The Bank had given the bond some form of consent for the amended agreements as a condition for the entry into force of the amended agreements, although the surety refused to sign and return them. The Tribunal correctly found that the bank had waived this condition. Textron did not file a UCC funding statement when implementing the amended 2004 loan agreement, but submitted an amendment to the UCC funding statement. In 2007, the debtor and fHI used a portion of the proceeds of an asset sale transaction to pay the remaining balance to Textron under the amended 2004 loan agreement. This payment ended Textron`s relationship with the debtor and the FHI, and Textron released all of its pawn rights. In 2009, the FBI searched the debtor`s headquarters. Once the debtor`s business collapsed, an involuntary bankruptcy application was filed against the debtor. Among other things, the liquidator filed a number of opponents of Textron (and other defendants) in the Bankruptcy Court, which was entitled to the prevention and recovery of fraudulent transfers. Textron withdrew the attorney`s appeal, and the regional court granted Textron`s application. With respect to the fraudulent transfer of the agent, the trial court found in law that the amended 2004 loan agreement was not an innovation and that, therefore, the security interests granted under the 2002 loan agreement remained fully in effect. As a result, neither the amended 2004 loan agreement nor the contractual payments made under that loan could be considered transfers for the purposes of a fraudulent transfer request. As part of the appeal process, the agent asserted under the Ohio Uniforme Fraud Transfer Act (“UFTA”) that the debtor was able to circumvent the commitments and payments arising from the amended 2004 loan agreement, since the security interest and payments made by the debtor under the amended 2004 loan agreement were considered fraudulent transfers. The agent argued that the pledge under the 2002 loan agreement had been cancelled, given that the amended 2004 loan contract was a re-evaluation of the 2002 loan contract and that the security interest granted under the 2002 loan agreement had been cancelled , as well as security interests granted under the 2002 loan agreement.
In order to file an application for discharge under OHIO UFTA, the 6th Circuit stated that the agent had to assert facts that plausibly indicated that the assets or interest on the assets traded by the debtor under the amended 2004 loan agreement were not already subject to a valid lien. The 6th Circle then reviewed the elements of intent, knowledge and approval to determine whether there had been a renewal of the 2002 loan agreement. The 6th Circle received support for innovation in: (1) the text of the amended 2004 loan agreement, in which several provisions demonstrate the parties` intention for the amended 2004 loan agreement to remove and completely replace the 2002 loan agreement; (2) Indications such as the closing date of the amended 2004 loan agreement, which took place during the term of the 2002 loan agreement, new bonds and guarantees were issued, and united Bank set up a lender; and (3) new conditions in the amended 2004 loan agreement, which, according to the 6th arrondissement, all meant the intention to omit the 2002 loan contract. The 6th Circuit examined and drew the official comm. of Unsecured Creditors of Tousa, Inc. v. Citicorp N. Am., Inc. (In re TOUSA, Inc.), 630 F.3d 1298 (11. Cir.
2012), where the loan agreement contained an explicit language that the security interest persisted in full force.