By: Paul Belval and Alexander Judd from Day Pitney LLP 2020 Recap As we look ahead to 2021 and the trends, challenges and opportunities for project finance, we can’t help but pause to take a look back at 2020 and the development of renewable resources. Notwithstanding the COVID-19 pandemic, renewable energy continues to be a […]
United Kingdom Updates: Tax 2020 Developments Affecting Financial Restructurings
Tax 2020: Developments Affecting Financial Restructurings By: Tom Bannister, Akin Gump Strauss Hauer & Feld LLP Executive Summary During the course of 2020, the U.K. government has pushed ahead with introducing new measures that are likely to be of material relevance to financial restructurings and corporate reorganizations. There have also been other international developments […]
United Kingdom Update: Corporate Insolvency and Governance Act
By: Tom Bannister, Akin Gump Strauss Hauer & Feld LLP The Corporate Insolvency and Governance Act (the “Act”) received Royal Assent on 25 June 2020 and is now in force. The Act represents the most extensive changes in the insolvency landscape since the Enterprise Act came into force in 2003. The provisions of the Act […]
Canadian Update: The Supreme Court of Canada Affirms the Common Law Anti-Deprivation Rule
By Danielle Maksimow and Hansik Ha, Norton Rose Fulbright Canada LLP Introduction On October 2, 2020, the Supreme Court of Canada (the “SCC”) confirmed the existence of the common law anti-deprivation rule in Canada with its majority decision in Chandos Construction Ltd. v Deloitte Restructuring Inc., 2020 SCC 25. The anti-deprivation rule operates to invalidate […]
President’s Message – January 2021
Happy New Year!!! One of my favorite quotes is by the 80’s philosopher Ferris Bueller. “Life moves pretty fast. If you don’t stop and look around once in a while, you could miss it.” 2020 provided us with a lot of things – COVID, work from home, remote learning, isolation, masks, zoom meetings, virtual happy […]
Key Inter-creditor Concepts in Renewable Energy Transactions
Key Inter-creditor Concepts in Renewable Energy Transactions (By David Markey and Jeff Atkin from Foley & Lardner LLP) Overview The capital used to construct, operate and maintain renewable energy projects in the United States is by now fairly well established. Of course, there are variations depending on the deal, but typically three sources of capital […]
2020 Fall Virtual Annual Meeting and Educational Conference Summary
Summary –ACIC 2020 Virtual Fall Annual Meeting and Education Conference By: Aaron Borden (Prudential Financial) This past year has been both unprecedented and challenging, to say the least. In a single year, we have experienced a pandemic, struggled through an extraordinary strain on the economy, and confronted aspects of racial injustice. Most of us […]
New England Region: Huntington Technology Finance., Inc. v. Neff
By: Kevin Braun and Greg Norton, Morgan Lewis Guarantors’ waiver of defenses to enforcement under guaranty of a lease was upheld, as Guarantor failed to show that the lease was a security interest (as to which Article 9 of the UCC would apply, and under which defenses such as the requirement of good faith and […]
New England: Finance Authority of Maine v. Grimnes
By: Kevin Braun and Greg Norton, Morgan Lewis The commercially reasonableness requirement of §9-1607(3)(a) of the Maine U.C.C. (§9-607(c)(1) of the U.C.C.) did not apply to Secured Lender’s decision not to pursue collateral and instead sue on the personal guaranty of a guarantor. Finance Authority of Maine v. Grimnes, 2020 WL 2764564 (Supreme Judicial Court […]
New England Region: Goddard v. Loosigian
By: Kevin Braun and Greg Norton, Morgan Lewis Massachusetts Appeals Court affirms decision that principal debtor had no right of contribution against guarantor, holding that parties were not co-guarantors on promissory notes, but relationship was one of principal debtor and guarantor. Goddard v. Loosigian, 97 Mass. App. Ct. 1125, (2020). Thomas Goddard (the “Debtor”) and […]
Southern Region: ING Bank, N.V. v. M/V Charana Naree
By: Jeff Dutson, King & Spalding, LLP U.S. maritime law permits assertion of liens over shipping vessels themselves, even when chartered, for necessaries such as shipping fuel, absent actual notice of no-lien provisions of charter to supplier of necessaries; and reference to terms and conditions of sale, printed on the order form, sufficient to allow […]
Southern Region: The Rainmaker Group Ventures, LLC v. Bellack
By: Jeff Dutson, King & Spalding, LLP Claim of implied covenant of good faith and fair dealing to former shareholder based on ambiguity in LLC Agreement did not apply where the subject at issue was expressly addressed in the agreement. The Rainmaker Group Ventures, LLC v. Bellack, 841 S.E.2d 738 (Ct. App. Ga. 2020). The […]
Southern Region: Wilson v. Gandis
By: Jeff Dutson, King & Spalding LLP A thorough review of company emails reveal a plot by the majority members to squeeze out the minority member. Wilson v. Gandis, 844 S.E. 2d 631 (S.C. Sup. Ct. 2020). David Wilson, a minority member in a 3-member LLC (Carolina Custom Converting, LLC, aka “CCC”) brought an action […]
Southern Region: Wells Fargo Bank, N.A. v. Highland Constr. Mgmt. Servs.
