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Parties' Intent: Third Circuit Finds Make-Whole Provision Survives Voluntary Bankruptcy Filing

Published in Pratt's Journal of Bankruptcy Law
Article | April 2017

The article examines a recent US Third Circuit Court of Appeals reversal of bankruptcy and district court holdings that an indentures' acceleration provision, which provided that certain notes matured upon bankruptcy, did not extinguish debtors' obligation to pay noteholders the applicable "make-whole" premium (i.e., expected interest). In In re Energy Future Holding Corp., the Third Circuit noted that it was giving effect to the parties' expressed intent. The ruling sends a signal to noteholders that Delaware bankruptcy cases will not result in the automatic removal of make-whole premium provisions.

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