Marathon Asset Management lp, et al v. Wilmington Trust na, et Alin re: Marathon Asset Management lp, et al v. Wilmington Trust na, et al
Court Docket Sheet

3rd Circuit Court of Appeals

2017-01958 (ca3)

Oral Argument Notification for Wednesday, 11/15/2017. Courtroom & Time: Maris Courtroom/9:30 a.m. Location: Philadelphia, PA. (CMH) [Entered: 10/13/2017 02:52 PM]

Case: 17-1958 Document: 003112752505 Page: 1 Date Filed: 10/13/2017 OFFICE OF THE CLERK MARCIA M. WALDRON UNITED STATES COURT OF APPEALS TELEPHONE 21400 UNITED STATES COURTHOUSE 215-597-2995 CLERK 601 MARKET STREET PHILADELPHIA, PA 19106-1790 Website: www.ca3.uscourts.gov October 13, 2017 Philip D. Anker Esq. Bradley R. Aronstam Esq. George A. Davis Esq. Michael D. DeBaecke Esq. Peter M. Friedman Esq. Neil B. Glassman Esq. Michael A. Guippone Esq. Mark D. Kotwick Esq. Benjamin W. Loveland Esq. Matthew B. McGuire Esq. Nicholas D. Mozal Esq. Jonathan Rosenberg Benjamin J. Schladweiler Esq. Daniel S. Shamah Esq. George W. Shuster Jr. Esq. RE: In re: Marathon Asset Management LP, et al v. Wilmington Trust NA, et al Case Number: 17-1958 District Case Number: 1-16-cv-00287 Dear Counsel: The Court has directed me to advise counsel in the above-entitled case that oral argument on the merits is scheduled on Wednesday, November 15, 2017. Counsel will be allotted 15 minutes oral argument time for each side, pursuant to 3rd LAR 34.1 (a). Court will convene at 9:30 a.m. and argument in this matter is scheduled in The Albert Branson Maris Courtroom, (19th Floor, U.S. Courthouse, 6th & Market Sts., Philadelphia, PA.) Counsel who will present oral argument should register with the Court Crier in the courtroom 30 minutes prior to the time when court is scheduled to convene. Counsel should read the instructions for oral argument. If multiple parties are arguing for each side, counsel shall file a division of time form (a writeable form), if necessary, Case: 17-1958 Document: 003112752505 Page: 2 Date Filed: 10/13/2017 through CM/ECF. Appellants and Appellees are asked to provide a very brief summary of the issues in the case by docketing the Summary of Oral Argument event, located in the Argument Notices & Acknowledgements category, within five (5) days. This is part of a program to provide the public with information about the Court’s cases. Both summaries will be posted on the Court internet site prior to the argument date. Audio of all arguments are posted on the Court’s internet website shortly after the conclusion of arguments for the day. In addition, the Court may direct that video of oral argument1 in cases that are of significant interest to the public, the bar or the academic community be posted on the website. In order to assist the Court in this determination, Appellants and Appellees will be asked when providing the summary of oral argument whether they recommend that video be posted or whether they object to the posting of video. Whether video is posted is within the sole discretion of the judges hearing oral argument. The panel of the Court will determine after oral argument whether video of any argument should be posted. Attorneys will be notified if video will be posted and given a further opportunity to object by close of business the next day. Very truly yours, Marcia M. Waldron, Clerk By: Carmen Hernandez Calendar Team Coordinator 267-299-4952 Pursuant to IOP Chapter 2, you are hereby advised that your appeal will be argued before the following panel: AMBRO, KRAUSE and RENDELL, Circuit Judges 1 Only arguments scheduled in the Albert Branson Maris and Collins J. Seitz courtrooms in Philadelphia, PA are video recorded.

ECF FILER: Response filed by Appellees Angelo Gordon & Co, Apollo Advisors VII LP and Brookfield Asset Management Private Institutional Capital Advisor Canada LP to Motion to proceed as amicus/intervenor. Certificate of Service dated 10/20/2017. (BRA) [Entered: 10/20/2017 02:45 PM]

Case: 17-1958 Document: 003112758670 Page: 1 Date Filed: 10/20/2017 Case No. 17-1958 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________ IN RE: ENERGY FUTURE HOLDINGS CORP., et al., Debtors, MARATHON ASSET MANAGEMENT LP; POLYGON CONVERTIBLE OPPORTUNITY MASTER FUND; POLYGON DISTRESSED OPPORTUNITIES MASTER FUND, Plaintiffs-Appellants, v. WILMINGTON TRUST N.A. as First Lien Collateral Agent and First Lien Administrative Agent; ANGELO GORDON & CO. L.P.; APOLLO ADVISORS VII, L.P.; BROOKFIELD ASSET MANAGEMENT PRIVATE INSTITUTIONAL CAPITAL ADVISOR (CANADA) L.P.; JOHN DOE #1 THROUGH JOHN DOE #10, Defendants-Appellees. _______________ On Appeal from the United States District Court for the District of Delaware, Case No. 1:16-cv-00287 The Honorable Richard G. Andrews _______________ APPELLEES’ OPPOSITION TO MOTION FOR LEAVE TO APPEAR AS AMICUS CURIAE AND FOR LEAVE TO FILE A LATE BRIEF _______________ Bradley R. Aronstam, Esq. George A. Davis, Esq. Benjamin J. Schladweiler, Esq. Jonathan Rosenberg, Esq. Nicholas D. Mozal, Esq. Peter Friedman, Esq. ROSS ARONSTAM & MORITZ LLP Daniel S. Shamah, Esq. 100 S. West Street, Suite 400 Andrew Sorkin, Esq. Wilmington, DE 19801 O’MELVENY & MYERS LLP Tel: (302) 576-1600 7 Times Square New York, NY 10036 Tel: (212) 326-2000 Counsel for Lender Defendants-Appellees Angelo Gordon & Co., LP, Apollo Advisors VII, L.P. and Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P. Dated: October 20, 2017 1 of 11 Case: 17-1958 Document: 003112758670 Page: 2 Date Filed: 10/20/2017 INTRODUCTION Although Appellants filed their principal brief on June 30, 2017, Delaware Trust Co. did not move for leave to file an amicus brief supporting Appellants until October 10, 2017. That three-plus-month delay is unreasonable. 1 Requests to file amicus briefs must be timely and aid the Court in its decision. The Motion meets neither requirement and should be denied, a point on which both Appellees and Appellants agree. But if the Court were to accept Delaware Trust’s untimely amicus brief, it should afford Appellees a reasonable opportunity to respond. BACKGROUND The procedural background of this case is detailed in Appellees’ Answering Brief. Answering Brief at 6-16. As DTC acknowledges, this case is closely related to the Delaware Trust Action that is on appeal to the Delaware District Court. Motion at 2. In both cases, the appellants are appealing the Bankruptcy Court’s conclusion (JA853) that the section 4.1 waterfall of the TCEH First Lien Intercreditor Agreement did not apply to distributions made under the Effective TCEH Plan (what DTC calls the "ICA § 4.1 Preamble Issue"). DTC admits (thereby undermining an argument in Appellants’ Reply Brief at 23 n.7), that the ICA § 4.1 Preamble Issue is identical in both cases: if Appellees and the 1 Capitalized terms not defined in this Opposition have the meanings used in the Motion and Appellees’ Answering Brief in this appeal, filed on August 31, 2017 (the "Answering Brief"). References to "JA[xx]" are to the Joint Appendix submitted in this appeal. 1 2 of 11 Case: 17-1958 Document: 003112758670 Page: 3 Date Filed: 10/20/2017 Bankruptcy Court are correct, and the section 4.1 waterfall does not apply to Plan Distributions, then the Bankruptcy Court’s dismissal below and in the Delaware Trust Action must be affirmed. 2 Motion at 9-10. As Appellees have explained (see Answering Brief at 39-40), there was uncertainty regarding this aspect of the Bankruptcy Court’s ruling when this case was before the District Court, because the Bankruptcy Court relied on the confirmed but subsequently abandoned First TCEH Plan. Answering Brief at 39-40. Even though both sides briefed the ICA § 4.1 Preamble Issue to the District Court, the parties agreed that the District Court should defer ruling on that issue and confine its ruling to the other issues the parties briefed. The District Court on that basis declined to address the ICA § 4.1 Preamble Issue in affirming the Bankruptcy Court, but did not rule that either side had waived that issue. The Effective TCEH Plan has since been confirmed and consummated, and the Bankruptcy Court confirmed in a second opinion in the Delaware Trust Action that the Effective TCEH Plan did not satisfy the conditions precedent for application of Intercreditor Agreement section 4.1. JA1239. When Appellees filed their 2 As explained in the Answering Brief, even if the Bankruptcy Court got the ICA § 4.1 Preamble Issue wrong, its dismissal should still be affirmed because the contracts clearly and unambiguously do not provide Appellants the priority right they seek. 2 3 of 11 Case: 17-1958 Document: 003112758670 Page: 4 Date Filed: 10/20/2017 principal brief, on August 31, 2017, they identified the ICA § 4.1 Preamble Issue in their Statement of Issues on Appeal. Answering Brief at 6. ARGUMENT Denial of leave to file an amicus brief is appropriate where, as here, the request is untimely and the proposed amicus fails to offer a legitimate excuse for its delay. See, e.g., Fry v. Exelon Corp., 576 F.3d 723, 725 (7th Cir. 2009) (denying untimely request for leave to file amicus brief); Marbled Murrelet v. Pacific Lumber Co., 83 F.3d 1060, 1062 n.1 (9th Cir. 1996) (denying untimely request for leave to file an amicus brief). Federal Rule of Appellate Procedure 29(a)(6) requires that a motion for leave to file an amicus brief "must" be made within seven days of filing of the "principal brief" of the party the proposed amicus is supporting. Fed. R. App. P. 29(a)(6). Appellants’ principal brief was filed on June 30, 2017, and thus DTC’s motion was due on July 7, 2017. DTC’s 95-day delay in filing the Motion requires that the motion be denied as untimely. DTC argues—without supporting authority—that its Motion is timely because it was filed within seven days of Appellants’ reply brief. That argument is without merit. A reply brief is not a "principal brief." See Fry, 576 F.3d at 725 (citing Rule 29, "[a] principal brief is the opening brief on the merits, as opposed to a reply brief or another variety of brief."). 3 4 of 11 Case: 17-1958 Document: 003112758670 Page: 5 Date Filed: 10/20/2017 Likewise unavailing is DTC’s explanation for its three-plus-month delay. DTC asserts that it did not know that this appeal involves the ICA § 4.1 Preamble Issue. That assertion is not credible, given the overlap between the two cases. DTC admits that this appeal presents the "exact same issue" as the Delaware Trust Action and that the two cases have "progressed in parallel" since commenced in the Bankruptcy Court. Motion at 5, 11. The ICA § 4.1 Preamble Issue was fully briefed before the Bankruptcy Court and the District Court, and was an independent basis for the Bankruptcy Court’s dismissal of the Complaint. Answering Brief at 39-40, n.7. It has been designated as an issue on appeal every step of the way. Answering Brief at 6, 39-40, n.7. And both of the Bankruptcy Court’s Delaware Trust Action decisions were included in the parties’ Joint Appendix in this appeal, filed simultaneously with Appellants’ principal brief on June 30, 2017. JA853, 1239. Moreover, even if DTC were somehow unaware that the ICA § 4.1 Preamble Issue was live when its deadline to seek leave lapsed in July, it cannot conceivably claim that it was unaware of the issue after August 31, 2017, when Appellees specifically sought affirmance based on that issue in their principal brief. Answering Brief at 6. The Motion should also be denied because DTC’s amicus brief improperly expands on Appellants’ arguments. Amicus briefs may not be used to "extend[] the length of the litigant’s brief." Ryan v. Commodity Futures Trading Comm’n, 4 5 of 11 Case: 17-1958 Document: 003112758670 Page: 6 Date Filed: 10/20/2017 125 F.3d 1062, 1063 (7th Cir. 1997); see also Nat’l Org. for Women, Inc. v. Scheidler, 223 F.3d 615, 616 (7th Cir. 2000) (observing that "circumventing the page limitations on the parties’ briefs" is not a valid purpose for an amicus brief). But that is the primary basis for DTC’s request. Motion at 7-9, 11-12. DTC argues that Appellants gave the ICA § 4.1 Preamble Issue short shrift, and for that reason DTC seeks to "substantially expand[]" Appellants’ three-page argument on that issue to more than 25 pages—nearly the full length of another reply brief. Motion at 10. Tellingly, even Appellants do not want DTC’s assistance and oppose the Motion. See Appellants’ Response to Delaware Trust Company’s Motion for Leave to File Brief and Supplemental Appendix as Amicus Curiae, filed Oct. 12, 2017. Finally, if the Court were to grant leave, it should also grant Appellees a reasonable opportunity to respond to DTC’s nearly-6,500 word amicus brief. See Fed. R. App. P. 29 advisory committee’s note ("[W]hen a court grants permission for later filing, the court must specify the period within which an opposing party may answer the arguments of the amicus."). Appellees would be succinct in reply, but they (and the other parties to the Delaware Trust Action whose interests could be affected by this appeal) should be afforded a reasonable opportunity to address the expanded arguments DTC raises in its amicus brief. 5 6 of 11 Case: 17-1958 Document: 003112758670 Page: 7 Date Filed: 10/20/2017 CONCLUSION For the foregoing reasons, the Court should deny the Motion or, in the alternative, grant Appellees a reasonable opportunity to respond. 6 7 of 11 Case: 17-1958 Document: 003112758670 Page: 8 Date Filed: 10/20/2017 Dated: October 20, 2017 Respectfully submitted, ROSS ARONSTAM & MORITZ LLP/s/Bradley R. Aronstam Bradley R. Aronstam (DE Bar #5129) Benjamin J. Schladweiler (DE Bar #4601) Nicholas D. Mozal (DE Bar #5838) 100 S. West Street, Suite 400 Wilmington, DE 19801 (302) 576-1600 baronstam@ramllp.com bschladweiler@ramllp.com nmozal@ramllp.com Of Counsel: O’MELVENY & MYERS LLP George A. Davis Jonathan Rosenberg Peter Friedman Daniel S. Shamah Andrew Sorkin Times Square Tower 7 Times Square New York, NY 10036 (212) 326-2000 gdavis@omm.com jrosenberg@omm.com pfriedman@omm.com dshamah@omm.com asorkin@omm.com Counsel for Defendants–Appellees Angelo Gordon & Co., LP, Apollo Advisors VII, L.P., and Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P. 7 8 of 11 Case: 17-1958 Document: 003112758670 Page: 9 Date Filed: 10/20/2017 CERTIFICATE OF BAR MEMBERSHIP Pursuant to Third Circuit Local Appellate Rules 28.3(d) and 46.1, I, Bradley R. Aronstam hereby certify that I am a member in good standing of the bar of the United States Court of Appeals for the Third Circuit. Dated: October 20, 2017/s/Bradley R. Aronstam Bradley R. Aronstam (#5129) Counsel for Lender Defendants-Appellees Angelo Gordon & Co., LP, Apollo Advisors VII, L.P. and Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P. 9 of 11 Case: 17-1958 Document: 003112758670 Page: 10 Date Filed: 10/20/2017 CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(a)(7), the undersigned hereby certifies that this brief complies with the type-volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B)(i): 1. Exclusive of the exempted portions of the brief, as provided in Federal Rule of Appellate Procedure 32(a)(7)(B), the brief contains 1,231 words; and 2. The brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14-point Times New Roman font. As permitted by Federal Rule of Appellate Procedure 32(a)(7)(C), the undersigned has relied upon the word count feature of this word processing system in preparing this certificate. In addition, pursuant to Third Circuit Local Appellate Rule 31.1(c), the undersigned hereby certifies that the text of the electronic brief filed with the Court is identical to the paper copies, and that a virus detection program has been run on the electronic file and that no virus was detected. The virus detection program used was Kaspersky antivirus software. Dated: October 20, 2017/s/Bradley R. Aronstam Bradley R. Aronstam (#5129) Counsel for Lender Defendants-Appellees Angelo Gordon & Co., LP, Apollo Advisors VII, L.P. and Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P. 10 of 11 Case: 17-1958 Document: 003112758671 Page: 1 Date Filed: 10/20/2017 CERTIFICATE OF SERVICE I, Bradley R. Aronstam, hereby certify that on October 20, 2017, I electronically filed the foregoing Appellees’ Opposition to Motion for Leave to Appear as Amicus Curiae and for Leave to File a Late Brief-USCA 17-1958 with the Clerk of the Court of the United States Court of Appeals for the Third Circuit by using the Court’s CM/ECF system. I further certify that attorneys of record in the case who are registered CM/ECF users were served by the CM/ECF system. Furthermore, the undersigned certifies that on October 20, 2017, I caused seven bound copies of the foregoing Appellees’ Opposition to Motion for Leave to Appear as Amicus Curiae and for Leave to File a Late Brief – USCA 17-1958 to be filed with the Court via overnight courier (Federal Express) to the following address: Office of the Clerk United States Court of Appeals for the Third Circuit James A. Byrne United States Courthouse 601 Market Street, Room 21400 Philadelphia, PA 19106-1729 (202) 597-2995/s/Bradley R. Aronstam Bradley R. Aronstam (#5129) Counsel for Lender Defendants-Appellees Angelo Gordon & Co., LP, Apollo Advisors VII, L.P. and Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P. 11 of 11

ECF FILER: Reply by Proposed Amicus-Appellant Delaware Trust Co to Response to Motion to proceed as amicus/intervenor and to file supplemental appendix, filed. Certificate of Service dated 10/27/2017. Service made by ECF. --[Edited 10/31/2017 by EAF - Text edited] (NBG) [Entered: 10/27/2017 12:55 PM]

