Marblegate Asset Management, LLC v. Education Management Finance Corp.

Defendant-appellant Education Management Corporation (“EDMC”) and its subsidiaries appeal from a judgment following a bench trial before the United States District Court for the Southern District of New York (Failla, J.). The District Court held that a series of transactions meant to restructure EDMC’s debt over the objections of certain noteholders violated Section 316(b) of the Trust Indenture Act of 1939, 15 U.S.C. § 77ppp(b). The transactions at issue, the District Court determined, stripped the non-consenting note-holders, plaintiffs-appellees Marblegate Asset Management, LLC and Marblegate Special Opportunity Master Fund, L.P. (together, “Marblegate”), of their practical ability to collect payment on notes pur*3chased from EDMC’s subsidiaries. As a result, the District Court ordered EDMC to continue to guarantee Marblegate’s notes and pay them in full.

On appeal, EDMC argues that it complied with Section 316(b) because the transactions did not formally amend the payment terms of the indenture that governed the notes. We agree with EDMC and conclude that Section 316(b) prohibits only non-consensual amendments to an indenture’s core payment terms. We therefore VACATE the judgment and REMAND to the District Court for further proceedings consistent with this opinion.

BACKGROUND

1. Facts

EDMC is a for-profit higher education company that relies heavily on federal funding through Title IV of the Higher Education Act of 1965, 20 U.S.C. §§ 1070-1099. EDMC is the parent company of defendants-appellants Education Management, LLC and Education Management Finance Corporation (together, the “EDM Issuer”).

In 2014 EDMC found itself in severe financial distress. Its enterprise value had fallen well below its $1.5 billion in outstanding debt. But restructuring its debt by resorting to bankruptcy court was not a realistic option for EDMC, which, the parties agree, would lose its eligibility for Title IV funds if it filed for bankruptcy and discontinued as an ongoing concern. See 20 U.S.C. § 1002(a)(4)(A).1 EDMC therefore had to cooperate with its creditors outside of the bankruptcy process if it hoped to restructure its debt and persist as a viable entity.

EDMC’s outstanding debt consisted of both secured debt (roughly $1.3 billion) and unsecured debt ($217 million). The secured debt was governed by a 2010 credit agreement between the EDM Issuer and secured creditors (the “2010 Credit Agreement”). The 2010 Credit Agreement gave EDMC’s secured creditors the right, upon default, to deal with the collateral securing the loans “fully and completely” as the “absolute owner” for “all purposes.” The collateral securing the debt consisted of virtually all of EDMC’s assets.

The unsecured debt, to which we will refer as the “Notes,” was also issued by the EDM Issuer and governed by an indenture executed in March 2013 and qualified under the Trust Indenture Act of 1939 (the “Indenture”). The Notes were guaranteed by EDMC as the parent company of the EDM Issuer (we refer to this guarantee as the “Notes Parent Guarantee”) and carried a high effective interest rate— nearly 20 percent per year—to compensate for the riskier nature of the unsecured debt. Both the Indenture and the offering circular relating to the Notes informed lenders who had purchased them (the “Noteholders”) about their rights and obligations as junior, unsecured creditors. For example, the offering circular explained that the Notes Parent Guarantee was issued solely to satisfy EDMC’s reporting obligations, that it could be released solely by operation of the release of any later guarantee EDMC issued to secured creditors, and that Noteholders should therefore not assign any value to the Notes Parent Guarantee. Marblegate holds Notes *4with a face value of $14 million but never held any secured debt.

As EDMC’s financial position deteriorated, its debt burden became unsustainable. After negotiating with EDMC, a majority of secured creditors agreed in September 2014 to relieve the EDM Issuer of certain imminent payment obligations and covenants under the 2010 Credit Agreement. The resulting agreement was a new amended credit agreement entered in the fall of 2014 (the “2014 Credit Agreement”). As consideration for these changes, EDMC agreed to guarantee the secured loans (the “Secured Parent Guarantee”).

Around the same time, a group of creditors formed an Ad Hoc Committee of Term Loan Lenders (the “Ad Hoc Committee”) and established a Steering Committee, which is an intervenor-appellant in this appeal, to negotiate with EDMC.2 The Steering Committee and EDMC eventually devised two potential avenues to relieve EDMC of its debt obligations.

