Inc.), No. 13-10461, 2014 WL 291920,
at 1 (5th Cir. Jan. 27, 2014).
6 See id. At 1.
7 See id.
8 See id.
9 See id.
10 See id.
11 379 B.R. 473 (Bankr. S.D.N. Y. 2007).
12 Id. at 480.
13 Id. at 478.
14 Id. (quoting indenture).
15 Id. at 482.
16 Id. at 487-88.
17 Id. at 483.
18 Id. at 488.
19 Id. at 484 n. 7.
20 See, e.g., In re Calpine, 365 B.R. 392, 397 (Bankr.
S.D.N. Y. 2007) (“It would violate the purpose
behind the Bankruptcy Code to deny a debtor
the ability to reorganize because a creditor has
contractually forbidden it.” (citation omitted)).
21 In re Calpine, 365 B.R. at 398-99, aff’d, In re
Calpine Corp., 2010 WL 3835200, at 1 (noting
that “Absent a provision in the underlying
agreement authorizing the payment of fees,
costs or charges, the secured party is prohibited
from incorporating such amounts into its
allowed secured claim.”) (citations omitted).
22 Premier Entm’t Biloxi, LLC v. U.S. Bank Nat’l
Ass’n (In re Premier Entm’t Biloxi, LLC), 445 B.R.
582, 629-32, 634-36 (Bankr. S. D. Miss. 2010).
See also Calpine, 365 B.R. at 398-99 (although
the agreements did not contain a provision
providing for a make-whole payment if the
Camisha L. Simmons is an associate in the
Dallas office of Fulbright & Jaworski LLP
(Norton Rose Fulbright), where she represents
debtors, creditors, and other stakeholders in
complex bankruptcy and restructuring matters,
both in and out of court. She can be reached at
This article represents the views of the author and
such views should not necessarily be imputed to
Norton Rose Fulbright, Fulbright & Jaworski LLP,
or their respective affiliates and clients.
debt was prepaid in violation of the no-call
provision, the court awarded the noteholders
an unsecured claim for “expectation damages”
for breach of the no-call provision).
23 HSBC Bank USA, N.A. v. Calpine Corp. (In re
Calpine Corp.), No. 07 Civ 3088 (GBD), 2010
WL 3835200, at 5 (S. D. N. Y. Sept. 15, 2010).
24 See, e.g., Sch. Specialty, Inc., No. 13-10125,
2013 WL 1838513, at 2 (Bankr. D. Del. Apr., 22,
2013) (“The inquiry into whether a prepayment
provision will be enforced in bankruptcy
begins with whether the prepayment provision
is enforceable under applicable state law.”).
It should be noted that certain debts are
governed by federal or other non-state law,
and under the same principle, courts will
look to that law to determine the bankruptcy
enforceability of the claim. In this context, this
article’s references to “state law” encompass
these other non-bankruptcy law situations.
25 See, e.g., In re Trico Marine Servs., Inc., 450
B.R. 474, 480 (Bankr. D. Del. 2011) (noting
that “the substantial majority of courts
considering the issue have concluded that
make-whole or prepayment obligations are
in the nature of liquidated damages rather
than unmatured interest.”). Unmatured
interest is not allowable as a claim under
U.S. bankruptcy law. 11 U.S.C. §502(b)( 2).
26 See Sch. Specialty, 2013 WL 1838513, at 5
(citing In re South Side House, LLC, 451
B.R. 248, 270 (Bankr. E.D.N. Y. 2011)).
27 461 B.R. 308, 321 (Bankr. E.D.Pa. 2011), rev’d on
other grounds, 473 B.R. 603 (E.D. Pa. 2012).