United States: Not Entitled To Makewholes? Not So Fast

Last Updated: December 1 2016
Article by Brett H. Miller and Erica Richards

Throwing yet another wrench into the long-running and hard fought bankruptcy proceedings of Energy Future Holdings Corp., et al.,1 the Third Circuit recently reversed the decisions of the Delaware bankruptcy and district courts and held that certain noteholders are entitled to receive more than an estimated $670 million in so-called "makewhole" premiums under their respective indentures where the debt was automatically accelerated upon the issuer's bankruptcy filing and the notes were subsequently repaid, even in the absence of express language in the indentures providing that such premiums were triggered under an automatic acceleration.

As discussed below, the Third Circuit's decision expressly rejects the reasoning and holdings of lower courts in the Second Circuit interpreting similar language, creating significant uncertainty about how such provisions may be treated going forward.

EFH Factual Background

On April 29, 2014, Energy Future Intermediate Holding Company, LLC and EFIH Finance, Inc. (collectively, the "EFIH Debtors") filed petitions for relief under chapter 11 of the Bankruptcy Code in Delaware. The EFIH Debtors sought approval of debtor-in-possession financing (the "DIP Financing"), in part, to repay all of their outstanding first lien notes originally maturing in 2020 (the "First Lien Notes"), and to settle certain noteholders' claims (the "DIP Motion").2 The DIP Motion also sought a determination that any noteholders who did not agree to the treatment set forth in the DIP Motion were not entitled to any makewhole payment or related claims.

The indenture trustee for the First Lien Notes (the "First Lien Trustee") objected to the DIP Motion, arguing that the non-settling holders of the First Lien Notes (the "First Lien Noteholders were entitled to a secured claim for an amount described in the indenture (the "First Lien Indenture") as the "Applicable Premium" in an amount totaling not less than $431 million because, among other things: (i) an "Optional Redemption" as defined under the First Lien Indenture would occur when the First Lien Notes were repaid and (ii) the EFIH Debtors intentionally defaulted by filing bankruptcy to avoid paying the Applicable Premium. Shortly thereafter, the First Lien Trustee commenced an adversary proceeding seeking a ruling on the First Lien Noteholders' entitlement to the Applicable Premium upon the repayment of the First Lien Notes.3

On June 6, 2014, the Bankruptcy Court approved the DIP Financing, the EFIH Debtors' use of the DIP Financing to pay the outstanding First Lien Notes, and the settlement resolving certain noteholders' claims for the Applicable Premium.4 The order approved the repayment of the principal balance of and accrued interest on the First Lien Notes, but specifically preserved all parties' rights with respect to any makewhole claims arising as a result of the repayment.

On June 19, 2014, in accordance with the order approving the DIP Motion, the EFIH Debtors repaid all First Lien Noteholders their full principal and accrued interest (other than disputed amounts of interest and any makewhole payments) and paid the settling noteholders an agreed upon amount to settle any remaining claims under the First Lien Notes.

The First Lien Noteholders continued to pursue their claims for the Applicable Premium through their adversary proceeding.

Shortly after the bankruptcy filing, the EFIH Debtors indicated that they also reserved the right to seek to repay two tranches of second lien notes, originally maturing in 2021 and 2022, respectively (the "Second Lien Notes"). On June 16, 2014, the trustees for the Second Lien Notes (the "Second Lien Trustees") commenced their own adversary proceeding seeking a ruling on the entitlement of holders of the Second Lien Notes (the "Second Lien Noteholders") to makewhole payments under the terms of their indenture (the "Second Lien Indenture") in the event of such a repayment.5

With the Bankruptcy Court's permission, the EFIH Debtors refinanced a portion of the Second Lien Notes on March 10, 2015 without paying the Applicable Premium.

The Bankruptcy Court Decision

The parties' respective arguments during the makewhole adversary proceedings turned on the correct interpretation of the following provisions of the indentures:

  • Section 3.07(a) of the First Lien Indenture specifies what constitutes an Optional Redemption, and states:

At any time prior to December 1, 2015, the Issuer may redeem all or a part of the Notes at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest to, the date of redemption (the "Redemption Date") . . . .

  • Section 1.01 of the First Lien Indenture defines Applicable Premium as follows:

"Applicable Premium" means, with respect to any Note on any Redemption Date, the greater of: (1) 1.0% of the principal amount of such Note; and (2) the excess, if any, of (a) the present value at such Redemption Date of (i) the redemption price of such Note at December 1, 2015 (such redemption price as set forth in the table appearing under Section 3.07(d) hereof), plus (ii) all required interest payments due on such Note through December 1, 2015 (excluding accrued but unpaid interest to the Redemption Date), computed using a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points; over (b) the principal amount of such Note.

  • Section 6.01 of the First Lien Indenture defines the various Events of Default and, more specifically, Sections 6.01(a)(6) and (a)(7) specify Events of Default related to bankruptcy. In particular, Section 6.01(a)(6)(i) states that an Event of Default occurs when EFIH "commences proceedings to be adjudicated bankrupt or insolvent."
  • The acceleration clause in Section 6.02 of the First Lien Indenture explains the consequences of this bankruptcy-caused Event of Default:

[I]n the case of an Event of Default arising under clause (6) or (7) of Section 6.01(a) hereof, all outstanding Notes shall be due and payable immediately without further action or notice.

  • Section 6.02 of the First Lien Indenture also provides that, in the event of an acceleration of the First Lien Notes, the First Lien Trustee possesses a qualified right to effectively decelerate the First Lien Notes through the act of rescission:

The Holders of at least a majority in aggregate principal amount of the Notes by written notice to the Trustee may on behalf of all the Holders waive any existing Default and its consequences under the Indenture except a continuing Default in the payment of interest on, premium, if any, or the principal of any Note (held by a nonconsenting Holder) and rescind any acceleration with respect to the Notes and its consequences (so long as such rescission would not conflict with any judgment of a court of competent jurisdiction).

These provisions of the Second Lien Indenture are substantially identical, except with respect to the acceleration clause under section 6.02, which provides that if the EFIH Debtors file for bankruptcy:

all principal of and premium, if any, interest . . .[,] and any other monetary obligations on the outstanding Notes shall be due and payable immediately" (emphasis added).

In connection with summary judgment motions filed by the parties to the First Lien Trustee's adversary proceeding, the Bankruptcy Court held that when the EFIH Debtors filed for bankruptcy, the First Lien Notes automatically accelerated and became due and payable immediately pursuant to Section 6.01(a)(6)(i).6

The Bankruptcy Court noted that there is no reference in Section 6.02 of the First Lien Indenture to the payment of the "Applicable Premium" upon an automatic acceleration, nor is Section 3.07 (regarding Optional Redemptions) incorporated into Section 6.02. Indeed, the Bankruptcy Court observed that the concept of an Applicable Premium only arises in the optional redemption provision under Section 3.07.

The Bankruptcy Court then turned to Second Circuit case law, including Momentive,7 regarding contract interpretation under New York law, which holds that an indenture "must contain express language requiring payment of a prepayment premium upon acceleration; otherwise, it is not owed."8

The Bankruptcy Court also relied on various New York cases for the proposition that "a borrower's repayment after acceleration is not considered voluntary."9 Because "[p]repayment can only occur prior to the maturity date," and "acceleration, by definition, advances the maturity date of the debt," the Bankruptcy Court reasoned that any payment after acceleration is therefore not a prepayment but instead is payment made after maturity.

Accordingly, the Bankruptcy Court held that, in the absence of "clear and unambiguous language that a makewhole premium (here the "Applicable Premium") is due upon repayment of the First Lien Notes following a bankruptcy acceleration," the repayment of the notes following their automatic acceleration was not an Optional Redemption under the First Lien Indenture and the Applicable Premium was not owed.10

The Bankruptcy Court further held that the First Lien Noteholders were prevented from seeking to rescind the acceleration of the First Lien Notes pursuant to the terms of the First Lien Indenture by operation of the automatic stay, and that cause did not exist to lift the stay.11

In construing the Second Lien Indenture's provisions, the Bankruptcy Court adopted its findings and conclusions from the makewhole litigation for the First Lien Noteholders, finding that the different language under the Second Lien Indenture did not change its analysis.12

The District Court Decision

The Delaware District Court affirmed the Bankruptcy Court's rulings with respect to the First Lien Notes in February 2016.13 The District Court also affirmed the Bankruptcy Court's rulings with respect to the Second Lien Notes in April 2016.14

The Third Circuit Decision

The First and Second Lien Trustees brought appeals on behalf of their respective noteholders, which were consolidated in proceedings before the Third Circuit.15 They argued that the Bankruptcy and District Courts erred by holding that the indentures did not require payment of the makewhole amounts when the EFIH Debtors redeemed the notes after their maturity had accelerated.

This time, their arguments gained traction. Finding in favor of the indenture trustees, the Third Circuit reversed.