The first option, which obtained only if creditors unanimously consented, was designed to result in (1) most of EDMC’s outstanding secured debt being exchanged for $400 million in new secured term loans and new stock convertible into roughly 77 percent of EDMC’s common stock, and (2) the Notes being exchanged for equity worth roughly 19 percent of EDMC’s common stock. EDMC estimated that this first option would amount to roughly a 45 percent reduction in value for secured lenders and a 67 percent reduction in value for Noteholders.

The second option would arise only if one or more creditors refused to consent. Under that circumstance, a number of events would occur that together constituted the “Intercompany Sale.” Secured creditors consenting to the Intercompany Sale would first exercise their preexisting rights under the 2014 Credit Agreement and Article 9 of the Uniform Commercial Code (UCC) to foreclose on EDMC’s assets. In addition, the secured creditors would release EDMC from the Secured Parent Guarantee. That release in turn would effect a release of the Notes Parent Guarantee under the Indenture. With the consent of the secured creditors (but without needing the consent of the unsecured creditors), the collateral agent would then sell the foreclosed assets to a subsidiary of EDMC newly constituted for purposes of the Intercompany Sale. Finally, the new EDMC subsidiary would distribute debt and equity only to consenting creditors and continue the business.

The Intercompany Sale was structured to incentivize creditors to consent. While non-consenting secured creditors would still receive debt in the new EDMC subsidiary, that debt would be junior to the debt of consenting secured creditors. Non-consenting Noteholders would not receive anything from the new company: though not a single term of the Indenture was altered and Noteholders therefore retained a contractual right to collect payments due under the Notes, the foreclosure would transform the EDM Issuer into an empty shell. In offering to exchange the Notes for equity in the new EDMC subsidiary, therefore, EDMC and the Ad Hoc Committee explicitly warned Noteholders that they would not receive payment if they did not consent to the Intercompany Sale.

Except for Marblegate, all of EDMC’s creditors (representing 98 percent of its debt) eventually consented to the Inter-company Sale.

*52. Procedural History

Marblegate, the sole holdout, sued to enjoin the Intercompany Sale on the ground that it violated Section 816(b) of the Trust Indenture Act of 1939 (the “TIA”), 15 U.S.C. § 77ppp(b). Marblegate Asset Mgmt. v. Educ. Mgmt. Corp., 75 F.Supp.3d 592 (S.D.N.Y. 2014) (“Marble-gate I”). Section 316(b) of the TIA, entitled “Prohibition of impairment of holder’s right to payment,” provides as follows:

Notwithstanding any other provision of the indenture to be qualified, the right of any holder of any indenture security to receive payment of the principal of and interest on such indenture security, on or after the respective due dates expressed in such indenture security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such holder, except as to a postponement of an interest payment consented to as provided in paragraph (2) of subsection (a) of this section, and except that such indenture may contain provisions limiting or denying the right of any such holder to institute any such suit, if and to the extent that the institution or prosecution thereof or the entry of judgment therein would, under applicable law, result in the surrender, impairment, waiver, or loss of the lien of such indenture upon any property subject to such lien.

15 U.S.C. § 77ppp(b) (emphasis added).

Before the District Court, EDMC argued that “the right ... to receive payment” is necessarily defined by the payment terms in the Indenture itself, such that Section 316(b) prohibits only non-consensual amendments to an indenture’s core payment terms. Therefore, EDMC asserted, the Intercompany Sale complied with Section 316(b) because it did not amend any Indenture term and because Marble-gate’s right to initiate suit against the EDM Issuer to collect payment remained intact.

In response, Marblegate contended that although the contractual terms governing Marblegate’s Notes had not changed, its practical ability to receive payment would be completely eliminated by virtue of the Intercompany Sale, to which it did not consent. Section 316(b), Marblegate warned, would be rendered meaningless if issuers and secured creditors could collaborate to restructure debt without formally amending any payment terms.

The District Court initially declined to grant a preliminary injunction but believed that Marblegate was likely to succeed on the merits of its TIA claim. Marblegate I, 75 F.Supp.3d at 615-17. After reviewing the text and legislative history of Section 316(b), the District Court concluded that the TIA “protects the ability” of the Note-holders “to receive payment in some circumstances.” Id. at 612-15. Even where the payment terms of an indenture are not explicitly modified by a transaction, the District Court held, Section 316(b) is violated whenever a transaction “effect[s] an involuntary debt restructuring.” Id. at 614.

