is the section governing distributor payments and that's the basis of this claim not section nine till it arbitration and notably were not in arbitration but what payment to the lender as provided in paragraph three no later than ten business days after the date of delivery and that doesn't mention the theatrical release so your honor i would say the same thing you said to in texas counsel that it says as provided in accordance with with paragraph three which incorporates of course session three one point one in the case of parsons the bristol from gallup the california supreme court squarely on point on this issue where provision makes explicit reference to payment under preceding subdivisions by language such as under the preceeding terms or full payment so your argument basically is as provided under paragraph three above which is contained in one two that's what you're resting your argument on how thirty three is basically incorporated the theatrical release is effectively incorporated into nine twenty that's one of our many arguments but certainly that is an argument with respect what if that what if that language weren't there as provided in paragraph three above or we found that that wasn't specific enough would you agree at that point that there's just a conflict between the  interpretation and they give precedence of priority to section three point one over this provision section nine clothing that specific prevails over the general the fact that section three specifically deals expressly deals with the distributor payments and gives that provision priority over the issues in this action which is the distributor pendants the headings of course reflect this there's case law that supports that view that headings or indicative of what the parties intended is so even to the extent that was a contradiction between the two provisions we still think section three eleven should prevail and finally your honor perhaps most tellingly is all of  evidence and the judicial admissions that answer this question is a binary question about whether the qualifying theatrical release had to occur before or after the payment had to occur before after the qualifying theatrical release this question was answered section three point one dollar of the i p a requires sony to pay the mandatory delivery payment no later than ten dollars business days after the st date that both mandatory delivery occurs and the date of the qualifying us the actual release after the qualifying theatrical release for ten business days afterwards he said the same thing in the thirty six dollars witness which a deposition which of course is binding upon impacts oh yes the mandatory delivery payment is due when the movie is delivered and then one dollar shows on a minimum of one hundred dollars screens in the top ten markets in the united states question so until the movie is shown on a minimum number minimum of one hundred screens in the top ten markets delivery payment is not due correct payment was september th two thousand and sixteen all after ten days ten business days after the qualifying theatrical release occurred so there was no dispute in the lower court proceeding as to that binary question  there was a legal argument that technically that wasn't a condition precedent but that argument was wrong in that or of law and that goes to the other point your honor that with by having made these admissions this is all parol evidence post guess your poena is arguing or is it mean payable meaning whether you have to pay or not i don't know if you've given some thought to that are not the way i understood mr meadows argument is that the fact that it's payable ten days after the conditions have been met means that that's an outside date and that in fact it's not due ten days after the date both conditions and that but in fact in two thousand and fifteen over a year before one the delivery occurred i don't see how you square this language with the theory that in texas  contract below and the two related theories that were asserting one is that the bound by the judicial missions and those have to mean something especially in the complaint complaint is the guiding document throughout the course of the litigation that defines the scope discovery revises the defendant as to what the allegations are what theories in fact to pursue during depositions and during discovery discovery has been closed the summary judgment record is closed and now they can go back after having led us to believe that this was their theory and change it now for the st time on appeal the other argument even had they never made the judicial nominations is that this new theory of contract interpretation can't be asserted for the st time on appeal either that's just an issue of straightforward waiver and judge nelson i think you raise this point in a couple of arguments ago with respect to party who would possibly fail to seek leave to amend and you asked the question of whether that had been the question is whether our position deprives paragraph three point one point one of all meaning and it doesn't because paragraph three one point one as i've said is part of a global paragraph that applies to all three it applies differently impacts because of paragraph nine and i can only but i think that goes to the definition in the meaning of payable because you're interpreting payable as only setting the timeline in the outside timeline and maybe that means it's ambiguous i haven't thought about this are you or so but but the other way to look at that would be payable means you don't have to pay it at all and tell these two things happen i appreciate that and if this were the only clause we wouldn't have this dispute but these clauses have to be harmonized and again it's interesting once again the only answer to paragraph nine is well the cross reference is paragraph three but this is not without some  actually your honor it is without ok one must read paragraph nine all seven pages of it i urge the court to do it you will not find the escape clause that they want you to read into it because you cannot say ten days but ten days is meaningless if it is but we have to wait for the release of the film and again if you look at page thirty four of our opening brief we lay out the timing of some of these things we make the point there that the theatrical release was not expected for for many months down the road so there's no way to squeeze that theatrical release into the ten days or into the five days after the arbitrators order i see that my time is up thank