Make-Whole and No-Call Provisions in Bankruptcy: Developments, Trends, and Strategies
Navigating the Widening Split on Prepayment Premium Provisions; Guidance for Drafting Loan Documents and Indentures
Recording of a 90-minute CLE video webinar with Q&A
This CLE course will provide bankruptcy and lender counsel with a review of the Fifth Circuit's latest decision in In re Ultra Petroleum, 51 F.4th 138 (5th Cir. 2022), the Delaware Bankruptcy Court's decision in In re Hertz Corp., Adv. Proc. No. 21-50995 (Bankr. D. Del. Nov. 9, 2022), and the solvent debtor exception, highlighting widening 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.
Outline
- General considerations and strategies
- Prioritizing what relief to request in First-Day motions
- Procedural and evidentiary considerations
- Selected First-Day motions
- First-Day declarations
- Debtor-in-possesion financing
- Cash collateral
- Wages and employee compensation
- Critical vendors
- Reclamation procedures
- Cross-border foreign representative orders
Benefits
The panel will review these and other key issues:
- Will disallowance of make-whole claims under Section 502(b)(2) affect secured creditors' seeking make-whole payments pursuant to the exceptions under Section 506(b)?
- 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?
Faculty
Ferve E. Khan
Counsel
BakerHostetler
Ms. Khan is a practiced bankruptcy litigator and transactional attorney who has extensive experience in large-scale... | Read More
Ms. Khan is a practiced bankruptcy litigator and transactional attorney who has extensive experience in large-scale liquidations and restructurings. She has represented creditors in complex Chapter 11 bankruptcy cases in industries such as retail, automotive, financial and professional services. She has also litigated a wide range of matters in Chapter 11 and SIPA cases. She actively publishes and speaks on cutting-edge legal developments in the restructuring field and is Co-Chair of the American Bankruptcy Institute Bankruptcy Litigation Committee.
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Lucy F. Kweskin
Partner
Mayer Brown
Ms. Kweskin is a partner in Mayer Brown's New York office and a member of the Global Restructuring practice. She... | Read More
Ms. Kweskin is a partner in Mayer Brown's New York office and a member of the Global Restructuring practice. She advises clients, with a special focus on lenders, on all stages of corporate restructurings (both in and out-of-court) with significant experience with forbearance agreements, foreclosures, restructuring support agreements, debtor-in-possession financing, 363 sales and chapter 11 plans. Ms. Kweskin frequently litigates bankruptcy-related disputes concerning valuation, make-whole claims, inter-creditor issues, fraudulent transfers, recharacterization, veil piercing, and breaches of fiduciary duty. In addition to lenders, she represents stakeholders across the capital structure including debtors, distressed acquirers, official committees of unsecured creditors, litigation financiers and landlords.
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