The Intercompany Sale occurred in January 2015. The foreclosure sale took place, the secured creditors released the Secured Parent Guarantee, the new EDMC subsidiary was capitalized with the EDM Issuer’s old assets, and consenting bondholders participated in the debt-for-equity exchange. But Marblegate continued to hold out. And in light of the District Court’s decision, EDMC and the Steering Committee refrained from releasing the Notes Parent Guarantee. Instead, they filed a counterclaim against Marblegate, seeking a declaration that the Notes Parent Guarantee could be released without violating the TIA.

*6Since the bulk of the Intercompany Sale was already completed, the subsequent bench trial focused on whether the District Court should permanently enjoin release of the Notes Parent Guarantee and thereby force EDMC to continue its guaranteed payment on Marblegate’s Notes. On that question, the District Court ultimately sided with Marblegate by reiterating that the release of the Notes Parent Guarantee would violate Section 316(b). Marblegate Asset Mgmt., LLC v. Educ. Mgmt. Corp., 111 F.Supp.3d 542, 556-57 (S.D.N.Y. 2015) (“Marblegate II”).

This appeal followed. At present, because EDMC was able to reduce its debt burden through the very transaction to which Marblegate objected, it currently has the assets to pay on Marblegate’s Notes. Marblegate, as the owner of Notes that had been poised to receive only limited additional payments because of EDMC’s pending insolvency, is now the only creditor receiving full payouts according to the original face value of its Notes.

DISCUSSION

EDMC appeals the judgment on the ground that the District Court misinterpreted Section 316(b) of the TIA. We review the District Court’s conclusions of law de novo. See Process Am., Inc, v. Cynergy Holdings, LLC, 839 F.3d 125, 141 (2d Cir. 2016).

To determine whether the release of the Notes Parent Guarantee would violate Section 316(b) of the TIA, we start first with the text of that provision. See N.Y. State Psychiatric Ass’n, Inc, v. UnitedHealth Grp., 798 F.3d 125, 132 (2d Cir.), cert. denied sub nom. UnitedHealth Grp., Inc. v. Denbo, — U.S.-, 136 S.Ct. 506, 193 L.Ed.2d 397 (2015). If resorting to the plain text alone fails to resolve the question, we test the competing interpretations - against both the statutory structure of the TIA and the legislative purpose and history of Section 316(b). See United States v. Epskamp, 832 F.3d 154, 162-66 (2d Cir. 2016); Doe v. Cuomo, 755 F.3d 105, 110 (2d Cir. 2014).

1. Text

The core disagreement in this case is whether the phrase “right ... to receive payment” forecloses more than formal amendments to payment terms that eliminate the right to sue for payment. 15 U.S.C. § 77ppp(b). We agree with the District Court that the text of Section 316(b) is ambiguous insofar as it “lends itself to multiple interpretations” that arguably favor either side on that issue. Marblegate I, 75 F.Supp.3d at 611; see also Marblegate II, 111 F.Supp.3d at 547. Likewise, Mar-blegate conceded at oral argument that the interpretation it advances is not supported by reference to the plain text alone. See Oral Tr. 44:21-45:1.

On the one hand, Congress’s use of the term “right” to describe what it sought to protect from non-consensual amendment suggests a concern with the legally enforceable obligation to pay that is contained in the Indenture, not with a creditor’s practical ability to collect on payments. Cf. F.C.C. v. NextWave Pers. Commc’ns Inc., 537 U.S. 293, 302-03, 123 S.Ct. 832, 154 L.Ed.2d 863 (2003) (“[T]he plain meaning of a ‘right to payment’ is nothing more nor less than an enforceable obligation.... ” (quotation marks omitted)); Dennis v. Higgins, 498 U.S. 439, 447 n.7, 111 S.Ct. 865, 112 L.Ed.2d 969 (1991) (defining “right” as “[a] legally enforceable claim of one person against another, that the other shall do a given act, or shall not do a given act”) (quoting Black’s Law Dictionary 1324 (6th ed. 1990)). On the other hand, adding that such a right cannot be “impaired or affected” arguably suggests that it cannot *7be diminished, relaxed, or “otherwise affected] in an injurious manner.” See Humana Inc. v. Forsyth, 525 U.S. 299, 309-10, 119 S.Ct. 710, 142 L.Ed.2d 753 (1999) (quoting Black’s Law Dictionary 752 (6th ed. 1990)).

