United States: Chipping Away At The Till Formula: Second Circuit Momentive Decision Confirms Denial Of Make Whole But Raises Interest Rate Calculation In The Chapter 11 Context

The Second Circuit's recent Momentive decision, In re MPM Silicones, LLC, Case Nos. 15-1771, 15-1682 & 15-1824 (2d Cir. Oct. 20, 2017), contained some good news and bad news for bondholder creditors – a market-based approach to setting interest rates in a cram-down scenario while affirming the denial of make-whole payments to bondholders whose claims are being satisfied in full under a plan. The result is a partial reversal of one aspect of the substantially consummated Chapter 11 Plan detailed in In re: MPM Silicones, LLC, et al. 2014 WL 4436335 (Bankr. S.D.N.Y. Sept. 9, 2014).

Holders of secured Senior-Lien Notes issued by debtor Momentive Performance Materials, Inc. ("Momentive"), objected to the Plan as it precluded recovery of a "make-whole" premium Momentive was to have paid had it opted to redeem the notes prior to original, October 15, 2020, maturity date. By debtors' calculations, this premium would have been nearly $200 million. Objecting secured creditors were issued replacement notes (i.e. the "deferred cash payments" allowed under the Bankruptcy Code) which were to amount to the full present value of the secured creditors' claims by carrying an appropriate rate of interest. Relying on the formula set forth in Till v. SCS Credit Corp., 541 U.S. 465 (2004) which instructs the bankruptcy court to begin with a largely risk-free rate (i.e. the national prime rate) and make plan-specific risk adjustments upwards based on evidence presented by the parties, the Bankruptcy Court set the interest rate at indisputably below-market rates.

The Plan was confirmed over the objections of the Senior noteholders and they appealed to the Second Circuit arguing that the Plan was not "fair and equitable" as required by Section 1129(b) of the Bankruptcy Code because Momentive would have to pay a much higher rate to a contemporaneous, sophisticated, arms-length lender in the open market. Effectively, the Plan would require the Senior-Lien Noteholders to lend to debtors at a rate much lower than any other lender would have received for offering the same loan on the open market. Noting that the appeal was not "equitably moot" because the senior secured creditors took steps to seek a stay pending appeal, the Second Circuit agreed with the senior secured creditors as to the proper standard to determine the cramdown interest rate.

Distinguishing the readily available market of willing cramdown lenders in the Chapter 11 context to the non-existent market in the Chapter 13 context, the Second Circuit concluded that efficient market rates for cramdown loans cannot be ignored in Chapter 11 cases. The Second Circuit adopted the Sixth Circuit Court of Appeals' two-part process for selecting an interest rate in Chapter 11 cramdowns established inIn re American Homepatient, Inc., 420 F. 3d 559, 568 (6 th Cir. 2005), which first looks to the market rate where there exists an efficient market (i.e. where a loan with a term, size, and collateral comparable to the forced loan contemplated under the cramdown plan exists in the open market), and only looks to the formula approach endorsed by the Till plurality where no efficient market exists. In reversing and remanding the decision to the Bankruptcy Court, the Second Circuit leaves open complex issues including how to determine the existence of an "efficient market" and the boundaries of such a market. Nonetheless, this step away from Till marks a victory for lenders and bondholders in both the Chapter 11 and workout negotiation context as debtors lose their ability to threaten to impose new loans on creditors with below-market rates by filing for bankruptcy protection. Thus, going forward, creditors should prepare with care evidence in support of the existence of, and the terms being offered by, the efficient market when facing a potential Chapter 11 cramdown.

Additionally, the Second Circuit continued to adhere to its decision in In re AMR Corp., 730 F.3d 88 (2d Cir. 2013) and affirmed the decision that Senior-Lien Notes holders are not entitled to the "make-whole" premium because the debtors bankruptcy filing irreversibly accelerated the maturity date to the petition date, thus preventing the ability to trigger the rights to the premium. The subsequent payments could not be voluntary prepayments because prepayment can only occur before the maturity date. This conclusion puts the Second and Third Circuits in opposite camps with regard to the entitlement of make-whole payments after the commencement of a bankruptcy case. See In re Energy Futures Holdings Corp., 842 F.3d 247 (3d Cir. 2016).

Finally, the Second Circuit affirmed the lower court decision and found that secured Second-Lien Notes stand in priority to unsecured Subordinated Notes notwithstanding ambiguity of contract language that left the issue open due to the clear intention of parties to subordinate the Subordinated Notes to the Second-Lien Notes. The fact that the Court found ambiguity when it appeared to be clear that subordinated debt holders should rank behind secured debt holders may give some lenders concern that the clearly stated priority of debt may still lead to interpretation by a Court. Lenders and investors should be careful that there is no ambiguity in debt priority or conflicting provisions in documents that could lead to a court opening the door to determine if in fact one debt holder should rank ahead of another.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Harris Winsberg
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions