In a Chapter 11 case, a debtor proposes to sell substantially all assets under Section 363. A stalking‑horse bidder has agreed to pay $500 million in cash, and the secured lender plans to credit bid its $450 million claim. How does a credit bid work, and what protections exist for other bidders and creditors? What are the risks for unsecured creditors?
AdvancedModel answer
A credit bid allows a secured creditor to offset its allowed secured claim against the purchase price, effectively “paying” with the debt it is owed rather than cash. Under Section 363(k), the secured lender can credit bid up to the full amount of its claim unless the court orders otherwise “for cause.” In this scenario, the lender could bid $450 million of its claim and need to bring no new cash if it is the winning bidder. The stalking‑horse sets the floor, and the auction process invites higher offers. Unsecured creditors face the risk that the sale price is depressed because the secured lender credit bids to acquire the assets cheaply, leaving nothing for the estate beyond the secured claim. To mitigate this, the court may limit credit bidding if there is evidence of collusion, or if the secured lender’s claim is disputed. Unsecureds can also argue that the sale price is not the highest and best, or that the asset is being sold for less than it would realize in a reorganization, violating the “best interests” test for a subsequent plan. The sale must be on an arm’s‑length basis, with adequate marketing and notice.
Follow-up pressure:
- What is the “highest and best” standard, and how does it differ from “fair and reasonable”?
- Why might a debtor choose a 363 sale over a plan of reorganization, and what are the tax implications of a going‑concern sale?
- If the secured lender’s credit bid is challenged, what does the creditor need to prove to exercise it, and what role does a “loan‑to‑own” strategy play here?
This is an advanced Superday-level question with a full model answer, part of IB Atlas's practice bank.
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