Pine River Master Fund Ltd.
Amur Finance Company, Inc.
Submitted: September 27, 2017
Barr Flinn, Esquire Young Conaway Stargatt & Taylor, LLP.
Garrett B. Moritz, Esquire Ross Aronstam & Moritz LLP.
your correspondence regarding confusion over the scope of the
September 13, 2017, Memorandum Opinion and Order ("the
Opinion") in which the Court addressed, inter
alia, the breach of Section 6.04 of the Credit Agreement
relating to the payment of indemnities. The confusion arises
out of the Court's less than precise definition of the
parties, especially its use of "Amur" to refer
collectively to Defendants, Amur Finance Company, Inc.
("AFC"), Amur Finance IV LLC ("Amur IV"),
Amur Aviation LLC, PMC Aviation 2012-1 LLC, and Mostafiz
ShahMohammed. This has created uncertainty as to which of the
Defendants the Court found to have breached the Credit
Agreement. Plaintiffs, Pine River Master Fund Ltd. and Pine
River Fixed Income Master Fund Ltd. (collectively, "Pine
River"), argue that the Court must have intended to find
both Amur IV and AFC in breach; Defendants argue that the
finding of breach should extend only to AFC.
II of the original Complaint (upon which Pine River sought
partial summary judgment) refers only to the conduct of
Nevertheless, Pine River argued in its motion for summary
judgment as to Counts II and VI that both AFC and Amur IV
breached Section 6.04. In the Introduction of their Corrected
Brief in Opposition to Plaintiffs' Motion for Summary
Judgment and Opening Brief in Support of Defendants'
Cross-Motion for Summary Judgment, Defendants appear to
acquiesce in the notion that the Court could find Amur IV in
breach of Section 6.04. Specifically, they state "there
was no breach of section 6.04 of the Credit Agreement (or any
other section) when Amur IV satisfied AFC's indemnities
for legal expenses." They reiterate this point later in that
brief when they argue "[t]he contract was not breached
when Amur IV satisfied AFC's indemnities related to legal
fees incurred in connection with the
the confusion in the briefing and Opinion, it is clear to me
that the claim in Count II, as to which Pine River sought
summary judgment, was a claim of breach directed against AFC,
not AFC and Amur IV. Pine River's Amended Complaint added
allegations against Amur IV with respect to Section 6.04,
the Court was advised in clear terms by the parties, in
response to the Court's inquiry, that the Amended
Complaint did not affect the claims or arguments to be
addressed in the pending motion for summary
judgment. Based on the foregoing, I can clarify that
the Court's finding of breach of Section 6.04, and its
grant of partial summary judgment in favor of Pine River, was
directed at AFC only.
event, even if the Court were to determine that Count II did
or should have included a claim of breach of Section 6.04
against Amur IV,  the Court's determination that no
Event of Default occurred, at least as argued in the motion
for summary judgment, would not be affected. Regardless of
which of the Amur parties were (or could be) found to have
breached Section 6.04, the fact would remain, at least in the
Court's view, that the improper payment of expenses or
indemnities did not constitute a diversion of Borrower funds
from paying Interest in violation of Sections 7.01(a) or (b).
on the foregoing, the Court will enter the proposed
implementing order submitted by Amur.
R. Slights III.
 I confess that the Court did not focus
in the Opinion on the distinction between AFC and Amur IV, as
it did not appear in the briefs that the parties were
focusing on that distinction, at least as to Section 6.04.
See, e.g., Pls.' Br. in Supp. of Mot. for Summ.
J. at 4 ("[D]efendants still breached Section 6.04 by
taking distributions from the Collections Account in February
2017."); Defs.' Br. in Opp'n of Mot. for Summ.
J. at 29 ("Amur was left with no choice but to calculate
the monthly distributions itself, using the calculation
methodologies negotiated with Pine River and used by Amur
consistently over the prior three-plus years.");
id. at 29 ("Amur determined the monthly
distribution itself, and Amur IV made the necessary February
2017 payments . . ."); id. at 34
("Indemnification of Amur's legal expenses related
to the Operative Agreements and the Loans is clear on the
face of the Credit Agreement."); id. at 44
(Pine River also argues that the February 2017 payment made
by Amur IV to satisfy AFC's indemnities was in breach of
the Credit Agreement because it was made pursuant to an
alleged 'Administrator Report' that Amur prepared
when it was no longer serving as Administrative
Agent."); id. at 47 ("Amur's failure
to pay Pine River PIK Accrual would only constitute a breach
. . . if PIK was 'due and payable, ' which it was not
. . ."); ...