Case: 17-1958 Document: 003112764015 Page: 1 Date Filed: 10/27/2017 17-1958 IN THE United States Court of Appeals FOR THE THIRD CIRCUIT >>>> IN RE: ENERGY FUTURE HOLDINGS CORP. a/k/a TXU Corp. a/ka TEXAS Utilities, et al., Debtors. MARATHON ASSET MANAGEMENT LP; POLYGON CONVERTIBLE OPPORTUNITY MASTER FUND; POLYGON DISTRESSED OPPORTUNITIES MASTER FUND, Appellants, v. WILMINGTON TRUST N.A. as First Lien Collateral Agent and First Lien Administrative Agent; ANGELO GORDON & CO. L.P.; APOLLO ADVISORS VII, L.P.; BROOKFIELD ASSET MANAGEMENT PRIVATE INSTITUTIONAL CAPITAL ADVISOR (CANADA) L.P.; JOHN DOE #1 THROUGH JOHN DOE #10, Appellees. On Appeal from the United States District Court for the District of Delaware, No. 1:16-cv-00287 Before the Honorable Richard G. Andrews, U.S. District Judge REPLY TO RESPONSE TO MOTION OF DELAWARE TRUST COMPANY FOR LEAVE TO FILE BRIEF AND SUPPLEMENTAL APPENDIX AS AMICUS CURIAE IN SUPPORT OF APPELLANTS Michael S. Kim Neil B. Glassman (No. 2087) Jeremy C. Hollembeak GianClaudio Finizio KOBRE & KIM LLP BAYARD, P.A. 800 Third Avenue 600 North King Street, Suite 400 New York, New York 10022 Wilmington, Delaware 19801 212-488-1200 302-655-5000 Attorneys for Amicus Curiae Delaware Trust Company, as TCEH First Lien Indenture Trustee Case: 17-1958 Document: 003112764015 Page: 2 Date Filed: 10/27/2017 Pursuant to Fed. R. App. P. 29(a), Delaware Trust Company, solely in its capacity as TCEH First Lien Indenture Trustee ("DTC"), respectfully submits this brief in further support of its October 10, 2017 motion for leave to file an amicus curiae brief and a Supplemental Appendix (the "Motion")1 and in reply to the Appellees’ brief in opposition thereto.2 As explained below, Appellees’ arguments against the Motion are meritless and should be rejected. REPLY The purpose of the Motion and DTC’s proposed amicus brief is to avoid the circumstance of this Court ruling (or even commenting) on the merits of the ICA § 4.1 Preamble Issue on the basis of fewer than six pages combined of merits briefing submitted by the parties. The panel that hears this appeal should be made aware of the fact that the ICA § 4.1 Preamble Issue is the subject of hundreds of pages of briefing and two Bankruptcy Court decisions in the Delaware Trust Action (DTC I and DTC II) which now are jointly on appeal before the District Court. And if the panel finds it necessary to discuss or rule on the ICA § 4.1 1 Capitalized terms not defined herein have the meanings ascribed in the Motion. 2 See Appellees’ Opposition Brief ("Appellees’ Opp.") dated October 20, 2017. Appellants also submitted an opposition brief on October 12, 2017, arguing the Motion should be denied because the Court should not reach the ICA § 4.1 Preamble Issue in this appeal. Although it would prefer that the Court not reach that issue, DTC is not taking (and in its capacity as amicus curiae does not believe it would be appropriate to take) a position on any other issue in this appeal, including the parties’ competing arguments about whether the Court should reach the merits of the ICA § 4.1 Preamble Issue. Thus, Appellants’ opposition brief is inapposite to the Motion. 1 Case: 17-1958 Document: 003112764015 Page: 3 Date Filed: 10/27/2017 Preamble Issue in this appeal, it should have the benefit of adequate briefing on its underlying merits. DTC explicitly acknowledged in its Motion that, should it be granted, Appellees will have an opportunity to respond to the amicus brief pursuant to Rule 29. Mot. at 11-12. Thus, granting the Motion poses no prejudice and could only benefit the Court if it reaches the ICA § 4.1 Preamble Issue. Tellingly, Appellees – the very parties that have asked this Court to affirm based on the Bankruptcy Court’s rulings on the ICA § 4.1 Preamble Issue in DTC I and DTC II – stand opposed to the Court making that decision with the benefit of appropriate substantive briefing on both sides of the merits of issue. To that end, Appellees argue in their opposition that the Motion is untimely and "improperly expands on Appellants’ arguments." Appellees’ Opp. at 3-5. Both of these arguments are meritless. First, Appellees’ timeliness objection should be rejected because it asks the Court to ignore what has actually transpired in this appeal in order to shoe-horn their rigid (and incorrect) application of Fed. R. App. P. 29(a)(6). Appellees argue that, because the rule provides amicus briefs should be filed within seven (7) days of the filing of the "principal brief" being supported, that DTC should have filed the Motion within seven (7) days of the Appellants’ June 30,, 2017 Opening Brief. But DTC’s Motion and proposed amicus brief do not support any arguments in the Opening Brief, in which Appellants only refer to the ICA § 4.1 Preamble Issue in a 2 Case: 17-1958 Document: 003112764015 Page: 4 Date Filed: 10/27/2017 footnote to explain their understanding that the issue "was not part of the District Court appeal or decision below, and the parties indicated that those issues were not necessary to a resolution of the issue on appeal." Op. Br. at 6, n.3. Moreover, if Appellees agreed with this understanding, DTC’s proposed amicus brief would have been wholly unnecessary and inappropriate whether filed on July 7, 2017 or at any point thereafter. As it turned out, Appellees did not agree, but, importantly, only made their disagreement known upon the filing of their Answering Brief on August 31, 2017. Appellees’ Opp. at 2-3 ("When Appellees filed their principal brief, on August 31, 2017, they identified the ICA § 4.1 Preamble Issue in their Statement of Issues on Appeal.") (emphasis added). Thus, under the circumstances, a rigid application of Rule 29(a)(6) would be nonsensical and inappropriate. Recognizing as much, Appellees pivot to alternatively suggest a timely DTC filing should have been keyed off of the filing of their Answering Brief. But that timing clearly conflicts with Rule 29(a)(6), as DTC opposes, rather than supports, Appellees’ position on the ICA § 4.1 Preamble Issue set forth in the Answering Brief. Moreover, even after Appellees raised the issue, the necessity and propriety of an amicus brief depended on whether and how the Appellants would address the issue in their forthcoming Reply Brief. If Appellants had made all of the same arguments in their Reply Brief as DTC is making in its proposed amicus brief, the 3 Case: 17-1958 Document: 003112764015 Page: 5 Date Filed: 10/27/2017 latter would have been superfluous. (Appellees’ alternative argument that the amicus brief should be disregarded because the Reply Brief does make the same arguments is addressed below). DTC did not want to unnecessarily burden the Court by filing an amicus brief before it was clear that DTC’s interests were sufficiently implicated. As it turned out, however, although their October 2, 2017 Reply Brief set forth Appellants’ position (which DTC supports) that the preamble language of ICA § 4.1 does not prevent the Collateral or proceeds at issue in this appeal from flowing though the Section 4.1(b) Waterfall, it barely touched on the underlying merits arguments supporting that position or explained how the Bankruptcy Court’s rulings on the ICA § 4.1 Preamble Issue in DTC I and DTC II are erroneous. Only then, once the Reply Brief was filed, could DTC determine whether and what to argue in its amicus brief, which DTC subsequently filed (together with its Motion) within the required timeframe.3 Under these circumstances, DTC’s Motion and proposed amicus brief were filed in a timely manner, and the rigid application of Rule 29(a)(6) advanced by the Appellees should be rejected.4 3 The Court was closed for a federal holiday on October 9, 2017 – the seventh (7th) calendar day after the filing of the brief being supported (the October 2, 2017 Reply Brief). Accordingly, the Motion and amicus brief were timely filed on October 10, 2017. See Fed. R. App. P. 26(a)(1)(C). 4 In any case, even should the Court find the Motion to be untimely (which, for the 4 Case: 17-1958 Document: 003112764015 Page: 6 Date Filed: 10/27/2017 Second, Appellees’ contention that DTC’s proposed amicus brief would "improperly expand" on Appellants’ arguments is false. The proposed brief is no mere expansion of the few paragraphs addressing the merits of the ICA § 4.1 Preamble Issue in Appellant’s Reply Brief; rather, it speaks to numerous key components of the Bankruptcy Court’s incorrect rulings on that issue in DTC I and DTC II to which Appellants make no reference. To the extent the proposed brief also addresses arguments given cursory mention in the Reply Brief, it supports those arguments with analysis and reference to numerous provisions of the underlying agreements far beyond anything the Court could infer from the Reply Brief. An amicus brief is appropriate where (as here) its purpose is to inform the court about arguments that are not being made or elucidated on by the parties, even if the parties themselves could have raised those arguments. See, e.g., Neonatology Associates, P.A. v. C.I.R., 293 F.3d 128, 133 (3d Cir. 2002) (Alito, J.) (courts "would be well advised to grant motions for leave to file amicus briefs unless it is obvious that the proposed briefs do not meet Rule 29’s criteria as broadly interpreted"). DTC is not seeking to help Appellants prevail overall in this appeal by providing them with additional briefing (a fact underscored by Appellants’ own opposition to the Motion). Rather, DTC is trying to ensure this Court has the reasons above, it was not), the Court should grant DTC’s request in the Motion to file the amicus brief out of time as permitted by Rule 29(a)(6). Mot. at 10. 5 Case: 17-1958 Document: 003112764015 Page: 7 Date Filed: 10/27/2017 briefing it needs on a single issue that neither party materially briefed on the merits, in part because each party accuses the other of having waived the issue. This is the very circumstance that consideration of an amicus brief is appropriate. CONCLUSION For the reasons stated above and in the Motion, DTC respectfully requests permission to file the proposed amicus brief and Supplemental Appendix that were submitted contemporaneously with the Motion. Dated: October 27, 2017 Wilmington, Delaware/s/Neil B. Glassman Neil B. Glassman (No. 2087) GianClaudio Finizio (No. 4253) BAYARD, P.A. 222 Delaware Avenue, Suite 900 Wilmington, Delaware 19801 Telephone: (302) 655-5000 Facsimile: (302) 658-6395 Michael S. Kim Jeremy C. Hollembeak KOBRE & KIM LLP 800 Third Avenue New York, New York 10022 Telephone: (212) 488-1200 Facsimile: (212) 488-1220 Attorneys for Appellant Delaware Trust Company, as TCEH First Lien Indenture Trustee 6 Case: 17-1958 Document: 003112764015 Page: 8 Date Filed: 10/27/2017 CERTIFICATE OF SERVICE I hereby certify that on October 27, 2017, I electronically filed the foregoing Reply to Response to Motion of Delaware Trust Company, as TCEH First Lien Indenture Trustee, for Leave to File Brief and Supplemental Appendix as Amicus Curiae in Support of Appellants with the Clerk of the United States Court of Appeals for the Third Circuit using CM/ECF which will send notification of such filing(s) to counsel of record for Appellant and for Appellee. I further certify that counsel for Appellant and counsel for Appellee are registered CM/ECF users./s/Neil B. Glassman Neil B. Glassman Attorney for Delaware Trust Company, as TCEH First Lien Indenture Trustee Date: October 27, 2017 7

ECF FILER: Withdrawal filed by Attorney Michael A. Guippone, Esq. of Counsel for Appellants Marathon Asset Management LP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund. Certificate of Service dated 10/30/2017. Service made by ECF.--[Edited 10/30/2017 by CJG] (MAG) [Entered: 10/30/2017 01:03 PM]

Case: 17-1958 Document: 003112765117 Page: 1 Date Filed: 10/30/2017 October 30, 2017 Michael Guippone +1 212 295 6249 (t) VIA ECF +1 212 230 8888 (f) michael.guippone@wilmerhale.com Office of the Clerk United States Court of Appeals for the Third Circuit 21400 United States Courthouse 601 Market Street Philadelphia, PA 19106-1790 Re: In re: Marathon Asset Management LP, et al v. Wilmington Trust NA, et al, No. 17-1958 Dear Sir or Madam: Please take notice that I hereby withdraw as counsel for Marathon Asset Management LP, Polygon Convertible Opportunity Master Fund, and Polygon Distressed Opportunities Master Fund ("Appellants") in the above-captioned matter. As of November 1, 2017, I will no longer be employed by Wilmer Cutler Pickering Hale and Dorr LLP. Wilmer Cutler Pickering Hale and Dorr LLP will continue as counsel for Appellants. Sincerely,/s/Michael A. Guippone Michael A. Guippone cc: All counsel of record (by ECF) Case: 17-1958 Document: 003112765117 Page: 2 Date Filed: 10/30/2017 October 30, 2017 Page 2 CERTIFICATE OF SERVICE I hereby certify that on this 30th day of October, 2017, I electronically filed this Withdrawal of Appearance on all counsel of record via the Court’s electronic appellate filing system (CM/ECF). DATED: October 30, 2017 WILMER CUTLER PICKERING HALE AND DORR LLP/s/Michael A. Guippone

CLERK'S LETTER to counsel written at the direction of the Court. The parties are hereby advised that argument on November 15, 2017 will focus only on the priority issue. (TLG) [Entered: 11/08/2017 05:34 PM]

Case: 17-1958 Document: 003112773941 Page: 1 Date Filed: 11/08/2017 OFFICE OF THE CLERK MARCIA M. WALDRON UNITED STATES COURT OF APPEALS TELEPHONE CLERK FOR THE THIRD CIRCUIT 215-597-2995 21400 UNITED STATES COURTHOUSE 601 MARKET STREET PHILADELPHIA, PA 19106-1790 Website: www.ca3.uscourts.gov November 8, 2017 Philip D. Anker Esq. Bradley R. Aronstam Esq. George A. Davis Esq. Michael D. DeBaecke Esq. Peter M. Friedman Esq. Neil B. Glassman Esq. Mark D. Kotwick Esq. Benjamin W. Loveland Esq. Matthew B. McGuire Esq. Nicholas D. Mozal Esq. Jonathan Rosenberg Benjamin J. Schladweiler Esq. Daniel S. Shamah Esq. George W. Shuster Jr.Esq. RE: In re: Energy Future Holdings Corp, et al Case Number: 17-1958 District Case Number: 1-16-cv-00287 Dear Counsel: At the direction of the Court, the parties are hereby advised that argument on November 15, 2017 will focus only on the priority issue. Very truly yours, Marcia M. Waldron, Clerk By: Tiffany Grier, Calendar Clerk 267-299-4905

CLERK'S LETTER to counsel written at the direction of the Court. The Court directed the parties to file a transcript of the oral arguments by Wednesday, November 28, 2017. Liaison counsel shall immediately advise the Clerk's office of the court reporter or agency handling the transcript of oral arguments. Parties are to split the cost of the transcripts. (CMH) [Entered: 11/15/2017 12:50 PM]

Case: 17-1958 Document: 003112778893 Page: 1 Date Filed: 11/15/2017 OFFICE OF THE CLERK MARCIA M. WALDRON UNITED STATES COURT OF APPEALS TELEPHONE 21400 UNITED STATES COURTHOUSE 215-597-2995 CLERK 601 MARKET STREET PHILADELPHIA, PA 19106-1790 Website: www.ca3.uscourts.gov November 15, 2017 Philip D. Anker Esq. Bradley R. Aronstam Esq. George A. Davis Esq. Michael D. DeBaecke Esq. Peter M. Friedman Esq. Neil B. Glassman Esq. Mark D. Kotwick Esq. Benjamin W. Loveland Esq. Matthew B. McGuire Esq. Nicholas D. Mozal Esq. Jonathan Rosenberg Benjamin J. Schladweiler Esq. Daniel S. Shamah Esq. George W. Shuster Jr. Esq. RE: In re: Energy Future Holdings Corp, et al Case Number: 17-1958 District Case Number: 1-16-cv-00287 Dear Counsel: At the direction of the Court, counsel are directed to file a transcript of oral argument by Wednesday, November 29, 2017 in the above-entitled case. Liaison counsel should immediately advise the Clerk’s Office of the court reporter or agency handling the transcription of oral argument. Counsel are to split the cost of the transcript. Please find attached a Selection of Court Reporters and a copy of the "Procedures for Filing a Transcript of Oral Argument". If you have any questions, please contact me. Very truly yours, Case: 17-1958 Document: 003112778893 Page: 2 Date Filed: 11/15/2017 Marcia M. Waldron, Clerk By: Carmen Hernandez, Calendar Team Coordinator 267-299-4952 Case: 17-1958 Document: 003112778893 Page: 3 Date Filed: 11/15/2017 Court Reporter Contacts: James DeCrescenzo Reporting 1880 JFK Blvd, 6th Floor Philadelphia, PA 19103 (215) 564-3905(T) (800) 413-7880 (toll free) (215) 751-0581 (Fax) jim@jdreporting.com Lewis Parham Writers Cramp 63 Dakota Drive Hamilton, NJ 08619 (609) 588-8043 wtrscramp@verizon.net Veritext 1801 Market Street Suite 1800 Philadelphia, PA 19103 (215) 241-1000 Contacts: Donna Abboud (215) 446-8833 dabboud@veritext.com Kate Valiante (215) 446-8851 KValiante@veritext.com Greg DiDonato Syndicated Reporting Agency 855-796-3377 www.synreporters.com eScribers, LLC Eric Solat www.escribers.net/index.php Director, Sales and Customer Service esolat@escribers.net Office-(973) 406-2250 Transcripts Plus, Inc. (Karen Hartmann) 435 Riverview Circle Case: 17-1958 Document: 003112778893 Page: 4 Date Filed: 11/15/2017 New Hope, PA 18938 Office – (215) 862-1115 Fax – (215) 862-6639 courttranscripts@aol.com Case: 17-1958 Document: 003112778893 Page: 5 Date Filed: 11/15/2017 OFFICE OF THE CLERK MARCIA M. WALDRON UNITED STATES COURT OF APPEALS TELEPHONE CLERK FOR THE THIRD CIRCUIT 215-597-2995 21400 UNITED STATES COURTHOUSE 601 MARKET STREET PHILADELPHIA, PA 19106-1790 Website: www.ca3.uscourts.gov PROCEDURES FOR FILING A TRANSCRIPT OF ORAL ARGUMENT When the Court directs counsel to prepare a transcript of oral argument in a case(s), the parties shall designate one attorney to be liaison counsel for the purpose of coordinating the production of the transcript. Liaison counsel shall contact Carmen M. Hernandez (267) 299-4952 of the Calendar Unit of the Third Circuit Clerk’s Office (Room 21400) after argument to obtain the necessary information regarding the filing of the transcript of oral argument. Liaison counsel shall contract a court reporting service to make arrangements for the transcription of the oral argument and inform the Clerk’s Office Calendar Unit of the identity of the court reporter or agency. The Clerk’s Office will then provide the designated court reporting service with the audio recording via electronic means. After the transcript is completed, the court reporter shall provide the transcript to all counsel in the case. Liaison counsel shall file the certified original transcript electronically through CM/ECF and (3) hard copies of the transcript with the Clerk’s Office, including the court reporter’s certification and a certification of accuracy from liaison counsel on behalf of all parties. If corrections are necessary to the transcript, liaison counsel shall coordinate with the court reporter corrections requested by all counsel, and the final corrected version of the transcript shall be filed by liaison counsel. Corrections should be given to liaison counsel within (3) days of receipt of the transcript. Liaison counsel shall file the transcript with the Clerk’s Office no later than (14) days after oral argument unless the Court directed a specific deadline. Unless the Court directed otherwise, the parties shall split the cost of the preparation of the transcript.

ECF FILER: Transcript of oral argument on 11/15/2017 prepared at the direction of the Court. (BJS) [Entered: 11/28/2017 11:18 AM]

Case: 17-1958 Document: 003112788497 Page: 1 Date Filed: 11/28/2017 Page 1 1 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 2 3 IN RE: ENERGY FUTURE) Case No. 17-1958 HOLDINGS CORP. a/k/a TXU) 4 CORP. a/k/a TEXAS UTILITIES) et al.,) 5) Debtors.) 6 MARATON ASSET MANAGEMENT LP;) November 15, 2017 7 POLYGON CONVERTIBLE) OPPORTUNITY MASTER FUND;) 601 Market Street 8 POLYGON DISTRESSED) Philadelphia, PA OPPORTUNITIES MASTER FUND,) 9) Appellants,) 10) vs.) 11) WILMINGTON TRUST N.A. AS) 12 FIRST LIEN COLLATERAL AGENT) AND FIRST LIEN) 13 ADMINISTRATIVE AGENT; ANGELO) GORDON & CO., L.P.; APOLLO) 14 ADVISORS VII, L.P.; et al.,)) 15 Appellees.) 9:30 a.m. 16 ARGUMENT 17 BEFORE THE HONORABLES: HON. THOMAS L. AMBRO HON. CHERYL ANN KRAUSE 18 HON. MARJORIE RENDELL 19 APPEARANCES: 20 For Appellants: GEORGE W. SHUSTER, JR., ESQ. WILMERHALE 21 7 World Trade Center 250 Greenwich Street 22 New York, NY 10007 23 Veritext National Court Reporting Company Mid-Atlantic Region 24 1801 Market Street – Suite 1800 Philadelphia, PA 19103 25 1-888-777-6690 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 2 Date Filed: 11/28/2017 Page 2 1 APPEARANCES: (Contd.) 2 For Appellees: PETER M. FRIEDMAN, ESQ. O'MELVENY & MYERS 3 1625 I Street, N.W. Washington, DC 20006 4 Philadelphia, PA 19103 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 3 Date Filed: 11/28/2017 Page 3 1 I N D E X 2 PAGE 3 ARGUMENT, BY MR. SHUSTER 4 4 ARGUMENT, BY MR. FRIEDMAN 20 5 REBUTTAL ARGUMENT, BY MR. SHUSTER 32 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 4 Date Filed: 11/28/2017 Page 4 1 P R O C E E D I N G S 2 JUDGE AMBRO: We have four cases this 3 morning and the first is No. 17-1958, In re Energy 4 Future Holdings, Corp., and Mr. Shuster and Mr. 5 Friedman. 6 (Pause) 7 JUDGE AMBRO: Whenever you're ready. 8 MR. SHUSTER: Good morning. And may it 9 please the Court, I've asked to reserve five minutes 10 for rebuttal. 11 JUDGE AMBRO: That's fine. But let me 12 start off with Section 4.1 of the intercreditor 13 agreement. The first one looks like it is for LC 14 fees. You have five categories here, five levels. 15 And we call it a waterfall, so I assume that all of 16 number one has to be paid before you go to number two, 17 is that right? 18 MR. SHUSTER: Correct. 19 JUDGE AMBRO: Sort of like the absolute 20 priority rule concept? 21 MR. SHUSTER: Correct. 22 JUDGE AMBRO: And, again, I'm assuming 23 number one is something like the LC fees, but is there 24 anything else you can think of that would be paid? 25 MR. SHUSTER: Well, the way it's Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 5 Date Filed: 11/28/2017 Page 5 1 drafted actually, it's everything minus amounts 2 payable in connection with any unreimbursed amount 3 under any letter of credit. So it would be fees, it 4 could be interest on amounts that have not yet been 5 reimbursed to the letter of credit issuer, but it's 6 anything effectively other than--7 JUDGE AMBRO: Right. 8 MR. SHUSTER:--the principal amount 9 of LCs. 10 JUDGE AMBRO: And the second is unpaid 11 drawings. So there's a drawing, but it's not 12 reimbursed, is that right? 13 MR. SHUSTER: Correct. 14 JUDGE AMBRO: And the third is somebody 15 who in effect fronts the fees or whatever it might--16 I guess it is fronting the fees that are owed to the 17 issuer, correct? 18 MR. SHUSTER: Correct. 19 JUDGE AMBRO: So now we're down to four 20 and you have "deposit LC obligations." And you go to 21 the definition of deposit LC obligations and you have 22--what is that definition there? 23 MR. SHUSTER: That definition is--24 JUDGE AMBRO: It's in one--25 MR. SHUSTER:--a formula, it's a sum Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 6 Date Filed: 11/28/2017 Page 6 1 of two parts. 2 JUDGE AMBRO: Uh-huh. 3 MR. SHUSTER: The first part is the 4 stated amount of outstanding letters of credit and the 5 second part is unpaid drawings on letters of credit 6 that are no longer outstanding because they've been 7 drawn--8 JUDGE AMBRO: That's sort of like--9 MR. SHUSTER:--or they are 10 outstanding--11 JUDGE AMBRO:--going back up the 12 waterfall--13 MR. SHUSTER:--and part of it has 14 been drawn. 15 JUDGE AMBRO:--I got it. 16 MR. SHUSTER: Yeah. 17 JUDGE AMBRO: So let's focus on the 18 first one. "The stated amount of any letter of credit 19 shall mean the maximum amount from time to time 20 available to be drawn"--so it hasn't been drawn yet 21--"and it is determined without regard to any 22 conditions"--23 JUDGE RENDELL: Or it's come back able 24 to be drawn because something has expired. 25 JUDGE AMBRO: Exactly. Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 7 Date Filed: 11/28/2017 Page 7 1 MR. SHUSTER: Correct. 2 JUDGE AMBRO: But you've got amounts 3 outstanding that could be drawn, have not yet been 4 drawn, or are somehow recaptured and could be used 5 again for another day. 6 MR. SHUSTER: Correct. 7 JUDGE AMBRO: So why isn't that game, 8 set and match? 9 MR. SHUSTER: Well, that--in the 10 definition of deposit LC obligations, that gives you 11 an amount of money and it's an amount of money that 12 was lent by my clients, the deposit LC lenders--13 JUDGE AMBRO: But that amount relates 14 to what, unreimbursed LCs? 15 MR. SHUSTER: Unreimbursed LC--16 JUDGE AMBRO: I'm sorry, undrawn LCs, 17 undrawn LCs. 18 MR. SHUSTER: Correct. But those 19 letters of credit--20 JUDGE RENDELL: And who did you lend 21 money to? 22 MR. SHUSTER: To TCEH, the borrower. 23 JUDGE RENDELL: Right, exactly. 24 MR. SHUSTER: And that money was placed 25 into the segregated account--Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 8 Date Filed: 11/28/2017 Page 8 1 JUDGE RENDELL: Okay. 2 MR. SHUSTER:--and that money sits 3 there, it's required to sit there until there's a rule 4 in this document that allows it to be released. 5 JUDGE RENDELL: But what would tie the 6 stated amount of all outstanding deposit letters of 7 credit to the amount that you loaned to TCEH? 8 MR. SHUSTER: The sole purpose of the 9 money that we loaned was in order to fund those 10 letters of credit. 11 JUDGE RENDELL: Eventually, eventually, 12 but the amount--13 MR. SHUSTER: Correct. 14 JUDGE RENDELL:--stated amount of 15 outstanding deposit letters of credit is really as 16 between the letter of credit issuer and those who have 17 drawn on it. 18 MR. SHUSTER: Not exactly. It's really 19 a three-way relationship. The size of the letter of 20 credit subfacility is the size that's requested by the 21 borrower because it thinks it's going to request 22 letters of credit in that total $1.25 billion amount. 23 JUDGE RENDELL: So you're tying it to 24 the size, but shouldn't it really say the lenders, the 25 amount that the lenders should be able to recover from Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 9 Date Filed: 11/28/2017 Page 9 1 TCEH because the money was put in and there's the 2 stated amount? I mean, there's a little extrapolation 3 here that you're trying to jump from what you've 4 loaned TCEH over there, couldn't it--I mean, it 5 could be clearer, correct, that it is the lenders, 6 not--7 MR. SHUSTER: Absolutely, it could be 8 clearer. Our position is that these documents are 9 ambiguous because they fail to name a payee of these 10 obligations. And I think both sides agree, I think 11 the lower courts agreed that the best we can do here 12 is infer from other provisions of these documents the 13 right payee of deposit LC obligations. 14 JUDGE AMBRO: It sounds like from what 15 you said on page 4 of your opening brief that if we 16 were to have thought--if somebody, not we, but 17 whoever drafted this was to have thought about this, 18 that the people who put the money in or loaned the 19 money into the particular segregated account or the 20 sum $1.25 billion, they would be preferred, that makes 21 sense, but that's not necessarily what the documents 22 say. The other side would say, okay, these are for 23 contingent obligations in the fourth level, which 24 would be, for example, undrawn letters of credit. And 25 yet it appears that you only deal with it on page 39 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 10 Date Filed: 11/28/2017 Page 10 1 of your opening brief and I guess--no, 20 on page 40 2--but it looks like you don't--I don't--my 3 question is, why did we even get to any analysis of 4 3.9 of the credit agreement when the intercreditor 5 agreement of 4.1(b) seems to answer the issue? 6 MR. SHUSTER: I don't think it does 7 answer the issue. 8 You started with saying that why wasn't 9 it clear that there's a special right of the deposit 10 LC lenders in these documents, the fact is it is clear 11 that there's a special right. These documents make it 12 very clear that all of the money that they lent went 13 into the segregated account; two, that money is locked 14 up. Section 3.9 says no person can make any 15 withdrawal from that account except if this document 16 says so. This document allows TCEH to take money out 17 of that account, Section 5.2(d) and Section 3.9 allow 18 for that, but only if the deposit LC lenders are paid 19 with that money, that's if TCEH is doing it 20 voluntarily. 21 JUDGE RENDELL: But the--22 JUDGE KRAUSE: Can you help--23 JUDGE RENDELL: Go ahead. 24 JUDGE KRAUSE: Sorry. Can you help me 25 understand, the definition of the deposit LC Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 11 Date Filed: 11/28/2017 Page 11 1 obligations here, you said earlier in your opening 2 that that was coextensive with the exposure of the 3 lenders, but as I understand the documents and even 4 your contentions in the brief, there's always and 5 there's required to be a positive balance in the 6 collateral account, right? 7 MR. SHUSTER: There's not required to 8 be. What I was--the point I was making is that TCEH 9 is borrowing at the outset of this facility $1.25 10 billion and it's paying interest on that amount from 11 day one. 12 JUDGE KRAUSE: But that's not 13 coextensive with the amount of the letters of credit, 14 right? 15 MR. SHUSTER: It doesn't have to be. 16 JUDGE KRAUSE: So isn't that the 17 problem, because there is an excess in the collateral 18 account and the definition of the obligation is--19 that states the exposure of the issuers, not exposure 20 of the lenders, because even by your own definition 21 and what appears in the deposit--the obligation 22 definition, you would not have priority over the 23 excess. How could that make any commercial sense? 24 MR. SHUSTER: Well, so the way that 25 appellees have phrased that argument is slightly Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 12 Date Filed: 11/28/2017 Page 12 1 different, which is to say because appellants are 2 arguing that the deposit LC lenders only negotiated a 3 partial priority in this money, they should therefore 4 get no priority in this money, and I think that 5 actually makes no commercial sense. I can't explain 6 to you why without evidence the deposit LC lenders 7 would have negotiated for this specific amount of 8 priority, but I can explain to you why they would not 9 have entered into a facility like this if there had 10 been no priority at all. 11 JUDGE KRAUSE: But there would be--12 you agree, the way this is drafted, there would be no 13 priority if letters of credit, for example, had not 14 yet been issued? 15 MR. SHUSTER: If no letters of credit 16 were ever issued under the facility, yes, but that's a 17 completely noncommercial result, because TCEH never 18 would have borrowed and paid interest on $1.25 billion 19 if they had never used the facility. 20 JUDGE KRAUSE: Understood, but doesn't 21 that drive home that the definition does not state the 22 exposure of the lenders, it's the exposure of the 23 issuers by the terms of the obligation? 24 MR. SHUSTER: There is a hypothetical 25 circumstance that would never arise in a normal Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 13 Date Filed: 11/28/2017 Page 13 1 commercial context in which that would be the case, 2 but you can't interpret these documents in a 3 noncommercial way and you--4 JUDGE RENDELL: Your claim--5 JUDGE AMBRO: Wait a minute, you can't 6--7 JUDGE RENDELL:--to priority--8 JUDGE AMBRO:--interpret the 9 documents in a noncommercial way? 10 MR. SHUSTER: Correct. You must 11 interpret these documents in a way that makes 12 commercial sense and it makes no commercial sense that 13 a borrower would borrow $1.25 billion and never use 14 the facility. 15 JUDGE AMBRO: Well, we can speculate at 16 the outset as to what should have been in there and 17 maybe you're right in terms of what you say at the 18 outset of your brief, but we--our job is to look at 19 the contract and the definitions of the contract 20 appear in 4.1 to support that the stated amount which 21 is included in LC obligations would be undrawn LCs. 22 MR. SHUSTER: It's an amount of money 23 that could be owed--24 JUDGE AMBRO: And by the way, that does 25 make commercial sense. Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 14 Date Filed: 11/28/2017 Page 14 1 MR. SHUSTER: Right. So what about the 2 other provisions of these documents that you also have 3 to give life to and give commercial sense--4 JUDGE KRAUSE: But there are other 5 provisions, including obligations, that state 6 explicitly that they're covering obligations, that 7 that--that is patently absent here. So looking even 8 at those other provisions, that seems to reinforce 9 that the priority here in number 4 does not relate to 10 the lenders, but rather issuer obligations, contingent 11 obligations around the obligations. 12 MR. SHUSTER: But in every other 13 circumstance in these documents where money is coming 14 out of this account, the deposit LC lenders are 15 expressly given a preference to that money. If TCEH 16 takes money out of the account, the deposit LC lenders 17 have to get that money. The only way that TCEH can 18 get money out of the account, at the end when they 19 want to take all the money out of the account, is 20 after the deposit LC lenders, not the other lenders, 21 have been paid in full. While the money is--22 JUDGE RENDELL: But there again, that's 23 between you and TCEH, that's that relationship and 24 you're now tying--25 MR. SHUSTER: No, no, not at all. This Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 15 Date Filed: 11/28/2017 Page 15 1 is a rule in the document to which all the lenders are 2 a party. The last sentence of Section 3.9 says TCEH 3 can withdraw all funds from the account if it pays the 4 deposit LC lenders, not the other lenders. All 5 lenders have agreed to that provision. 6 JUDGE RENDELL: Okay. But there, again, 7 that's not tied to the LC aspect. 8 MR. SHUSTER: So, now look at Section 9 3.1(e) of the intercreditor agreement, that through 10 operation of 32 other times that the term "required 11 secured parties" and "required deposit LC lenders" is 12 used in the intercreditor agreement, it gives 13 exclusive control of the segregated account to the 14 deposit LC lenders, no other lenders, while the money 15 is sitting there. 16 JUDGE RENDELL: Well, then maybe this 17 provision should have said deposit LC lenders, but it 18 doesn't; isn't that problematic? 19 MR. SHUSTER: Well, deposit LC 20 obligations should have named a payee, yes. 21 JUDGE KRAUSE: Well, why doesn't 22 3.1(e) actually show the opposite, that is that the 23 lender's right to consent or withhold consent, that 24 that applies for priority levels one through four, why 25 doesn't that reinforce that their rights don't come Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 16 Date Filed: 11/28/2017 Page 16 1 into play until level five? That is, they don't have 2 priority in the first level or the second, right? How 3 do you draw from that that they have this special 4 priority to number four as opposed, for example, to 5 the document setting it up, so that the deposit LC 6 lenders are representative lenders and have been 7 designated simply to represent the interests of all 8 lenders whose interests then come into play at the 9 fifth level? 10 MR. SHUSTER: I think there's actually 11 some confusion as to what Section 3.1(e) really does. 12 So if I could take a minute just to explain that. 13 Section 3.1(e), the last sentence says, 14 "With respect"--the deposit LC loan collateral, 15 which is the segregated account we're talking about--16 "references in the agreement to required secured 17 parties"--which is the group of people who control 18 something, right, it's a majority vote of some group 19--"shall be deemed references to required deposit LC 20 loan lenders until proceeds from the deposit LC loan 21 collateral have been applied pursuant to Section 22 4.1(b) to the satisfaction of all priorities except 23 last." 24 Which means until you've paid through 25 that fourth level, the controlling party for the Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 17 Date Filed: 11/28/2017 Page 17 1 segregated account is the required deposit LC lenders. 2 JUDGE AMBRO: What if there's another 3 reason it was put in there? And I guess to some 4 extent we're guessing, but what if it may have been 5 inserted to ensure that the general creditors do not 6 outvote the deposit LC lenders and divert the 7 collateral elsewhere? 8 MR. SHUSTER: Why would it matter to 9 the deposit LC lenders if the collateral is diverted 10 elsewhere? 11 JUDGE AMBRO: Well, what matters to the 12 deposit LC issuers is that their undrawn LCs have 13 priority over something else, anything else. 14 MR. SHUSTER: Right. So it's actually 15 peculiar that the required--that the deposit LC 16 issuers would give the deposit LC lenders the right to 17 control this account, that's a peculiar thing, but 18 it's not peculiar at all that if the deposit LC 19 lenders have priority that they're the ones 20 controlling the account until that fourth level is 21 paid out. 22 And look at how that term "required 23 secured parties" is used in the document and I'll just 24 give one example. Section 3.1(a), the first sentence 25 says it is the deposit LC lenders that, quote, "have Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 18 Date Filed: 11/28/2017 Page 18 1 the exclusive right to authorize or direct the 2 collateral agent to enforce, collect or realize on 3 that account." 4 JUDGE AMBRO: You know what it may go 5 back to is, I mean, in effect 3.1(a) or (e), but 6 primarily (e), is maybe a backdoor argument to what 7 was intended initially. But you have something 8 specific, which is 4.1 of the intercreditor agreement, 9 and 4.1(b) doesn't support your position. And 10 speaking only for myself, I don't find 3.9, as Judge 11 Andrews did, to be a smoking gun. It may have some 12 effect possibly on Mr. Friedman's side, but to me it's 13 really this is about 4.1(b). 14 MR. SHUSTER: So how do you reconcile 15 the fact that by the time you get to the fourth level 16 of the 4.1(b) waterfall and you're paying deposit LC 17 obligations you've already paid all amounts that could 18 possibly be due? 19 JUDGE AMBRO: Except you have amounts 20 that could be drawn in the future and you're still on 21 the hook. I mean, when I drafted LC documents in the 22 way-back machine, I mean, you wanted to be sure that 23 I'm not leaving my client outstanding. If there's LCs 24 that are not yet drawn on, my client still has to be 25 collateralized. I mean, that's just--that's 101. Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 19 Date Filed: 11/28/2017 Page 19 1 MR. SHUSTER: There is protection like 2 that in this document, but it comes in the preamble of 3 Section 4.1. It says that you can only apply the 4 waterfall after all contingencies have been resolved 5 after the amounts can be determined. You only run 6 this waterfall once and it's after those contingent 7 obligations have been resolved. 8 JUDGE KRAUSE: What about the second 9 half of the definition there? Because that provides, 10 "If on any date of determination a deposit letter of 11 credit is expired by its terms, but any amount may 12 still be drawn thereunder by reason of the operation 13 of Rule 3.14 of the ISP." Doesn't that indicate that 14 there is such a thing as a determined but still 15 contingent amount? 16 MR. SHUSTER: It does. It makes sure 17 that there's--the full amount of deposit LC 18 obligations will be captured in that fourth level of 19 the waterfall, but that doesn't mean that the deposit 20 LC lenders haven't already been paid, because the 21 first two levels of the waterfall necessarily by the 22 way that they've been constructed, it's everything is 23 the first level except for the second level--24 JUDGE KRAUSE: It means it's not--25 MR. SHUSTER:--and then the second Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 20 Date Filed: 11/28/2017 Page 20 1 level is everything else. 2 JUDGE KRAUSE:--it means the total 3 amount is not determined at a fixed point in time. 4 You make the argument that there is a single, one-time 5 application of the waterfall, and so that preamble 6 with what is determined sets things in stone, but 7 doesn't the second part of the definition indicate 8 that there are--the exposure that is determined, but 9 it's still contingent? 10 MR. SHUSTER: Not at all. Go back to 11 the first level of the 4.1(b) waterfall; it says you 12 have to pay all amounts due to the deposit letter of 13 credit issuer under any of the financing documents. 14 That's just everything. 15 JUDGE AMBRO: Why don't we hear from 16 Mr. Friedman and we'll get you back on rebuttal. 17 MR. SHUSTER: Thank you. 18 MR. FRIEDMAN: May it please the Court, 19 Peter Friedman on behalf of the appellees. 20 Your Honors, I'd like to start with 21 3.1, and Justice Scalia in American Standard v. 22 Whitman--American Trucking v. Whitman said you don't 23 hide an elephant in a mouse hole. That was in 24 reference to statutory interpretation, but I think in 25 effect with respect to a contractual interpretation, Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 21 Date Filed: 11/28/2017 Page 21 1 to completely deviate from the waterfall, as well as 2 Section 2.1 of the intercreditor agreement, which 3 reinforces the pari passu status of parties by looking 4 at a provision that is not about remedies, is not 5 about payment priorities would be a classic elephant 6 in a mouse hole. 7 A couple of other points I just wanted 8 to specifically--9 JUDGE KRAUSE: But your colleague 10 doesn't have to show with certainty that they have the 11 right interpretation, right? What they're trying to 12 show is a much lower threshold, that there's 13 ambiguity. And given what they've pointed to in 14 3.1(e) or simply in the absence of the term pure at 15 level four of the waterfall, why isn't that enough to 16 at least create ambiguity and turn to extrinsic 17 evidence? 18 MR. FRIEDMAN: So under New York law, 19 silence can't create ambiguity. And I think with 20 4.1(b), we know the what and the who, and once you 21 know the what and the who, there can only be one 22 conclusion--I'm sorry, we know the what and the why: 23 we know the what it's supposed to be, the definition 24 of deposit LC obligations, and we know the why, we 25 know why the deposit LC collateral account exists. We Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 22 Date Filed: 11/28/2017 Page 22 1 actually don't have to guess. This is a really rare 2 contract where three times it tells you exactly why 3 that account exists and it's the cash collateralized 4 secured obligations owed to deposit LC issuers. 5 So once you know the what and the why, 6 there's only one conclusion as to the who, and that's 7 deposit LC obligation--deposit LC issuers, there's 8 no one else. 9 JUDGE RENDELL: But how does the first 10 of the waterfall relate to the fourth? 11 MR. FRIEDMAN: The first part of the 12 waterfall--13 JUDGE RENDELL: I mean, how does deposit 14 LC obligations, that definition, really make sense? 15 MR. FRIEDMAN: So it has two 16 components, the first is unpaid drawings, and that 17 clearly protects deposit LC issuers. 18 JUDGE RENDELL: Well, the first says 19 "payment of all amounts due to the deposit letter of 20 credit issuer under any of the financing documents," 21 okay, "excluding amounts payable in connection with 22 unreimbursed"--23 MR. FRIEDMAN: Yes. 24 JUDGE RENDELL: Right. 25 MR. FRIEDMAN: So it--that excludes Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 23 Date Filed: 11/28/2017 Page 23 1 unpaid drawings. 2 JUDGE RENDELL: Okay. 3 MR. FRIEDMAN: The second component is 4 unpaid drawings, clearly designed to protect deposit 5 LC issuers; the third, fees that have been fronted by 6 secured parties; and the fourth is stated amount, and 7 stated amount very clearly protects deposit LC 8 issuers. 9 If appellants are correct, then there 10 is nothing left to protect contingent obligations for 11 the people who are supposed to be the most risk-free, 12 right? Deposit LC issuers had a special account set 13 up to cash collateralize obligations to them. 14 JUDGE AMBRO: When are "Secured 15 Obligations" determined for purposes of Section 4.1? 16 MR. FRIEDMAN: I'm sorry, Your Honor? 17 JUDGE AMBRO: When are "Secured 18 Obligations," initial caps, determined for purposes of 19 Section 4.1? 20 MR. FRIEDMAN: So they're determined 21 when--on a determination date and that determination 22 date takes into account secured obligations, and 23 secured obligations can by definition, "I would say by 24 double definition" be contingent, both by the very 25 definition of secured obligations, as well as the Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 24 Date Filed: 11/28/2017 Page 24 1 language Judge Rendell pointed to in Section 3.14--2 that incorporates the 3.14 ISP language. That really 3 emphasized how deposit LC issuer-friendly the 4 definition of stated amount is supposed to be. So you 5 have contingencies. 6 Now, I think what's clear is the fourth 7 priority--if there's a contingency, it doesn't block 8 all deposit LC collateral from working down the 9 waterfall, it's only that portion that would relate to 10 the stated amounts. 11 And I want to make two other points 12 about this. The first is that Section 5.2, which 13 counsel referred to, actually should be interpreted as 14 favoring our argument and undermines appellants' 15 argument, because what that section says is if you're 16 going to make a payment to the deposit LC lenders, you 17 can never invade the stated amount. The stated amount 18 actually pens off the stated amount, that it must 19 remain there for the protection of deposit LC issuers. 20 I think the second important point to 21 make about this is that Judge Ambro referred to at the 22 beginning, isn't there some logic that this money was 23 funded by certain people and they ought to get a 24 priority to it. In addition to there being a total 25 absence of that reflection in the agreement, Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 25 Date Filed: 11/28/2017 Page 25 1 appellants' theory is essentially what's ours is ours 2 and what's yours we get a piece of, right? But that's 3 not the case. 4 JUDGE KRAUSE: But you could have an 5 agreement set up that way, we're just looking at how 6 it's properly interpreted. 7 MR. FRIEDMAN: You absolutely could, 8 Your Honor. 9 JUDGE KRAUSE: But why doesn't the 10 document indicate that, at least 3.1(e)? What logic 11 is there to giving a right to these particular lenders 12 to consent or withhold consent and basically control 13 those disbursements? 14 MR. FRIEDMAN: So they can control 15 remedies, but they can't control--which never 16 happened, by the way, there's no allegation that 17 required lenders ever made any direction as to 18 anything here, but even if they had, the money still 19 has to get paid in accordance with 4.1(b). Section 20 2.1 doesn't say that you can also find a diversion 21 from the pari passu status among creditors with 22 reference to a remedies provision, it says you have to 23 look in the waterfall provision. 24 JUDGE KRAUSE: Again, we're looking to 25 whether there's ambiguity in who gets priority at Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 26 Date Filed: 11/28/2017 Page 26 1 level four given that the 3.1(e) provides for the 2 special right to this category of lenders up through 3 level four. What other explanation is there if they 4 don't have a priority interest at that point? 5 MR. FRIEDMAN: So I think the 6 explanation is that it prevents the deposit LC--it 7 effectively permits the required deposit LC lenders to 8 prevent the account from being drained and having 9 deposit LC issuers look at them and say, wait a 10 second, you promised to fund an account and there's 11 nothing there, right? You know, you made a loan to 12 fund an account, now there's nothing left, we've been 13 left without any collateral, because our--because 14 you made a loan in the first instance. 15 So I think it's--to the extent it's 16 supposed to mean anything and it's never been used in 17 any way in this--you know, in the EFH bankruptcy, I 18 think that would be the most it could ever do. By 19 definition, it can't relate to payment or lien 20 priorities. So--21 JUDGE RENDELL: The stated security 22 interest in this account is for the LC issuers, is 23 that not correct primarily? 24 MR. FRIEDMAN: So it's first--there's 25--it's set forward in 3.9--Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 27 Date Filed: 11/28/2017 Page 27 1 JUDGE RENDELL: Right. 2 MR. FRIEDMAN:--and it's a first 3 priority for the collateral agent to the benefit of 4 issuers and then it's pari passu to everybody else. 5 Your Honors, I think it's very obvious 6 that everybody similarly reflects in the definition of 7 Deposit L/C Obligations, but I think what's equally 8 important is actually what's not in the definition. 9 And I think it--this appears on page 468 of the 10 joint appendix. On page 468, the second-to-last 11 definition is Deposit L/C Obligation, and if you go up 12 one, two, three, four lines, there's a different 13 definition and that definition is Deposit L/C Loan, and 14 that is what appellants hold. Now, Deposit L/C Loan is 15 a 2014 Deposit L/C Loan; it's an incremental Deposit L/C 16 Loan, a 2017 Deposit L/C Loan, and an extended Deposit 17 L/C Loan. In effect, the only words in that definition 18 that aren't other defined terms are conjunctions. 19 So it's very clear the drafters of this 20 agreement knew exactly how to incorporate defined 21 terms into other defined terms, but the words "Deposit 22 L/C Loan" don't appear in Deposit L/C Obligations. So 23 it's very clear by what's excluded from the definition 24 of Deposit L/C Obligations that Deposit L/C Obligations 25 cannot cover Deposit L/C loans. It would almost be Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 28 Date Filed: 11/28/2017 Page 28 1 insanity to have on the same page where they define 2 Deposit L/C Loan not to have put Deposit L/C Loan 3 Obligations into the definition of Deposit L/C 4 Obligations if that was the intent of this agreement. 5 So in our view it's--you know, that hammers home 6 this point. 7 JUDGE RENDELL: So your point is the 8 waterfall is all about the LC issuers? 9 MR. FRIEDMAN: Absolutely, Your Honor, 10 until we get to the fifth priority. And the fifth 11 priority says, go back up top above section (b) to 12 section (a), and again you then get to everybody 13 shares and shares alike in the common collateral. 14 JUDGE RENDELL: The Deposit L/C Loan, 15 again, that's made to TECH--16 MR. FRIEDMAN: Yes, Your Honor. 17 JUDGE RENDELL:--right? It's made to 18 TECH. And does it necessarily equal--what 19 relationship does it bear to the outstanding LCs? 20 MR. FRIEDMAN: In our view, none. In 21 our view, none. And I think another way to think 22 about this is think about the Deposit L/C collateral 23 account. I'm not that great at math, so instead of 24 $1.25 billion, we'll just call it $1.5 billion, and 25 imagine there's $500 million in unpaid drawings, Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 29 Date Filed: 11/28/2017 Page 29 1 right? There's no argument that the money that 2 remains in that account to repay unpaid drawings, they 3 don't claim any right to it. 4 Second, let's imagine there's $500 5 million that doesn't correspond to any letters of 6 credit at all. You'd think that that was the kind of 7 asset that they would have a right to, because it's 8 not necessary to protect the deposit LC issuer at all, 9 but they don't claim a right to it. They can't point 10 to anything in the agreement that says we get that 11 above appellees. 12 So then you have this third amount, the 13 third $500 million which is in the account that 14 relates to the stated amount. So who is that there to 15 protect? That relates to contingent future 16 obligations that are outstanding that would have to be 17 repaid to somebody else if they're ever drawn. So if 18 they take the money and the stated amount actually 19 gets called on, then somebody is left holding the bag 20 and that somebody is the people who were supposed--21 who the account exists for, right, who the cash is in 22 there to collateralize obligations to them. That 23 doesn't make sense. 