The Third Circuit first addressed the definition of redemption as used in Section 3.07 of the indentures (and distinguished from a "prepayment," which the Court conceded by definition can be made only before a maturity date), concluding that under different New York case law than was cited by the Bankruptcy Court, the term includes both pre- and post-maturity repayments of debt. The Court then went on to explain that, notwithstanding the acceleration of the notes by their own terms, the redemption was an Optional Redemption under the terms of the indentures because EFIH voluntarily filed for chapter 11. The Court reasoned that "a chapter 11 debtor that has the capacity to refinance secured debt on better terms . . . is in the same position within bankruptcy as it would be outside bankruptcy, and cannot reasonably assert that its repayment of debt is not 'voluntary.'"

Next, the Court took up the EFIH Debtors' arguments that Sections 3.07 and 6.02 represented different pathways between which the Court must choose in determining remedies following acceleration of the notes, and that Section 6.02, as the more specific provision, controlled. The Court rejected the notion that the provisions conflicted, finding that they describe different things altogether and that nothing in the indentures mandated that the application of one (acceleration) negated the other (entitlement to a prepayment premium).

The Third Circuit relied on language from the decision of the New York Court of appeals in NML Capital16 stating that "'[w]hile it is understood that acceleration advances the maturity date of the debt," there is no "rule of New York law declaring that other terms of the contract not necessarily impacted by acceleration . . . automatically cease to be enforceable after acceleration." Based on this language, the Court suggested that "parties that want obligations to cease when accelerated should say so in their agreement."

The Third Circuit also considered the impact of the additional phrase "premium, if any" in the Second Lien Indenture's acceleration provision, finding that those words "make explicit . . . the link between acceleration under § 6.02 and the make-whole for an optional redemption per § 3.07." In so holding, the Third Circuit expressly rejected the finding in Momentive that such phrasing was not specific enough to demonstrate an intent by the parties that a makewhole payment would be payable following an acceleration under Section 6.02, stating that the Court believes "the result in Momentive conflicts with that indenture's text and fails to honor the parties' bargain."

The Third Circuit seemed to find especially relevant testimony that, months before the bankruptcy, the EFIH Debtors stated their intention to redeem the notes prior to their stated maturity. In addition, the Court stressed that the refinancing of the notes was done over the noteholders' objection. That analysis is arguably at odds with traditional canons of contractual interpretation, which limit a court's views to what the parties intended and bargained for at the time the contract was entered into.

The Third Circuit's decision effectively shifts the burden from one requiring that the debt instrument explicitly provide that makewhole payments are due upon acceleration in order for noteholders to receive such payments upon acceleration due to a bankruptcy to a requirment that the debt instrument must explicitly provide that a borrower has the right to pay off notes ahead of schedule following a bankruptcy filing without paying a makewhole amount.

Next Steps

It remains to be seen whether the EFIH Debtors will seek a rehearing or appeal of the Third Circuit's decision. In the meantime, they have indefinitely postponed the hearing to confirm their second proposed plan of reorganization for the EFIH Debtors, which was scheduled to commence on December 1, 2016. The proposed plan contains as a condition of effectiveness that all EFIH first and second lien makewhole claims will be disallowed. Accordingly, if the Third Circuit decision stands, the plan as currently proposed will not be capable of becoming effective, absent a waiver of that condition precedent, and the payment in cash of the additional makewhole claim amounts by the plan's proponents.


Language matters. Noteholders should carefully parse the language in their indentures to understand the risks involved. Are makewhole premiums due upon "redemptions" before a certain date or only upon "prepayments"? Does the indenture expressly provide for the termination of makewhole premiums upon acceleration for certain reasons? Or is it silent altogether?

Jurisdiction matters. The Third Circuit ruling heightens the current confusion surrounding the enforceability of makewhole provisions in bankruptcy cases in the Second Circuit. Unless and until that confusion is resolved (which may happen relatively soon in connection with the Momentive proceedings, discussed below), the venue in which an issuer's bankruptcy case is filed could prove critical in deciding whether that issuer's noteholders are entitled to makewhole payments.

