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940L. By the Barclays Improper Appropriation, Barclays seized at least $48,459,635 fromPlaintiff that ENA did not owe Barclays and that Barclays was not entitled to retain.940M. The Barclays Improper Appropriation unjustly enriched Barclays at Plaintiff’sexpense. Barclays was enriched by the receipt of the Barclays Improper Appropriation, which wasa benefit to Barclays gained at Plaintiff’s expense. It would be unjust to allow Barclays to retain theBarclays Improper Appropriation. In equity and good conscience, and to prevent unjust enrichment,Barclays should disgorge the $48,459,635 to Plaintiff.940N. Accordingly, Plaintiff is entitled to judgment against Barclays in an amount to beproved at trial, but not less than $48,459,635 plus interest and attorneys’ fees.COUNT 26(Invalid and Avoidable Setoffs)941. The allegations of paragraphs 1 through 940N of this Complaint are incorporatedherein by reference.942. The Charge on Cash Agreement, and any other agreements between Barclays andPlaintiff purporting to authorize non-mutual setoff rights are invalid, unenforceable and avoidableunder applicable law, including section 553 of the Bankruptcy Code.943. Accordingly, to the extent that the Charge on Cash Agreement or any otheragreements between Barclays and Plaintiff contain provisions purporting to authorize Barclays toexercise non-mutual setoff rights, the Court should declare that these provisions are invalid andunenforceable pursuant to section 105 of the Bankruptcy Code, and any non-mutual setoffs madeby Barclays should be avoided pursuant to section 553 of the Bankruptcy Code and other applicablelaw.943A. Even assuming that the agreements Barclays relied on in its December 31, 2001 letterwere valid and enforceable, the Barclays Improper Appropriation was not accomplished in accord604041v1/007457-349-