To be sure, Marblegate’s broad reading of the term “right” as including the practical ability to collect payment leads to both improbable results and interpretive problems. Among other things, interpreting “impaired or affected” to mean any possible effect would transform a single provision of the TIA into a broad prohibition on any conduct that could influence the value of a note or a bondholder’s practical ability to collect payment. 15 U.S.C. § 77ppp(b). Furthermore, if the “right ... to receive payment” means a bondholder’s practical ability to collect payment, then protecting the “right ... to institute suit for the enforcement of any such payment” would be superfluous, because limiting the right to file a lawsuit for payment constitutes one of the most obvious impairments of the creditor’s practical ability to collect payment. Id. The “right ... to receive payment” is not, in other words, so broad as to encompass the “right ... to institute suit.” Id. If for no other reason than the “general rule” that different statutory phrases “can indicate that different meanings were intended,” Sebelius v. Auburn Reg'l Med. Ctr., — U.S. -, 133 S.Ct. 817, 825, 184 L.Ed.2d 627 (2013) (quotation marks omitted), these two rights are best viewed as distinct from one another. The former right, it seems to us, prohibits non-consensual amendments of core payment terms (that is, the amount of principal and interest owed, and the date of maturity). It bars, for example, so-called “collective-action clauses”—indenture provisions that authorize a majority of bondholders to approve changes to payment terms and force those changes on all bondholders. See NML Capital, Ltd. v. Republic of Argentina, 699 F.3d 246, 253 (2d Cir. 2012). The latter right (to sue) ensures that individual bondholders can freely sue to collect payments owed under the indenture. So construed, the right to sue clearly bars so-called “no-action clauses,” which preclude individual bondholders from suing the issuer for breaches of the indenture, leaving the indenture trustee as the sole initiator of suit. See Cruden v. Bank of New York, 957 F.2d 961, 967-68 (2d Cir. 1992). An indenture that contains only a collective-action clause violates the “payment” right, not the “suit” right; an indenture that contains only a no-action clause violates the “suit” right, not the “payment” right.

Regardless, we agree with the District Court that the plain text of Section 316(b) is ultimately ambiguous and fails to resolve the principal question before us.

Nor does any party seriously contend that the structure of the TIA provides a clear answer to that question, as the dissenting opinion suggests.3 At best, we have observed that “[n]othing in Section 316(b), or the TIA in general, requires that bondholders be afforded ‘absolute and unconditional’ rights to payment.” Bank of New York v. First Millennium, Inc., 607 F.3d 905, 917 (2d Cir. 2010). So, for example, Section 316(a)(1) permits bondholder majorities to both waive past defaults and control the manner in which the indenture trustee pursues remedies. See 15 U.S.C. *8§ 77ppp(a).4 Our statement in First Millennium seems at odds with the broad protection of dissenting bondholders seeking to collect payment that Marblegate urges. But it does not really help us determine whether Congress intended Section 316(b) to protect a broad right to actual payment or merely a right to sue for payment under fixed indenture terms. Notably, though, no other provision in the TIA purports to regulate an issuer’s business transactions, which would be a likely result of Marblegate’s broad reading of Section 316(b).

2. Legislative History

Because the text of Section 316(b) is ambiguous and the TIA’s structure fails to remove the ambiguity, we turn to legislative history.

Marblegate argues that the history of Section 316(b) demonstrates Congress’s broad intent to prohibit “an out-of-court debt restructuring that has the purpose and effect of eliminating any possibility of receiving payment under their notes.” Ap-pellee Br. 20; id. at 26. The District Court effectively adopted this view when it determined that “[practical and formal modifications of indentures that do not explicitly alter a core term ‘impair or affect’ bondholders’ rights to receive payment in violation of the Trust Indenture Act only when such modifications effect an involuntary debt restructuring.” Marblegate I, 75 F.Supp.3d at 614 (emphasis added and alterations omitted); see Marblegate II, 111 F.Supp.3d at 554 (“[T]he purpose of the Act, as expressed consistently throughout the legislative history, was to prevent precisely the nonconsensual majoritarian debt restructuring that occurred here.... ” (emphasis added)).