Condition of the borrower may matter. The Momentive case relied upon by the Bankruptcy Court and expressly rejected by the Third Circuit is currently on appeal to the Second Circuit.17 Following oral argument, the matter was taken under advisement by the Second Circuit on November 9, 2016, shortly before the EFIH opinion came out on November 17, 2016. The indenture trustees in that case have urged that issues raised by the two cases are identical and the Second Circuit should similarly overturn the lower courts' decisions and find that the makewhole provisions under the applicable indentures were triggered. The Momentive debtors and other parties in interest have opposed that position, asserting that the cases are distinguishable because, among other things, the insolvency of the Momentive debtors is undisputed, and therefore, equitable considerations weigh in favor of denying the payment of makewhole amounts since other creditors are not being paid in full.  In contrast, in the EFH cases, the Bankruptcy Court presumed the EFIH Debtors were solvent for purposes of the makewhole litigation. It is uncertain whether the Second Circuit will agree that this factor is relevant, much less determinative.


1.In re Energy Future Holdings Corp., No. 14-10979 (Bankr. D. Del.).

2.In re Energy Future Holdings Corp., No. 14-10979 (Bankr. D. Del., Apr. 29, 2014) (ECF# 74).

3.CSC Trust Co. of Del. v. Energy Future Intermediate Holding Co. (In re Energy Future Holdings Corp.), Adv. Proc. No. 14-50363 (Bankr. D. Del. May 15, 2014) (ECF# 1).

4.In re Energy Future Holdings Corp., No. 14-10979 (Bankr. D. Del., June 6, 2014) (ECF# 859).

5.Computershare Trust Company NA v. Energy Future Intermediate Holding Company LLC (In re Energy Future Holdings Corp.), Adv. Proc. No. 14-50405 (Bankr. D. Del. June 16, 2014) (ECF# 1).

6.Del. Trust Co. v. Energy Future Intermediate Holding Co. (In re Energy Future Holdings Corp.), 527 B.R. 178 (Bankr. D. Del. 2015).

7.In re MPM Silicones, LLC, et al., No. 14-22503-RDD, 2014 WL 4436335, at *13-14 (Bankr. S.D.N.Y. Sept. 9, 2014) ("Momentive").

8.Citing Northwestern Mut. Life Ins. Co. v. Uniondale Realty Assocs., 816 N.Y.S.2d 831, 836 (N.Y. Sup. Ct. 2006) ("A prepayment premium will not be enforced under default circumstances in the absence of a clause which so states."); In re South Side House, LLC, 451 B.R. 248, 268 (Bankr. E.D.N.Y. 2011) ("[A] lender is not entitled to prepayment consideration after a default unless the parties' agreement expressly requires it."), aff'd U.S. Bank Nat'l Ass'n v. South Side House, LLC, No. 11-4135 (ARR), 2012 WL 273119 (E.D.N.Y. Jan. 30, 2012); Premier Entm't Biloxi v. U.S. Bank Nat'l Ass'n (In re Premier Entm't Biloxi LLC), 445 B.R. 582, 626; Momentive at *13-14.

9.South Side, 451 B.R. at 268; see also U.S. Bank Tr. Nat'l Ass'n v. AMR Corp. (In re AMR Corp.), 730 F.3d 88, 103 (2d Cir. 2013) (rejecting the claim that an accelerated repayment was a "voluntary redemption").

10.See CSC Trust Co. of Del. v. Energy Future Intermediate Holding Co. (In re Energy Future Holdings Corp.), Adv. Proc. No. 14-50363 (Bankr. D. Del. Mar. 26, 2015) (ECF# 245)., at ¶ 51.

11.Del. Trust Co. v. Energy Future Intermediate Holding Co. (In re Energy Future Holdings Corp.), 533 B.R. 106, 116 (Bankr. D. Del. 2015).

12.Computershare Tr. Co. v. Energy Future Intermediate Holding Co. (In re Energy Future Holdings Corp.), 539 B.R. 723, 733 (Bankr. D. Del. 2015).

13.Del. Trust Co. v. Energy Future Intermediate Holding Co. (In re Energy Future Holdings Corp.), No. CV 15-620 RGA, 2016 WL 627343, at *1–3 (D. Del. Feb. 16, 2016).

14.Computershare Trust Co. v. Energy Future Intermediate Holding Co. (In re Energy Future Holdings Corp.), No. CV 15-1011-RGA, 2016 WL 1451045, at *4 (D. Del. Apr. 12, 2016).

15.In re Energy Future Holdings Corp., No. 16-1351, 2016 WL 6803710 (3d Cir. Nov. 17, 2016).

16.NML Capital v. Republic of Argentina, 952 N.E.2d 482, 489–90 (N.Y. Ct. App. 2011).

17.US Bank, Nat'l Assoc. v. Wilmington Savings Fund Society, FSB, (In re MPM Silicones, L.L.C.), No. 15-1824 (2d Cir.).

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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