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Articles by Evan D. Flaschen
Make-Whole Upheld Wholly - Solvent Debtors Beware
Traditional thinking in the private placement noteholder community has been the “model form” approach to make-whole amounts created an enforceable liquidated damages claim in the event of voluntary or involuntary acceleration by the note issuer, including upon a bankruptcy filing. That thinking has been tested in the market as a result of a number of recent decisions involving public notes where courts have interpreted the specific indenture language to deny a make-whole claim.
Australian Insolvency Reforms - A Bill Becomes Law
Last year, we reported that Australia had proposed significant insolvency reforms that, in our view, are long overdue ("A Major Leap Forward for Australian Insolvency Laws"). Earlier this year, we reported here that the Australian government had released a revised draft of its insolvency legislation providing a safe harbor from director insolvent trading liability and limitations on the enforceability of ipso facto clauses upon the occurrence of certain insolvency-related events.
Canadian Bankruptcy and Insolvency Act: "Alberta, Alberta, You’re Still on My Mind"
Last year we reported (here) that Alberta’s Redwater Energy Corporation decision signaled good news for lenders and noteholders secured by Alberta O&G assets because the federal Canadian Bankruptcy and Insolvency Act (“BIA”) prevailed over conflicting provisions in the provincial regulations promulgated by the Alberta Energy Regulator (“AER”).
Australian Insolvency Laws Finally Almost Ready for Their Major Leap Forward
Last year, we reported that Australia had proposed significant insolvency reforms that, in our view, are long overdue. Now, the Australian government has released a revised draft of its insolvency legislation (text available here) providing a safe harbor from director insolvent trading liability and limitations on the enforceability of ipso facto clauses upon the occurrence of certain insolvency-related events.
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