24 Now, what happens if the money never 25 gets drawn? Well, then it becomes--it's no longer a Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 30 Date Filed: 11/28/2017 Page 30 1 stated amount, it's no longer a deposit LC obligation 2--3 JUDGE AMBRO: It then goes to the fifth 4 level. 5 MR. FRIEDMAN: And it goes to the fifth 6 level. And I think when you step back that's I think 7 the point that hammers our argument home. 8 Your Honor, you know, I actually would 9 have chosen a different analogy from the one that 10 Judge Andrews chose. I don't think 3.9 is a smoking 11 gun, I think it's a hammer that nails the point of 4.1 12 home and is completely consistent with it and use--13 uses some even more express language tying together 14 the deposit LC issuer and account and to whom the 15 obligations are owed. 16 JUDGE RENDELL: Well, Mr. Shuster talked 17 about the LC issuers coming back to the lenders and 18 saying you were supposed to fund this account, but 19 there's nothing there, but the whole point of funding 20 the account is the obligation of TECH, that's the 21 obligation--22 MR. FRIEDMAN: Yes. 23 JUDGE RENDELL:--that they were 24 funding the account. The fact that the lenders lent 25 TECH the money to go into the account is a non--Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 31 Date Filed: 11/28/2017 Page 31 1 MR. FRIEDMAN: That--2 JUDGE RENDELL:--it's kind of a non 3 sequitur. 4 MR. FRIEDMAN: I think that's how we 5 see the issue and, again, that's why there's no 6 correlation between the amount of deposit LC 7 obligations and the amounts that could be used under 8 that same definition I just discussed, deposit LC 9 loan. 10 JUDGE AMBRO: Well, I mean, their 11 argument with regard to 3.9 I think relies on the in-12 addition language, the second part of the fifth 13 sentence of that section. 14 MR. FRIEDMAN: Your Honor, our view is 15 the fifth sentence only--the only thing the fifth 16 sentence relates to at all is payments to different 17 kinds of deposit LC obligations related to different 18 issuers, not to anybody outside. And I think the most 19 important thing about that section is, "The borrower 20 grants for the benefit of all deposit letter of credit 21 issuers a security interest in the deposit LC loan 22 collateral accounts as security for deposit LC 23 obligations." Why would you grant for the benefit of 24 deposit letter of credit issuers anything for the 25 benefit of lenders to whom--or deposit LC lenders Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 32 Date Filed: 11/28/2017 Page 32 1 who are pari passu with our clients. 2 So I don't see anything in the fifth 3 sentence that is even remotely inconsistent or 4 deviates from 4.1(b). 5 I have about a minute and a half, 6 unless the Court has any other questions, I'm 7 completed with my argument. 8 JUDGE AMBRO: Thank you very much. 9 MR. FRIEDMAN: Thank you, Your Honors. 10 MR. SHUSTER: I'd like to start by 11 responding to a couple of Mr. Friedman's arguments 12 where I think he is actually trying to add language 13 and concepts to these documents that don't exist, and 14 that's the only way to make his arguments work. 15 The first one is Section 3.1(e). The 16 only rationale he gave for that section was this idea 17 that if the money were taken out of the account before 18 the waterfall is applied that the LC issuers might not 19 be made whole and that they would then look to the LC 20 lenders for reimbursement from that money that had 21 disappeared from the account. There is no provision 22 of these documents that would create that liability of 23 these lenders. These lenders lent $1.25 billion into 24 that account; if that money is stolen, disappeared, 25 evaporates, they have no further liability with Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 33 Date Filed: 11/28/2017 Page 33 1 respect to these LCs. 2 JUDGE RENDELL: That's what--I thought 3 you--4 MR. SHUSTER: They have prefunded--5 JUDGE RENDELL:--had said that--6 MR. SHUSTER: No, no, no, no. 7 JUDGE RENDELL:--I thought you said 8 that in your argument that they'd come looking to you. 9 They'd come looking to TECH and say pass. 10 MR. SHUSTER: Correct, absolutely. 11 JUDGE RENDELL: And you have no--12 you're hanging out there, you just lent money to TECH. 13 MR. SHUSTER: Correct. That lending 14 transaction is done on the first day of this facility. 15 JUDGE RENDELL: Right. 16 MR. SHUSTER: That money is put into 17 that account and there's no further liability of the 18 lenders. So that's one. 19 The second is the operation of the 20 4.1(b) waterfall. The idea that deposit LC 21 obligations in the fourth level would be used to pay 22 contingent obligations that haven't yet arisen to the 23 deposit LC issuers, you could imagine a document that 24 would provide for that, but the document would also 25 have to have some provision for what happens when that Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 34 Date Filed: 11/28/2017 Page 34 1 contingency is resolved, because if the LC issuer has 2 been overpaid, what happens to that money? Does it 3 get paid back to TCEH because it was taken out of the 4 TCEH account? Does it go back into the waterfall? 5 Where into the waterfall does it go back? You need 6 plumbing in this document to effectuate that 7 contingency argument and it simply doesn't exist. 8 I think the best way to look at this 9 issue is to ask yourself the question, if you are a 10 deposit LC lender or if you're a non-deposit LC lender 11 and you're deciding whether to invest in this facility 12 back in 2007, and you ask the lead bank the question, 13 I'm the deposit LC lender, I only want to make this 14 loan if I have a priority to this account, can you 15 please show me in this document where I have priority 16 rights to that account? 17 JUDGE AMBRO: If you were--18 JUDGE RENDELL: This--19 JUDGE AMBRO: Go ahead, you were first. 20 JUDGE RENDELL: This reminds me of one 21 of those where you did transactional work and you go 22 home after the closing, and you wake up in the middle 23 of the night and you look at this definition, and you 24 go, OMG. 25 MR. SHUSTER: Right. And honestly, Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 35 Date Filed: 11/28/2017 Page 35 1 that's clearly what happened here. As someone who has 2 drafted these documents, these documents were drafted 3 under some time pressure, I am sure, they are long, 4 they are complicated, they were done imperfectly. 5 JUDGE RENDELL: I mean, although you can 6 say that, but the waterfall is specifically about the 7 LC issuers, that's the way--8 MR. SHUSTER: Right. 9 JUDGE RENDELL:--it all flows. So, I 10 mean, it does make--it does make sense. 11 JUDGE AMBRO: I mean, this was a very 12 complicated transaction back in '07. My guess is, 13 even though it may have been done quickly, I don't 14 know when the discussions started, but my guess is 15 they had a fair amount of time to draft these 16 documents. 17 MR. SHUSTER: Well, they may have, but 18 bear with me with this--19 JUDGE AMBRO: I mean, this is not like 20 you're doing a--21 MR. SHUSTER:--bear with me with this 22 story for one minute. So you're the deposit LC lender 23 and you ask the question, what protections do I have? 24 Well, your money is going to get put into this 25 segregated account. Section 3.9, the sixth sentence Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 36 Date Filed: 11/28/2017 Page 36 1 says no person shall make any withdrawal from that 2 account unless there's a rule. Then there are rules 3 like TCEH can take money out of this account, but they 4 have to pay you. 5 The idea that Section 5.2(d) of the 6 credit agreement protects the LC issuers versus the LC 7 lenders is irrelevant. The fact is, all LC lenders 8 have to get paid out of that section before any other 9 lender--10 JUDGE KRAUSE: The waterfall--11 JUDGE RENDELL: But then--12 MR. SHUSTER:--gets any dollar. 13 JUDGE KRAUSE: Go ahead. 14 JUDGE RENDELL: But then the LC issuer 15 comes in and goes, well, what assurance do I have that 16 I'm going to be paid? And you say, well, here's the 17 definition--18 JUDGE AMBRO: For undrawn LCs. 19 JUDGE RENDELL:--of LC obligations. 20 Sorry. 21 MR. SHUSTER: Well, again, because that 22 waterfall only works when the contingencies have been 23 resolved. We say, wait, and once the contingencies 24 are resolved, which by the way takes less than a year, 25 no LC under this facility can ever be outstanding for Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 37 Date Filed: 11/28/2017 Page 37 1 more than 364 days. So at any point in time you have 2 to wait between one and 364 days to resolve all 3 contingencies and then you apply the 4.1(b) waterfall. 4 JUDGE KRAUSE: But whatever the other 5 sections may say, the waterfall--your argument 6 depends on the definition of the deposit LC 7 obligation. We have a plain language definition of 8 the deposit LC obligation. If we conclude that the 9 way deposit LC obligation is defined relates only to 10 the exposure of the issuers, it is an obligation of 11 the issuers, is your argument as to 3.9 that the in-12 respect-of language somehow expands the definition? 13 MR. SHUSTER: It doesn't expand the 14 definition, but you have to read those words with the 15 defined term to understand what it means. And what 16 we're saying is when you read the words "deposit LC 17 obligations in respect of deposit letters of credit," 18 that those words together are not limiting to 19 obligations to the deposit LC issuer. We lent the 20 money that created this facility; there would be no 21 letters of credit without our lenders and our money. 22 JUDGE KRAUSE: But that in-respect-of 23 language does not appear in the waterfall. 24 MR. SHUSTER: Correct. So--25 JUDGE KRAUSE: So even if it does--Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 38 Date Filed: 11/28/2017 Page 38 1 MR. SHUSTER:--it's strange--2 JUDGE KRAUSE:--add that--3 MR. SHUSTER:--that there are two 4 provisions that are both waterfalls. 3.9 is sort of a 5 mini-waterfall and 4.1(b) is the more detailed 6 waterfall. 7 And the two have to mean the same thing 8 in these documents, right? I don't think there's any 9 dispute that there are conflicting waterfalls and 10 we're going to get to different results under 3.9 and 11 4.1(b), they have to mean the same thing. They use 12 different words and I think you have to reconcile 13 those provisions in order to give them meaning. 14 JUDGE AMBRO: Thank you. Thank you to 15 both counsel. 16 MR. SHUSTER: Thank you. 17 JUDGE AMBRO: We'd ask if you would 18 have a transcript prepared of this oral argument and 19 split the cost, if you would. 20 Again, it's a pleasure having both of 21 you here. Well done. 22 MR. SHUSTER: Thank you for your time. 23 (Proceedings concluded at 10:09 a.m.) 24 * * * * * * 25 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 39 Date Filed: 11/28/2017 Page 39 1 1 C E R T I F I C A T I O N 2 2 I, Tracey Williams, certify that the foregoing is 3 3 a true and accurate transcript from the official 4 4 electronic sound recording of the proceedings in the 5 5 above-entitled matter. 6 6 7 7 8 8 9 9 10 Tracey Williams, CET-914 10 11 11 12 12 Dated: November 20, 2017 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 40 Date Filed: 11/28/2017 [&-amount] Page 1 & 21 39:21 6 administrative & 1:13 2:2 22 39:22 6 39:6 1:13 23 39:23 601 1:7 advisors 1:14 0 24 39:24 agent 1:12,13 18:2 07 35:12 25 39:25 7 27:3 1 250 1:21 7 1:21 39:6 agree 9:10 12:12 1 39:1 3 8 agreed 9:11 15:5 1-888-777-6690 8 39:7 agreement 4:13 3 39:3 1:25 10:4,5 15:9,12 3.1 15:9,22 16:11 9 1.25 8:22 9:20 16:16 18:8 21:2 16:13 17:24 18:5 9 39:8 11:9 12:18 13:13 24:25 25:5 27:20 20:21 21:14 25:10 914 39:9 28:24 32:23 28:4 29:10 36:6 26:1 32:15 9:30 1:15 1.5 28:24 ahead 10:23 34:19 3.14 19:13 24:1,2 10 39:9 a 36:13 3.9 10:4,14,17 15:2 10007 1:22 a.m. 1:15 38:23 al 1:4,14 18:10 26:25 30:10 101 18:25 able 6:23 8:25 alike 28:13 31:11 35:25 37:11 10:09 38:23 absence 21:14 allegation 25:16 38:4,10 11 39:10 24:25 allow 10:17 32 3:5 15:10 12 39:11 absent 14:7 allows 8:4 10:16 364 37:1,2 13 39:12 absolute 4:19 ambiguity 21:13 39 9:25 14 39:13 absolutely 9:7 21:16,19 25:25 4 ambiguous 9:9 15 1:6 39:15 25:7 28:9 33:10 16 39:16 4 3:3 9:15 14:9 account 7:25 9:19 ambro 1:17 4:2,7 1625 2:3 39:4 10:13,15,17 11:6 4:11,19,22 5:7,10 17 39:17 4.1 4:12 10:5 11:18 14:14,16,18 5:14,19,24 6:2,8 17-1958 1:3 4:3 13:20 16:22 18:8 14:19 15:3,13 6:11,15,17,25 7:2 18 39:18 18:9,13,16 20:11 16:15 17:1,17,20 7:7,13,16 9:14 1800 1:24 21:20 23:15,19 18:3 21:25 22:3 13:5,8,15,24 17:2 1801 1:24 25:19 30:11 32:4 23:12,22 26:8,10 17:11 18:4,19 19 39:19 33:20 37:3 38:5 26:12,22 28:23 20:15 23:14,17 19103 1:24 2:4 38:11 29:2,13,21 30:14 24:21 30:3 31:10 4.1. 19:3 30:18,20,24,25 32:8 34:17,19 2 40 10:1 32:17,21,24 33:17 35:11,19 36:18 2 39:2 468 27:9,10 38:14,17 34:4,14,16 35:25 2.1 21:2 25:20 5 american 20:21,22 36:2,3 20 3:4 10:1 39:12 amount 5:2,8 6:4 5 39:5 accounts 31:22 39:20 6:18,19 7:11,11,13 5.2 10:17 24:12 accurate 39:3 20006 2:3 8:6,7,12,14,22,25 36:5 add 32:12 38:2 2007 34:12 9:2 11:10,13 12:7 500 28:25 29:4,13 addition 24:24 2014 27:15 13:20,22 19:11,15 31:12 2017 1:6 27:16 19:17 20:3 23:6,7 39:12 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 41 Date Filed: 11/28/2017 [amount-conditions] Page 2 24:4,17,17,18 arguments 32:11 borrowed 12:18 client 18:23,24 29:12,14,18 30:1 32:14 borrower 7:22 clients 7:12 32:1 31:6 35:15 arisen 33:22 8:21 13:13 31:19 closing 34:22 amounts 5:1,4 7:2 asked 4:9 borrowing 11:9 coextensive 11:2 18:17,19 19:5 aspect 15:7 brief 9:15 10:1 11:13 20:12 22:19,21 asset 1:6 29:7 11:4 13:18 collateral 1:12 24:10 31:7 assume 4:15 c 11:6,17 16:14,21 analogy 30:9 assuming 4:22 17:7,9 18:2 21:25 c 4:1 27:7,11,13,14 analysis 10:3 assurance 36:15 24:8 26:13 27:3 27:15,15,16,17,22 andrews 18:11 atlantic 1:23 28:13,22 31:22 27:22,24,24,25 30:10 authorize 18:1 collateralize 23:13 28:2,2,3,14,22 angelo 1:13 available 6:20 29:22 39:1,1 ann 1:17 b collateralized call 4:15 28:24 answer 10:5,7 18:25 22:3 b 10:5 16:22 18:9 called 29:19 anybody 31:18 colleague 21:9 18:13,16 20:11 caps 23:18 apollo 1:13 collect 18:2 21:20 25:19 28:11 captured 19:18 appeals 1:1 come 6:23 15:25 32:4 33:20 37:3 case 1:3 13:1 25:3 appear 13:20 16:8 33:8,9 38:5,11 cases 4:2 27:22 37:23 comes 19:2 36:15 back 6:11,23 18:5 cash 22:3 23:13 appearances 1:19 coming 14:13 18:22 20:10,16 29:21 2:1 30:17 28:11 30:6,17 categories 4:14 appears 9:25 commercial 11:23 34:3,4,5,12 35:12 category 26:2 11:21 27:9 12:5 13:1,12,12,25 backdoor 18:6 center 1:21 appellants 1:9,20 14:3 bag 29:19 certain 24:23 12:1 23:9 24:14 common 28:13 balance 11:5 certainty 21:10 25:1 27:14 company 1:23 bank 34:12 certify 39:2 appellees 1:15 2:2 completed 32:7 bankruptcy 26:17 cet 39:9 11:25 20:19 29:11 completely 12:17 basically 25:12 cheryl 1:17 appendix 27:10 21:1 30:12 bear 28:19 35:18 chose 30:10 application 20:5 complicated 35:4 35:21 chosen 30:9 applied 16:21 35:12 beginning 24:22 circuit 1:1 32:18 component 23:3 behalf 20:19 circumstance applies 15:24 components 22:16 benefit 27:3 31:20 12:25 14:13 apply 19:3 37:3 concept 4:20 31:23,25 claim 13:4 29:3,9 arguing 12:2 concepts 32:13 best 9:11 34:8 classic 21:5 argument 1:16 3:3 conclude 37:8 billion 8:22 9:20 clear 10:9,10,12 3:4,5 11:25 18:6 concluded 38:23 11:10 12:18 13:13 24:6 27:19,23 20:4 24:14,15 conclusion 21:22 28:24,24 32:23 clearer 9:5,8 29:1 30:7 31:11 22:6 block 24:7 clearly 22:17 23:4 32:7 33:8 34:7 conditions 6:22 borrow 13:13 23:7 35:1 37:5,11 38:18 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 42 Date Filed: 11/28/2017 [conflicting-drawing] Page 3 conflicting 38:9 counsel 24:13 19:9 20:7 21:23 deviates 32:4 confusion 16:11 38:15 22:14 23:23,24,25 different 12:1 conjunctions couple 21:7 32:11 24:4 26:19 27:6,8 27:12 30:9 31:16 27:18 court 1:1,23 4:9 27:11,13,13,17,23 31:17 38:10,12 connection 5:2 20:18 32:6 28:3 31:8 34:23 direct 18:1 22:21 courts 9:11 36:17 37:6,7,12,14 direction 25:17 consent 15:23,23 cover 27:25 definitions 13:19 disappeared 32:21 25:12,12 covering 14:6 depends 37:6 32:24 consistent 30:12 create 21:16,19 deposit 5:20,21 disbursements constructed 19:22 32:22 7:10,12 8:6,15 25:13 contd 2:1 created 37:20 9:13 10:9,18,25 discussed 31:8 contentions 11:4 credit 5:3,5 6:4,5 11:21 12:2,6 discussions 35:14 context 13:1 6:18 7:19 8:7,10 14:14,16,20 15:4 dispute 38:9 contingencies 19:4 8:15,16,20,22 9:24 15:11,14,17,19 distressed 1:8 24:5 36:22,23 10:4 11:13 12:13 16:5,14,19,20 17:1 diversion 25:20 37:3 12:15 19:11 20:13 17:6,9,12,15,16,18 divert 17:6 contingency 24:7 22:20 29:6 31:20 17:25 18:16 19:10 diverted 17:9 34:1,7 31:24 36:6 37:17 19:17,19 20:12 document 8:4 contingent 9:23 37:21 21:24,25 22:4,7,7 10:15,16 15:1 14:10 19:6,15 creditors 17:5 22:13,17,19 23:4,7 16:5 17:23 19:2 20:9 23:10,24 25:21 23:12 24:3,8,16,19 25:10 33:23,24 29:15 33:22 d 26:6,7,9 27:7,11 34:6,15 contract 13:19,19 27:13,14,15,15,16 documents 9:8,12 d 3:1 4:1 10:17 22:2 27:16,21,22,24,24 9:21 10:10,11 36:5 contractual 20:25 27:25 28:2,2,3,14 11:3 13:2,9,11 date 19:10 23:21 control 15:13 28:22 29:8 30:1 14:2,13 18:21 23:22 16:17 17:17 25:12 30:14 31:6,8,17,20 20:13 22:20 32:13 dated 39:12 25:14,15 31:21,22,24,25 32:22 35:2,2,16 day 7:5 11:11 controlling 16:25 33:20,23 34:10,10 38:8 33:14 17:20 34:13 35:22 37:6 doing 10:19 35:20 days 37:1,2 convertible 1:7 37:8,9,16,17,19 dollar 36:12 dc 2:3 corp 1:3,4 4:4 designated 16:7 double 23:24 deal 9:25 correct 4:18,21 designed 23:4 draft 35:15 debtors 1:5 5:13,17,18 7:1,6 detailed 38:5 drafted 5:1 9:17 deciding 34:11 7:18 8:13 9:5 determination 12:12 18:21 35:2 deemed 16:19 13:10 23:9 26:23 19:10 23:21,21 35:2 define 28:1 33:10,13 37:24 determined 6:21 drafters 27:19 defined 27:18,20 correlation 31:6 19:5,14 20:3,6,8 drained 26:8 27:21 37:9,15 correspond 29:5 23:15,18,20 draw 16:3 definition 5:21,22 cost 38:19 deviate 21:1 drawing 5:11 5:23 7:10 10:25 11:18,20,22 12:21 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 43 Date Filed: 11/28/2017 [drawings-grants] Page 4 drawings 5:11 6:5 evidence 12:6 fair 35:15 friedman's 18:12 22:16 23:1,4 21:17 favoring 24:14 32:11 28:25 29:2 exactly 6:25 7:23 fees 4:14,23 5:3,15 friendly 24:3 drawn 6:7,14,20 8:18 22:2 27:20 5:16 23:5 fronted 23:5 6:20,24 7:3,4 8:17 example 9:24 fifth 16:9 28:10,10 fronting 5:16 18:20,24 19:12 12:13 16:4 17:24 30:3,5 31:12,15,15 fronts 5:15 29:17,25 excess 11:17,23 32:2 full 14:21 19:17 drive 12:21 excluded 27:23 financing 20:13 fund 1:7,8 8:9 due 18:18 20:12 excludes 22:25 22:20 26:10,12 30:18 22:19 excluding 22:21 find 18:10 25:20 funded 24:23 e exclusive 15:13 fine 4:11 funding 30:19,24 18:1 first 1:12,12 4:3 funds 15:3 e 3:1 4:1,1 15:9,22 exist 32:13 34:7 4:13 6:3,18 16:2 further 32:25 16:11,13 18:5,6 exists 21:25 22:3 17:24 19:21,23 33:17 21:14 25:10 26:1 29:21 20:11 22:9,11,16 future 1:3 4:4 32:15 39:1 expand 37:13 22:18 24:12 26:14 18:20 29:15 earlier 11:1 expands 37:12 26:24 27:2 32:15 g effect 5:15 18:5,12 expired 6:24 19:11 33:14 34:19 20:25 27:17 g 4:1 explain 12:5,8 five 4:9,14,14 16:1 effectively 5:6 game 7:7 16:12 fixed 20:3 26:7 general 17:5 explanation 26:3,6 flows 35:9 effectuate 34:6 george 1:20 explicitly 14:6 focus 6:17 efh 26:17 give 14:3,3 17:16 exposure 11:2,19 foregoing 39:2 electronic 39:4 17:24 38:13 11:19 12:22,22 formula 5:25 elephant 20:23 given 14:15 21:13 20:8 37:10 forward 26:25 21:5 26:1 express 30:13 four 4:2 5:19 emphasized 24:3 gives 7:10 15:12 expressly 14:15 15:24 16:4 21:15 energy 1:3 4:3 giving 25:11 extended 27:16 26:1,3 27:12 enforce 18:2 go 4:16 5:20 10:23 extent 17:4 26:15 fourth 9:23 16:25 ensure 17:5 18:4 20:10 27:11 extrapolation 9:2 17:20 18:15 19:18 entered 12:9 28:11 30:25 34:4 extrinsic 21:16 22:10 23:6 24:6 entitled 39:5 34:5,19,21,24 f 33:21 equal 28:18 36:13 free 23:11 equally 27:7 f 39:1 goes 30:3,5 36:15 friedman 2:2 3:4 esq 1:20 2:2 facility 11:9 12:9 going 6:11 8:21 4:5 20:16,18,19 essentially 25:1 12:16,19 13:14 24:16 35:24 36:16 21:18 22:11,15,23 et 1:4,14 33:14 34:11 36:25 38:10 22:25 23:3,16,20 evaporates 32:25 37:20 good 4:8 25:7,14 26:5,24 eventually 8:11,11 fact 10:10 18:15 gordon 1:13 27:2 28:9,16,20 everybody 27:4,6 30:24 36:7 grant 31:23 30:5,22 31:1,4,14 28:12 fail 9:9 grants 31:20 32:9 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 44 Date Filed: 11/28/2017 [great-lc] Page 5 great 28:23 i isp 19:13 24:2 36:13,14,18,19 greenwich 1:21 idea 32:16 33:20 issue 10:5,7 31:5 37:4,22,25 38:2,14 group 16:17,18 36:5 34:9 38:17 guess 5:16 10:1 imagine 28:25 issued 12:14,16 jump 9:3 17:3 22:1 35:12 29:4 33:23 issuer 5:5,17 8:16 justice 20:21 35:14 imperfectly 35:4 14:10 20:13 22:20 k guessing 17:4 important 24:20 24:3 29:8 30:14 k 1:3,4 gun 18:11 30:11 27:8 31:19 34:1 36:14 37:19 kind 29:6 31:2 h included 13:21 issuers 11:19 kinds 31:17 including 14:5 12:23 17:12,16 half 19:9 32:5 knew 27:20 inconsistent 32:3 22:4,7,17 23:5,8 hammer 30:11 know 18:4 21:20 incorporate 27:20 23:12 24:19 26:9 hammers 28:5 21:21,22,23,24,25 incorporates 24:2 26:22 27:4 28:8 30:7 22:5 26:11,17 incremental 27:15 30:17 31:18,21,24 hanging 33:12 28:5 30:8 35:14 indicate 19:13 32:18 33:23 35:7 happened 25:16 krause 1:17 10:22 20:7 25:10 36:6 37:10,11 35:1 10:24 11:12,16 happens 29:24 infer 9:12 j 12:11,20 14:4 33:25 34:2 initial 23:18 job 13:18 15:21 19:8,24 hear 20:15 initially 18:7 joint 27:10 20:2 21:9 25:4,9 help 10:22,24 insanity 28:1 jr 1:20 25:24 36:10,13 hide 20:23 inserted 17:5 judge 4:2,7,11,19 37:4,22,25 38:2 hold 27:14 instance 26:14 4:22 5:7,10,14,19 l holding 29:19 intended 18:7 5:24 6:2,8,11,15 l 1:17 27:7,11,13 holdings 1:3 4:4 intent 28:4 6:17,23,25 7:2,7 27:14,15,15,16,17 hole 20:23 21:6 intercreditor 4:12 7:13,16,20,23 8:1 27:22,22,24,24,25 home 12:21 28:5 10:4 15:9,12 18:8 8:5,11,14,23 9:14 28:2,2,3,14,22 30:7,12 34:22 21:2 10:21,22,23,24 l.p. 1:13,14 hon 1:17,17,18 interest 5:4 11:10 11:12,16 12:11,20 language 24:1,2 honestly 34:25 12:18 26:4,22 13:4,5,7,8,15,24 30:13 31:12 32:12 honor 23:16 25:8 31:21 14:4,22 15:6,16,21 37:7,12,23 28:9,16 30:8 interests 16:7,8 17:2,11 18:4,10,19 law 21:18 31:14 interpret 13:2,8 19:8,24 20:2,15 lc 4:13,23 5:20,21 honorables 1:17 13:11 21:9 22:9,13,18,24 7:10,12,15 9:13 honors 20:20 27:5 interpretation 23:2,14,17 24:1,21 10:10,18,25 12:2,6 32:9 20:24,25 21:11 25:4,9,24 26:21 13:21 14:14,16,20 hook 18:21 interpreted 24:13 27:1 28:7,14,17 15:4,7,11,14,17,19 huh 6:2 25:6 30:3,10,16,23 31:2 16:5,14,19,20 17:1 hypothetical invade 24:17 31:10 32:8 33:2,5 17:6,9,12,15,16,18 12:24 invest 34:11 33:7,11,15 34:17 17:25 18:16,21 irrelevant 36:7 34:18,19,20 35:5,9 19:17,20 21:24,25 35:11,19 36:10,11 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 45 Date Filed: 11/28/2017 [lc-obligation] Page 6 22:4,7,7,14,17 20:12 22:19 31:20 lp 1:6 32:17,20,24 33:12 23:5,7,12 24:3,8 31:24 m 33:16 34:2 35:24 24:16,19 26:6,7,9 letters 6:4,5 7:19 36:3 37:20,21 m 2:2 26:22 28:8 29:8 8:6,10,15,22 9:24 morning 4:3,8 machine 18:22 30:1,14,17 31:6,8 11:13 12:13,15 mouse 20:23 21:6 majority 16:18 31:17,21,22,25 29:5 37:17,21 myers 2:2 making 11:8 32:18,19 33:20,23 level 9:23 16:1,2,9 n management 1:6 34:1,10,10,13 35:7 16:25 17:20 18:15 maraton 1:6 n 3:1 4:1 39:1 35:22 36:6,6,7,14 19:18,23,23 20:1 marjorie 1:18 n.a. 1:11 36:19,25 37:6,8,9 20:11 21:15 26:1 market 1:7,24 n.w. 2:3 37:16,19 26:3 30:4,6 33:21 master 1:7,8 nails 30:11 lcs 5:9 7:14,16,17 levels 4:14 15:24 match 7:8 name 9:9 13:21 17:12 18:23 19:21 math 28:23 named 15:20 28:19 33:1 36:18 liability 32:22,25 matter 17:8 39:5 national 1:23 lead 34:12 33:17 matters 17:11 necessarily 9:21 leaving 18:23 lien 1:12,12 26:19 maximum 6:19 19:21 28:18 left 23:10 26:12,13 life 14:3 mean 6:19 9:2,4 necessary 29:8 29:19 limiting 37:18 18:5,21,22,25 need 34:5 lend 7:20 lines 27:12 19:19 22:13 26:16 negotiated 12:2,7 lender 34:10,10,13 little 9:2 31:10 35:5,10,11 never 12:17,19,25 35:22 36:9 loan 16:14,20,20 35:19 38:7,11 13:13 24:17 25:15 lender's 15:23 26:11,14 27:13,14 meaning 38:13 26:16 29:24 lenders 7:12 8:24 27:15,16,16,17,22 means 16:24 19:24 new 1:22 21:18 8:25 9:5 10:10,18 28:2,2,14 31:9,21 20:2 37:15 night 34:23 11:3,20 12:2,6,22 34:14 mid 1:23 non 30:25 31:2 14:10,14,16,20,20 loaned 8:7,9 9:4 middle 34:22 34:10 15:1,4,4,5,11,14 9:18 million 28:25 29:5 noncommercial 15:14,17 16:6,6,8 loans 27:25 29:13 12:17 13:3,9 16:20 17:1,6,9,16 locked 10:13 mini 38:5 normal 12:25 17:19,25 19:20 logic 24:22 25:10 minus 5:1 november 1:6 24:16 25:11,17 long 35:3 minute 13:5 16:12 39:12 26:2,7 30:17,24 longer 6:6 29:25 32:5 35:22 number 4:16,16 31:25,25 32:20,23 30:1 minutes 4:9 4:23 14:9 16:4 32:23 33:18 36:7 look 13:18 15:8 money 7:11,11,21 ny 1:22 36:7 37:21 17:22 25:23 26:9 7:24 8:2,9 9:1,18 o lending 33:13 32:19 34:8,23 9:19 10:12,13,16 lent 7:12 10:12 looking 14:7 21:3 o 4:1 39:1 10:19 12:3,4 30:24 32:23 33:12 25:5,24 33:8,9 o'melveny 2:2 13:22 14:13,15,16 37:19 looks 4:13 10:2 obligation 11:18 14:17,18,19,21 letter 5:3,5 6:18 lower 9:11 21:12 11:21 12:23 22:7 15:14 24:22 25:18 8:16,19 19:10 27:11 30:1,20,21 29:1,18,24 30:25 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 46 Date Filed: 11/28/2017 [obligation-put] Page 7 37:7,8,9,10 outvote 17:6 pays 15:3 primarily 18:6 obligations 5:20 overpaid 34:2 peculiar 17:15,17 26:23 5:21 7:10 9:10,13 owed 5:16 13:23 17:18 principal 5:8 9:23 11:1 13:21 22:4 30:15 pens 24:18 priorities 16:22 14:5,6,10,11,11 p people 9:18 16:17 21:5 26:20 15:20 18:17 19:7 23:11 24:23 29:20 priority 4:20 p 4:1 19:18 21:24 22:4 permits 26:7 11:22 12:3,4,8,10 pa 1:8,24 2:4 22:14 23:10,13,15 person 10:14 36:1 12:13 13:7 14:9 page 3:2 9:15,25 23:18,22,23,25 peter 2:2 20:19 15:24 16:2,4 10:1 27:9,10 28:1 27:7,22,24,24 28:3 philadelphia 1:8 17:13,19 24:7,24 paid 4:16,24 10:18 28:4 29:16,22 1:24 2:4 25:25 26:4 27:3 12:18 14:21 16:24 30:15 31:7,17,23 phrased 11:25 28:10,11 34:14,15 17:21 18:17 19:20 33:21,22 36:19 piece 25:2 problem 11:17 25:19 34:3 36:8 37:17,19 placed 7:24 problematic 15:18 36:16 obvious 27:5 plain 37:7 proceedings 38:23 pari 21:3 25:21 official 39:3 play 16:1,8 39:4 27:4 32:1 okay 8:1 9:22 15:6 please 4:9 20:18 proceeds 16:20 part 6:3,5,13 20:7 22:21 23:2 34:15 promised 26:10 22:11 31:12 omg 34:24 pleasure 38:20 properly 25:6 partial 12:3 once 19:6 21:20 plumbing 34:6 protect 23:4,10 particular 9:19 22:5 36:23 point 11:8 20:3 29:8,15 25:11 ones 17:19 24:20 26:4 28:6,7 protection 19:1 parties 15:11 opening 9:15 10:1 29:9 30:7,11,19 24:19 16:17 17:23 21:3 11:1 37:1 protections 35:23 23:6 operation 15:10 pointed 21:13 24:1 protects 22:17 parts 6:1 19:12 33:19 points 21:7 24:11 23:7 36:6 party 15:2 16:25 opportunities 1:8 polygon 1:7,8 provide 33:24 pass 33:9 opportunity 1:7 portion 24:9 provides 19:9 26:1 passu 21:3 25:21 opposed 16:4 position 9:8 18:9 provision 15:5,17 27:4 32:1 opposite 15:22 positive 11:5 21:4 25:22,23 patently 14:7 oral 38:18 possibly 18:12,18 32:21 33:25 pause 4:6 order 8:9 38:13 preamble 19:2 provisions 9:12 pay 20:12 33:21 ought 24:23 20:5 14:2,5,8 38:4,13 36:4 outset 11:9 13:16 preference 14:15 pure 21:14 payable 5:2 22:21 13:18 preferred 9:20 purpose 8:8 payee 9:9,13 15:20 outside 31:18 prefunded 33:4 purposes 23:15,18 paying 11:10 outstanding 6:4,6 prepared 38:18 pursuant 16:21 18:16 6:10 7:3 8:6,15 pressure 35:3 put 9:1,18 17:3 payment 21:5 18:23 28:19 29:16 prevent 26:8 28:2 33:16 35:24 22:19 24:16 26:19 36:25 prevents 26:6 payments 31:16 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 47 Date Filed: 11/28/2017 [question-shuster] Page 8 q relate 14:9 22:10 resolved 19:4,7 section 4:12 10:14 question 10:3 34:9 24:9 26:19 34:1 36:23,24 10:17,17 15:2,8 34:12 35:23 related 31:17 respect 16:14 16:11,13,21 17:24 questions 32:6 relates 7:13 29:14 20:25 33:1 37:12 19:3 21:2 23:15 quickly 35:13 29:15 31:16 37:9 37:17,22 23:19 24:1,12,15 quote 17:25 relationship 8:19 responding 32:11 25:19 28:11,12 14:23 28:19 result 12:17 31:13,19 32:15,16 r released 8:4 35:25 36:5,8 results 38:10 r 4:1 39:1 relies 31:11 right 4:17 5:7,12 sections 37:5 rare 22:1 remain 24:19 7:23 9:13 10:9,11 secured 15:11 rationale 32:16 remains 29:2 11:6,14 13:17 16:16 17:23 22:4 read 37:14,16 remedies 21:4 14:1 15:23 16:2 23:6,14,17,22,23 ready 4:7 25:15,22 16:18 17:14,16 23:25 realize 18:2 reminds 34:20 18:1 21:11,11 security 26:21 really 8:15,18,24 remotely 32:3 22:24 23:12 25:2 31:21,22 16:11 18:13 22:1 rendell 1:18 6:23 25:11 26:2,11 see 31:5 32:2 22:14 24:2 7:20,23 8:1,5,11 27:1 28:17 29:1,3 segregated 7:25 reason 17:3 19:12 8:14,23 10:21,23 29:7,9,21 33:15 9:19 10:13 15:13 rebuttal 3:5 4:10 13:4,7 14:22 15:6 34:25 35:8 38:8 16:15 17:1 35:25 20:16 15:16 22:9,13,18 rights 15:25 34:16 sense 9:21 11:23 recaptured 7:4 22:24 23:2 24:1 risk 23:11 12:5 13:12,12,25 reconcile 18:14 26:21 27:1 28:7 rule 4:20 8:3 15:1 14:3 22:14 29:23 38:12 28:14,17 30:16,23 19:13 36:2 35:10 recording 39:4 31:2 33:2,5,7,11 rules 36:2 sentence 15:2 recover 8:25 33:15 34:18,20 run 19:5 16:13 17:24 31:13 reference 20:24 35:5,9 36:11,14,19 s 31:15,16 32:3 25:22 repaid 29:17 35:25 references 16:16 s 4:1 repay 29:2 sequitur 31:3 16:19 satisfaction 16:22 reporting 1:23 set 7:8 23:12 25:5 referred 24:13,21 saying 10:8 30:18 represent 16:7 26:25 reflection 24:25 37:16 representative sets 20:6 reflects 27:6 says 10:14,16 15:2 16:6 setting 16:5 regard 6:21 31:11 16:13 17:25 19:3 request 8:21 shares 28:13,13 region 1:23 20:11 22:18 24:15 requested 8:20 show 15:22 21:10 reimbursed 5:5,12 25:22 28:11 29:10 required 8:3 11:5 21:12 34:15 reimbursement 36:1 11:7 15:10,11 shuster 1:20 3:3,5 32:20 scalia 20:21 16:16,19 17:1,15 4:4,8,18,21,25 5:8 reinforce 14:8 second 5:10 6:5 17:22 25:17 26:7 5:13,18,23,25 6:3 15:25 16:2 19:8,23,25 reserve 4:9 6:9,13,16 7:1,6,9 reinforces 21:3 20:7 23:3 24:20 resolve 37:2 7:15,18,22,24 8:2 26:10 27:10 29:4 8:8,13,18 9:7 10:6 31:12 33:19 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 48 Date Filed: 11/28/2017 [shuster-unpaid] Page 9 11:7,15,24 12:15 speculate 13:15 talking 16:15 time 6:19,19 18:15 12:24 13:10,22 split 38:19 tceh 7:22 8:7 9:1,4 20:3,4 35:3,15 14:1,12,25 15:8,19 standard 20:21 10:16,19 11:8 37:1 38:22 16:10 17:8,14 start 4:12 20:20 12:17 14:15,17,23 times 15:10 22:2 18:14 19:1,16,25 32:10 15:2 34:3,4 36:3 top 28:11 20:10,17 30:16 started 10:8 35:14 tech 28:15,18 total 8:22 20:2 32:10 33:4,6,10,13 state 12:21 14:5 30:20,25 33:9,12 24:24 33:16 34:25 35:8 stated 6:4,18 8:6 tells 22:2 tracey 39:2,9 35:17,21 36:12,21 8:14 9:2 13:20 term 15:10 17:22 trade 1:21 37:13,24 38:1,3,16 23:6,7 24:4,10,17 21:14 37:15 transaction 33:14 38:22 24:17,18 26:21 terms 12:23 13:17 35:12 side 9:22 18:12 29:14,18 30:1 19:11 27:18,21,21 transactional sides 9:10 states 1:1 11:19 texas 1:4 34:21 silence 21:19 status 21:3 25:21 thank 20:17 32:8,9 transcript 38:18 similarly 27:6 statutory 20:24 38:14,14,16,22 39:3 simply 16:7 21:14 step 30:6 theory 25:1 trucking 20:22 34:7 stolen 32:24 thereunder 19:12 true 39:3 single 20:4 stone 20:6 thing 17:17 19:14 trust 1:11 sit 8:3 story 35:22 31:15,19 38:7,11 trying 9:3 21:11 sits 8:2 strange 38:1 things 20:6 32:12 sitting 15:15 street 1:7,21,24 think 4:24 9:10,10 turn 21:16 sixth 35:25 2:3 10:6 12:4 16:10 two 4:16 6:1 10:13 size 8:19,20,24 subfacility 8:20 20:24 21:19 24:6 19:21 22:15 24:11 slightly 11:25 suite 1:24 24:20 26:5,15,18 27:12 38:3,7 smoking 18:11 sum 5:25 9:20 27:5,7,9 28:21,21 txu 1:3 30:10 support 13:20 28:22 29:6 30:6,6 tying 8:23 14:24 sole 8:8 18:9 30:10,11 31:4,11 30:13 somebody 5:14 supposed 21:23 31:18 32:12 34:8 u 9:16 29:17,19,20 23:11 24:4 26:16 38:8,12 uh 6:2 sorry 7:16 10:24 29:20 30:18 thinks 8:21 undermines 24:14 21:22 23:16 36:20 sure 18:22 19:16 third 1:1 5:14 23:5 understand 10:25 sort 4:19 6:8 38:4 35:3 29:12,13 11:3 37:15 sound 39:4 t thomas 1:17 understood 12:20 sounds 9:14 thought 9:16,17 t 39:1,1 undrawn 7:16,17 speaking 18:10 33:2,7 take 10:16 14:19 9:24 13:21 17:12 special 10:9,11 three 8:19 22:2 16:12 29:18 36:3 36:18 16:3 23:12 26:2 27:12 taken 32:17 34:3 united 1:1 specific 12:7 18:8 threshold 21:12 takes 14:16 23:22 unpaid 5:10 6:5 specifically 21:8 tie 8:5 36:24 22:16 23:1,4 35:6 tied 15:7 talked 30:16 28:25 29:2 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case: 17-1958 Document: 003112788497 Page: 49 Date Filed: 11/28/2017 [unreimbursed-york] Page 10 unreimbursed 5:2 32:14 34:8 35:7 7:14,15 22:22 36:24 37:9 use 13:13 30:12 we've 26:12 38:11 went 10:12 uses 30:13 whitman 20:22,22 utilities 1:4 williams 39:2,9 v wilmerhale 1:20 wilmington 1:11 v 20:21,22 withdraw 15:3 veritext 1:23 withdrawal 10:15 versus 36:6 36:1 view 28:5,20,21 withhold 15:23 31:14 25:12 vii 1:14 words 27:17,21 voluntarily 10:20 37:14,16,18 38:12 vote 16:18 work 32:14 34:21 vs 1:10 working 24:8 w works 36:22 w 1:20 world 1:21 wait 13:5 26:9 x 36:23 37:2 x 3:1 wake 34:22 want 14:19 24:11 y 34:13 yeah 6:16 wanted 18:22 21:7 year 36:24 washington 2:3 york 1:22 21:18 waterfall 4:15 6:12 18:16 19:4,6 19:19,21 20:5,11 21:1,15 22:10,12 24:9 25:23 28:8 32:18 33:20 34:4 34:5 35:6 36:10 36:22 37:3,5,23 38:5,6 waterfalls 38:4,9 way 4:25 8:19 11:24 12:12 13:3 13:9,11,24 14:17 18:22 19:22 25:5 25:16 26:17 28:21 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830