The District Court concluded that the legislative history compels this interpretation because at the time that Section 316(b) was drafted Congress did not contemplate the use of foreclosures as a method of reorganization. This reading also reflects the District Court’s understandable concern that “a sufficiently clever issuer [would] gut the Act’s protections” by using a foreclosure action instead of amending the indenture or filing for bankruptcy. Marblegate I, 75 F.Supp.3d at 613; see also Marblegate II, 111 F.Supp.3d at 555-56. The District Court thought the TIA’s drafters “did not anticipate precisely the mechanisms through which such a [non-consensual majoritarian] restructuring might occur,” but rather only “understood involuntary reorganizations to operate in a rather straightforward fashion: a majority of the bondholders would simply vote to amend the payment or interest provisions of the indenture.” Marblegate II, 111 *9F.Supp.3d at 554-55; id. at 555-56 (stating that “there is no reason to think that the [TIA] was targeted only at a particular method of restructuring”).

Based on our review of the legislative history of Section 316(b), we conclude that Congress did not intend the broad reading that Marblegate urges and the District Court embraced. Starting in 1936, the Securities and Exchange Commission (SEC) published a comprehensive eight-part report examining the role of protective committees in reorganizations.5 Part VI of that report, published in 1936 and entitled “Trustees Under Indentures” (the “1936 SEC Report”), led to enactment of the TIA. See 15 U.S.C. § 77bbb(a) (citing “reports of the [SEC]” as “the basis of facts” for promulgating the TLA). Subsequent congressional reports, testimony, and other contemporaneous statements by SEC officials relating to earlier bills also shaped the final legislation enacted in 1939.

Among other things, the drafters of the TIA appear to have been well aware of the range of possible forms of reorganization available to issuers, up to and including foreclosures like the one that occurred in this case but that the District Court concluded violated Section 316(b). Indeed, foreclosure-based reorganizations were widely used at the time the TIA was drafted. As we explain below, the history of the TIA, and of Section 316(b) in particular, shows that it does not prohibit foreclosures even when they affect a bondholder’s ability to receive full payment. Rather, the relevant portions of the TIA’s legislative history exclusively addressed formal amendments and indenture provisions like collective-action and no-action clauses.

A. The 1936 SEC Report •

' Two sections of the 1936 SEC Report are relevant to the competing interpretations of Section 316(b) offered by the parties on appeal. Neither section supports Marblegate’s position that Section 316(b) meant to prohibit involuntary debt restructurings like foreclosures.

First, a section of the Report entitled “Protection of Minorities” confirms for us that “'no-action clauses’ were one of the evils that the Trust Indenture Act was intended to address.” Marblegate II, 111 F.Supp.3d at 547 (citing App’x 3375). The authors of this section also fretted about majoritarian control in various reorganization contexts, including in a passing reference to foreclosure sales, which noted only that foreclosure proceeds were unlikely to satisfy dissenting secured creditors absent active representation from the indenture trustee. See App’x 3375-76. Notably, however, the “Protection of Minorities” section did not support legislation requiring unanimous consent for all out-of-court restructurings. Instead, it prescribed only “a more active indenture trustee in reorganization negotiations.” Marblegate II, 111 F.Supp.3d at 548.

The other relevant section of the 1936 SEC Report, entitled “Reorganization by Contract,” examined collective-action clauses. See App’x 3415 (discussing clauses allowing a “specified percentage of bondholders ... to change or alter the terms of the bonds or of the indenture” and force those changes upon dissenting bondholders). The section identified the holdout problem inherent in requiring unanimous *10consent, but explained that the proliferation of collective-action clauses meant that “the next cycle of reorganizations [would] take place on a voluntary basis without supervision of any court.” App’x 3419. In short, this section’s focus on “reorganization by contract” supports reading Section 316(b) to prohibit amendments to core payment terms, but provides virtually no support for Marblegate’s view that Section 316(b) also prohibits other forms of reorganization, such as foreclosures. Cf. id. (deferring proposals for supervision of collective-action clauses, “since they are but one type of voluntary reorganization procedure”).

