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" ... 2. Section 4, unlike § 5, protects creditors of a debtor whose claims arise after as well as before the debtor made or incurred the challenged transfer or obligation. Similarly, there is no requirement in § 4(a)(1) that the intent referred to be directed at a creditor existing or identified at the time of transfer or incurrence. For example, promptly after the invention in Pennsylvania of the spendthrift trust, the assets and beneficial interest of which are immune from attachment by the beneficiary’s creditors, courts held that a debtor’s establishment of a spendthrift trust for the debtor’s own benefit is a voidable transfer under the Statute of 13 Elizabeth, without regard to whether the transaction is directed at an existing or identified creditor. Mackason’s Appeal, 42 Pa. 330, 338-39 (1862); see also, e.g., Ghormley v. Smith, 139 Pa. 584, 591-94 (1891); Patrick v. Smith, 2 Pa. Super. 113, 119 (1896). Cf. Restatement (Third) of Trusts § 58(2) (2003) (setting forth a substantially similar rule as a matter of trust law). ... "
" ... As the M&A market has heated, including the number of lenders chasing deals, covenant-lite (cov-lite) leveraged loans that place fewer restrictions on the borrower have come into common use. The incurrence covenants included in these loans primarily require the issuer to meet financial tests only should they wish to take special actions such as making an add-on acquisition, paying a dividend, or issuing more debt. ... "
" ... The misleading insistence on “fraud” in the title of the Act has also contributed to the widespread use of shorthand terminology that is apt to distort understanding of the meaning of the Act’s provisions. For example, several of the theories of recovery under the Act have nothing whatever to do with fraud (or with intent of any sort), yet are widely known by the oxymoronic shorthand “constructive fraud.” (Act §§ 4(a)(2), 5(a)). Likewise, the primordial theory of recovery under the Act relates to a transfer of property or incurrence of an obligation made by a debtor with intent to “hinder, delay, or defraud” any debtor of the creditor. (Act § 4(a)(1)). By its terms this language applies if the debtor intends to “hinder” or “delay” a creditor, even absent intent to “defraud,” and numerous cases (including by the U.S. Supreme Court) have so recognized. Yet this provision is widely referred to by the very misleading shorthand tag “actual fraud,” and it is evident that this has tended to distort perception of its meaning. ... "