Chapter 11 Hot Topics: Make-Whole Premiums and the Trust Indenture Act

(154 Ratings)

Produced on: May 05, 2016

Course Format On Demand Audio

Taught by


Course Description

Time 61 minutes
Difficulty Intermediate

Join Baker Hostetler practitioners Marc Hirschfield and Ferve Ozturk as they discuss key caselaw developments in make-whole premiums and the Trust Indenture Act.

A make-whole premium is a lump-sum payment that becomes due under a financing agreement when repayment occurs before the stated maturity date, thereby depriving the lender of all future interest payments bargained for under the agreement. Recent caselaw developments in the Momentive and Energy Future Holdings cases have more clearly defined the legal landscape for the allowance of make-whole premiums in Chapter 11 restructuring cases on the critical issues of drafting, voluntary redemptions versus acceleration, and rescission and the automatic stay. They have also shed light on the role of equitable considerations and the debtor’s insolvency.

The Trust Indenture Act of 1939 is a statutory provision dating back to the New Deal. The recent cases of Marblegate Asset Management and Caesars Entertainment have broadly read a provision of the Act to bar any non-consensual change to the existing bond indenture that would affect any bondholder’s ultimate payment rights in the context of an out-of-court restructuring. These decisions have raised the issue of whether the Act gives a distressed company’s minority bondholders the power to hold up a restructuring to which the majority bondholders agree.


Learning Objectives:

I.     Understand issues surrounding make-whole premiums and the Trust Indenture Act

II.    Explore recent caselaw providing guidance on the recovery of make-whole premiums in bankruptcy and the impact of the Trust Indenture Act on creditors and debtors

III.   Identify areas for future legal development on these topics


Ferve Ozturk


Ferve Ozturk has significant experience litigating and facilitating transactions in a wide range of matters in large-scale liquidations and restructurings. Her experience includes representing creditors in complex chapter 11 bankruptcy cases in industries such as retail, automotive, financial, and professional services.


Marc Hirschfield

Royer Cooper Cohen Braunfeld LLC

Marc Hirschfield is an experienced practitioner in all aspects of insolvency and reorganization law. He regularly represents debtors, creditors' committees, debtor-in-possession lenders, and secured and unsecured creditors and acquirers of assets, in both out-of-court workouts and bankruptcy cases. His expertise extends beyond the United States to cross-border insolvency cases in various jurisdictions including Bermuda, the British Virgin Islands, Canada, and Australia.

Marc is a court-certified mediator and has been appointed to the Mediation Panels for the United States Bankruptcy Courts for the Southern and Eastern Districts of New York and the District of Delaware. He has been listed in Chambers USA: America's Leading Lawyers for Business in the area of Bankruptcy/Restructuring since 2010 and been recognized as a New York City Metropolitan Region "Super Lawyer" since 2011.


Linda B.


jay s.

The King & Queen have held court. Another Great lecture

David L.

The specificity of the topics allowed you to go into a good level of depth which I appreciated. Very nice job. Thanks.

Dan B.

Course was great!

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$ 59 Bankruptcy & Restructuring In Stock


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