Treatment of Make-Whole and No-Call Provisions in Bankruptcy
Navigating the Circuits on Prepayment Premium Provisions; Guidance for Drafting Loan Documents and Indentures
Recording of a 90-minute CLE webinar with Q&A
This CLE webinar will provide bankruptcy and lender counsel with a review of the In re Ultra Petroleum case from the Fifth Circuit, highlighting conflicts in the relevant case law and emerging theories regarding both enforceability of make-whole and no-call provisions in bankruptcy loan agreements and protection of entitlement to make-whole premiums.
- Make-whole provisions in fixed-rate lending
- The concept and basic formula
- Enforceability as a matter of state law
- No-call provisions
- Enforceability of no-calls
- Critical issues in bankruptcy involving make-wholes (and no-calls) under the documents
- Is it triggered?
- How has the drafting changed in response to recent decisions
- Critical issues of bankruptcy law
- Is the claim disallowed as "unmatured interest"?
- May the class be "unimpaired" and the claim disallowed?
The panel will review these and other key issues:
- What factors do bankruptcy courts consider in analyzing the enforceability of make-whole and no-call provisions in loan agreements?
- Is the impairment aspect of the ruling consistent with the statute? Could it be subject to further challenge in other circuits?
- What are best practices for counsel to lenders and bondholders to protect entitlement to make-whole premiums?
- What lessons can you take from Ultra Petroleum and other bankruptcy rulings?
Vice President & Deputy General Counsel
Ms. Franek is VP and Deputy General Counsel at CNH Partners, the arbitrage affiliate of AQR Capital Management. In this... | Read More
Ms. Franek is VP and Deputy General Counsel at CNH Partners, the arbitrage affiliate of AQR Capital Management. In this role, she is responsible for providing risk analysis and investment screening, assisting with analysis and execution of investment opportunities, and sourcing, researching and evaluating potential debt and equity investments. Prior to AQR, she was a Senior Counsel for Chevron and a Senior Finance Associate in the New York office of Latham & Watkins LLP, focusing on restructurings and senior secured lending transactions.Close
James H. Millar
Faegre Drinker Biddle & Reath
Mr. Millar has more than 20 years of experience in bankruptcy law and corporate restructuring. He represents... | Read More
Mr. Millar has more than 20 years of experience in bankruptcy law and corporate restructuring. He represents bondholders in Chapter 11 cases, counsels industry players in cross-border insolvency matters, guides clients through out-of-court restructurings, and handles distressed acquisitions, bankruptcy-related litigation and insolvency-sensitive transactions. Mr. Millar is a frequent author and lecturer on a variety of bankruptcy law issues.Close