JUDGMENT, Affirmed. Costs taxed against Appellant. (CLW) [Entered: 08/07/2018 10:18 AM]

Case: 17-1958 Document: 003113002574 Page: 1 Date Filed: 08/07/2018 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 17-1958 _____________ In re: ENERGY FUTURE HOLDINGS CORP. a/k/a TXU Corp. a/k./a TXU Corp a/k/a TEXAS Utilities, et al., Debtors MARATHON ASSET MANAGEMENT LP; POLYGON CONVERTIBLE OPPORTUNITY MASTER FUND; POLYGON DISTRESSED OPPORTUNITIES MASTER FUND, Appellants v. WILMINGTON TRUST N.A. as First Lien Collateral Agent and First Lien Administrative Agent; ANGELO GORDON & CO. L.P.; APOLLO ADVISORS VII, L.P.; BROOKFIELD ASSET MANAGEMENT PRIVATE INSTITUTIONAL CAPITAL ADVISOR (CANADA) L.P.; JOHN DOE #1 THROUGH JOHN DOE #10 ________________ Appeal from the United States District Court for the District of Delaware (D.C. Civil Action No. 1-16-cv-00287) District Judge: Honorable Richard G. Andrews ________________ Argued November 15, 2017 Before: AMBRO, KRAUSE, and RENDELL, Circuit Judges 1 of 5 Case: 17-1958 Document: 003113002574 Page: 2 Date Filed: 08/07/2018 JUDGMENT This cause came on to be heard on the record before the United States District Court for the District of Delaware and was argued on November 15, 2017. On consideration whereof, IT IS ORDERED AND ADJUDGED by this Court that the judgment of the District Court dated March 28, 2017, is hereby affirmed. Costs are taxed against Appellants. All of the above in accordance with the opinion of this Court. ATTEST: s/Patricia S. Dodszuweit Clerk Dated: August 7, 2018 2 2 of 5 Case: 17-1958 Document: 003113002582 Page: 1 Date Filed: 08/07/2018 OFFICE OF THE CLERK PATRICIA S. DODSZUWEIT UNITED STATES COURT OF APPEALS TELEPHONE 21400 UNITED STATES COURTHOUSE 215-597-2995 CLERK 601 MARKET STREET PHILADELPHIA, PA 19106-1790 Website: www.ca3.uscourts.gov August 7, 2018 Philip D. Anker, Esq. WilmerHale 7 World Trade Center 250 Greenwich Street New York, NY 10007 (Bradley R. Aronstam, Esq. (Nicholas D. Mozal, Esq. Ross Aronstam & Moritz 100 South West Street Suite 400 Wilmington, DE 19801 George A. Davis, Esq. Latham & Watkins 885 Third Avenue Suite 1000 New York, NY 10022 Michael D. DeBaecke, Esq. Blank Rome 1201 Market Street Suite 800 Wilmington, DE 19801 (Peter M. Friedman, Esq. (Jonathan Rosenberg, Esq. (Daniel S. Shamah, Esq. O'Melveny & Myers 1625 I Street, N.W. Washington, DC 20006 Neil B. Glassman, Esq. Bayard P.A. 600 North King Street 3 of 5 Case: 17-1958 Document: 003113002582 Page: 2 Date Filed: 08/07/2018 Suite 400 Wilmington, DE 19801 Mark D. Kotwick, Esq. Seward & Kissel One Battery Park Plaza New York, NY 10004 Benjamin W. Loveland, Esq. Wilmer Cutler Pickering Hale and Dorr 60 State Street Boston, MA 02109 Matthew B. McGuire, Esq. Landis Rath & Cobb 919 Market Street Suite 1800, P.O. Box 2087 Wilmington, DE 19899 George W. Shuster Jr., Esq. WilmerHale 7 World Trade Center 250 Greenwich Street New York, NY 10007 RE: In re: Energy Future Holdings Corp, et al Case Number: 17-1958 District Court Case Number: 1-16-cv-00287 ENTRY OF JUDGMENT Today, August 07, 2018 the Court entered its judgment in the above-captioned matter pursuant to Fed. R. App. P. 36. If you wish to seek review of the Court's decision, you may file a petition for rehearing. The procedures for filing a petition for rehearing are set forth in Fed. R. App. P. 35 and 40, 3rd Cir. LAR 35 and 40, and summarized below. Time for Filing: 14 days after entry of judgment. 45 days after entry of judgment in a civil case if the United States is a party. 4 of 5 Case: 17-1958 Document: 003113002582 Page: 3 Date Filed: 08/07/2018 Form Limits: 3900 words if produced by a computer, with a certificate of compliance pursuant to Fed. R. App. P. 32(g). 15 pages if hand or type written. Attachments: A copy of the panel's opinion and judgment only. Certificate of service. Certificate of compliance if petition is produced by a computer. No other attachments are permitted without first obtaining leave from the Court. Unless the petition specifies that the petition seeks only panel rehearing, the petition will be construed as requesting both panel and en banc rehearing. Pursuant to Fed. R. App. P. 35(b)(3), if separate petitions for panel rehearing and rehearing en banc are submitted, they will be treated as a single document and will be subject to the form limits as set forth in Fed. R. App. P. 35(b)(2). If only panel rehearing is sought, the Court's rules do not provide for the subsequent filing of a petition for rehearing en banc in the event that the petition seeking only panel rehearing is denied. A party who is entitled to costs pursuant to Fed.R.App.P. 39 must file an itemized and verified bill of costs within 14 days from the entry of judgment. The bill of costs must be submitted on the proper form which is available on the court's website. A mandate will be issued at the appropriate time in accordance with the Fed. R. App. P. 41. Please consult the Rules of the Supreme Court of the United States regarding the timing and requirements for filing a petition for writ of certiorari. Very truly yours, Patricia S. Dodszuweit, Clerk By: s/Carmella Case Manager 267-299-4928 5 of 5