The 1936 SEC Report otherwise evidenced that foreclosures were a known method of reorganization well before the enactment of the TIA in 1939. The Report identified foreclosure as a discrete method of reorganization that served as an alternative to the consensual modification of contractual payment terms. For example, the Report asserted that in the absence of collective-action clauses, “the release or amendment of the indenture could not be obtained without the consent of all of the bondholders or without the aid of foreclosure or bankruptcy court.” App’x 3146 (emphasis added); see also id. (noting that it would be “necessary” for reorganizers “faced with ... a dissenting minority” to resort to “foreclosure proceedings”).6

The authors of the 1936 SEC Report (and by inference the drafters of the TIA) were thus clearly aware that corporate reorganizations could be achieved through foreclosure. And yet the Report’s concern with majoritarian control and the lack of judicial supervision was directed at “reorganization by contract,” not foreclosure-based reorganizations.

B. The 1938 Testimony of William 0. Douglas

In 1938 then-SEC Chairman William 0. Douglas, an expert in the field of corporate reorganizations, testified before Congress in support of the proposed Trust Indenture Act of 1938. Because Douglas had been the principal draftsman of the 1936 SEC Report and the “main proponent” of the legislation before Congress, the District Court appropriately paid significant attention to his testimony.

Like the 1936 SEC Report, Chairman Douglas’s testimony narrowly addressed collective-action clauses and formal amendments to core payment terms. Quoting at length from the “Reorganization by contract” section of the 1936 SEC Report and responding to the “bogey” that the proposed legislation would require unanimous consent of bondholders to amend any indenture term, Douglas assured critics of the proposed legislation that “[t]here is absolutely nothing in the bill to prevent” amendment of the indenture by a majority, with one exception, which he described as follows:

The effect of this exception is merely to prohibit provisions authorizing such a majority to force a non-assenting security holder to accept a reduction or post- ■ ponement of his claim for principal, or a reduction of his claim for interest or a postponement thereof for.more than 1 year. In other words, this provision merely restricts the power of the majori*11ty to change those particular phases of the contract.

App’x 2370 (emphasis added); Trust Indentures, Hearings Before a Subcomm. Of the H. Comm. On Interstate and Foreign Commerce, House of Representatives on H.R. 10292, 75th Cong. 35 (1938) (statement of William 0. Douglas, Commissioner, SEC). Douglas thus explained that Section 7(m)(3) of the 1938 bill (which evolved into Section 316(b) of the TIA) meant “merely” to prohibit indenture “provisions” that would allow majorities to amend core payment terms.

In holding that Section 316(b) prohibited involuntary out-of-court reorganizations like foreclosures, the District Court focused on the following additional testimony by Douglas: “Evasion of judicial scrutiny of the fairness of debt-readjustment plans is prevented by this exception.... In other words, the bill does place a check or control over the majority forcing on the minorities a debt-readjustment plan.” App’x 2370-71. First, in our view, this small shard of additional testimony related exclusively to a discussion about collective-action clauses, and we are inclined to confine it to that context.7 Second, we understand Chairman Douglas’s use of the term “debt-readjustment plan” to refer narrowly and specifically to formal changes to the contractual terms governing the debt. This is because such plans were widely regarded as offering a form of reorganization distinct from foreclosure-based reorganizations. Indeed, as early as 1916 legal experts specifically distinguished these debt-readjustment plans from foreclosures. “Readjustment” plans were understood to change the terms of payment by the “voluntary action of the security holders,” while corporate reorganizations were “usually” achieved through the “foreclosure of mortgages or the enforcement of the rights of creditors” and the transfer of the company’s assets to a new corporation. Paul D. Cravath, The Reorganization of Corporations; Bondholders’ and Stockholders’ Protective Committees; Reorganization Committees; and the Voluntary Recapitalization of Corporations (March 1 and 8, 1916), in Some Legal Phases of CoRP. Fin., Reorganization & Regulation 153-55, 181 (1927). Subsequently, Part I of the SEC Report, published in 1937 and also headed by Douglas, reprised the distinction between “foreclosure” and “voluntary reorganizations,” the latter of which included “debt readjustments or modifications.” Securities and Exchange Comm’n, Report on the Study and Investigation of the Work, Activities, Personnel, and Functions of Protective and Reorganization Committees, Pt. 1, at 1 (1937).

