A Lesson In Drafting Make-Whole Provisions

Law360, New York (April 11, 2013, 6:01 PM EDT) -- Often, corporate bond instruments contain no-call provisions, make-whole or yield-maintenance premiums. These contract terms are designed to protect the noteholders’ expectation of an uninterrupted stream of interest payments by either prohibiting early repayment or by requiring the borrower seeking to repay early to pay the bondholder a premium to compensate for the lost interest. While make-whole and other call protection provisions are generally considered to be enforceable outside of bankruptcy, their enforceability in bankruptcy is less clear.

Today’s historically low interest rates provide debtors with the...
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