ORDER (AMBRO, KRAUSE and RENDELL, Circuit Judges) The foregoing Motion filed by proposed amicus Delaware Trust Company to proceed as amicus curiae in support of Appellant/Petitioner and to file Supplemental Appendix is denied, filed. Thomas L. Ambro, Authoring Judge. (EAF) [Entered: 08/09/2018 04:59 PM]

Case: 17-1958 Document: 003113005347 Page: 1 Date Filed: 08/09/2018 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT October 12, 2017 No. 17-1958 In re: ENERGY FUTURE HOLDINGS CORP. a/k/a TXU Corp. a/k./a TXU Corp a/k/a TEXAS Utilities, et al., Debtors MARATHON ASSET MANAGEMENT LP; POLYGON CONVERTIBLE OPPORTUNITY MASTER FUND; POLYGON DISTRESSED OPPORTUNITIES MASTER FUND, Appellants v. WILMINGTON TRUST N.A. as First Lien Collateral Agent and First Lien Administrative Agent; ANGELO GORDON & CO. L.P.; APOLLO ADVISORS VII, L.P.; BROOKFIELD ASSET MANAGEMENT PRIVATE INSTITUTIONAL CAPITAL ADVISOR (CANADA) L.P.; JOHN DOE #1 THROUGH JOHN DOE #10 (D. Del. No. 1-16-cv-00287) Present: AMBRO, KRAUSE and RENDELL, Circuit Judges 1. Motion filed by Proposed Amicus Delaware Trust Company to proceed as Amicus Curiae in support of Appellant/Petitioner and to File Supplemental Appendix. 2. Response filed by Appellants Marathon Asset Management LP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund in Opposition to Motion to proceed as amicus/intervenor and to File Supplemental Appendix. 3. Response by Appellees in Opposition to Motion for Leave to Appear as Amicus Curiae and Leave to File a Late Brief. Case: 17-1958 Document: 003113005347 Page: 2 Date Filed: 08/09/2018 4. Reply by Proposed Amicus-Appellant Delaware Trust Co to Response to Motion to proceed as amicus/intervenor and to File Supplemental Appendix. Respectfully, Clerk/eaf Calendared: 11/17/17 _______________________________ O R D E R ______________________________ The foregoing Motion filed by proposed amicus Delaware Trust Company to proceed as amicus curiae in support of Appellant/Petitioner and to file Supplemental Appendix is denied. By the Court, s/Thomas L. Ambro, Circuit Judge Dated: August 9, 2018 EAF/cc: All Counsel of Record

MANDATE ISSUED, filed. (CLW) [Entered: 09/07/2018 12:14 PM]

