News & Analysis as of

Make-Whole Doctrine

Bankruptcy Court Rules "Make-Whole" Provision Creates Enforceable Liquidated Damages

by Jones Day on

The Situation: After a ruling in In re Ultra Petroleum Corp. by the U.S. Bankruptcy Court for the Southern District of Texas, certain private-placement noteholders are entitled to a "make-whole" premium in excess of $200...more

Ultra Court Confirms Make-Whole Amount and Post-Petition Interest for OpCo Noteholders

by Morgan Lewis on

The court awarded OpCo Noteholders in excess of $320 million in Make-Whole Amount and post-petition interest, confirming that make-whole is an enforceable liquidated damage claim....more

Language Matters: Third Circuit Finds Make-Whole Provision Enforceable After Bankruptcy Filing

On November 17, 2016, the US Court of Appeals for the Third Circuit in Delaware Trust Co. v. Energy Future Intermediate Holding Co. LLC, No. 16-1351 (3d Cir. Nov. 17, 2016) clarified the often-muddy interplay between...more

Third Circuit Rules Make-Whole Provisions Enforceable in the Energy Future Bankruptcy

by King & Spalding on

On November 17, the U.S. Court of Appeals for the Third Circuit (the “Court”) made clear its stance on the question of enforceability of make-whole provisions in bankruptcy. Bucking the recent trend seen in cases such as In...more

Third Circuit Rules in Favor of Noteholders on Make-Whole Provision in Debt Indenture

by Cozen O'Connor on

Debt indentures often contain what is known as a “make-whole” provision, which requires the borrower, upon an early repayment of the debt, to make an additional payment to the lender to compensate the lender for its...more

EFIH Noteholders Find Redemption for the Payment of Make-Whole Premiums

by Shearman & Sterling LLP on

On November 17, 2016, the United States Court of Appeals for the Third Circuit issued a decision in which it held that holders of first lien notes and second lien notes of Energy Future Intermediate Holding Company LLC and...more

Commercial Restructuring & Bankruptcy Alert - October 2016

by Reed Smith on

Welcome to the October 2016 issue of the CR&B Alert, the newsletter produced by Reed Smith's Commercial Restructuring & Bankruptcy Group. Excerpt from newsletter: DELAWARE AND NEW YORK AT ODDS OVER RECLAMATION...more

NLRB Reaffirms Alan Ritchey Doctrine with New Make-Whole Twist

by Seyfarth Shaw LLP on

Seyfarth Synopsis: The Board reaffirmed, prospectively, the Alan Ritchey doctrine requiring employers to bargain over discretionary discipline issued to newly organized employees pre-first contract and mandated prospective...more

Canary Wharf v Deutsche Trustee Company Limited: Contractual interpretation now settled and straightforward, correct?

by Bryan Cave on

The English High Court has once again had to visit the principles for interpretation of contracts under English law, in Canary Wharf v Deutsche Trustee Company Limited and others. The particular issue in dispute concerned...more

English Court Decision: Canary Wharf Finance II Plc v Deutsche Trustee Company Limited et al.

If you read one thing... - In a very recent decision, the English High Court has provided clear support for the enforceability of a make-whole provision providing compensation to the holders of long-term fixed-rate...more

"Recent Rulings Underscore Importance of Careful Drafting of Make-Whole Payment Provisions"

Under long-established common law, loans must be paid only upon maturity, not before. This "perfect tender in time" rule is the default rule in a number of jurisdictions. Many indentures and credit agreements therefore either...more

Court of Appeals of Wisconsin: Insured Must Be “Made Whole” For Total Loss Before Insurer Can Recover Subrogated Funds

Dufour v. Progressive Classic Ins. Co., No. 2014AP157, 2015 WL 4275292 (Wis. Ct. App. July 16, 2015). The Court of Appeals of Wisconsin reverses the Circuit Court for Dodge County and remands for proceedings on damages...more

New Decision on Enforceability of Make Whole Provisions

by King & Spalding on

Another bankruptcy court — this time in New York — has weighed in on the issue of whether “make whole” provisions are enforceable in bankruptcy. See In re MPM Silicones, LLC, et al. (a/k/a Momentive Performance...more

Ninth Circuit Holds that Monetary “Make-Whole” Relief Is Not Available Absent Loss to Plan or Unjust Enrichment for Defendant...

by Goodwin on

A Ninth Circuit panel recognized that reformation, equitable estoppel and surcharge were among the “appropriate equitable relief” potentially available under Section 502(a)(3) of ERISA (following dictum in CIGNA Corp. v....more

"Enforcement of Make-Whole Provisions in Bankruptcy: The Importance of Careful Drafting"

Indentures typically contain provisions that offer protection to bondholders and borrowers in the event of early repayment of or, in some instances, default on the loan. This includes make-whole provisions, which...more

Connecticut Supreme Court: “Make Whole” Doctrine Is Default Rule, But Does Not Apply to Policy Deductibles

by Wilson Elser on

In Fireman’s Fund Ins., Co. v. TD Banknorth Insurance Agency, Inc., SC 18796 (Conn. 07/30/2013), the Connecticut Supreme Court answered two certified questions of first impression under Connecticut insurance law: - Is...more

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