In .light, of that history of the distinction between foreclosures and readjustment plans, we think it is highly unlikely that Douglas’s carefully repeated references to a “debt-readjustment plan,” made in the context of testimony describing “reorganization by contract,” also meant to refer to the distinct contemporary technique of re*12organization by foreclosure.8

C.The 1939 Testimony of Edmund Burke, Jr.

The year following Chairman Douglas’s testimony, Edmund Burke, Jr.—then-Assistant Director of the Reorganization Division of the SEC, future Commissioner of the SEC, and described as a principal author of the TIA9—testified before Congress on behalf of the SEC in support of what would prove to be the final 1939 version of the TIA. As with Douglas’s testimony and the 1936 SEC Report, Burke’s testimony sought to sharply limit the scope of Section 316(b) and made it clear that the provision prohibited only formal changes to an indenture’s core payment terms. Among other things, Burke emphasized that “[a]ll that the section [316(b) ] does is preserve the individual holder’s right to bring an action at law to collect his interest and principal in accordance with the terms of his contract, unless he has himself consented to a variation from that contract.” App’x 2951-62 (emphasis added); Trust Indentures, Hearings Before a Sub-comm. Of the H. Comm. On Interstate and Foreign Commerce, House of Representatives on H.R. 10292, 75th Cong. 35 (1939) (statement of Edmund Burke, Jr., Assistant Director, Reorganization Division, SEC).10 Burke also referred to the SEC’s analysis of sample corporate indentures, which had been submitted to Congress and which described provisions similar to Section 316(b) as “preserv[ing] the right to the individual bondholders to enforce the payment of principal and interest at their respective due dates.” App’x 2923.

D.House and Senate Reports

The House and Senate Reports on the final version of the TIA add little to our analysis but are worth briefly mentioning. Both reports repeated Douglas’s assertion that Section 316(b) was intended to prevent “[e]vasion of judicial scrutiny of debt-readjustment plans.” App’x 3274, 3337; H.R. Rep. No. 76-1016, at 56 (1939); S. Rep. No. 76-248, at 26 (1939). But both reports also confirmed that Section 316(b) “does not prevent the majority from binding dissenters by other changes in the indenture or by a waiver of other defaults.” App’x 3274, 3338. It was, we think, clear to Congress that such changes and alterations might impair a bondholder’s practical ability to recover payment without violating Section 316(b).

E.1940 SEC Report

Finally, Part VIII of the SEC Report, published a year after the TIA’s enactment,11 reinforces our conclusion that fore*13closures such as the one the District Court deemed prohibited in this case were in fact contemplated by the drafters of Section 316(b). See Securities and Exchange Comm’n, Report on the Study and Investigation of the Work, Activities, Personnel, and Functions of Protective and Reorganization Committees, Pt. 8 (1940) (“1940 SEC Report”). The 1940 SEC Report provided a comprehensive study of -the decades-long use of foreclosure proceedings to effect reorganizations and constitutes a direct rejoinder to the District Court’s assertion that the drafters of the TIA were unaware of such proceedings. See 1940 SEC Report, Sec. II. Particularly compelling is the Report’s discussion of the role of junior creditors in foreclosure-based reorganizations. In characterizing the choice faced by junior creditors when deciding whether to participate in foreclosure-based reorganizations, the 1940 SEC Report noted that “the participation in the plan given to junior creditors was the product of practical reasons, not legal compulsion.” Id. at 137 (emphasis added). And in comparison to dissenting secured creditors entitled to a pro rata distribution of foreclosure proceeds, the 1940 SEC Report noted that if junior creditors “refused participation in the plan, they were thrown back to participation in such of the debtor’s assets as to which senior creditors could lay no prior claims,” which was “at best nominal,” Id The 1940 SEC Report also discussed Supreme Court decisions that prohibited unsecured creditors from challenging foreclosure-based reorganizations as a fraudulent conveyance, so long as they had previously been given a “fair offer” to participate in the reorganization (that is, an offer that preserved the priority of their unsecured claims). Id. at 52-57 (discussing N. Pac. Ry. Co. v. Boyd, 228 U.S. 482, 33 S.Ct. 554, 57 L.Ed. 931 (1913); Kansas City Terminal Ry. Co. v. Cent. Union Tr. Co. of N.Y., 271 U.S. 445, 46 S.Ct. 549, 70 L.Ed. 1028 (1926)).12 Finally, the 1940 SEC Report recognized that some States permitted private, non-judicial foreclosure sales to be used in reorganizations. Yet nowhere does the Report “suggest that reorganizations implemented through [private foreclosure sales] would conflict with a holder’s right, to receive payment,” Harald Halbhuber, Debt Restructurings and the Trust Indenture Act, 25 Am. Banicr. Inst. L. Rev. (forthcoming Winter 2017) (manuscript at 24), https:// ssrn.com/abstract=2782290 (“Halbhuber, Debt Restructurings”), or that foreclosure-based reorganizations were prohibited by the TIA. To the contrary, the Report’s only references to the TIA related exclusively to the power of the indenture trustee as an active representative of bondholders. See 1940 SEC Report at 187; id, at 341 n.13 (reprinting the “conclusions and recommendations” set out in the 1936 SEC Report, the “substance” of ■ which “was enacted into law by the Trust Indenture Act of 1939”).

