Treatment of Make-Whole and No-Call Provisions in Bankruptcy After Ultra Petroleum
Navigating the Circuits on Prepayment Premium Provisions; Guidance for Drafting Loan Documents and Indentures
Recording of a 90-minute premium CLE webinar with Q&A
This CLE webinar will provide bankruptcy and lender counsel with a review of the recent 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)
- Is it triggered?
- Is the claim disallowed as “unmatured interest”?
- May the class be “unimpaired” and the claim disallowed?
- Practical implications: drafting the clause
- Summary of case law and trends
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?
- 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 litigation rulings?
James H. Millar
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
P. Sabin Willett
Morgan Lewis & Bockius
Mr. Willett tries cases, adversary proceedings and contested matters, and argues appeals, largely in disputes... | Read More
Mr. Willett tries cases, adversary proceedings and contested matters, and argues appeals, largely in disputes concerning corporate insolvency. Practicing typically in the bankruptcy, Delaware Chancery, and federal district courts, he often represents parties to fraudulent transfer, plan valuation, and other complex Chapter 11 disputes. A fellow of the American College of Bankruptcy, Mr. Willett co-leads defense groups in the Tribune and Lyondell fraudulent transfer litigation, led the trial team that mitigated damages in Tronox, and prevailed in the New York Court of Appeals in Quadrant.Close