By: Jeff Dutson, King & Spalding LLP Pledge of security interest in a Virginia LLC does not include debtor’s indirect membership interests in such LLC absent explicit language in security agreement. Wells Fargo Bank, N.A. v. Highland Constr. Mgmt. Servs., L.P., 807 F. App’x 246, 248 (4th Cir. 2020) The issue before the Fourth Circuit […]
Southern Region: Synovus Bank v. Kelley
By: Jeff Dutson, King & Spalding LLP Georgia Supreme Court rules that a judgment creditor’s lien on real property is created the day the judgment is recorded, not the day the judgment is issued. Synovus Bank v. Kelley, No. 7:18-cv-00202 (Ga. Sup. Ct. Aug. 24, 2020). On December 7, 2016, Synovus Bank won a judgment […]
Committee Reports: September 2020
By: Mikhel Schecter of Paul, Weiss, Rifkind, Wharton & Garrison, LLP Development Committee The Development Committee is tasked with engaging the membership, assessing and addressing membership needs and interests, and planning some of the interactive events at the April Conferences and October Meetings. In connection with the upcoming October Annual Meeting, the Development Committee will […]
Revisiting Force Majeure Provisions in light of the Coronavirus Outbreak
By: Chiraag Kumar, Senior Counsel at MetLife Investment Management The coronavirus outbreak has impacted the world in myriad ways. The most distressing, of course, is the health effects felt by the millions of people who have been inflicted. The adverse impacts on business have been far less concerning, but substantial. One example: project finance investors […]
Canadian Update: Government Liquidity Program Options for Canadian Debtors
By: Danielle Maksimow and Hansik Ha, Norton Rose Fulbright Canada LLP Many Canadian businesses who are debtors of institutional investors are facing economic pressures and liquidity concerns during the COVID-19 pandemic. In response, the Government of Canada is providing various liquidity support to qualifying Canadian businesses to alleviate this concern. Businesses can qualify for various […]
Spotlight on New Fellows – July 2020
By: Bryan Cho, MetLife Arinze N. Onugha is a senior associate in the New York office of Sullivan & Worcester. He represents institutional investors, including regulated funds of funds, family offices and pension plans, making alternative investments in domestic and offshore special situations, growth, buy-out, venture capital, real estate and other private investment funds and […]
President’s Message July 2020
President’s Message By: Anthony D. Yager, Chapman and Cutler LLP What an unusual year 2020 has been so far! Like me, I assume many of you have been relegated to working from home during quarantine on a makeshift desk, hoping to resume our normal lives soon. Fortunately, the weather has finally been nice enough here […]
ACIC TPMC Committee Model Form Updates
A lot of what the TPMC has been discussing over the last few weeks was addressed in the ACIC CLE presentation on April 16, 2020 entitled,“The Practical Impacts of COVID-19 on Private Placement Transactions”, by Colin Pennycooke (Principal Insurance), Stacey Pike (Chapman and Cutler LLP), Christopher A. Lawrence (Akin Gump Strauss Hauer & Feld LLP), […]
New NAIC Rules for Ground Lease Financing Transactions
The National Association of Insurance Commissioners (the “NAIC”) recently approved new rules with respect to ground lease financing transactions (each a “GLFT”). GLFTs are generally those that have the following characteristics: (i) a long term ground lease (typically 99 years); (ii) one or more subtenants in an existing or to be construction building; (iii) both […]
Southern Region: In re Palm Avenue Partners, LLC
In re Palm Avenue Partners, LLC, No. 8:12-bk-09808-MGW, 2019 WL 6971160 (Bankr. M.D. Fla. December 17, 2019). Tom Leiter solicited $2.5 million in investments to develop property through Palm Avenue Partners, a company he and his son managed. He (through Beacon Homes, which he solely owned) spent $300,000.00 to acquire the contractual rights to buy […]
Southern Region: TMX Finance, LLC v. Goldsmith
TMX Finance, LLC v. Goldsmith, 352 Ga. App. 190 (Ct. Ap. Ga. 2019). Ousted owners of ICOT Holdings, LLC and ICOT Hearing (collectively, “ICOT”) filed a direct action against Young, a guarantor and former co-member of ICOT, in addition to his web of companies, alleging breach of a limited liability company’s operating agreement, breach of […]
Southern Region: SE Prop. Holdings, LLC v. Unified Recovery Grp.
