Bank of Montreal v Javed, 2016 ONCA 49 – Ontario Court of Appeal Found That The Test for Unconscionability Was Not Modified by Bhasin v Hrynew General Principle of Good Faith In Bank of Montreal v Javed, the appellant, Ileshumar Shah (“Shah”), was the director and vice-president of a corporation that operated a donut shop. Together with the […]
German Recovery and Resolution Act
I. Introduction The failure of a credit institution bears, depending on its size and interconnectedness with other relevant financial institutions and insurance companies, a significant systemic risk for the financial system of a country and potentially the global financial system itself. In particular, in the aftermath of the post-Lehman global financial crisis it became obvious […]
Brexit and UK Oil & Gas
I. Introduction On 23 June 2016, the United Kingdom electorate voted in a referendum to leave the European Union (EU). This outcome is expected to have far-reaching consequences for industry, including the oil & gas sector. These include: medium-term uncertainty; potential changes to legislation affecting the downstream industry; restrictions on the free movement of goods […]
Delaware Trust Company v. ComputerShare Trust Company
Delaware Bankruptcy Court Dismisses Adversary Proceeding by First Lien Noteholders Seeking Payment of Make-Whole Premium from Second Lien Noteholders Under Intercreditor Agreement – Delaware Trust Company v. ComputerShare Trust Company, N.A. and Computer Share Trust Company of Canada, Adv. Proc. No. 14-50410 (CSS) (Bankr. D. Del. June 3, 2016). On June 3, 2016, Judge Christopher Sontchi […]
In re Intervention Energy Holdings, LLC
Delaware Bankruptcy Court Denies Motion to Dismiss Debtor’s Bankruptcy Case Despite Terms Under its Limited Liability Company Agreement Requiring Authorization of its Members – In re Intervention Energy Holdings, LLC, No. 16-11247 (KJC) (Bankr. D. Del. June 3, 2016). On May 20, 2016, Intervention Energy Holdings, LLC (“IE Holdings”) and its operating subsidiary filed voluntary petitions for […]
Rock the Vote! – A Message from ACIC President Brenda Page
Rock the Vote! Happy Summer Everyone! It’s been a steamy one of late here on the east coast, and as we work toward our 2016 Annual Meeting and Education Conference, things are heating up with the College, as well. Before providing some teasers for the Annual Meeting program, I want to take a moment to […]
ACIC’s Newest Members (June 2016)
Clay Hufft is a Vice President and Associate General Counsel at AIG Investments. Clay works in the Dallas, Texas office, where he advises internal business clients with respect to private placement transactions and general corporate matters. Clay joined AIG Investments in January 2015. Prior to joining AIG Investments, he was a Senior Associate at Vinson & […]
Chapman and Cutler LLP: Financing Public-Private Partnerships in the U.S. Private Placement Market
Financing Public-Private Partnerships in the U.S. Private Placement Market Over the past several years, a number of public-private partnership (“P3”) transactions have been financed in the domestic and cross-border U.S. private placement market. Given the need for new infrastructure both domestically and abroad, we anticipate that the number of P3 transactions entering the U.S. private […]
King & Spalding: Recent News in the RadioShack Bankruptcy Case: Court Resolves Intercreditor Dispute in Favor of Senior Lenders
King & Spalding Recent News in the RadioShack Bankruptcy Case: Court Resolves Intercreditor Dispute in Favor of Senior Lenders By Sarah R. Borders, Jeffrey R. Dutson and Elizabeth Tramm On May 11, 2016, the Delaware Bankruptcy Court issued an opinion in the RadioShack bankruptcy case addressing an intercreditor dispute between Salus Capital Partners, LLC, the “Last Out” lender in […]
ACIC Spring Investment Forum – American Bandstand: Who’s Calling the Investment Tunes in 2016?
