Make-Whole Premiums in Bankruptcy, Explained
The question
The Second Circuit’s *Momentive* decision addressed the enforceability of make‑whole premiums in bankruptcy. What is the general rule regarding make‑whole premiums when a debtor repays debt ahead of schedule in Chapter 11, and why do creditors often lose their claim to such premiums?
General educational practice only. This is not an actual, confidential, leaked, or firm-provided interview question. Check important technical details against primary learning materials.
Study explanation
In Chapter 11, a debtor may seek to repay prepetition debt at par without paying a contractual make‑whole premium. The general rule, as clarified in Momentive, is that a make‑whole premium is equivalent to unmatured interest and is disallowed under Section 502(b)(2) of the Bankruptcy Code, unless the indenture clearly and specifically states that the premium is payable in the event of acceleration or optional redemption triggered by bankruptcy.
Most indentures provide that the make‑whole is due upon optional redemption, not acceleration. When a debtor defaults and the debt is accelerated, the obligation to pay the make‑whole vanishes because it was tied to a voluntary repayment, not an acceleration. Creditors lose the premium because the automatic acceleration clause (or the trustee’s acceleration) eliminates the condition for the make‑whole.
However, if the indenture explicitly says the premium is due even upon acceleration or if the noteholders can defeat the acceleration, the claim may survive. Momentive held that the indenture language was ambiguous and that the make‑whole was not allowed. This outcome hinges on the precise drafting of the acceleration and redemption provisions.
Follow-up pressure:
- How would a “solvent‑debtor” exception affect the analysis? If the debtor is solvent, can creditors recover the make‑whole based on state law damages?
- Why might a debtor choose to pay off the debt after filing Chapter 11 rather than continuing to accrue interest, and what does that do to the make‑whole claim?
- What steps can a lender take at the deal stage to protect its make‑whole premium in a future bankruptcy?
Balance sheet
| Cash | 150 |
| Accounts receivable | 120 |
| Inventory | 90 |
| Total current assets | 360 |
| PP&E, net | 400 |
| Goodwill | 150 |
| Other assets | 40 |
| Total assets | 950 |
| Accounts payable | 80 |
| Deferred revenue | 40 |
| Total current liabilities | 120 |
| Long-term debt | 380 |
| Total liabilities | 500 |
| Total equity | 450 |
| Total liabilities & equity | 950 |
This is a synthesized challenge prompt with a study explanation. It is not represented as a question from any firm or interview.
Start freeGet all 125 practice prompts as one PDF.
General educational prompts with study explanations for offline review. They are not firm-provided or confidential questions.
Keep going
The rest of this topic
Distress, bankruptcy and recoveries