Case: 17-1958 Document: 003113028190 Page: 1 Date Filed: 09/07/2018 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 17-1958 _____________ In re: ENERGY FUTURE HOLDINGS CORP. a/k/a TXU Corp. a/k./a TXU Corp a/k/a TEXAS Utilities, et al., Debtors MARATHON ASSET MANAGEMENT LP; POLYGON CONVERTIBLE OPPORTUNITY MASTER FUND; POLYGON DISTRESSED OPPORTUNITIES MASTER FUND, Appellants v. WILMINGTON TRUST N.A. as First Lien Collateral Agent and First Lien Administrative Agent; ANGELO GORDON & CO. L.P.; APOLLO ADVISORS VII, L.P.; BROOKFIELD ASSET MANAGEMENT PRIVATE INSTITUTIONAL CAPITAL ADVISOR (CANADA) L.P.; JOHN DOE #1 THROUGH JOHN DOE #10 ________________ Appeal from the United States District Court for the District of Delaware (D.C. Civil Action No. 1-16-cv-00287) District Judge: Honorable Richard G. Andrews ________________ Argued November 15, 2017 Before: AMBRO, KRAUSE, and RENDELL, Circuit Judges 1 of 21 Case: 17-1958 Document: 003113028190 Page: 2 Date Filed: 09/07/2018 JUDGMENT This cause came on to be heard on the record before the United States District Court for the District of Delaware and was argued on November 15, 2017. On consideration whereof, IT IS ORDERED AND ADJUDGED by this Court that the judgment of the District Court dated March 28, 2017, is hereby affirmed. Costs are taxed against Appellants. All of the above in accordance with the opinion of this Court. ATTEST: s/Patricia S. Dodszuweit Clerk Dated: August 7, 2018 Certified as a true copy and issued in lieu of a formal mandate on 09/07/18 Teste: Clerk, U.S. Court of Appeals for the Third Circuit 2 2 of 21 Case: 17-1958 Document: 003113028191 Page: 1 Date Filed: 09/07/2018 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 17-1958 _____________ In re: ENERGY FUTURE HOLDINGS CORP. a/k/a TXU Corp. a/k./a TXU Corp a/k/a TEXAS Utilities, et al., Debtors MARATHON ASSET MANAGEMENT LP; POLYGON CONVERTIBLE OPPORTUNITY MASTER FUND; POLYGON DISTRESSED OPPORTUNITIES MASTER FUND, Appellants v. WILMINGTON TRUST N.A. as First Lien Collateral Agent and First Lien Administrative Agent; ANGELO GORDON & CO. L.P.; APOLLO ADVISORS VII, L.P.; BROOKFIELD ASSET MANAGEMENT PRIVATE INSTITUTIONAL CAPITAL ADVISOR (CANADA) L.P.; JOHN DOE #1 THROUGH JOHN DOE #10 ________________ Appeal from the United States District Court for the District of Delaware (D.C. Civil Action No. 1-16-cv-00287) District Judge: Honorable Richard G. Andrews ________________ Argued November 15, 2017 Before: AMBRO, KRAUSE, and RENDELL, Circuit Judges (Opinion filed: August 7, 2018) 3 of 21 Case: 17-1958 Document: 003113028191 Page: 2 Date Filed: 09/07/2018 Philip D. Anker, Esquire George W. Shuster, Jr., Esquire (Argued) WilmerHale 7 World Trade Center 250 Greenwich Street New York, NY 10007 Benjamin W. Loveland, Esquire Wilmer Cutler Pickering Hale and Dorr 60 State Street Boston, MA 02109 Adam G. Landis, Esquire Matthew B. McGuire, Esquire Landis Rath & Cobb 919 Market Street Suite 1800, P.O. Box 2087 Wilmington, DE 19899 Counsel for Appellants Michael D. DeBaecke, Esquire Blank Rome 1201 Market Street, Suite 800 Wilmington, DE 19801 Mark D. Kotwick, Esquire Seward & Kissel One Battery Park Plaza New York, NY 10004 Bradley R. Aronstam, Esquire Nicholas D. Mozal, Esquire Benjamin J. Schladweiler, Esquire Ross Aronstam & Moritz 100 South West Street, Suite 400 Wilmington, DE 19801 George A. Davis, Esquire Jonathan Rosenberg, Esquire Daniel S. Shamah, Esquire 2 4 of 21 Case: 17-1958 Document: 003113028191 Page: 3 Date Filed: 09/07/2018 Andrew Sorkin, Esquire O'Melveny & Myers 7 Times Square Times Square Tower, 33rd Floor New York, NY 10036 Peter M. Friedman, Esquire (Argued) O'Melveny & Myers 1625 I Street, N.W. Washington, DC 20006 Counsel for Appellees Neil B. Glassman, Esquire GianClaudio Finizio, Esquire Bayard, P.A. 600 North King Street, Suite 400 Wilmington, DE 19801 Michael S. Kim, Esquire Jeremey C. Hollembeak, Esquire Kobre & Kim LLP 800 Third Avenue New York, NY 10022 Counsel for Amicus Curiae In Support of Appellants ________________ OPINION * ________________ AMBRO, Circuit Judge Texas Competitive Electric Holdings Company LLC ("TCEH") filed for Chapter 11 bankruptcy relief in the United States Bankruptcy Court for the District of Delaware. * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 3 5 of 21 Case: 17-1958 Document: 003113028191 Page: 4 Date Filed: 09/07/2018 Lenders of $24.5 billion to TCEH were among its creditors. In an inter-creditor dispute, entities now in the shoes of those who funded a letter of credit facility (collectively, "Appellants") seek payment of certain funds before the other lenders (the "Other Lenders"). They appeal the dismissal by the Bankruptcy Court, affirmed by the District Court, of their Complaint. We also affirm. In doing so, we deal with many definitions in a complex set of documents. Thus this not-precedential opinion (it makes no new law nor clarifies existing precedent) is longer than normal. I. Background A. The Loans In 2007 a private equity group bought for $45 billion TXU Corporation, which later became Energy Future Holdings Corp., the principal debtor in the Chapter 11 bankruptcy cases in the District of Delaware. The transaction—called a leveraged buyout because the purchased assets secured (that is, leveraged) the loans made for the purchase—involved in part TCEH, a TXU subsidiary, borrowing $24.5 billion in the aggregate per three credit facilities—a term loan, a revolving line of credit arrangement, and a deposit letter of credit facility (the last, hereinafter capitalized as a defined term, is the subject of this appeal). The loans involved nine different lenders (collectively, with their successors and assigns, the "Lenders"), including entities associated with Citibank, JP Morgan Chase, Goldman Sachs, Lehman Brothers, and Morgan Stanley. Though the credit facilities had but one Credit Agreement, different (though overlapping) subgroups of the Lenders funded each of them. Hence the Lenders, among others, entered into an intercreditor agreement (hereinafter also capitalized as a defined term). To repeat, 4 6 of 21 Case: 17-1958 Document: 003113028191 Page: 5 Date Filed: 09/07/2018 Appellants are successors to the entities whose $1.25 billion aggregate loan funded the Deposit Letter of Credit Facility (those entities are referred to as "Deposit L/C Lenders"). B. The Deposit Letter of Credit Facility A letter of credit reduces the risk of payment default. Suppose an entity purchased gas to be extracted from the Gulf Basin a year later, promising the seller payment on delivery. To back up its promise, the purchaser could ask a bank to agree with the seller that, among other things, it will cover amounts in default if the company fails to pay what it owes. That back-up support, a letter of credit, would shift the risk of nonpayment from the purchaser to the bank, which typically is in a better position to know the former's creditworthiness. The bank would, after a payment on its letter of credit, seek reimbursement from the purchaser. As already noted, this appeal involves the Deposit Letter of Credit Facility. A "deposit" letter of credit is backed by a cash deposit used to reimburse the letter of credit bank (a "Deposit Letter of Credit Issuer" or "Issuer"; as noted below, here it is Citibank). In this way, the risk of nonpayment shifts from the Issuer back to the debtor—TCEH in our case. After the Deposit L/C Lenders furnished the $1.25 billion for the Deposit Letter of Credit Facility, those funds were deposited into a segregated account called the Deposit L/C Loan Collateral Account (sometimes referred to simply as the "Account"). Essentially, the facility consisted of Citibank's agreement to issue deposit letters of credit for TCEH (the "Deposit Letters of Credit" or "Deposit L/Cs") plus Citibank's right to have drawings reimbursed from this account. (Although the loan transactions allowed for the addition of multiple Deposit Letter of Credit Issuers, we understand no party other 5 7 of 21 Case: 17-1958 Document: 003113028191 Page: 6 Date Filed: 09/07/2018 than Citibank signed on.) There was always enough on balance to cover the full amount of the Deposit Letters of Credit that had been or could be issued. Moreover, Citibank was appointed the custodian of the account (in this capacity, the "Collateral Agent"), so it was able to release the reimbursement funds to itself for Deposit L/Cs. Appellants seek to be paid from the remaining money in the Deposit L/C Loan Collateral Account before the Other Lenders who participated in loaning the remaining $23.25 billion of the overall credit facilities. They claim common sense supports their expectation that, as the deemed funders of the Deposit L/C Loan Collateral Account, they be accorded, when the Deposit Letter of Credit Facility ended, payment priority over the Other Lenders who did not fund that Account. The problem, as Appellants concede, is that, "[t]o be sure, the applicable credit documents do not expressly state [that] common- sense conclusion. . . because, unfortunately and mistakenly, the documents do not contain any express statement of who gets paid any leftover portion of the $1.25 billion." Appellants' Br. at 4. C. The Intercreditor Agreement § 4.1(b) Priority Scheme The Lenders have a first lien on TCEH's collateral. They agreed among themselves that, once the company was in bankruptcy, they would stand on equal footing in proportion to what they loaned (they used the Latin phrases pro rata and pari passu), with no one Lender "entitled to any preferences or priority over any other. . . (except as otherwise provided in Section 4.1 [of the Intercreditor Agreement])." Intercreditor Agreement § 2.1 (emphasis added). 6 8 of 21 Case: 17-1958 Document: 003113028191 Page: 7 Date Filed: 09/07/2018 Thus the priority of distribution for the funds in the Deposit L/C Loan Collateral Account (those funds are called the "Deposit L/C Collateral") is governed by § 4.1 of the Intercreditor Agreement. The section contains a pair of "waterfall" provisions. They describe the order of payments from specified funds; once the amounts due at the first level are completely satisfied, then the funds flow over the waterfall to the next level, which must also be satisfied before funds can flow to the next level, and so on. The first waterfall, in subsection (a), which governs the distribution of all funds other than the funds in the Deposit L/C Loan Collateral Account, is not relevant for our analysis. The second waterfall, found in subsection (b), governs distribution of the Deposit L/C Collateral. It is a five-tier "waterfall" provision that states the funds shall be applied: first, on a pro rata basis, to the payment of all amounts due to the Deposit Letter of Credit Issuer under any of the Financing Documents, excluding amounts payable in connection with any unreimbursed amount under any Letter of Credit; second, on a pro rata basis, to the payment of all amounts due to the Deposit Letter of Credit Issuer in an amount equal to 100% of the Unpaid Drawings under any Deposit Letter of Credit; third, on a pro rata basis, to any Secured Party which has theretofore advanced or paid any fees to the Deposit Letter of Credit Issuer, other than any amounts covered by priority second, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been previously reimbursed; fourth, on a pro rata basis, to the payment of all other Deposit L/C Obligations; and last, the balance, if any, after all of the Deposit L/C Obligations have been indefeasibly paid in full in cash, as set forth above in Section 4.1(a). 7 9 of 21 Case: 17-1958 Document: 003113028191 Page: 8 Date Filed: 09/07/2018 Intercreditor Agreement § 4.1(b) (emphases in original). In simple language, financing fees owed to the Deposit Letter of Credit Issuer come first; second are unreimbursed amounts on Deposit Letters of Credit already issued; third are any Lender's advances or payments of fees owed to the Deposit Letter of Credit Issuer by TCEH and not reimbursed; what is fourth in priority is discussed below; and, last, any remaining amounts are remitted pro rata to the general Lenders per § 4.1(a) (in effect, the waterfall covering collateral other than the Deposit L/C Collateral). Appellants claim to be owed a priority payment at the fourth level, which directs the satisfaction of "all other Deposit L/C Obligations." There are two components to the Deposit L/C Obligations. "[A]t any date of determination" these are "the aggregate Stated Amount of all outstanding Deposit Letters of Credit plus the aggregate principal amount of all Unpaid Drawings under all Deposit Letters of Credit." Credit Agreement § 1.1 (emphasis in original). As the Stated Amount includes "the maximum amount from time to time available to be drawn thereunder, determined without regard to whether any conditions to drawing could then be met," id., a Deposit Letter of Credit Issuer still obligated to pay amounts that TCEH's creditors could draw under outstanding Deposit L/Cs would be derelict not to require reimbursement priority for those potential payments. Also included in the Stated Amount are, as noted in the second waterfall priority, sums on drawn Deposit Letters of Credit for which TCEH has yet to reimburse the Issuer. This second part can only be owed by TCEH to Citibank as reimbursement for any drawings under a Deposit Letter of Credit. The parties agree that Appellants cannot be 8 10 of 21 Case: 17-1958 Document: 003113028191 Page: 9 Date Filed: 09/07/2018 owed this portion of the Deposit L/C Obligations, as they never issued a Deposit Letter of Credit. Another way to think about the Deposit L/C Obligations is that they correspond to TCEH's potential liability to Citibank as the Deposit Letter of Credit Issuer. The Unpaid Drawings are the amounts currently due, and added to those amounts are the outstanding Deposit L/Cs that might later result in Unpaid Drawings. The aggregate is a changing figure that can be pinned down only at a "date of determination." D. The Credit Agreement § 3.9 Security Interests Section 3.9 of the Credit Agreement grants security for the Deposit L/C Obligations and, for that reason, may aid in construing that term. Section 3.9 begins by stating that the Deposit L/C Loan Collateral Account exists "for the purpose of cash collateralizing [TCEH]'s obligations to the Deposit Letter of Credit Issuer in respect of the Deposit Letters of Credit." Next, the Collateral Agent (i.e., Citibank in that capacity) is granted two security interests in the Account. The first is "for the benefit of all Deposit Letter of Credit Issuers. . . as security for the Deposit L/C Obligations[.]" The second security interest is "in addition. . . for the benefit of the Secured Parties as collateral security for the Obligations." The second interest is a catch-all. Per the definitional section, "Obligations" refers to every obligation stemming from the credit documents, and "Secured Parties" includes, among others, the Lenders in the loan transactions. The second grant, therefore, secures everything (including the Deposit L/C Obligations) owed under the credit documents. 9 11 of 21 Case: 17-1958 Document: 003113028191 Page: 10 Date Filed: 09/07/2018 The second security interest is qualified by a tiered repayment priority that preserves the primacy of Citibank's rights to the Deposit L/C Collateral Account; the "amounts on deposit" in the Account must first be used to repay Deposit L/C Obligations "in respect of Citibank Deposit Letters of Credit." Next, the funds can go toward the Deposit L/C Obligations in respect of "all other Deposit Letters of Credit." Finally, the amounts can be used "to repay all other Obligations." 1 Funds in the Account can be remitted to TCEH only "after the termination or cancellation of all Deposit Letters of Credit and the repayment in full of all outstanding Deposit L/C Loans [known also as the Deposit Letter of Credit Facility] and Deposit L/C Obligations." Id. 2 E. The Bankruptcy Court's Decision Appellants filed a complaint in the Bankruptcy Court seeking a declaration that they had priority rights to the undrawn Deposit L/C Collateral, and the Defendants- Appellees responded with a motion to dismiss. As noted in more detail below, the Bankruptcy Court previously held that the conditions precedent to the 4.1 waterfall's applicability were not satisfied. It followed this holding in our case. In re Energy Future Holdings Corp., 548 B.R. 79, 90 (Bankr. D. Del. 2016). As a result, it explained, the Bankruptcy Code, Court orders, and the plan of reorganization governed the distribution of the Deposit L/C Collateral. Id. 1 There is also a repayment priority applicable to accounts set up to facilitate the addition of Deposit Letter of Credit Issuers other than Citibank. As noted, no other issuer signed up. 2 The parties mention in passing other provisions of the credit documents to support their positions, but no one appears particularly relevant to our decision. 10 12 of 21 Case: 17-1958 Document: 003113028191 Page: 11 Date Filed: 09/07/2018 Alternatively, the Court determined that the plain language of the Intercreditor Agreement does not give Appellants any payment priority. It reasoned that the fourth level of the 4.1(b) waterfall was a catch-all designed to protect the Deposit L/C Issuer and that the Deposit L/C Obligations included only the obligations related to Deposit Letters of Credit despite the definition's failure to identify a payee expressly. Id. at 93–94. F. The District Court's Decision The District Court affirmed. Unlike the Bankruptcy Court, the District Court, on request of the parties, did not consider whether the conditions precedent to distribution under the § 4.1 waterfall had been met. (Appellants ask that we also avoid this issue, and we will oblige. 3) Rather, the Court focused on whether, assuming the § 4.1 waterfall 3 This bankruptcy set of cases has spun off many other opinions. There are inevitably some overlapping issues—the question of whether the § 4.1 waterfall is inapplicable is one of these. In two opinions in a case between different parties than those before us, the Bankruptcy Court ruled on that issue. See Delaware Trust Co. v. Wilmington Trust, N.A. (In re Energy Futures Holdings Corp.), 546 B.R. 566, 578-84 (Bankr. D. Del. 2016); Delaware Trust Co. v. Wilmington Trust, N.A. (In re Energy Futures Holdings Corp.), 566 B.R. 669, 683-88 (Bankr. D. Del. 2017). We understand its ruling has been appealed to our Circuit, but briefing is in the early stages. As noted, the parties asked the District Court to rule only on the question of whether the Deposit L/C Lenders had a priority interest in the Deposit L/C Collateral. JA16. It obliged and read "the mechanics of the Section 4.1(b) Waterfall to parallel the mechanics of [S]ection 3.9 [of the Credit Agreement]." JA28. On appeal, Appellants neither included the question of the waterfall's applicability in their statement of issues nor addressed the merits of that issue in their Opening Brief. See also Appellants' Br. at 6 n.3. In Appellees' Brief, however, they resurrected the issue, arguing that we can alternatively affirm on the basis that the § 4.1 waterfall was inapplicable. Appellees' Br. at 3-4, 41-43. As did the District Court, we do not consider the issue of § 4.1's applicability. See Goldenstein v. Repossessors Inc., 815 F.3d 142, 149 (3d Cir. 2016) ("a federal appellate court does not consider an issue not passed upon below" (citing Singleton v. Wulff, 428 U.S. 106, 120 (1976)). The parties appear to be on the same page, as but for a passing 11 13 of 21 Case: 17-1958 Document: 003113028191 Page: 12 Date Filed: 09/07/2018 applied, the Deposit L/C Lenders had a priority interest in the Deposit L/C Collateral. In that context, it relied on § 3.9 of the Credit Agreement, which distinguishes between Deposit L/C Obligations and Obligations. That section mandates that the Deposit L/C Collateral be used first to satisfy Deposit L/C Obligations associated with Citibank's Deposit Letters of Credit. Second, the Deposit L/C Collateral must be used to satisfy Deposit L/C Obligations associated with all other Deposit Letters of Credit, i.e., Deposit L/C Obligations owed to other Deposit L/C Issuers (of which there were none). Any remaining Deposit L/C Collateral would go to repay all other Obligations. The District Court reasoned that, because all Deposit L/C Obligations are satisfied under the first two steps of § 3.9, and because neither of those provisions refer to Deposit L/C Lenders, they are only owed Obligations, not Deposit L/C Obligations. With this in mind, the Court surveyed the rest of the relevant provisions in the credit documents and determined that none altered this understanding. II. Jurisdiction, Standard of Review, and Applicable Law We have jurisdiction under 28 U.S.C. §§ 158(d)(1) and 1291. Our review of the District Court's decision to grant a motion to dismiss, which involved legal questions of contract interpretation, is anew. See United States v. Hardwick, 544 F.3d 565, 570 (3d Cir. 2008). New York law governs the contracts before us. Intercreditor Agreement § 9.10. Under it, where the contract provisions at issue are ambiguous, a motion to dismiss comment of Appellants' counsel, no one raised the issue of § 4.1's applicability at oral argument. Thus we assume it applies and address the merits. 12 14 of 21 Case: 17-1958 Document: 003113028191 Page: 13 Date Filed: 09/07/2018 must be denied. Serdarevic v. Centex Homes, LLC, 760 F. Supp. 2d 322, 328 (S.D.N.Y. 2010). "[A] contract is ambiguous if its terms could suggest more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business." Chesapeake Energy Corp. v. Bank of New York Mellon Trust Co., N.A., 773 F.3d 110, 114 (2d Cir. 2014) (internal quotation marks omitted). III. Discussion A. Section 4.1(b) of the Intercreditor Agreement gives priority only to the Issuers The 4.1(b) waterfall, as noted, is a five-tier provision governing the distribution of the Deposit L/C Collateral. It provides for payment priority of all amounts currently owed on the drawn Deposit Letters of Credit and all amounts which might be owed on outstanding (i.e., then-undrawn) Deposit Letters of Credit. In other words, it is comprehensive. Payment of the amounts immediately due on the Deposit Letters of Credit is provided for by the first three levels of the waterfall. The Deposit L/C Collateral is applied first to the payment of all amounts due to the Deposit Letter of Credit Issuer. . ., excluding amounts payable in connection with any unreimbursed amount under any Letter of Credit. . . . Intercreditor Agreement § 4.1(b). Then to the payment of all amounts due to the Deposit Letter of Credit Issuer in an amount equal to 100% of the Unpaid Drawings under any Deposit Letter of Credit. . . . 13 15 of 21 Case: 17-1958 Document: 003113028191 Page: 14 Date Filed: 09/07/2018 Id. And third in priority is any Secured Party which has theretofore advanced or paid any fees to the Deposit Letter of Credit Issuer. . . an amount equal to the amount thereof so advanced or paid. . . . Id. The parties agree that these levels describe only TCEH's obligations to the Deposit Letter of Credit Issuer and any eligible entity that spotted fees owed to Citibank as the Issuer. Our take is that the first three priority levels describe all that TCEH then owed in relation to the Deposit Letters of Credit. They, however, do not reach contingent liability on outstanding Deposit Letters of Credit—those amounts are neither "due," "payable," "advanced," nor "paid." And there was no guarantee that every Deposit Letter of Credit would be off the table at the time (or times) the parties paid out the Deposit L/C Collateral. An outstanding Deposit Letter of Credit might have had a maturity date up to a year in the future. Though there may at the time be no "amounts due" on the Deposit L/Cs, it was almost certain to be drawn when the bankrupt TCEH failed to pay. Citibank then would be on the hook, even after the insolvency case began, for the amount owed by TCEH to a third party backed by a Deposit L/C. Without access to the Deposit L/C Collateral, Citibank would need to seek repayment from the general collateral as a general creditor. It is hard to imagine the parties did not plan to avoid this scenario, as there is little use for security that is not available in times of financial distress. Thus the fourth priority comes into play to secure with the Deposit L/C Collateral the contingent obligations on outstanding Deposit Letters of Credit. The funds, as noted, are applied "to the payment of all other Deposit L/C Obligations." Read along with the 14 16 of 21 Case: 17-1958 Document: 003113028191 Page: 15 Date Filed: 09/07/2018 definition of Deposit L/C Obligations, the fourth priority allows the payment of "all Unpaid Drawings" "at any date of determination[.]" When a drawing is later made, the amount owed to Citibank can be "determin[ed]" and paid. This security for the Deposit L/C Obligations provides continued dollar-for-dollar support while the Deposit Letter of Credit Facility winds down. The crux of Appellants' claim—that the fourth priority is redundant if it does not provide for payment to a party other than the Deposit Letter of Credit Issuer because, by the time it is reached, Citibank has been paid all the amounts either payable or outstanding—relies on their misapprehension about contingent liability being determined. As explained above, "determining" liabilities does not convert amounts that could one day be drawn on outstanding Deposit L/Cs "at any date of determination" into "amounts due" and therefore payable under the earlier priorities. The fourth priority is there to provide for those outstanding, and contingent, amounts. Section 4.1(b) sets out provisions aimed exclusively at protecting Deposit Letter of Credit Issuers. And the fourth level, where the claimed entitlement is located, seems far from "meaningless," as Appellants argue. Appellants' Br. at 36. Citibank, as the Issuer, got continued security if any of its Deposit Letters of Credit were still outstanding. The Appellants – successors to Lenders, not Issuers – do not appear to fit anywhere within this scheme. The fifth priority level remits the remaining funds to the general pool of ordinary collateral for normal distribution to all Lender parties. Appellants can collect their pro rata share there, but only after Citibank is paid any amounts owed to it as the Issuer at the fourth priority level. If, as Appellants argue, nothing is needed to pay 15 17 of 21 Case: 17-1958 Document: 003113028191 Page: 16 Date Filed: 09/07/2018 Citibank under the fourth priority level because no previously undrawn L/Cs are later drawn, so much the better, as there may be funds still in the Deposit L/C Collateral Account. But Appellants' sharing with all Lenders is pro rata, for it enjoys no payment priority over them. B. The security interests granted by § 3.9 of the Credit Agreement Section 3.9 of the Credit Agreement was dealt with in depth by the District Court. Rather than repeat here that comprehensive analysis, suffice it to say § 3.9 supports strongly that § 4.1(b) does not give priority to any party other than a Deposit Letter of Credit Issuer. Section 3.9 explains that the purpose of the Deposit L/C Loan Collateral Account is to secure TCEH's obligations to the Deposit Letter of Credit Issuers, and then it gives those Issuers a right to be paid first from the funds in the Account. All other parties, including Appellants, are given an equal right to any remaining funds as collateral for the other Obligations. Again, Appellants' sharing with all Lenders is pro rata. C. Other provisions "Admittedly, the farther afield from the key provisions of the Credit Documents one travels, the more remote are the signals as to whether Appellants' or Appellees' arguments for payment priority are correct." Appellants' Br. at 45. Appellants have scoured the credit documents searching for contrary meaning in far-flung provisions. For instance, they ask us to find an implicit structure in the nomenclature selected for the defined terms—Obligations versus Deposit L/C Obligations, and the like. But the principal action is in the sections noted above. If these highly sophisticated parties had 16 18 of 21 Case: 17-1958 Document: 003113028191 Page: 17 Date Filed: 09/07/2018 intended for Deposit L/C Collateral to be paid to the Deposit L/C Lenders, then they would have specifically said so in those operative provisions. * * * * * Our "primary objective. . . is to give effect to the intent of the parties as revealed by the language of their agreement." Chesapeake Energy Corp., 773 F.3d at 113–14. The Intercreditor Agreement § 4.1(b) waterfall requires the Deposit L/C Collateral be used first to pay off amounts due to the Deposit Letter of Credit Issuer (Citibank), then the amounts due to Secured Parties who advanced fees to the Issuer by TCEH. The remaining funds are set aside in an amount equal to the Issuer's contingent liability on outstanding Deposit Letters of Credit and remain available to reimburse the Issuer for any subsequent drawings. This is a protection for the Issuer, not the Deposit L/C Lenders. Section 3.9 of the Credit Agreement reinforces that conclusion. The judgment of the District Court is affirmed. 17 19 of 21 Case: 17-1958 Document: 003113028196 Page: 1 Date Filed: 09/07/2018 OFFICE OF THE CLERK PATRICIA S. DODSZUWEIT UNITED STATES COURT OF APPEALS TELEPHONE 21400 UNITED STATES COURTHOUSE 215-597-2995 CLERK 601 MARKET STREET PHILADELPHIA, PA 19106-1790 Website: www.ca3.uscourts.gov September 7, 2018 John A. Cerino United States District Court for the District of Delaware J. Caleb Boggs Federal Building 844 North King Street Wilmington, DE 19801 RE: In re: Energy Future Holdings Corp, et al Case Number: 17-1958 District Court Case Number: 1-16-cv-00287 Dear District Court Clerk, Enclosed herewith is the certified judgment together with copy of the opinion order in the above- captioned case(s). The certified judgment is issued in lieu of a formal mandate and is to be treated in all respects as a mandate. We release herewith the certified list in lieu of the record in the case(s). Counsel are advised of the issuance of the mandate by copy of this letter. The certified judgment or order is also enclosed showing costs taxed, if any. Very truly yours, Patricia S. Dodszuweit, Clerk By: s/Carmella Case Manager 267-299-4928 cc: Philip D. Anker, Esq. Bradley R. Aronstam, Esq. George A. Davis, Esq. Michael D. DeBaecke, Esq. 20 of 21 Case: 17-1958 Document: 003113028196 Page: 2 Date Filed: 09/07/2018 Peter M. Friedman, Esq. Mark D. Kotwick, Esq. Benjamin W. Loveland, Esq. Matthew B. McGuire, Esq. Nicholas D. Mozal, Esq. Jonathan Rosenberg, Esq. Daniel S. Shamah, Esq. George W. Shuster Jr., Esq. 21 of 21