ACIC Spring Investment Forum American Bandstand The Four Seasons Hotel in downtown Chicago played host to the 2016 Spring Investment Forum, bringing together 196 attorneys, speakers, panelists and guests. This year, the theme was a throwback to American Bandstand – Who’s Calling the Investment Tunes in 2016? Attendees were treated to vintage hits including, Taking Care of […]
Garnishing Creditor Given Priority Over Unperfected Security Interest in Deposit Account
In March 2011, Sign Builders, Inc. (“Sign Builders”) filed a breach of contract claim against SVI Themed Construction Solutions, Inc. (“SVI”) seeking to recover amounts allegedly due for merchandise and services it provided to SVI. SVI failed to answer or otherwise appear and a default judgment was entered against it. A separate prove-up hearing was […]
Composite Documentation May Evidence Security Interest
M. Bruenger & Co. (“MBC”) is a trucking concern operating in Kansas. As part of its ongoing business, MBC would locate and sell trucks to its drivers. The drivers would purchase the trucks from MBC and then drive loads provided by MBC. To assist the purchase of the trucks, MBC established a program pursuant to […]
Minority-Noteholder’s Challenge to Repurchase Sole Equityholder’s Notes
Quadrant Structured Products Company, Ltd. v. Vertin, C.A. No. 6990-Vcl (Del. Ch. Ct. Oct. 20, 2015) On October 20, 2015, Vice Chancellor J. Travis Laster of the Delaware Chancery Court rejected a minority noteholder’s claims challenging decisions made by directors of a distressed Delaware corporation. The defendant, Athilon Capital Corporation (“Athilon”), was in the business […]
Securities Act Claims of Plaintiff-Purchasers of Foreign Securities
In re Petrobras Securities Litigation, No. 1:14-cv-09662 (JSR) (S.D.N.Y. Dec. 21, 2015) On December 21, 2015, Judge Jed S. Rakoff of the United States District Court for the Southern District of New York held in In re Petrobras Securities Litigation that several plaintiff-purchasers of securities issued by Petróleo Brasileiro S.A. (“Petrobras”), a Brazilian oil and gas company, were […]
Payment of Make-Whole Premium Upon Acceleration by Bankruptcy
ComputerShare Trust Company, N.A. and Computer Share Trust Company of Canada v. Energy Future Intermediate Holding Company LLC and EFIH Finance, Inc., No. 14-50405 (CSS) (Bankr. D. Del. Oct. 29, 2015); In re Energy Future Holdings Corp., et al., No. 14-10979 (CSS) (Bankr. D. Del. Oct. 30, 2015). In a pair of decisions in the Energy Future […]
ACIC Annual Spring Investment Forum, April 7 and 8, 2016 in Chicago
Yes, folks – it’s time once again for another episode of AMERICAN College of Investment Counsel BANDSTAND! Whether you want the new and latest investment tunes or love your favorite golden oldies – please join us at the ACIC’s 2016 Spring Investment Forum on April 7 and 8 at the Four Seasons Hotel in Chicago, […]
English schemes of arrangement of non-UK companies: jurisdictional issues
1. Executive Summary A scheme of arrangement is a statutory, court-supervised procedure under Part 26 of the UK Companies Act 2006 (the “CA 2006”) which allows a company to make a compromise or arrangement with its members or creditors (or a class of them). Schemes of arrangement are not an insolvency procedure although they can […]
Changes to the Ontario Personal Property Security Act to Come into effect on December 31, 2015
Introduction In Canada, some long waited amendments to the conflict of law provisions in the Personal Property Security Act (Ontario) (the “ Ontario PPSA”) will finally be coming into force on December 31, 2015. These changes will set out clear criteria in Ontario for determining where a debtor is “located” for the purposes of demining which law […]
Fishery Quota Entitlement a Personal Property?