Our review of the testimony and reports leading up to and immediately following the enactment of Section 316(b) convinces us, in sum, that Congress sought to prohibit formal modifications to indentures without the consent of all bondholders, but *14did not intend to go further by banning other well-known forms of reorganization like foreclosures.

F. Textual Changes

Marblegate separately points to the evolution of the text of Section 316(b) through its enactment in 1939 to argue that the final text substantively broadened the TIA’s protections of the minority bondholder’s right from “a mere right to sue into a more substantive right” to actually “receive payment of the principal and interest.” Marblegate II, 111 F.Supp.3d at 554.13 We are not persuaded.

We find little if any textual support for the proposition that a new substantive right to receive payment was added to the final version of Section 316(b). To the contrary, the earlier 1938 version of the bill already included that right. Section 7(m)(3) of the 1938 version (the precursor to both Section 316(a) and Section 316(b)) not only secured the right of bondholders to “bring[ ] [an] action to collect the principal of and interest upon the indenture securities” when due, but also prohibited both waiver of “a default in the payment of the principal ... upon the date of maturity” and the postponement of interest payments for more than a year.14 Section 7(m)(3)’s limitation on postponement of interest payments was moved to Section 316(a)(2) of the TIA. Compare App’x 2347-48 (Section 7(m)(3)), with 15 U.S.C. § 77ppp(a)(2). Meanwhile, the language in Section 7(m)(3) relating to the right to bring suit and the prohibition on waiving a default in the payment of principal were reformulated and relocated to Section 316(b). Section 316(a)(2) no longer required a reference, originally found in Section 7(m)(3), to a prohibition on waiver of a principal default because that prohibition was made effective by Section 316(b). Likewise, the limitation on interest postponements was expressly carved out as the only exception to Section 316(b)’s bar on amendments to payment terms. See § 77ppp(b) (forbidding impairment of right to receive interest, “except as to postponement of an interest payment consented to as provided in paragraph (2) of subsection (a)”).

Again, the legislative history supports our view of the textual evolution of Section 7(m)(3) into Section 316(a) and *15316(b). First, Chairman Douglas testified that Section 7(m)(3) prohibited non-consensual amendments to core payment terms and eliminated collective-action clauses. His testimony is particularly hard to square with the District Court’s conclusion that Section 7(m)(3) contained only a “suit” right, not a “payment” right. Second, Edmund Burke of the SEC did not mention a major substantive addition to the final 1939 version of the bill. Instead, Burke provided the same explanation of Section 316(b) (and its precursor) that the SEC had advanced since 1936. See App’x 2952. Finally, upon reintroduction of the TIA on April 4, 1939, the Chairman of the House Subcommittee on Interstate and Foreign Commerce introduced a “statement in explanation” that outlined five key reasons for the phanges that occurred between the 1938 and 1939 versions of the bill.15 See App’x 2668. As even the District Court acknowledged, none of these reasons mentioned an intent to expand the 1939 bill to encompass the “practical ability” to collect payment. See Marblegate II,