Most disputes over the applicability of a comprehensive provision deal with the following arguments: (i) the contractual language of the credit contract concerned provides for the payment of the make-all; and, if so, (ii) has a bankruptcy application or other default, accelerates the debt, making it already due and payable, which negates the obligation to pay a payment. [3] Other minor arguments that can be advanced are: (i) if the Make-Whole constitutes an unenforceable sanction under applicable state law, (ii) the Make-Whole entitles to unfeasible interests. 502 B) (2) of the bankruptcy code, iii) if Make-Whole is a secured or unsecured claim, and (iv) if the total amount is inadequate. If an acceleration has occurred and its impact on make-whole is at the center of debates both Energy Future Holdings and MPM Silicones. With respect to Energy Future Holdings` front-line notes, the agent asserted that the applicable withdrawal did not contain a misappropriation of the make-all payment in the event of an acceleration. In addition, the agent argues that any acceleration can be reversed by the owners. In his complaint, the agent of Energy Future Holdings asserted that: (i) the debt was not accelerated and (ii) if these debts were accelerated, the underlying credit contracts provide for the payment of all equity, interest and “premiums and potential” despite the acceleration. In the action of MPM Silicones` debtors, it is argued that no optional repayment can be made, as the bankruptcy application immediately accelerated the obligations, accelerated the maturity date and immediately returned the outstanding amounts due and payable. The agent of MPM Silicones has argued a counter-action requesting payment of the make-all, which argues that the payment is necessary despite the acceleration after the withdrawal.
In any event, the question of whether such amounts are due and due in these three cases depends in any event on the judge`s interpretation of the applicable contractual language, including acceleration and, if so, whether the applicable recoveries provide for the payment of the wholes despite this acceleration. [9] Such a language of contract determines, among other things, the applicable interest rate, whether late interest is due and the fees and expenses payable by the debtors. There are a number of other arguments that debtors can use to deny a full provision. These include the assertion that such payments are for “immature interest,” which is not authorized by U.S. bankruptcy law, or that the total amount was a penalty or clearly disproportionate to the loss of the complainants. These arguments are of limited value, given that whole property damage has generally been considered effective, since the provisions of claims law are considered to be effectively replaceable. [10] Similarly, the courts have generally rejected arguments that the payment under section 506, item b), the bankruptcy code was not appropriate, which only allows a secured creditor to recover “reasonable” costs, fees and fees in addition to the amount of his secured claim. In fact, the total premium in primary education represented 37% of the loan principle. [11] In this case, the Tribunal found that, to the extent that the overall provision is a valid liquidation clause, there is no need for a “adequacy review” under Article 506, but that even if the total premium were to be validated “appropriately,” the Tribunal would have authorized it.