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05/02/2017
CIVIL CASE DOCKETED. Notice filed by Appellants Marathon Asset Management LLP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund in District Court No. 1-16-cv-00287. (CLW) [Entered: 05/02/2017 12:07 PM]
05/02/2017
RECORD available on District Court CM/ECF. (CLW) [Entered: 05/02/2017 12:18 PM] (Text entry; no document attached.)
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05/09/2017
ECF FILER: ENTRY OF APPEARANCE from Peter Friedman on behalf of Appellee(s) Angelo Gordon, Apollo Advisers VII LP, Brookfield Asset Management Private Institutional Capital Advisor (Canada) LP. (PMF) [Entered: 05/09/2017 05:40 PM]
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05/17/2017
ECF FILER: ENTRY OF APPEARANCE from Matthew B. McGuire on behalf of Appellant(s) Marathon Asset Management, LP, Polygon Convertible Opportunity Master Fund, Polygon Distressed Opportunities Master Fund. (MBM) [Entered: 05/17/2017 02:55 PM]
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05/17/2017
ECF FILER: ENTRY OF APPEARANCE from Philip D. Anker on behalf of Appellant(s) Marathon Asset Management, LP; Polygon Convertable Opportunity Master Fund; and Polygon Distressed Opportunities Master Fund. (PDA) [Entered: 05/17/2017 03:46 PM]
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05/17/2017
ECF FILER: CIVIL INFORMATION STATEMENT on behalf of Appellants Marathon Asset Management LLP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund, filed. (PDA) [Entered: 05/17/2017 04:09 PM]
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05/17/2017
ECF FILER: DISCLOSURE STATEMENT on behalf of Appellants Marathon Asset Management LLP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund, filed. (PDA) [Entered: 05/17/2017 04:29 PM]
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05/17/2017
ECF FILER: ENTRY OF APPEARANCE from Daniel Shamah on behalf of Appellee(s) Angelo Gordon, Apollo Advisers VII LLP, Brookfield Asset Management Private Institutional Capital Advisor (Canada) LP. (DSS) [Entered: 05/17/2017 04:35 PM]
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05/17/2017
ECF FILER: Concise Summary of the Case filed by Appellants Marathon Asset Management LLP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund, received. (PDA) [Entered: 05/17/2017 05:11 PM]
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05/17/2017
ECF FILER: Transcript Purchase Order Form (Part 1) filed by Appellants Marathon Asset Management LLP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund advising this court that transcripts are already on file in the District Court. (PDA) [Entered: 05/17/2017 05:33 PM]
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05/17/2017
ECF FILER: ENTRY OF APPEARANCE from Bradley R. Aronstam on behalf of Appellee(s) Angelo Gordon & Co., LP, Apollo Advisors VII, L.P., and Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P. (BRA) [Entered: 05/17/2017 05:50 PM]
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05/17/2017
ECF FILER: ENTRY OF APPEARANCE from Benjamin J. Schladweiler on behalf of Appellee(s) Angelo Gordon & Co., LP, Apollo Advisors VII, L.P., and Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P. (BJS) [Entered: 05/17/2017 05:53 PM]
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05/17/2017
ECF FILER: ENTRY OF APPEARANCE from Nicholas D. Mozal on behalf of Appellee(s) Angelo Gordon & Co., LP, Apollo Advisors VII, L.P., and Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P. (NDM) [Entered: 05/17/2017 05:55 PM]
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05/17/2017
ECF FILER: DISCLOSURE STATEMENT on behalf of Appellees Angelo Gordon & Co, Apollo Advisors VII LP and Brookfield Asset Management Private Institutional Capital Advisor Canada LP, filed. (BRA) [Entered: 05/17/2017 05:57 PM]
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05/18/2017
FOLLOW UP LETTER to Michael D. DeBaecke, Esq. for Wilmington Trust NA requesting the following document(s): Appearance Form on or before 06/01/2017. Disclosure Statement on or before 06/01/2017. (CLW) [Entered: 05/18/2017 11:38 AM]
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05/19/2017
ECF FILER: ENTRY OF APPEARANCE from George Davis on behalf of Appellee(s) Angelo Gordon, Apollo Advisers VII LP, BROOKFIELD ASSET MANAGEMENT PRIVATE INSTITUTIONAL CAPITAL ADVISOR (CANADA) LP. (GAD) [Entered: 05/19/2017 11:03 AM]
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05/19/2017
ECF FILER: ENTRY OF APPEARANCE from Michael D. DeBaecke on behalf of Appellee(s) Wilmington Trust, National Association, as First Lien Collateral Agent and First Lien Administrative Agent. (MDD) [Entered: 05/19/2017 11:05 AM]
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05/19/2017
ECF FILER: DISCLOSURE STATEMENT on behalf of Appellee Wilmington Trust NA, filed. (MDD) [Entered: 05/19/2017 11:07 AM]
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05/24/2017
BRIEFING NOTICE ISSUED. Brief on behalf of Appellants Marathon Asset Management LP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund due on or before 07/03/2017. Appendix due on or before 07/03/2017. (CLW) [Entered: 05/24/2017 12:27 PM]
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05/26/2017
ECF FILER: ENTRY OF APPEARANCE from Michael Guippone on behalf of Appellant(s) Marathon Asset Management LP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund. (MAG) [Entered: 05/26/2017 02:23 PM]
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05/26/2017
ECF FILER: ENTRY OF APPEARANCE from Benjamin Loveland on behalf of Appellant(s) Marathon Asset Management LP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund. (BWL) [Entered: 05/26/2017 02:33 PM]
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05/31/2017
ECF FILER: ENTRY OF APPEARANCE from Jonathan Rosenberg on behalf of Appellee(s) Angelo Gordon, Apollo Advisers VII LP, BROOKFIELD ASSET MANAGEMENT PRIVATE INSTITUTIONAL CAPITAL ADVISOR (CANADA) LP. (JR) [Entered: 05/31/2017 09:54 PM]
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06/12/2017
ECF FILER: ENTRY OF APPEARANCE from Mark D. Kotwick on behalf of Appellee(s) Wilmington Trust, National Association, as First Lien Collateral Agent and First Lien Administrative Agent. (MDD) [Entered: 06/12/2017 11:45 AM]
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06/30/2017
ECF FILER: ELECTRONIC BRIEF on behalf of Appellants Marathon Asset Management LP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund, filed. Certificate of Service dated 06/30/2017 by ECF. (PDA) [Entered: 06/30/2017 06:43 PM]
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06/30/2017
ECF FILER: ELECTRONIC JOINT APPENDIX on behalf of Appellants Marathon Asset Management LP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund, filed. Certificate of service dated 06/30/2017 by ECF. (PDA) [Entered: 06/30/2017 06:48 PM]
07/03/2017
HARD COPY RECEIVED from Appellants Marathon Asset Management LP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund - Brief with Volume I of Appendix attached. Copies: 7. (SJB) [Entered: 07/03/2017 10:03 AM] (Text entry; no document attached.)
07/03/2017
HARD COPY RECEIVED from Appellants Marathon Asset Management LP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund - Joint Appendix. Copies: 4. Volumes: 3 (Volume I attached to Brief). (MCW) [Entered: 07/07/2017 05:17 PM] (Text entry; no document attached.)
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07/07/2017
ECF FILER: JOINT Motion filed by Appellees Angelo Gordon & Co, Apollo Advisors VII LP and Brookfield Asset Management Private Institutional Capital Advisor Canada LP for Extension of Time to file (i) Appellees Answering Brief to August 31, 2017; and (ii) Appellants Reply Brief to September 29, 2017 until/for 30 days. Certificate of Service dated 07/07/2017. Service made by ECF. (BRA) [Entered: 07/07/2017 05:03 PM]
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07/12/2017
ECF FILER: ENTRY OF APPEARANCE from George W. Shuster, Jr on behalf of Appellant(s) Marathon Asset Management, LP; Polygon Convertible Opportunity Master Fund; and Polygon Distressed Opportunities Master Fund. (GWS) [Entered: 07/12/2017 10:25 AM]
07/13/2017
TEXT ONLY ORDER (Clerk) denying as presented the joint motion for extension of time to file Appellees' brief and Appellants' reply brief filed by Appellees Angelo Gordon & Co, Apollo Advisors VII LP, Brookfield Asset Management Private Institutional Capital Advisor Canada LP, and Appellants Marathon Asset Management LP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund. The extension of time for filing Appellees' briefs will also be applied to Appellee Wilmington Trust NA in this instance only. The briefs of all Appellees must be filed and served on or before August 31, 2017. Appellant's reply brief, if any, must be filed and served within thirty (30) days of the date of service of the last Appellees' brief. Counsel is advised to review the Court's Notice of October 15, 2012 advising that extensions of time are disfavored. Pursuant to 3d Cir. L.A.R. 31.4, only one motion for extension of time to file a reply brief may be granted, filed.--[Edited 07/13/2017 by ARR to correct clerical error.] (ARR) [Entered: 07/13/2017 12:49 PM] (Text entry; no document attached.)
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08/31/2017
ECF FILER: ELECTRONIC BRIEF on behalf of Appellees Angelo Gordon & Co, Apollo Advisors VII LP and Brookfield Asset Management Private Institutional Capital Advisor Canada LP, filed. Certificate of Service dated 08/31/2017 by ECF. (BRA) [Entered: 08/31/2017 03:45 PM]
09/01/2017
HARD COPY RECEIVED from Appellees Angelo Gordon & Co, Apollo Advisors VII LP, Brookfield Asset Management Private Institutional Capital Advisor Canada LP and Wilmington Trust NA - Brief. Copies: 7. (RM) [Entered: 09/01/2017 12:00 PM] (Text entry; no document attached.)
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09/25/2017
Calendared for Wednesday, 11/15/17. (Rescheduled from Friday, 11/17/2017). Calendar Clerk: CMH.--[Edited 10/13/2017 by CMH] (CMH) [Entered: 09/25/2017 10:22 AM]
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10/02/2017
ECF FILER: ARGUMENT ACKNOWLEDGMENT filed by Attorney Benjamin J. Schladweiler, Esq. for Appellees Angelo Gordon & Co, Apollo Advisors VII LP and Brookfield Asset Management Private Institutional Capital Advisor Canada LP. Certificate of Service dated 10/02/2017. Service made by ECF. (BJS) [Entered: 10/02/2017 12:04 PM]
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10/02/2017
ECF FILER: ARGUMENT ACKNOWLEDGMENT filed by Attorney George W. Shuster, Jr., Esq. for Appellants Marathon Asset Management LP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund. Certificate of Service dated 10/02/2017. Service made by ECF. (GWS) [Entered: 10/02/2017 12:33 PM]
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10/02/2017
ECF FILER: ELECTRONIC REPLY BRIEF on behalf of Appellants Marathon Asset Management LP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund, filed. Certificate of Service dated 10/02/2017 by ECF. (GWS) [Entered: 10/02/2017 12:38 PM]
10/03/2017
HARD COPY RECEIVED from Appellants Marathon Asset Management LP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund - Reply Brief. Copies: 7. (KEL) [Entered: 10/03/2017 11:27 AM] (Text entry; no document attached.)
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10/10/2017
ECF FILER: ENTRY OF APPEARANCE from Neil B. Glassman on behalf of Amicus Curiae Delaware Trust Company, as TCEH First Lien Indenture Trustee. (NBG) [Entered: 10/10/2017 05:03 PM]
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10/10/2017
ECF FILER: Motion filed by Proposed Amicus Delaware Trust Company to proceed as Amicus Curiae in support of Appellant/Petitioner and to File Supplemental Appendix. Certificate of Service dated 10/10/2017. --[Edited 10/12/2017 by EAF - Text edited to correct party filer and to add 2nd relief] (NBG) [Entered: 10/10/2017 06:27 PM]
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10/10/2017
ECF FILER: ELECTRONIC AMICUS/INTERVENOR BRIEF on behalf of Proposed Amicus Delaware Trust Company in support of Appellant/Petitioner, filed. Certificate of Service dated 10/10/2017 by ECF. F.R.A.P. 29(a) Permission: NO. --[Edited 10/12/2017 by EAF - Text edited to include party filer] (NBG) [Entered: 10/10/2017 06:28 PM]
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10/10/2017
ECF FILER: ELECTRONIC SUPPLEMENTAL APPENDIX on behalf of Proposed Amicus Delaware Trust Company in support of Appellant/Petitioner, filed. Certificate of Service dated 10/10/2017 by ECF. F.R.A.P. 29(a) Permission: NO. --[Edited 10/12/2017 by EAF - Event and text edited] (NBG) [Entered: 10/10/2017 06:32 PM]
10/11/2017
HARD COPY RECEIVED from Proposed Amicus-Appellant Delaware Trust Co - Amicus Brief. Copies: 7. Received: 10. (RM) [Entered: 10/11/2017 01:28 PM] (Text entry; no document attached.)
10/11/2017
HARD COPY RECEIVED from Proposed Amicus-Appellant Delaware Trust Co - Supplemental Appendix. Copies: 4. Volumes: 2 (EAF) [Entered: 10/12/2017 12:28 PM] (Text entry; no document attached.)
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10/12/2017
ECF FILER: Response filed by Appellants Marathon Asset Management LP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund in Opposition to Motion to proceed as amicus/intervenor. Certificate of Service dated 10/12/2017. --[Edited 10/12/2017 by EAF - text edited] (GWS) [Entered: 10/12/2017 11:31 AM]
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10/13/2017
Oral Argument Notification for Wednesday, 11/15/2017. Courtroom & Time: Maris Courtroom/9:30 AM Location: Philadelphia, PA. (CMH) [Entered: 10/13/2017 02:52 PM]
10/18/2017
ECF FILER: SUMMARY OF ORAL ARGUMENT submitted by Attorney George W. Shuster, Jr., Esq. for Appellants Marathon Asset Management LP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund. Case Summary: This appeal concerns the rights of two sets of lenders to an account under a credit facility. The issue is whether the contracts unambiguously provide that all lenders (those who funded the account and those who did not) share equally in the account. Post Video: YES. (GWS) [Entered: 10/18/2017 02:01 PM] (Text entry; no document attached.)
10/18/2017
ECF FILER: SUMMARY OF ORAL ARGUMENT submitted by Attorney Benjamin J. Schladweiler, Esq. for Appellees Angelo Gordon & Co, Apollo Advisors VII LP and Brookfield Asset Management Private Institutional Capital Advisor Canada LP. Case Summary: Whether the Bankruptcy Court correctly dismissed the complaint, and the District Court correctly affirm, where the contracts clearly and unambiguous do not provide appellants with contractual priority they seek. Post Video: YES. (BJS) [Entered: 10/18/2017 02:16 PM] (Text entry; no document attached.)
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10/20/2017
ECF FILER: Response filed by Appellees Angelo Gordon & Co, Apollo Advisors VII LP and Brookfield Asset Management Private Institutional Capital Advisor Canada LP to Motion to proceed as amicus/intervenor. Certificate of Service dated 10/20/2017. (BRA) [Entered: 10/20/2017 02:45 PM]
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10/27/2017
ECF FILER: Reply by Proposed Amicus-Appellant Delaware Trust Co to Response to Motion to proceed as amicus/intervenor and to file supplemental appendix, filed. Certificate of Service dated 10/27/2017. Service made by ECF. --[Edited 10/31/2017 by EAF - Text edited] (NBG) [Entered: 10/27/2017 12:55 PM]
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10/30/2017
ECF FILER: Withdrawal filed by Attorney Michael A. Guippone, Esq. of Counsel for Appellants Marathon Asset Management LP, Polygon Convertible Opportunity Master Fund and Polygon Distressed Opportunities Master Fund. Certificate of Service dated 10/30/2017. Service made by ECF.--[Edited 10/30/2017 by CJG] (MAG) [Entered: 10/30/2017 01:03 PM]
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11/08/2017
CLERK'S LETTER to counsel written at the direction of the Court. The parties are hereby advised that argument on November 15, 2017 will focus only on the priority issue. (TLG) [Entered: 11/08/2017 05:34 PM]
11/09/2017
CLERK'S LETTER to counsel written at the direction of the Court. The parties are hereby advised that argument on November 15, 2017 will focus only on the priority issue. (CMH) [Entered: 11/09/2017 07:48 AM] (Text entry; no document attached.)
11/09/2017
CLERK'S OFFICE QUALITY CONTROL MESSAGE: Clerk Letter dated 11/09/17. ERROR: Duplicate letter sent CORRECTION: Letter was sent out to counsel on 11/08/17, duplicate letter will be deleted. THIS MESSAGE IS FOR INFORMATIONAL PURPOSES ONLY. (CMH) [Entered: 11/09/2017 08:37 AM] (Text entry; no document attached.)
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11/15/2017
COURT MINUTES OF ARGUED/SUBMITTED CASES. [17-1958, 17-1434, 17-1663, 16-3535] (CMH) [Entered: 11/15/2017 09:10 AM]
11/15/2017
ARGUED on Wednesday, November 15, 2017. Panel: AMBRO, KRAUSE and RENDELL, Circuit Judges. Peter M. Friedman arguing for Appellees Angelo Gordon & Co, Apollo Advisors VII LP, Brookfield Asset Management Fund Private Institutional Capital Advisor LP; George W. Shuster, Jr. arguing for Appellants Marathon Asset Management LP, Polygon Convertible Opportunity Master Fund, Polygon Distressed Opportunities Master Fund. (CMH) [Entered: 11/15/2017 12:46 PM] (Text entry; no document attached.)
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11/15/2017
CLERK'S LETTER to counsel written at the direction of the Court. The Court directed the parties to file a transcript of the oral arguments by Wednesday, November 28, 2017. Liaison counsel shall immediately advise the Clerk's office of the court reporter or agency handling the transcript of oral arguments. Parties are to split the cost of the transcripts. (CMH) [Entered: 11/15/2017 12:50 PM]
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11/28/2017
ECF FILER: Transcript of oral argument on 11/15/2017 prepared at the direction of the Court. (BJS) [Entered: 11/28/2017 11:18 AM]
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03/30/2018
ECF FILER: LETTER from Attorney Benjamin J. Schladweiler, Esq. for Appellees Angelo Gordon & Co, Apollo Advisors VII LP and Brookfield Asset Management Private Institutional Capital Advisor Canada LP Letter to the Court regarding withdrawal of Benjamin J. Schladweiler as counsel for Defendants-Appellees Angelo Gordon & Co., LP, Apollo Advisors VII, L.P. and Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P. Certificate of Service dated 03/30/2018. Service made by ECF. [17-1958] (BJS) [Entered: 03/30/2018 10:33 AM]
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08/07/2018
NOT PRECEDENTIAL OPINION Coram: AMBRO, KRAUSE and RENDELL, Circuit Judges. Total Pages: 17. Judge: AMBRO Authoring. (CLW) [Entered: 08/07/2018 10:12 AM]
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08/07/2018
JUDGMENT, Affirmed. Costs taxed against Appellant. (CLW) [Entered: 08/07/2018 10:18 AM]
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08/09/2018
ORDER (AMBRO, KRAUSE and RENDELL, Circuit Judges) The foregoing Motion filed by proposed amicus Delaware Trust Company to proceed as amicus curiae in support of Appellant/Petitioner and to file Supplemental Appendix is denied, filed. Thomas L. Ambro, Authoring Judge. (EAF) [Entered: 08/09/2018 04:59 PM]
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09/07/2018
MANDATE ISSUED, filed. (CLW) [Entered: 09/07/2018 12:14 PM]
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