Footnote 8

with the parties’ contracts in that it was based on a miscalculation of more than $48 million inBarclays’ favor. The appropriation was therefore improper and invalid, and should be declared assuch and avoided pursuant to section 553 of the Bankruptcy Code and other applicable law.COUNT 27(Avoidable Setoffs Resulting in Improvement in Position)944. The allegations of paragraphs 1 through 943A of this Complaint are incorporatedherein by reference.945. In the alternative to Counts 24 and 25, as of ninety (90) days prior to the PetitionDate, and at all relevant times prior to and including the Petition Date, Barclays was a creditor ofPlaintiff. Barclays has asserted that, at certain times within ninety (90) days of the Petition Date,it held claims against Plaintiff.946. Within ninety (90) days prior to the Petition Date, on one or more occasions Barclaysset off funds it held that were property of Plaintiff, against claims it asserts it held against Plaintiff(the “Barclays Setoffs”).947. At all times on and during the ninety (90) days immediately preceding the PetitionDate, Plaintiff was insolvent for purposes of section 553(c) of the Bankruptcy Code.948. Barclays improved its position by effecting the Barclays Setoffs because the amountof the insufficiency immediately after the Barclays Setoffs was less than the insufficiency on thelater of ninety (90) days prior to the Petition Date and the first date during the ninety (90) daysimmediately preceding the Petition Date on which there was an insufficiency. For purposes of thisCount, insufficiency means the amount by which any claims asserted by Barclays exceeded anymutual debt owing to Plaintiff by Barclays.604041v1/007457-350-