SE Prop. Holdings, LLC v. Unified Recovery Grp., LLC, 410 F. Supp. 3d 775 (E.D. La. 2019). A Louisiana parish contracted with Unified Recovery Group, LLC (“URG”) to remove debris following Hurricane Katrina (the “Katrina Contract”) and Hurricane Isaac (the “Isaac Contract”). Thereafter, URG entered into a security agreement with SE Property Holdings, LLC (“SEPH”), […]
Southern Region: Bethesda Road Partners, LLC v. Strachan
Bethesda Road Partners, LLC v. Strachan, 832 S.E.2d 503 (N.C. Ct. App. 2019). A real estate venture (the “Borrower”) executed a promissory note (the “Note”) to a bank (the “Bank”) as part of a project. The Bank required each of the members of the LLC to execute personal guaranties. The project failed, the Note matured, […]
Southern Region: In re Tara Retail Group, LLC
In re Tara Retail Group, LLC, 607 B.R. 839 (Bankr. Dist. W. Va. 2019) In September 2013, Tara Retail Group, LLC (“Debtor”) purchased a multi-tenant commercial property known as The Crossings Mall. In conjunction with the purchase of this property, the Debtor entered into a Loan Agreement with UBS Real Estate Securities, Inc. The Debtor […]
ACIC Committee Reports
Membership Committee The primary responsibility of the Membership Committee is to consider applications for ACIC membership and to recommend those applicants meeting the membership criteria of the College to the Board of Trustees for a membership vote. In discharging this responsibility, the committee considers the totality of a candidate’s responses in his/her application, with particular […]
New England Region: Auctus Fund, LLC vs Sunstock, Inc.
Auctus Fund, LLC v. Sunstock, Inc., 405 F. Supp. 3d 218 (D. Mass. 2019) Sunstock Inc., (the “Borrower”) issued convertible promissory notes to Auctus Fund, LLC (“Auctus”) and EMA Financial, LLC (“EMA”, and each a “Lender”, and collectively the “Lenders”) in 2017. Both Lenders had a provision in their respective promissory notes where in the […]
New England Region: Metcalf v. Fitzgerald
Metcalf v. Fitzgerald, 333 Conn. 1, 214 A.3d 361 (2019) Jonathan Metcalf (the “Debtor”) filed a chapter 7 bankruptcy petition for his business and later a petition individually. One of his creditors, Ion Bank (the “Creditor”), objected to the discharge of any the Debtor’s obligations in bankruptcy court and initiated an adversary proceeding against the […]
New England Region: In Bank of America, N.A. v. New England Quality Service, Inc.
Bank of America, N.A. v. New England Quality Service, Inc., 790 F. App’x 314 (2d Cir. 2019) In August of 2012, New England Quality Service, Inc. and affiliates (the “Borrowers”) entered into a loan agreement with Bank of America, N.A. (the “Lender”). Over the next few years, the Borrowers expanded their relationship with the Lender, […]
United Kingdom Update: Protecting Tax in Insolvency
Protecting Tax in Insolvency Introduction The current priority of debts in an English insolvency are determined by reference to the Insolvency Act 1986, which provides for preferential status in respect of certain debts including, for example, employee remuneration and occupational pension schemes. This status ensures that these preferred debts are paid after creditors holding fixed […]
My Chi To Appointed as Executive Deputy Superintendent of the Insurance Division at the Department of Financial Services
New York Superintendent of Financial Services Linda A. Lacewell has appointed, current ACIC fellow and former ACIC Trustee, My Chi To, as executive deputy superintendent of the Insurance Division at the Department of Financial Services (DFS), which regulates more than 1,400 insurance companies with assets of $4.7 trillion. Click Here to learn more.
United Kingdom Update: Syncreon – The English Patient
Syncreon: The English Patient On 1 October 2019, the landmark cross-border restructuring of the Syncreon group completed. Pursuant to the restructuring, the Syncreon group’s funded debt was reduced by approximately U.S. $625 million and the Syncreon group was provided with approximately U.S. $250 million of new financing. The restructuring of the Syncreon group is widely […]
Introduction to New ACIC Website
To Our ACIC Fellows and Friends: Please allow us a few moments to introduce you to our newly designed ACIC Website! The members of the website committee, along with our ACIC administrative office, have been hard at work for the past year on the new site, and we are excited for you all to see […]
Canadian Update: Wei vs. Lei BCCA 114
Wei v Li, 2019 BCCA 114 Summary In Canada, s. 347 of the Criminal Code of Canada (the Criminal Code) precludes interest rates in excess of 60% per annum. In Wei v Li., the defendants defaulted in the re-payment of their loans to the plaintiff. The plaintiff obtained a judgment from a Chinese court after […]
