Finance and restructuring partner Laura Appleby and associate Paige Naig coauthored an article for New York Law Journal titled “Another Look at Make-Whole Provisions in Bankruptcy: Drafting Matters,” which discusses the application of “make-whole” or redemption premium provisions in bankruptcy proceedings and the importance of careful drafting and defined terms.
Appleby and Naig explain that the provision is intended to ensure that lenders receive the benefit of their bargain—interest and fees—in a lending transaction. The authors note that contractual language and jurisdiction matter, and they highlight situations that carry weight against the redemption premium provision. The authors also outline arguments on whether the premium is considered impermissible unmatured interest.
The full article is available for New York Law Journal subscribers.