The recent Supreme Court of Nova Scotia decision in Business Development Bank of Canada v D’Eon Fisheries Limited [2015 NSSC 160] dealt with the issue of whether fishing quota entitlements are personal property subject to the Personal Property Security Act (Nova Scotia) (the “PPSA”). In 2008, the Supreme Court of Canada held in Saulnier v Royal Bank of Canada [2008 SCC […]
A Renewed Focus on Committees
The Board of Trustees is continuing to pursue opportunities to improve the ACIC. Significant recent initiatives have included website renovations, increased membership communications and involvement, development of new membership criteria and a focus on recruitment efforts, and an upgrade to the location of the NY Annual Meeting. Most recently the Board is increasing its focus […]
Revised Version of the Statement of Insolvency Practice 16: Pre-packaged Sales in Administrations
On 1 November 2015, the revised version of the Statement of Insolvency Practice 16: Pre-packaged Sales in Administrations (“Revised SIP 16”) became effective, applying to appointments of insolvency practitioners starting on or after that date. The Revised SIP 16 was the culmination of a process which began in 2013 with the commencement of the Graham Review, commissioned […]
Tax Credits and Effect on Investment in U.S. Renewable Energy Industry
Tax Credits and Effect on Investment in U.S. Renewable Energy Industry By: Craig Kline and Eric Teszler U.S. tax policies have helped kick start and sustain the renewable energy industry. U.S. renewable energy tax policies (the subject of this article), together with State Renewable Portfolio Standards, have helped create significant investment in renewable energy. These […]
Implied Contract Incorporates Indemnity for a Pension Deficit
On 31 March 2015, Mr Justice Richards in the High Court delivered a judgment in Heis and others v MF Global UK Services Ltd, [2015] EWHC 883 (Ch), in which it was held that an implied contract concerning the secondment of staff existed between MF Global UK Services Limited (“Services”), as the supplier of the […]
New UK Tax Rules for Debt Restructuring
The UK corporate tax landscape has been undergoing reform for a number of years. A significant part of the changes involve the ongoing modernisation of the UK’s complex tax regime for corporate debt, a project which has included proposals to provide new tax exemptions for consensual debt restructurings. The changes have not been limited to […]
Alberta Court Restricts the Use of Canada Business Corporations Act for Debt Restructurings
Connacher Oil and Gas Limited (“Connacher”) recently applied to the Court of Queen’s Bench of Alberta (the “Court”) for approval of a plan of arrangement pursuant to section 192 of the Canada Business Corporations Act (“CBCA”). In this unreported decision, Justice Jones of the Court limited the use of CBCA for debt restructurings to situations where the […]
ACIC Development Committee
In this month’s edition, the ACIC Private Notes is spotlighting the ACIC Development Committee, which is co-chaired by Tina Smith and Renée Dailey. The mission of the Development Committee is three-fold: (1) to promote collegiality amongst ACIC members and provide a forum for members to continually develop and expand their network and relationships; (2) to address membership […]
RECOVERIES ON NOTES SECURED BY REAL ESTATE MORTGAGES: GUARANTORS, TRANSFERS AND PROOF
Several recent cases in Texas continue to develop the rules for lender (and lenders’ assignee) recovery against borrowers or guarantors. The Texas appellate court in Houston set out, in Ho v. Saigon Nat’l Bank, 438 S.W. 3d 871 (Tex. App.-Houston [14th Dist.] 2014), four specific items that a collecting creditor must show in its suit on the note: “(1) […]
