management your honors i will be as brief as i can be if you have our papers i'm sure you've read them and you're very well for me with them i'll try not to repeat them i really just have three points i want to emphasize here today your honour's one is my client is a holder of amount left will not really be worth the candle if i may be frank and so i think the appeal be effectively mooted no words the the the the litigation that issues are involved forty six securities in total and most of those will right so that's where whether there's two things one is the moving of the appeal which is a form of repl harm as as courts have have held in the circuit your honor the other thing is that the the the litigation proceeds will be irreparably lost to my client try and will receive the benefit of the cell largely my client will will take a loss on the sale the the fact that to show a likelihood of success or that the fact just some mixed correct but i think the standard that we are under here your honor is is there a substantial question going to the merits i say that because i believe we have demonstrated irreparable harm we will lose the benefit of the litigation proceeds once these securities are sold my client will take a loss on this and will not be able to repair that loss to any any other means of recourse this extension question going to the merits your honor in this case is whether the commercially reasonable efforts reflected in the indenture must be read it to but does it discretion well your honor i think it gives him discretion it gives the club a manager discretion base of mandatory contractual language they must sell your honor i think that mandatory language does have a proviso it's it basically says that upon direction of the collateral manager the issuer shall sell the collateral manager must direct the issuer upon that must sell the collateral managers direction is imbued with his commercial reasonable judgment that it's clear into the collateral management agreement that language of commerce of your honor that's what i'm saying some discretion the fire sale that where there's been just a lot of here will have to take place that he was or price will be no ability to set a floor and that will damage my client irreparably your honor the only thing i would add is i don't think south trying to show that they would be harmed if this if this they would be as i like to i dress questions judge walker was with bringing up above and about this likelihood of success and there's no question that there's mandatory language in fact there's mandatory language that pervades every particular provision here and you have what is basically a clash or a conflict between several key provisions in the indenture it said you shall sell using commercially reasonable methods in the collateral management agreement which is integrated it says consistent under the all the obligations with respect to the collateral managers duties under both the indenture and the collateral manager management agreement the collateral manager has to exercise not only his his people behave in a commercially reasonable manner he actually has to exercise a duty of skill and attention that he would bring to his own assets and the collateral management agreement is a very specific that those that duty of skill and the exercise of commercially reasonable judgement must be applied with respect to every act it performs under both agreements and judge poly read the standard of care language in the commercially reasonable language of the agreement merely because it says you shall sell but those shall sell is subject to all the other terms and that is what we would read it out of if it's dealing with method of sale  but maybe he hasn't because that only applies to method but with all due respect the method of sale and grace is more than merely whether you posted on an internet site the be wix to get them listed for sale it's not only the manner of which subject you know commercially reasonable server sure and tri x asset management position is not that the security should not be sold but that it should be able to sell them in a manner that captures the value that's inherent of those securities for the manager person with the collateral manager proposes stalling is not hit the first time then we we try again where we can get the a better price yes your honor not that we sit idle but that we will maximize sale but there's no time limit that under those circumstances it depends on the market to some extent that's right your honor and that's consistent with the duty that's specifically set forth in the agreement that says you're supposed to maximize all management of the collateral to ensure a timely performance of police south try on your honor's all of the arguments that are being presented to this court were also presented to the district court the district court consider them thoroughly and carefully and rendered a very well reasoned euterpe determination that the contractual provisions for your term used the arguments or be presented to the wealth is the nature of our business and fair a fair enough your honor but the the district court literally spent hours with the parties arguing to it all of these arguments in great detail in the district court concluded that the contractual provisions here are straightforward and unequivocal and as the u s supreme court recognized in can that's the most of the most critical factor for the court to consider in determining whether to gran is the harm to you the harm to us your honor is it actually deprives us of the very purpose of this provision as a district court properly found a provision requiring that assets be sold within three years and including the type of mandatory language  judge chin recognize the purpose of that is to protect the senior investors from risk of deterioration in the value of the assets these assets should have been sold over a year ago and we have been working diligently to get them sold to protect ourselves against the risk of diminishing and value now because of the legal process that has been delayed a year and if the stay was granted it would be delayed into into next year which would undermine the very purpose of this provision in addition  they're betting on an increase in value well if you are anyone can look at your edging against the risk of diminution a year and they certainly cannot sit here and say that asset prices are going to be higher next year than they than they are this year that's the whole  reason why you have these sorts of provisions is because no one knows what's going to happen to these asset prices in addition as the court recognized and ellen are in judge raycroft found the fact that if these assets were sold and we would receive the cash from those sales my client should have already had the opportunity to reinvest those proceeds as it's off it in it's business as of now those proceeds are locked up in the structure and so they also are being deprived of the ability to invest those proceeds and so there are both forms of harm that the district court properly found applied to my client on the other hand the district court also properly found that any claim of harm to the appellants was speculative what they are claiming as being harm is that they are going to lose the proceeds from certain litigations and it's actually five filed litigations that they are claiming they will lose the proceeds from the response of the argument and implicit clear that there are certain ways that this sale is to occur and the provision in section twelve point one b says that the manager shall solicit bonafied bids from three approved dealers and also provides that the manager shall sell the security to the highest bidder and it also provides that all of that shall happen within three years now there are other factors related to the process for sale that the manager has discretion for example are they going to list the assets for sale between christmas and new years that would not be commercially reasonable because that would not be a time of the year when it is going to garner attention so there are some things that are allowed the manager is is given discretion to determine but it certainly is not given to strictly discretion to to undermine the steps that are you know described in mandatory terms and as the district court looked at there are permissive provisions under section twelve point one eight two so this provision says that the assets shall be sold within three years there are other provisions that say may sell if the court were to conclude that the manager upon its good discretion could just decide to not sell these assets because it thought next year the markets were going to go up as opposed to going down it would be to completely undermine and rewrite the contract in turn consistent with the structure of the contract and that's that's exactly right your honor and it would it would miss th e parties each of the parties it would turn shout into may and when the contract uses the word shall in some instances and uses the word may in other instances that should should should be respected  client is the senior holder in this structure they receive the lowest interest rate of anybody in this structure and so they have special protections it is not fair for junior holders when those protections kick in to come in and say well the manager  should have the discretion to override the very protections that work were afforded to my client thank you thank you