FRAUDULENT TRANSFERS: RECENT INTERPRETATIONS OF THE UNIFORM FRAUDULENT TRANSFER ACT BY THE FIFTH CIRCUIT
Janvey v. The Golf Channel Incorporated, case No. 13-11305, 780 F.3d 641, 2015 WL1058022 (5 Cir. March 11, 2015). In a case applying fraudulent transfer analysis to payments received from a company that was part of a Ponzi scheme, the Fifth Circuit Court of Appeals, applying the Texas Uniform Fraudulent Transfer Act held that a provider of services […]
DEFINITION OF “ELIGIBLE ASSIGNEES,” AND SPECIFICALLY, “FINANCIAL INSTITUTIONS,” FOUND NOT TO INCLUDE PREDATORY INVESTORS BASED ON THE PLAIN LANGUAGE AND CONTEXT OF THE ASSIGNMENT PROVISION IN A LOAN AGREEMENT, AS WELL AS THE PARTIES’ PRIOR ACTIONS
In re Meridian Sunrise Village, LLC, 2014 WL 909219 (W.D. Wash. 2014). In April 2008, Meridian Sunrise Village, LLC (“Meridian”) borrowed $75,000,000 from U.S. Bank for the construction of Sunrise Village, a shopping center. Meridian specifically limited the definition of “Eligible Assignees” to commercial banks, insurance companies, financial institutions or institutional lenders to avoid future assignments […]
DEFINITION OF “INDEBTEDNESS” WAS CONSTRUED NARROWLY IN GUARANTY AGREEMENTS SUCH THAT THE GUARANTEED OBLIGATIONS WERE DEEMED TO BE COMMENSURATE WITH THE AMOUNT OF THE ALLOWED CLAIM SET FORTH IN THE DEBTOR’S CHAPTER 11 PLAN
In re Gentry, 2014 WL 4723879 (D. Colo. 2014). Ball Four, Inc. (“Ball Four”) operated a sports complex in Denver, Colorado. Susan and Larry Gentry (the “Gentrys”) were the sole shareholders, officers and directors of Ball Four. In 2005, Ball Four obtained a $1.9 million loan from FirsTier Bank (“FirsTier”) to expand its business. The loan proceeds were […]
PAYMENTS FALLING WITHIN THE PLAIN LANGUAGE OF BANKRUPTCY CODE § 546(E) COULD NOT BE AVOIDED AS FRAUDULENT TRANSFER PAYMENTS.
In re D.E.I. System, Inc., 996 F. Supp. 1142 (D. Utah 2014). In May 2004, David Bevan (“Bevan”) and Benedict Bichler (“Bichler”) entered into a purchase agreement (the “Purchase Agreement”), consisting of a series of transactions whereby they sold 44.843% of their shares of Delta Equipment Systems, Inc. (“DEI-UT”) to Environmental Services Group (“ESG”) for […]
Buyer of Distressed Loan Portfolio Held to Remedy Limitation Resulting in No Recovery for Breach
McFarland State Bank (“McFarland”) acquired a loan portfolio (the “Portfolio”) with an unpaid balance of $4.42 million from Evergreen State Bank. Subsequent thereto, McFarland put the Portfolio up for auction. Southern Financial Group, LLC (“SFG”), a Texas firm specializing in distressed‑asset investing, had an interest in the Portfolio and requested background materials on the Portfolio from McFarland’s sales agent. The […]
Mistaken Date in Security Agreement Defeats Security Interest Securing Promissory Note
On December 15, 2008, David L. Duckworth (the “Borrower”) obtained a loan from the State Bank of Toulon (“Bank”) in the amount of $1.1 million (the “Loan”). The Loan was evidenced by a promissory note executed by the Borrower in favor of Bank dated December 15, 2008 (the “Note”) and secured by a security agreement dated December 13, 2008 […]
Expansive Trust Indenture Act Interpretation May Negatively Affect Bond Restructurings
Expansive Trust Indenture Act Interpretation May Negatively Affect Bond Restructurings Marblegate Asset Mgmt. v. Educ. Mgmt. Corp., Case No. 14 Civ. 8584 (KPF), 2014 WL 7399041 (S.D.N.Y. Dec. 30, 2014) MeehanCombs Global Credit Opportunities Fund, LP v. Caesars Entm’t Corp., No. 14-CV-7091 SAS, 2015 WL 221055 (S.D.N.Y. Jan. 15, 2015). In two recent decisions, Marblegate Asset […]
